HomeMy WebLinkAboutCC Resolution 9309 (Indenture of Trust Amendment)RESOLUTION No. 9309
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AUTHORIZING THE
AMENDMENT OF THE INDENTURE OF TRUST RELATING TO CITY OF
SAN RAFAEL, CALIFORNIA FLEXIBLE DEMAND INDUSTRIAL REVENUE
BONDS (PHOENIX AMERICAN INCORPORATED PROJECT), SERIES
1984.
WHEREAS, the City of San Rafael, California (the "City") and
Chemical Bank (the "Trustee"), entered into an Indenture of Trust
dated as of October 1, 1984 (the "Indenture"), providing for the
issuance of and securing the City's $5,000,000 Flexible Demand
Industrial Revenue Bonds (Phoenix American Incorporated Project),
Series 1984 (the "Bonds"); and
WHEREAS, it is desirable that the City enter into a supplemental
indenture in the respective form of, and for the reasons and
purposes set forth in, the respective form of First Supplemental
Indenture before this meeting;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
San Rafael, California, as follows:
1. The First Supplemental Indenture in the form before this
meeting is hereby approved, and the Mayor of the City or the City
Manager of the City is hereby authorized and directed to execute,
and the City Clerk of the City or any deputy thereof is hereby
authorized to attest to such signature, and such officers are
authorized and directed to deliver to the Trustee, for and in the
name and on behalf of the City, a supplemental indenture in
substantially such form, with such additions, changes and
corrections either of them may approve upon consultation with the
City Attorney and Bond Counsel to the City, such approval to be
conclusively evidenced by the execution of said supplemental
indenture with such additions, changes or corrections.
2. All actions heretofore taken by the officers and agents
of the City with respect to the amendment of the Indenture are
hereby approved, confirmed and ratified, and the proper officers of
the City are hereby authorized and directed, for and in the name
and on behalf of the City, to do any and all things and take any
and all actions and execute and deliver any and all certificates,
agreements and other documents, including but not limited to those
described in the Indenture which they, or any of them, may deem
necessary or advisable in order to consummate the amendment of the
Indenture in accordance with this resolution and any resolution
heretofore adopted by the City and in order to carry out the
transactions contemplated by the Indenture.
ORIGIN -A[
,��a
3. All further consents, approvals, notices, orders,
requests and other actions permitted or required by the Indenture
or any related documents, including without limitation any of the
foregoing which may be necessary or desirable in connection with
any default under or further amendment of such documents, any
transfer or other disposition of the project financed with the
proceeds of the Bonds, any substitution of credit enhancement for
the Bonds or any redemption of the Bonds, may be given, taken or
approved by any "Authorized Issuer Representative" (as defined in
the Indenture) without further authorization by this City Council,
and any Authorized Issuer Representative is hereby authorized and
directed to give any such consent, approval, notice, order or
request and to take any such action which such officer may deem
necessary or desirable to further the purposes of this resolution,
the Indenture and any related documents.
