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HomeMy WebLinkAboutResolution - 2006-89 - Authorizing City of Eden Prairie to Consent to Transfer of Park at City West Apartments from Park at City West Limited Partnership to PACW Eden Prairie LLC - 07/18/2006 CITY OF EDEN PRAIRIE HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2006-89 RESOLUTION AUTHORIZING THE CITY OF EDEN PRAIRIE, MINNESOTA TO CONSENT TO THE TRANSFER OF THE PARK AT CITY WEST APARTMENTS PROJECT FROM PARK AT CITY WEST LIMITED PARTNERSHIP TO PACW EDEN PRAIRIE LLC AND TO CONSENT TO THE AMENDMENT OF THE MORTGAGE RELATING TO THE PARK AT CITY WEST APARTMENTS PROJECT AND AUTHORIZING, APPROVING AND DETERMINING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, pursuant to that certain Trust Indenture dated as of August 1, 2001 (the "Indenture"), between the City of Eden Prairie, Minnesota (the "Issuer") and Wells Fargo Bank Minnesota, N.A. (the "Trustee"), the Issuer has previously issued and there is outstanding $14,905,000 in aggregate principal amount of its Variable Rate Demand Multifamily Housing Revenue Refunding Bonds (Park at City West Apartments Project) Series 2001 (the "Bonds"), the proceeds of which were used to fund a mortgage loan (the "Bond Mortgage Loan") to Park at City West Limited Partnership (the "Seller") and the proceeds of the Bond Mortgage Loan were used to refinance the 288-unit apartment project located in Eden Prairie, Minnesota, known as Park at City West Apartments (the "Project"); and WHEREAS, the Seller now desires to sell the Project to PACW Eden Prairie LLC (the "Buyer") and, pursuant to Section 5.7 of the Financing Agreement, dated as of August 1, 2001 (the "Financing Agreement"), by and among the Issuer, the Trustee and the Seller, must (among other requirements) obtain the prior written consent of the Issuer to such sale and must also satisfy the requirements under Section 9 of the Second Amended and Restated Land Use Restriction Agreement, dated as of August 1, 2001 (the "Land Use Restriction Agreement"), by and among the Issuer, the Trustee, Sumitomo Trust&Banking Co. (U.S.A.) and the Seller; and WHEREAS, the Bond Mortgage Loan is evidenced by a Multifamily Mortgage Note, dated August 1, 2001 (the "Bond Mortgage Note") delivered to the Issuer pursuant to the Financing Agreement and assigned to the Trustee; and WHEREAS, as security for the Bond Mortgage Note, the Seller has provided the Trustee with a Multifamily Mortgage, Assignment of Rents, Security Agreement and Fixture Financing Statement dated as of August 1, 2001 (the "Bond Mortgage")with respect to the Project; and WHEREAS, in connection with the sale of the Project to the Buyer and with the Issuer's consent, the Buyer desires to (i) amend the Bond Mortgage so that it continues to be consistent with that certain Multifamily Mortgage, Assignment of Rents, Security Agreement and Fixture Financing Statement (Reimbursement), dated as of August 1, 2001 (the "Reimbursement Mortgage"), by and among the Seller, the Federal Home Loan Mortgage Corporation ("Freddie Mac") and L.J. Melody & Company and (ii) replace the existing remarketing agent for the Bonds, Dougherty & Company LLC (the "Existing Remarketing Agent") with Stern Brothers & Co. (the "New Remarketing Agent") pursuant to the terms of the Indenture, which provide for the removal or resignation of the remarketing agent. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA,AS FOLLOWS: 1. Incorporation of Preambles. The City Council hereby finds that, based on representations by the Seller and the Buyer, all of the recitals contained in the preambles to this resolution are full, true and correct and does incorporate them into this resolution by this reference. 2. Consent to Transfer. Upon the satisfaction of all requirements in connection with the sale or transfer of the Project provided for in the agreements relating to the Bonds, including the requirements in the Financing Agreement and the Land Use Restriction Agreement, the Issuer is hereby authorized to provide its written consent to sale of the Project from the Seller to the Buyer. Such written consent shall be provided substantially in the form included as Exhibit C to the form of Assignment and Assumption Agreement by and between the Seller and the Buyer, attached hereto as Exhibit A, with such changes as are determined by the authorized officer of the Issuer executing the written consent to not be inconsistent with this Resolution (such execution evidencing such determination). 3. Consent to Amendment to Bond Mortgage. The Issuer is hereby authorized to provide its written consent to the amendment of the Bond Mortgage; provided that any such amendment to the Bond Mortgage shall be limited to the amendments, if any, made to the Reimbursement Mortgage. Such written consent shall be provided substantially in the form attached to the form of Amendment to Multifamily Mortgage, Assignment of Rents, Security Agreement and Fixture Financing Statement by and between the Seller and the Trustee, attached hereto as Exhibit B, with such changes as are determined by the authorized officer of the Issuer executing the written consent to not be inconsistent with this Resolution (such execution evidencing such determination). 4. Replacement of Remarketing Agent. The Issuer is hereby authorized to (i) accept the resignation of the Existing Remarketing Agent or (ii) upon the receipt of a written request from the Seller and the consent of Freddie Mac, remove the Existing Remarketing Agent for the Bonds. In connection with such removal or resignation of the Existing Remarketing Agent, the Issuer is hereby authorized to select and appoint the New Remarketing Agent as the remarketing agent for the Bonds. Solely in connection with such resignation or removal of the Existing Remarketing Agent as described herein, the Issuer hereby waives its notice rights under Sections 10.06 (ii) and(iii) of the Indenture. S. Incidental Action. The officers of the Issuer are hereby authorized and directed to execute in the name and on behalf of the Issuer any other documents and certificates necessary to the actions described above. The Mayor, City Manager, City Clerk and other officers of the Issuer are further authorized and directed to prepare and furnish certified copies of all of proceedings and records of the Issuer relating to such actions. 6. Captions. The captions or headings in this Resolution are for convenience only and shall in no way define, limit, or describe the scope or the intent of any provision hereof. 7. Severability. If any section, paragraph, clause or provision of this Resolution shall be held invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the other provisions of this Resolution. 8. Repealer. All resolutions or orders, or parts thereof, in conflict with the provisions of this resolution are to the extent of such conflict hereby repealed. Approved and adopted this 181" day of July, 2006. y s, Mayor ATTEST: �"een Porta, City Clerk EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT B FORM OF AMENDMENT TO MULTIFAMILY MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT