Loading...
HomeMy WebLinkAboutRES NO 185-86RESOLUTION NO. 185-86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAKERSFIELD, CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF A SUPPLEMENTAL INDENTURE AND A SUPPLEMENTAL LOAN AGREEMENT WITH RESPECT TO THE CITY OF BAKERSFIELD, CALIFORNIA $4,900,000 ECONOMIC DEVELOPMENT REVENUE BONDS (CALIFORNIAN CONVALESCENT HOSPITAL PROJECT), SERIES 1985 AND AUTHO- RIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY FOR THE CONSUMMATION OF THE TRANS- ACTIONS CONTEMPLATED BY THIS RESOLUTION. WHEREAS, the City of Bakersfield, California, (the "Issuer") is authorized by the Constitution and laws of the State of California and under Chapter 3.5 of Title 3 of the Bakersfield Municipal Code (the "Act"), to issue its revenue bonds for the purposes of providing funds to make secured or unsecured loans to finance or refinance the cost of acquiring, constructing, improving and/or equipping one or more "facili- ties", as defined in the Act, including the acquisition, con- struction and equipping of a nursing home facility; and WHEREAS, the Issuer has issued its $4,900,000 Economic Development Revenue Bonds (Californian Convalescent Hospital Project), Series 1985 (the "Bonds") under and pursuant to the terms of that certain Indenture, dated as of December 15, 1985 between the Issuer and California First Bank, as Trustee (the "Trustee"); and WHEREAS, Pencode III, a California limited partner- ship (the "Borrower") has entered into a Loan Agreement, dated as of December 15, 1985 (the "Agreement") with the Issuer for the purpose of financing a portion of the costs of acquisition, construction and equipping of the Project (as defined in the Agreement) from the proceeds of the Bonds; and WHEREAS, the Borrower has requested to transfer all of its right, title ~d.~n~erest in and to the Project to The Gene E. Lynn Bakersfield/ ~ership, a Washington limited ~- hership which is a~thorized to do business in the State of California (the "Partnership"), and to amend the Agreement and the Indenture, respectively, by' virtue of a Supplemental Loan Agreement, dated as of November 15__, 1986 (the "Supplemental Agreement") between the Partnership and the Issuer and a Supplemental Indenture of Trust, dated as of November. 15, 1986 (the "Supplemental Indenture"), between the Issuer 'and the Trustee, all for the purpose of effecting the change in ownership of the Project as aforesaid. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BAKERSFIELD, CALIFORNIA T~IAT: Section 1. Upon consideration of the reauest of the Borrower to sell and transfer the Project toTh~i~dE- LY~r~akersfield nership, a Washington limited partnership and in compliance with the requirements of Article 5 of the Agreement, specific- ally Section 5.01 thereof, the sale and transfer of the Project from the Borrower to the Partnership is hereby approved subject to compliance with the provisions of Section 3 of this Resolution. Section 2. The form, terms and provisions of the Supplemental Agreement attached hereto as Exhibit A and the Supplemental Indenture attached hereto as Exhibit B, presented at this meeting, are hereby approved, with such insertions, omissions and changes as shall be approved by the Mayor, and the execution of such documents being conclusive evidence of such approval; and, the Mayor is hereby authorized and directed to execute the Supplemental Agreement and the Supplemental Indenture and such other documents in connection therewith and any related exhibits attached thereto for the purposes contem- plated by this Resolution. Section 3. The City Clerk is authorized to deliver the Supplemental Agreement and the Supplemental Indenture and all other documents in connection therewith hereby authorized upon receipt by Counsel to the Issuer, in form satisfactory to such Counsel, of the following documents: (a) Written agreement by the Partnership to assume the Borrower's responsibilities and obligations under the Agreement upon the terms and conditions set forth on Exhibit A attached hereto. (b) An Opinion of Counsel (as such term as defined in the Indenture) to the effect that the Partnership has agreed to assume the Borrower's responsibilities and obligations in the manner set forth in the Agreement and that all requirements of Section 