4. This resolution shall take effect immediately upon to
passage and adoption.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby
certify that the foregoing resolution was duly and regularly
introduced and adopted at a regular meeting of the Council of said
City on Tuesday, the 21st of February 1995, by the following vote,
to wit:
AYES: COUNCILMEMBERS: Heller, Phillips, Zappetini & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Cohen
JE1 NE M. LEONCiNI, City Clerk
FIRST SUPPLEMENTAL INDENTURE OF TRUST
Between
CITY OF SAN RAFAEL, CALIFORNIA
And
CHEMICAL BANK,
as Trustee
Dated February 21, 1995
Amending that certain
Indenture of Trust
between the Authority and the Trustee
dated as of October 1, 1984
Relating to
City of San Rafael, California
Flexible Demand Industrial Revenue Bonds
(Phoenix American Incorporated Project), Series 1984
SP2 40560.1 7931-26-MSIC9 py
THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST, made and
entered into on February 21, 1995 (this "First Supplemental
Indenture"), by and between the CITY OF SAN RAFAEL, CALIFORNIA, a
municipal corporation and charter city duly organized and
existing under a freeholders' charter and the Constitution of the
State of California (the "Issuer"), and CHEMICAL BANK, a national
banking association organized and existing under and by virtue of
the laws of the United States of America, as trustee (the
"Trustee"),
W I T N E S S E T H•
WHEREAS, pursuant to the Charter of the City of San
Rafael and the City of San Rafael Economic Development Revenue
Bond Law, the Issuer has previously issued its Flexible Demand
Industrial Revenue Bonds (Phoenix American Incorporated Project),
Series 1984 (the "Bonds"), and has heretofore made a loan of the
proceeds of the Bonds to Phoenix American Incorporated (the
"Company"), to further the Issuer's program of providing
financing for economic development purposes; and
WHEREAS, the Bonds were issued under an Indenture of
Trust, dated as of October 1, 1984 (the "Indenture"), by and
between the Issuer and the Trustee, and are, in part, secured by
a letter of credit (the "Current Letter of Credit") issued by The
Daiwa Bank, Limited, acting through its Chicago Branch (the
"Credit Bank"); and
WHEREAS, the Company desires to replace the Current
Letter of Credit with a letter of credit (the "Alternate Letter
of Credit") to be issued by Berliner Handels-Und Frankfurter
Bank, New York Branch; and
WHEREAS, as a result of the substitution of the Current
Letter of Credit with the Alternate Letter of Credit, the Bonds
must now be rated by Moody's Investors Service, Inc. ("Moody's");
and
WHEREAS, prior to rating the Bonds, Moody's is
requiring that certain amendments be made to the Indenture; and
WHEREAS, Section 1001(vii) of the Indenture provides
that the Indenture may be modified or amended without the consent
of any Bondholders in regards to matters which are not materially
adverse to Bondholders, provided that consent of the Credit Bank
is obtained; and
WHEREAS, the Trustee has determined that the amendments
set forth herein are not materially adverse to Bondholders; and
the Credit Bank has consented to this First Supplemental
Indenture; and
SF240560.1 7931 -26 -MSI -02/09/95
WHEREAS, capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the
Indenture:
NOW, THEREFORE, in consideration of the above premises
and of the mutual covenants hereinafter contained and for other
good and valuable consideration, the parties hereto agreed as
follows:
Section 1. Section 701 of the Indenture is hereby
amended in its entirety to read as follows:
"Section 701. PAYMENT OF PRINCIPAL OR REDEMPTION PRICE
OF AND INTEREST ON BONDS.
The Issuer shall promptly pay or cause to be paid
the principal or redemption price of, and the interest
on, every Bond issued hereunder according to the terms
thereof, but shall be required to make such payment or
cause such payment to be made only out of Revenues
(except to the extent paid out of moneys attributable
to proceeds derived from the sale of the Bonds or to
income from the temporary investment thereof). The
Issuer hereby appoints the Trustee to act as Paying
Agent for the Bonds and designates the principal
corporate trust office of the Trustee as the place of
payment for the Bonds, such appointment and designation
to remain in effect until notice of change is filed
with the Trustee. Notwithstanding anything to the
contrary in this Indenture, any trustee or paying agent
hereunder must at all times (a) be a corporation with a
rating at least equal to Baa 3 or P-3 (or the then -
current equivalent thereof) by Moody's if the Bonds are
then rated by Moody's, or (b) be approved by Moody's if
the Bonds are then rated by Moody's."
Section 2. Paragraph (i) of Section 901 of the
Indenture is hereby amended to read in its entirety as follows:
"(i) Before taking any action under this
Section or under Article VIII hereof (except with
respect to any action taken by the Trustee pursuant to
Sections 304 and 305 hereof, and the first paragraph of
Section 802 hereof) at the request or direction of the
Bondholders or the Bank or the Fixed Rate Credit Bank,
the Trustee may require that a satisfactory indemnity
bond be furnished by the Bondholders or that reasonable
indemnity be furnished by the Bank or the Fixed Rate
Credit Bank, as the case may be, for the reimbursement
of all expenses to which it may be put and to protect
it against all liability, except liability which is
adjudicated to have resulted from its negligence or
willful default in connection with any action so
taken."
