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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