5.1 of the Agreement have been.met with respect to such transfer. (c) A written opinion of Bond Counsel to the effect that the transfer herewith authorized will not subject the interest income on the Bonds, when held by the holders other than "substantial users" or "related persons" as such terms are defined in the Internal Revenue Code of 1986, as amended and the regulations thereunder, to federal income taxes. (d) A certificate from Seattle-First National Bank (the "Bank"), to the effect that the Partnership as buyer of the Project, is acceptable to the Bank for the purposes and in satisfaction of the requirements set forth in Section 5.01 of the Agreement. (e) A certificate from the Trustee evi- dencing its consent to the Supplemental Agreement and the Supplemental Indenture. Section 4. This resolution shall be deemed to be evidence of the Issuer's consent to the transfer of the Project as recited above and in accordance with the requirements of Section 5.01 of the Agreement, upon completion of the condi- tions set forth in Section 3 of this Resolution. Section 5. All other provisions of the Agreement and the Indenture not inconsistent with the provisions of the Supplemental Agreement and the Supplemental Indenture, respec- tively, are herewith ratified and confirmed. .......... o0o .......... 14060-10/25414MGE/112086 I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on December 3, 1986 , by the follow- ing roll eall vote: R~ CHI DS.C . .. [E. .N,S.~,iTH. R\TT-F. H'.- : ~,~, .... ..,.,I ......g.., ?~,L'/Aq910 Council of the City of Bakersfield APPROVED December 3, 1986 MAYOR of the City of Ba,l(ersfield firITY ~/~I'ORNEY of the City of Bakersfield 4ressig SUPPLEMENTAL LOAN AGREEMENT BETWEEN The Gene E. Lynn Bakersfield Limited Partnership and THE CITY OF BAKERSFIELD, CALIFORNIA Dated as of November 15, 1986 $4,900,000 ECONOMIC DEVELOPMENT REVENUE BONDS (CALIFORNIAN CONVALESCENT HOSPITAL PROJECT) Series 1985 Exhibit A SUPPLEMENTAL LOAN AGREEMENT THIS SUPPLEMENTAL LOAN AGREEMENT, dated as of ~h~ Ge~e ~. ~ynn~ Partnership, a November 15, 1986, between K~r~r~q Washington-- limited partnership (the "Partnership"), in its capacity as successor in interest to Pencode III, a California limited partnership, under the terms of the Loan Agreement hereinafter referred to, and the City of Bakersfield, California, a municipal corporation and chartered city of the State of California (the "Issuer"). W I TN E S SETH: WHEREAS, pursuant to and in accordance with the pro- visions of the Constitution and the Laws of the State of California and under Chapter 3.5 of Title 3 of the Bakersfield Municipal Code (the "Code"), by written resolution of the City Council of the Issuer and in furtherance of the purposes of the Act, the Issuer previously issued its $4,900,000 City of Bakersfield, California Economic Development Revenue Bonds (Californian Convalescent Hospital Project), Series 1985 for the purposes set forth in that certain Indenture, dated as of December 15, 1985 (the "Indenture") by and between the Issuer and California First Bank, as Trustee (the "Trustee"); and WHEREAS, the Issuer and the Partnership are desirous of amending certain of the terms as set forth in the original Loan Agreement dated as of December 15, 1985 ("Agreement") between Pencode III, a California limited partnership (the "Original Borrower") and the Issuer. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS HEREINAFTER CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions. For the purposes hereof, unless the context otherwis~ requires, all words and phrases defined in the Indenture, when used herein shall have the meanings given to them in the Indenture. In addition, all other words and phrases not otherwise defined herein or in. the Indenture, shall, when used herein, have the meanings given to them in that certain Supplemental Indenture dated as of November 1--5, 1986, by and between the Issuer and the Trustee. EXHIBIT A ARTICLE TWO REPRESENTATIONS Section The Partnership warranties as the contained: 2.01. Representations by the Partnership. makes the following representations and basis for its covenants and agreements herein (a) It is a Washington partnership duly organized pursuant to the laws of the State of Washington and is authorized to transact its business