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HomeMy WebLinkAboutCC-10-20-03-03 Cool Creek AssocSponsored By: Council President Snyder RESOLUTION NO. CC-10-20-03-03 A RESOLUTION AUTHORIZING THE CITY OF CARMEL, INDIANA, TO CONSENT TO THE TRANSFER OF CARMEL CREEK APARTMENTS, AN APARTMENT COMPLEX REFINANCED WITH THE PROCEEDS OF THE CITY'S "CITY OF CARMEL, INDIANA, ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS, SERIES 1995 (COOL CREEK ASSOCIATES, LTD. PROJECT)", TO CARMEL CREEK, LLC, AN INDIANA LIMITED LIABILITY COMPANY (THE "PURCHASER"), AND AUTHORIZING AND APPROVING OTHER ACTIONS IN RESPECT THERETO STATEMENT OF PURPOSE AND INTENT: The City of Carmel, Indiana (the "City"), is a municipal corporation and political subdivision of the State of Indiana and by virtue of IND. CODE § § 5 - 1-5-1 and 36-7-12- 1 et sea., as amended (the "Act"), is authorized and empowered to adopt this resolution (the "Resolution") and to carry out its provisions. Cool Creek Associates, Ltd., an Indiana limited partnership or its successor or assigns (the "Seller"), refinanced the acquisition, construction and installation of Cool Creek Apartments, a multifamily housing complex (the "Project") located within the City, pursuant to the issuance by the City of its $10,245,000 Economic Development Revenue Refunding Bonds (FHA Insured Mortgage Loan - - Cool Creek Associates Ltd., Project) Series 1995 (the "Bonds"), which refunded those certain City of Carmel, Indiana Economic Development Revenue Bonds, Series 1985 (FHA Insured Mortgage Loan - - Cool Creek Associates, Ltd. Project) dated April 15, 1985, and issued in the original aggregate principal amount of $11,240,000 (the "1985 Bonds"). The Seller has duly filed its request with the City for the City (i) to consent to the transfer of the Project to Carmel Creek, LLC, an Indiana Limited Liability Company (the "Purchaser") (the "Transfer") (ii) to approve the form of Assignment and Assumption Sponsored By: Council President Snyder Agreement presented herewith and (iii) to consent to the assignment and assumption of rights and obligations to the Purchaser as set forth therein (the "Assigrmaent"). The Seller has forwarded to this Common Council the form of Assignment and Assumption Agreement between the Seller and the Purchaser, which contains a form of consent for the City, the trustee for the Bonds and the trustee for the 1985 Bonds, described above (the "Transfer Document") and will deliver or cause to be delivered the opinions and consents required to be delivered prior to transfer pursuant to the provisions of the documents governing to Bonds. NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, THAT: Section 1. The City consents to the Transfer and approves the form of Transfer Document presented to this meeting. Section 2. Documents. The Mayor and (where noted in the Transfer Document) the Clerk-Treasurer shall execute and deliver in the name of and on behalf of the City, the consent included in the Transfer Document in the form submitted to (as on file with the City as of the date of the adoption of this Resolution) this Common Council (subject to the provisions of Section 6 hereto), which is hereby approved in all respects, and pursuant thereto shall consent to the Transfer and the Assignment. Section 3. Execution. The Mayor and the Clerk-Treasurer are hereby authorized to execute and deliver, on behalf of the City, the consent contained in the Transfer Document with any necessary revision, change or amendment from the form submitted herewith to effectuate the Transfer and Assignment and the intent and purposes hereof. The Mayor and Clerk-Treasurer are hereby authorized, without further approval -2- Sponsored By: Council President Snyder of the Common Council or the City's Economic Development Commission, to approve such revisions, changes or amendments in the Transfer Document as may be permitted by the Act, such approval to be conclusively evidenced by their execution thereof. Section 4. General. The Mayor and the Clerk-Treasurer are each hereby authorized and directed, in the name and on behalf of the City, to execute any and all agreements, documents, and instruments, and do any and all things deemed by them, or either of them, to be necessary or desirable in order to carry out and comply with the intent, conditions and purposes of this Resolution (including the preamble hereto and the documents mentioned herein). Section 5. Binding Effect. The provisions of this Resolution shall constitute a binding contract between the City and the holders of the Bonds, and this Resolution shall not be repealed or amended in any respect which would adversely affect the rights of the holders of the Bonds as long as the Bonds or interest thereon remains unpaid. Section 6. Repeal. All ordinances or resolutions or parts of ordinances or resolutions in conflict herewith are hereby repealed. Section 7. Effective Date. This Resolution shall be in full force and effect immediately upon its adoption by the Common Council and approval