3F240560.1 2 731-26-MS14WO9/95
Section 3. Section 903 of the Indenture is hereby
amended to read in its entirety as follows:
"Section 903. FEES, CHARGES AND EXPENSES OF TRUSTEE.
The Trustee shall be entitled to payment and/or
reimbursement from the Company for reasonable fees for
its Ordinary Services rendered hereunder and all
advances, Counsel fees and other Ordinary Expenses
reasonably and necessarily made or incurred by the
Trustee in connection with such Ordinary Services
hereunder, including, without limitation, any expenses
incurred by the Trustee for the collection of any
indebtedness under the Agreement or for the enforcement
of performance or observance of any obligation or
agreement on the part of the Company contained in the
Agreement. In the event that it should become
necessary that the Trustee perform Extraordinary
Services, it shall be entitled to reasonable extra
compensation therefor from the Company, and to
reimbursement from the Company for reasonable and
necessary Extraordinary Expenses in connection
therewith; provided, that if such Extraordinary
Services or Extraordinary Expenses are occasioned by
the neglect or misconduct of the Trustee, it shall not
be entitled to compensation or reimbursement therefor;
the foregoing notwithstanding, the Trustee shall be
entitled to receive from the Company all Extraordinary
Expenses consisting of expenses payable to the Trustee
under section 5.9 of the Agreement. The Trustee shall
be entitled to payment and reimbursement from the
Company for the reasonable fees and charges of the
Trustee as Bond Registrar for the Bonds. Upon the
occurrence of an event of default and during its
continuance, but only upon an event of default, the
Trustee shall have a first lien with right of payment
prior to payment on account of principal of, or
premium, if any, or interest on, any Bond upon all
moneys in its possession under any provisions hereof
for the foregoing advances, fees, costs and expenses
incurred; provided, however, that the Trustee shall not
have a first lien with right of payment prior to
payment on account of principal of, or premium, if any,
or interest on, any Bond with respect to (i) moneys
drawn under the Letter of Credit and the Fixed Rate
Letter of Credit; (ii) moneys which constitute
Available Moneys; (iii) moneys on deposit in the Bond
Purchase Fund; and (iv) moneys on deposit in the
Section 312 Fund."
SF2 40560.1 3 7931-26-W14W09/95
Section 4. Section 921 of the Indenture is hereby
amended to read in its entirety as follows:
"Section 921. NO PURCHASES OR SALES AFTER DEFAULT.
Anything in this Indenture to the contrary
notwithstanding, there shall be no sales of Bonds
pursuant to Section 918 hereof if the Trustee shall
have declared an event of default described in Section
801(a), (b), (d), (e) or (g) hereof to have occurred
and be continuing, and there shall be no purchases or
sales of Bonds pursuant to Section 918 hereof if the
Trustee shall have declared (1) an event of default
described in Section 801(a), (b), (d), (e) or (g)
hereof to have occurred and be continuing, and (2) the
principal of all Bonds then Outstanding and the
interest accrued thereon immediately due and payable
pursuant to Section 802 hereof."
Section 5. Paragraph (b) of Section 1201 of the
Indenture is hereby amended to read in its entirety as follows:
"(b) there shall have been deposited with the
Trustee moneys in an amount which shall be sufficient
to pay when due, as verified by an independent
certified public accountant acceptable to the Issuer,
the principal of, and premium, if any, and interest on,
said Bonds or portions thereof on or prior to the
redemption date or maturity date thereof, as the case
may be; provided, however, that (i) such moneys shall
constitute Available Moneys, and (ii) the Trustee shall
have received, prior to the maturity date or the date
on which notice of redemption date is sent out by the
Trustee, an opinion of bankruptcy counsel acceptable to
Moody's, if Moody's is then rating the Bonds, and/or
S&P, if S&P is then rating the Bonds, to the effect
that (1) such moneys do not constitute a loan to or
asset of the Company or the Issuer, and (2) such moneys
are not subject to recapture as a preferential payment
by any trustee under the United States Bankruptcy Code;
and"
Section 6. The following paragraph is hereby added to
the end of Section 1304 of the Indenture:
"In addition to all other notices required by this
Indenture, the Trustee shall provide (with a copy to
the Issuer) to Moody's Investors Service at 99 Church
Street, New York, New York 10007, Attention: Public
Finance Department, Structured Finance Group, if
Moody's then rates Bonds, and to Standard & Poor's
SF240560.1 4 7931-26-MS14WO9195
Corporation, 25 Broadway, New York, New York 10007, if
Standard & Poor's then rates the Bonds, notice of the
following events: (1) any change in the Trustee or the
Paying Agent, (2) provision of an Alternate Letter of
Credit or Fixed Rate Letter of Credit, (3) any
amendment to this Indenture, the Loan Agreement, the
Letter of Credit or the Fixed Rate Letter of Credit of
which the Trustee has actual knowledge, (4) any
redemption of Bonds, (5) any extension, termination or
expiration of the Letter of Credit or the Fixed Rate
Letter of Credit, (6) any change in the mode of
determining the interest rate on the Bonds, (7) any
change in the Remarketing Agent, (8) any amendments to
the Reimbursement Agreement or the Fixed Rate
Reimbursement Agreement of which the Trustee has actual
notice, or (9) the defeasance of all the Bonds."
Section 7. Except as otherwise specifically provided
herein, the Indenture shall continue in full force and effect.
SF240560.1 5 7931-26-MSI-ma09ro5
IN WITNESS WHEREOF, the City of San Rafael has caused
this Indenture to be signed in its name and its seal to be
hereunto affixed and attested by its duly authorized officers,
respectively, and Chemical Bank, in token of its acceptance of
the trust created hereunder, has caused this Indenture to be
signed in its name by its duly authorized officer, respectively,
all as of the day and year first above written.
Attest:
By
eanne M. Leoncini,
City Clerk
Attest:
By
Authorized Officer
CITY OF SAN RAFAEL, CALIFORNIA
By G✓�.✓
A b -e t-" J .. oro, Mayor
CHEMICAL BANK, as Trustee
By
Authorized Officer
SF2-40560.1 6 7931-26-MS1402/09/95
CONSENT OF COMPANY
The undersigned, on behalf of Phoenix American
Incorporated, the Company referred to in the foregoing First
Supplemental Indenture by and between the City of San Rafael and
Chemical Bank, as Trustee, hereby approves the form and terms of
such First Supplemental Indenture and consents to the execution
and delivery thereof by the parties thereto.
Dated: February _, 1995 PHOENIX AMERICAN INCORPORATED
Attest:
By
By
SF240560.1 7931-26-MS1-02/09/95
CONSENT OF CREDIT BANK
The undersigned, on behalf of THE DAIWA BANK, LIMITED,
acting through its Chicago Branch, the Credit Bank referred to in
the foregoing First Supplemental Indenture (the "Trustee"),
hereby approves the form and terms of the First Supplemental
Indenture and determines that the amendment to that certain
Indenture, dated as of October 1, 1984, between Chemical Bank and
the City of San Rafael (the "Indenture"), do not adversely affect
the interests of the holders of the Bonds and consents to the
execution and delivery thereof by the parties thereto.
Dated: February , 1995
Attest:
By
THE DAIWA BANK, LIMITED, acting
through its Chicago Branch
By
SF240560.1 7931 -26 -?&24)2/09/95
CONSENT OF TRUSTEE
The undersigned, on behalf of CHEMICAL BANK, the
Trustee referred to in the foregoing First Supplemental Indenture
(the "Trustee"), hereby approves the form and terms of the First
Supplemental Indenture and determines that the amendments to that
certain Indenture, dated as of October 1, 1995, between the
Trustee and the City of San Rafael (the "Indenture"), do not
adversely affect the interests of the holders of the Bonds and
consents to the execution and delivery thereof by the parties
thereto.
Dated: February , 1995 CHEMICAL BANK
Attest:
By
By
SF240560.1 7931-26-MS14)2/09/95