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HomeMy WebLinkAboutCity Council Resolution 2003-595CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Plymouth, Minnesota (the "City"), hereby certify that the attached resolution is a true copy of Resolution No. 2003-595, entitled: "RESOLUTION AUTHORIZING ADDITIONAL DEBT SENIOR TO THE CITY'S SUBORDINATE DEBT AND THE EXECUTION OF A LETTER OF CONSENT RELATING TO THE REGENT AT PLYMOUTH PROJECT" (the "Resolution"), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Council of the City at a meeting on December 16, 2003, and that the meeting was duly held by the City Council and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that upon vote being taken on the Resolution at said meeting, the following Councilmembers voted in favor thereof: Mayor Johnson, Councilmembers Neset, Hewitt, Slavik, Bildsoe, Stein, and Black and the following voted against the same: None and the following abstained from voting thereon or were absent: None WITNESS my hand officially this 16th day of December, 2003. City Clerk RESOLUTION NO. 2003-595 RESOLUTION AUTHORIZING ADDITIONAL DEBT SENIOR TO THE CITY'S SUBORDINATE DEBT AND THE EXECUTION OF A LETTER OF CONSENT RELATING TO THE REGENT AT PLYMOUTH PROJECT BE IT RESOLVED by the City Council of the City of Plymouth, Minnesota (the "City"), as follows: Section 1. Recitals. 1.01. Whereas the City issued its Taxable Multifamily Senior Housing Revenue Bonds (Regent at Plymouth Project), Subordinate Series 2002C in the aggregate principal amount of $545,000 (the "Series C Bonds") and its Multifamily Senior Housing Revenue Bonds (Regent at Plymouth Project), Subordinate Series 2002D, in the aggregate principal amount of $1,965,000 (the "Series D Bonds"; together with the Series C Bonds, the "Bonds") the proceeds of which were loaned to Plymouth Senior Housing, LLC, a Minnesota limited liability company (the "Borrower"), of which J.A. Wedum Foundation, f/k/a Wedum Foundation ("Wedum"), a Minnesota nonprofit corporation and 501(c)(3) organization, is the sole member, to provide additional funds for the acquisition, construction and equipping of a 120 -unit multifamily rental housing facility and incidental facilities in Plymouth, Minnesota and related costs (the "Project"). 1.02 Whereas the Bonds are issued and secured pursuant to an Indenture of Trust (the "Subordinate Indenture"), dated as of February 1, 2002, between the Issuer and U.S. Bank National Association, as trustee (the "Trustee" or the "Subordinated Bonds Trustee"). 1.03 Whereas the Bonds are subordinate in all respects to payment of the City's $18,200,000 Multifamily Senior Housing Revenue Bonds (GNMA Collateralized Mortgage Loan — Regent at Plymouth Project), Series 2002A and Taxable Series 2002B (collectively, the "Senior Bonds"), the proceeds of which were loaned to the Borrower pursuant to a first mortgage loan (the "Senior Loan") pursuant to a Financing Agreement, dated as of February 1, 2002, between the Issuer, U.S. Bank National Association as trustee (the "Senior Bonds Trustee"), Reilly Mortgage Group, Inc., the lender named therein (the "Lender"), the AFL-CIO Housing Investment Trust and the Borrower (the "Senior Loan Agreement"), which backs the GNMA mortgage-backed security (the "GNMA Security") purchased with proceeds of the Senior Bonds. 1.04 Whereas, the obligations of the Borrower under the Senior Loan are secured by a lien on and security interest in the Project pursuant to an FHA -insured mortgage (the "Senior Mortgage") made by the Borrower in favor of the Lender, backing the GNMA Security. 1.05 Whereas the Project has been completed and the Borrower is unable to lease up the Project as quickly as it forecasted and, as a result, is unable to fulfill its obligations to the Lender under the FHA loan documents. 1.06 Whereas Wedum, holder of the Series C Bonds, has agreed to provide additional funding to the Borrower in the form of a Surplus Cash Note in the principal amount of $1,000,000 if the Subordinate Indenture is amended to provide that repayments due upon such Surplus Cash Note are senior to the Bonds. 1.07 Whereas Section 8.1(b) of the Subordinate Indenture provides that Subordinate Indenture may be amended to provide a lien prior to the Bonds only with the consent of the owners of 100% of the outstanding Bonds. 1.08 Whereas Hartford Partners, as holder of the Series D Bonds, has agreed to consent to the amendment of the Indenture to provide for the issuance of the Surplus Cash Note. 1.09 Whereas, pursuant to Section 8. 1, the Borrower has requested that the City consent to the execution of a supplemental indenture in the form of a Letter of Consent, dated December 9, 2003 (the "Letter of Consent"), a draft of which is attached as Exhibit A, that amends the definition of Surplus Cash in the Subordinate Indenture to provide for the subordination of payments on the Bonds to the Surplus Cash Note. 1.10 Draft forms of the following additional documents relating to the Surplus Cash Note have been prepared and submitted to this Council and are hereby directed to be filed with the City Manager: (a) a HUD Letter Approval, dated December 9, 2003; and (b) a Surplus Cash Note, dated December 1, 2003. Section 2. Authorization and Approval of Letter of Consent. The supplement and amendment of the Subordinate Indenture pursuant to the Letter of Consent is approved, and the Mayor and City Manager are authorized to execute the Letter of Consent on behalf of the City, with such modifications as are deemed appropriate and are approved by the Mayor and City Manager, within the limitations provided in this resolution, which approval shall be conclusively evidenced by execution of the Letter of Consent. The Mayor and the City Manager are also authorized to execute such other documents, instruments and closing certificates on behalf of the City as may be required to give effect to the transactions contemplated in the Letter of Consent. Section 3. Miscellaneous. 3.01. The Mayor, the City Manager and other officers of the City are authorized and directed to furnish to the Lender and bond counsel certified copies of all proceedings and records of the City relating to the Letter of Consent, and such other affidavits and certificates as may be required to show the facts relating to the due and valid authorization, execution and delivery of the Letter of Credit. -2- 3.02. In the absence or disability of the Mayor, any of the documents authorized by this resolution to be approved and executed by the Mayor may be so approved and executed by the acting Mayor. In the absence or disability of the City Manager, any of the documents authorized by this resolution to be approved and executed by the City Manager may be so approved and executed by the person designated as acting City Manager or by such other officer of the City who, in the opinion of the City Attorney, may execute such documents. Section 4. Limitations of the City's Obligations. Notwithstanding anything contained in the Bonds or the Subordinate Indenture, as amended by the Letter of Consent, or the Subordinate Loan Agreement, dated as of February 1, 2002, between the City and the Borrower (collectively, the Bond Documents), the Bonds shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation, and shall not be payable from nor shall constitute a charge, lien or encumbrance, legal or equitable, upon any funds or any property of the City other than the revenues specifically pledged to the payment thereof pursuant to the Bond Documents, and no holder of the Bonds shall ever have the right to compel any exercise of the taxing power of the City to pay the Bonds or the premium, if any, or interest thereon, or to enforce payment thereof against any property of the City other than those rights and interests of the City which have been pledged to the payment thereof pursuant to the Bond Documents. The agreement of the City to perform the covenants and other provisions contained in this resolution or the Bonds or the Bond Documents shall be subject at all times to the availability of the revenues furnished by the Borrower sufficient to pay all costs of such performance or the enforcement thereof, and the City shall not be subject to any personal or pecuniary liability thereon. Passed this 16th day of December, 2003. -3-