by the Mayor. All actions heretofore taken by the Mayor, the Clerk-Treasurer and other representatives of the City to carry out or further the intent, conditions and purposes of this Resolution (including the preamble hereto and the documents mentioned herein), are hereby ratified and confirmed. -3- Sponsored By: Council President Snyder Section 8. Inspection Copies. Two copies of the Transfer Document incorporated into this Bond Ordinance were duly filed in the office of the Clerk-Treasurer of the City and are available for public inspection in accordance with Ind. Code § 36-1-5- Section 9. Fees and Expenses. The City shall not be responsible for the payment of any fees or expenses (including any fees of the City Attorney) related to the Transfer and Assignment contemplated by this Resolution. PASSED by the Common Council of the City of Carmel, Indiana, this~-~7¥~ay of October, 2003, by a vote of ~ ayes and (~) nays. Diana L. Cordray, IAMG~rk-Treasurer Presented.by me t_o the Mayor of the City of Cannel, Indiana thi~/q~day of 2003, at Dian~ ~urer -4- Sponsored By: Council President Snyder Approved by mX, Mayor of the City of Carmel, Indiana, this =,~ '/7 _ day of 2003, at / g s Brainard, Mayor ATTEST: Diana L. Cordray, IAMC, Clerk-~l'~:easur · Prepared by: Vanessa Albert Lowry, Esquire Greenberg Traurig, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 -5- 68672v3 space above this line for recorder's use ASSIGNMENT AND ASSUMPTION AGREEMENT (COOL CREEK APARTMENTS) THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as of this day of ., 2003 (the "Effective Date"), by and between COOL CREEK ASSOCIATES, L.P. (formerly known as Cool Creek Associates Ltd.), an Indiana limited partnership, whose address is c/o Harcourt Management Co., Inc., 3901 West 86th Street, Suite 470 Indianapolis, IN 46268 (the "Assignor"), and CARMEL CREEK, LLC, an Indiana limited liability company, whose address is c/o McKinley Associates, Inc. 320 Main Street Ann Arbor, MI 48104 (the "Assignee"). RECITALS WHEREAS, the Assignor owns that certain real property and certain related amenities now commonly known as the "Cool Creek Apartments" located upon the Land described in Exhibit A attached hereto (the "Project"); and WHEREAS, the acquisition, development, and construction of the Project was financed, in part, from a loan made by the City of Carmel, Indiana, a political subdivision of the State of Indiana (the "Issuer"), from the proceeds of those certain $10,245,000 Economic Development Revenue Refunding Bonds (FHA Insured Mortgage Loan -- Cool Creek Associates Ltd., Project) Series 1995 (the "Bonds"); and WHEREAS, the Bonds were issued pursuant to the terms of that certain Trust Indenture, dated as of March 15, 1995, by and between the Issuer and Bank One, N.A. (formerly known as Bank One, Columbus, N.A.), as trustee (the "Trustee"), and Bank One, N.A. (formerly known as Bank One, Indianapolis, N.A.), as co-trustee (the "Co-Trustee") (the "Indenture") and proceeds of the Bonds were loaned (the "Loan") to Assignor pursuant to that certain Loan Agreement more particularly described on Exhibit B hereto (the "Loan Agreement"); and WHEREAS, the documents listed on Exhibit B are herein called the "Assumed l)oeuments." All capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to such terms in the Assumed Documents; and WHEREAS, the Assignee desires to acquire and the Assignor desires to sell, convey, and transfer to the Assignee, the Assignor's entire ownership interest in the Project, which sale, conveyance, and transfer requires the assumption by the Assignee of the rights, duties, and obligations of the Assignor under the Assumed Documents relating to the period from and after the Effective Date; and WHEREAS, the Assignee is willing to assume such obligations under the Assumed Documents; and WHEREAS, the Issuer and the Trustee are consenting to the transfer of the Project to the Assignee, as is the trustee for the bonds refunded by the Bonds (the "1985 Trustee") an opinion of Assignee's counsel as to the enforceability of the Assumed Documents against Assignee is being delivered and an opinion of bond counsel to the effect that the transfer of the Project will not adversely affect the exclusion of interest on the Bonds from the gross income of the holders thereof is being delivered; and WHEREAS, the assignment and assumption of the mortgage securing the Assigner's obligations under the and the note evidencing the obligations of the Borrower to make payments on the Loan are being separately addressed in that certain Release Assumption and Modification Agreement made as of __, 2003 between Greystone Servicing Corporation, Inc. as mortgagee, and the Assignee evidencing the consent of the Secretary of Housing and Urban Development ("HUD") to the transfer of the Project; and WHEREAS, the Assignee's assumption of the obligations of the Assignor under the Assumed Documents is as set forth herein; NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The recitals set forth above are incorporated herein by reference. 