in the State of California for the purposes contained in the Agreement and this Supplemental Agreement; has the power to enter into this Supplemental Agreement; and, to assume the Original Borrower's liabilities and obligations under the Agreement, the Deed of Trust, the Remarketing Agreement, the Bond Purchase Agree- ment and the Reimbursement Agreement, as amended, and to perform and observe its obligations contained herein and therein, and has, by all proper action, been duly authorized to execute, deliver and perform this Supplemental Agreement. (b) It is not subject to any provision of its Part- nership Agreement or to any contractual limitation or provision of any nature whatsoever, which in any way limits, restricts or prevents it from entering into this Supplemental Agreement, or assuming the liabili- ties and obligations of the Original Borrower under the Agreement, the Deed of Trust, the Remarketing Agreement, the Bond Purchase Agreement or the Reim- bursement Agreement, as amended, or performing any of its obligations hereunder or thereunder. (c) Neither the execution and delivery of this Supplement Agreement, nor the assumption of the Original Borrower's liabilities and obligations under the Agreement, the Deed of Trust, the Remarketing Agreement, the Bond Purchase Agreement or the Reim- bursement Agreement, as amended, and the consummation of the transactions contemplated hereby or thereby, nor the fulfillmeQt of or compliance with the terms and conditions hereof or thereof, conflicts with or results in any breach of the terms, conditions, or provisions .of its Partnership Agreement or · any restrictions or any agreement or instrument to which it is a party or by which it may be bound, or consti- tutes a default under any of the foregoing. 14060-10/25414MGE/112086 (d) There is no action, suit or proceeding pending or, to the knowledge of the Partnership, threatened against it or affecting any of its properties or assets before any court or arbitrator or any govern- mental body, agency or official which, if adversely determined, could material adversely affect the busi- ness of the Partnership, or which in any manner ques- tions the validity of this Supplemental Agreement, or the ability of the Partnership to assume the lia- bilities and obligations of the Original Borrower under the Agreement, the Deed of Trust, the Remar- keting Agreement, the Bond Purchase Agreement, the Reimbursement Agreement, as amended, the Indenture, as amended, the Series 1985 Bonds or the Letter of Credit. (e) Neither the Partnership nor any "related person" (as defined in Section 1.03(a)(4)(A) of the Code) is, or will be, a party to any arrangement, formal or in- formal, pursuant to which it has or will purchase any of the Series 1985 Bonds. (f) The Partnership intends to, and will utilize or cause the Project to be utilized, to the expiration or early termination of this Agreement, as provided therein, as a "Project" within the meaning of the Act and will not intentionally take any action or fail to take any action the effect of which would be to cause interest in respect of the Series 1985 Bonds to become subject to federal income taxation. (g) The Partnership is required to file its federal income tax returns with the Internal Revenue Service Center located at O~den , Utah (h) Neither any information, exhibit or report furnished to the Issuer by the Partnership in connection with the negotiation of permission from the Issuer to acquire the Project and more specific- ally this Supplemental Agreement nor any of the fore- going representations contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All representations of the Partnership con- tained herein and in any certificate or other instru- ment delivered by the Partnership pursuant hereto or to the Supplemental Indenture shall survive the execution and delivery hereof and thereof. 14060-10/25414MGE/112086 3 ARTICLE THREE OBLIGATIONS OF THE PARTNERSHIP Section 3.01. The Partnership agrees to be bound by all terms and conditions set forth in the Agreement. Section 3.02. In compliance with the requirements of Section 5.01 of the Agreement, the Partnership hereby agrees to assume all liabilities and obligations of the Original Borrower under the Agreement, the Reimbursement Agreement, the Deed of Trust, the Remarketing Agreement and the Bond Purchase Agreement, as amended, and to perform and observe the obligations, covenants and conditions contained therein; and the Partnership will cause any additional persons satisfactory to the Bank to assume all liabilities and obligations of the Original Borrower under the Reimbursement Agreement, as amended, to perform and observe the obligations, covenants and conditions contained therein. Section 3.03. By its execution hereof, the Issuer consents to the release of the Original Borrower from its obligations to make payments under the Agreement, as would have otherwise been required pursuant to the provisions of Section $.01 thereof. ARTICLE FOUR MISCELLANEOUS Section 4.01. Notices. All notices, consents or other communications to the~owing Persons required or permitted hereunder shall be deemed sufficiently given or served if given in wrizing, mailed by certified mail, postage prepaid, return receipt requested, addressed as follows (or to such other Persons or to such other addresses as the following Persons by notice may specify): To Issuer: City of Bakersfield California 1501 Truxton Avenue Bakersfield, California Attention: City Manager 93301 To Partnership: The Gone E. Lynn Bakersfield Limited Partnership c/o Careage P.O. Box 580 Bellevue, Washington 98009 ab/2008M 4 To Trustee: California First Bank Corporate Trust Administration 8155 Mercury Court P.O. Box 2529 San Diego, California 92112 To Bank: Seattle-First National Bank Letter of Credit Department P.O. Box 3977 Seattle, Washington 98124 Section 4.02. Ratification. All other terms, condi- tions and provisions of the Agreement not inconsistent with those herein set forth are hereby ratified and confirmed by the parties hereto. IN WITNESS WHEREOF, Partnership has caused these presents to be signed in its name and on its behalf and attested by its duly authorized officers, and Issuer has caused these presents to be signed in its name and on its behalf and attested by its duly authorized officers, all as of the day and year first above written. The Gene E. Bakersfield A Washington partnership Lynn Partnership limited By THE CITY OF BAKERSFIELD, CALIFORNIA ATTEST: By Mayor By City Clerk 14060-10/25414MGE/112086 i4060-10/25414MGE/112086 SUPPLEMENTAL INDENTURE CITY OF BAKERSFIELD, CALIFORNIA (Issuer) and CALIFORNIA FIRST BANK (Trustee) (Dated as of November 1_~_5, 1986) $4,900,000 ECONOMIC DEVELOPMENT REVENUE BONDS (CALIFORNIAN CONVALESCENT HOSPITAL PROJECT) Series 1985 EXHIBIT B THIS SUPPLEMENTAL INDENTURE, made and entered into as of November 15 , 1986, by and between the CITY OF BAKERSFIELD, CALIFORNIA, a municipal corporation and chartered city of the State of California (the "Issuer"), and CALIFORNIA FIRST BANK, a banking institution chartered by the State of California and being duly qualified to accept and administer the trusts created hereby (the "Trustee"), WI TNE S SETH: WHEREAS, pursuant to and in accordance with the pro- visions of the Constitution and the laws of the State of California and under Chapter 3.5 of Title 3 of the Bakersfield Municipal Code (the "Act"), by written resolution of the City Council of the Issuer and in furtherance of the purposes of the Act, the Issuer previously issued its $4,900,000 City of Bakersfield, California Economic Development Revenue Bonds (Californian Convalescent Hospital Project), Series 1985 (the "Bonds") for the purposes set forth in that certain Indenture, dated as of December 15, 1985 (the "Indenture") by and between the Issuer and Trustee; and The Gene E. Lynn Bakersfield WHEREAS, the Issuer and/Limited Part- nership, a Washington limited partnership are desirous of amending certain terms and conditions as set forth in the original Loan Agreement, dated as of December 15, 1985 (the "Agreement") by and between Pencode III, a California Limited Partnership (the "Original Borrower") and the Issuer; NOW, THEREFORE, for and in consideration of these premises and the mutual covenants hereinafter Contained, the parties hereto agree as follows: ARTICLE ONE DEFINITIONS Section 1.01. Definitions. For the purposes hereof, unless the context otherwise requires, all words and phrases not otherwise defined herein and defined in the Indenture shall have the same meanings herein as those given to them in the Indenture. The following words and phrases shall have the following meanings: "Original Borrower" shall mean Pencode California Limited Partnership. The Gene E. Lynn "Partnership" shall mean / Limited nership, a Washington limited partnership. iII, a Bakersfield Part- "Reimbursement Credit Agreement dated as of December 15, Agreement" shall mean that certain between the Partnership and the Bank, 1985, as amended and supplemented. "Supplemental Indenture" shall mean this Supple- mental Indenture. "Supplemental Loan Agreement" shall mean the Supple- mental Loan Agreement dated as of November 15 · 1986 by and between the Partnership and the Issuer. ARTICLE TWO Section 2.01. The parties hereto consent to the exe- cution of the Supplemental Loan Agreement in the form attached hereto as Exhibit A, and acknowledge compliance with the requirements of Article IX of the Indenture, as evidenced by the Issuer's resolution (the "Resolution") attached hereto as Exhibit B and the Trustee's Certificate attached hereto as Exhibit C. ARTICLE THREE Section 3.01. All other terms and Indenture not inconsistent with those set hereby ratified and affirmed. conditions of the forth herein are IN WITNESS WHEREOF, Issuer has caused these presents to be signed in its name and on its behalf and attested by its duly authorized officers and, to evidence its acceptance of the amendments to the Indenture created by this Supplemental Indenture, Trustee has caused these presents to be signed in its name and on its behalf by its duly authorized officer, all as of the day and year first above written. CITY OF BAKERSFIELD, CALIFORNIA ATTEST: By City Clerk By Mayor CALIFORNIA FIRST BANK, as Trustee By Trust Officer 2 Tab No. t 5 6 7 INDEX TO CLOSING DOCUMENTS CITY OF BAKERSFIELD, CALIFORNIA TRANSFER OF ASSETS $4,900,000 CITY OF BAKERSFIELD, CALIFORNIA ECONOMIC DEVELOPMENT REVENUE BONDS (CALIFORNIAN CONVALESCBNT HOSPITAL PROJECT) SERIES 1985) Item NO. BASIC INSTRUMENTS 1.1 Executed counterpart of Supplemental Indenture dated as of November 15, 1986 (the "Supplemental Indenture"), between the City of Bakersfield, California (the "Issuer") and California First Bank, as Trustee {the "Trustee"). 1.2 Executed counterpart of the Supplemental Loan Agreement dated as of November 15, 1986 (the "Supplemental Agreement") by and between the Issuer and the Gene E. Lynn Bakersfield Partnership, a Washington Limited Partnership (the "Partnership"). 1.3 Resolution of the City Council of Bakersfield, California dated , 1986. ITEMS FURNISHED BY THE PARTNERSHIP 2.1 Certified and approval of the partnership with respect to various matters required by the Loan Agreement dated as of December 15, 1985 between the Issuer and the Pencode III, California Limited Partnership. 2.2 2.3 Title Insurance Endorsement. Opinion of Partnership Counsel. ITEMS FURNISHED BY THE TRUSTEE 3.1 Certificate as to matters required by the Indenture dated as of December 1S, 1985 by and between the Issuer and the Trustee. Tab Item No. No. 8 9 3.2 4.1 Opinion of Bond Counsel. ITEMS FURNISHED Certificate of transfer under Agreement. BY THE BANK Bank evidencing Section S.01 acceptance of of the Lean ab/2007M CONSENT TO SALE SEATTLE-FIRST NATIONAL BANK, a national banking asso- ciation, ("Seattle-First"), hereby executes this Consent to Sale on this __ day of , 1986. RECITALS A. The City of Bakersfield, California and Pencode III, a California limited partnership ('~Pencode") entered into a Loan Agreement, dated as of December 15, 1985 (the "Loan Agreement"), the proceeds of which were used to finance the acquisition, construction and equipping of a nursing home facility (the "Project") in the City of Bakersfield, California. B. Section 5.01 of the Loan Agreement requires, as one of the preconditions to Pencode's sale of all or substan- tially all of the assets financed under the Loan Agreement, Seattle-First's acceptance of the buyer of such assets. Ce and transfer Washington Seattle-First has aoreed that Pencode may sell h Gee the Project to ~a~ers~e~ ~ted Partnership, a limited partnership, (the "Partnership"). D. On , 1986, the Mayor and the City Council of Bakersfield, California passed a resolution approving the sale as well as the terms of certain documents associated with the sale. The resolution contains several pre- conditions to the delivery of the sale documents, signed by the City. One of those preconditions is a certificate from Seattle-First to the effect that the Partnership is acceptable to Seattle-First as a buyer of the Project. NOW, THEREFORE, in light of the foregoing and in order to facilitate the contemplated sale of the Project, Seattle-First hereby approves of the Partnership as purchaser of the Project. IN WITNESS W~EREOF, Seattle-First has executed and delivered this Consent to Sale as of the date first above mentioned. SEATTLE-FIRST NATIONAL BANK By Its 2 14060-10/25414MGE/112086 CERTIFICATE OF CALIFORNIA FIRST BANK The undersigned, on behalf of CALIFORNIA FIRST BANK, a state banking corporation organized and existing under the laws of the State of California (the "Trustee"), does hereby certify that: 1. The undersigned is the Trustee under that certain Indenture, dated as of December 15, 1985 by and between the City of Bakersfield, California and California First Bank. 2. The Supplemental Indenture, dated as of November 15 , 1986 has been duly executed, acknowledged and delivered by a duly authorized officer of the Trustee and the Issuer, who was at the time of affixing his signature, and still is, a duly authorized officer of the Trustee. 3. A Trustee's Certificate acknowledging the con- sent of the Trustee to the transfer of the Project (as such term is defined in the Indenture) has been duly executed, acknowledged and delivered by a duly authorized officer of the Trustee, having first obtained the requisite bondholder approval, who was at the time of affixing his signature, and still is, a duly authorized officer of the Trustee. 4. The following-named officer is duly elected to the office set forth opposite his name, is duly authorized to act on behalf of the Trustee, and the following signature is a true and accurate signature of said officer. Name Title Signature 5. Attached hereto is a certified copy of the Reso- lution and Declaration of Signing Authority of California First Bank, which is in full force and effect on the date hereof, giving requisite authority to said officer to perform the actions specified in paragraphs 2 and 3 above. IN WITNESS WHEREOF, the undersigned on behalf of CALIFORNIA FIRST BANK has caused this Certificate to be exe- cuted by its Vice President therein duly authorized this day of December. 1986. CALIFORNIA FIRST BANK By Vice President 2 14060-10/25414MGE/112086 CERTIFICATE OF CALIFORNIA FIRST BANK The undersigned, on behalf of CALIFORNIA FIRST BANK, a state banking corporation organized and existing under the laws of the State of California (the "Trustee"), does hereby certify that: 1. The undersigned is the Trustee under that certain Indenture, dated as of December 15, 1985 by and between the City of Bakersfield, California and California First Bank. 2. The Supplemental Indenture, dated as of November 15, 1986 has been duly executed, acknowledged and delivered by a duly authorized officer of the Trustee and the Issuer, who was at the time of affixing his signature, and still is, a duly authorized officer of the Trustee. 3. A Trustee's Certificate acknowledging the con- sent of the Trustee to the transfer of the Project (as such term is defined in the Indenture) has been duly executed, acknowledged and delivered by a duly authorized officer of the Trustee, having first obtained the requisite bondholder approval, who was at the time of affixing his signature, and still is, a duly authorized officer of the Trustee. 4. The following-named officer is duly elected to the office set forth opposite his name, is duly authorized to act on behalf of the Trustee, and the following signature is a true and accurate signature of said officer. Name Title Signature 5. Attached hereto is a certified copy of the Reso- lution and Declaration of Signing Authority of California First Bank, which is in full force and effect on the date hereof, giving requisite authority to said officer to perform the actions specified in paragraphs 2 and 3 above. IN WITNESS WHEREOF, the undersigned on CALIFORNIA FIRST BANK has caused this Certificate cured by its Vice President therein duly authorized day of December. 1986. CALIFORNIA FIRST BANK behalf of to be exe- this By Vice President 2 14060-10/25414MGE/112086