2. Assignment and Assumption. The Assignor hereby assigns to the Assignee all of the Assignor's right, title, and interest under the Assumed Documents, and the Assignee hereby accepts and unconditionally assumes in full all of the duties, obligations, covenants, agreements, and liabilities of the Assignor under the Assunaed Documents, arising on or after the Effective Date, subject to the provisions of Section 4.2 of the Loan Agreement. 3. Release. The parties hereto agree that the Assignor shall be released from all liability in connection with the Assumed Documents, arising due to acts or omissions occurring on or after the Effective Date. Nothing contained herein shall be construed as a release of Assignor from any liability under the Assumed Documents accruing or due and owing under the Assumed Documents prior to the Effective Date or affect any limitations on or defenses to liability of the Assignor under any of the Assumed Documents. The Assignee assumes no obligation for any losses, claims, lawsuits or damages of any kind arising in connection with the -2- operation of the Project prior to the Effective Date or any violation of the Assumed Documents or obligations incurred or arising thereunder prior to the Effective Date. The parties hereto acknowledge and agree that all of the terms, conditions, and provisions of the Assumed Documents shall remain in full force and effect. 4. Indemnity. Assignee hereby agrees to indemnify and hold the Assignor, its successors and assigns and their respective successors and assigns and their respective partners, shareholders, officers, directors, employees and agents harmless from and against any loss, claim, lawsuit, or damage of any kind arising from any violation of the Assumed Documents on or after the Effective Date, including reasonable attorneys' fees and expenses incurred in connection therewith. Assignor hereby agrees to indemnify and hold the Assignee, its successors and assigns and their respective successors and assigns and their respective parmers, shareholders, officers, directors, employees and agents harmless from and against any loss, claim, lawsuit, or damage of any kind arising from any violation of the Assumed Documents prior to the Effective Date, including reasonable attorneys' fees and expenses incurred in connection therewith. 5. Representations and Warranties. Each of the parties hereto severally represents, each with respect only to itself, as of the date hereof as follows: a. It is duly organized and existing under the laws of the jurisdiction of its organization, with full power and authority to execute and deliver this Agreement, to enter into the transactions contemplated hereby and to perform all the duties and obligations to be performed by it hereunder and under the Assumed Documents; b. It has duly authorized this Agreement and the transactions contemplated hereby and the performance of all the duties and obligations to be performed hereunder and under the Assumed Documents by all necessary corporate action; c. It has duly executed and delivered this Agreement and this Agreement and all obligations assumed herein constitute its valid, legal and binding obligations enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization or similar laws or equitable principles relating to or limiting creditors' rights generally; and d. The execution and delivery of this Agreement and the performance of the transactions contemplated hereby and under the Assumed Documents will not violate any agreement by which it is bound or to which it or any of its assets are affected, or its organizational documents or any statute, regulation, role, order or judgment applicable to it. 6. Recordation. A copy of this Agreement shall be recorded in the Office of the County Recorder of Hamilton County, Indiana. 7. Notice. All correspondence and notices given or required to be given to the Assignor under the Assumed Documents, from and after the Effective Date, shall be provided to the Assignee and shall be addressed as follows: -3- Assignee: c/o McKinley Associates, Inc. 320 Main Street Ann Arbor, MI 48104 Attention: William C. Tyler, Senior Vice President Phone: (734) 769-8520 ext. 221 Fax: (734) 769-8760 With a copy to: Kroger, Gardis, Regas, LLP 111 Monument Circle, Suite 900 Indianapolis, Indiana 46204 Attention: Madalyn S. Kinsey, Esquire Phone: (317) 264-6836 ext. 926 Fax: (317) 264-6832 8. Successors and Assigns. This Agreement applies to, inures to the benefit of, and binds all parties hereto and their respective successors and assigns. 9. Counterparts. This Agreement may be executed in multiple counterparts, all of which, when taken together, shall be deemed an original upon execution. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. "ASSIGNOR" COOL CREEK ASSOCIATES, L.P, an Indiana limited partnership, formerly know as Cool Creek Associates Ltd. By: Cool Creek Associates, Inc., General Partner By: Mark Hasten President "ASSIGNEE" CARMEL CREEK, LLC, an Indiana limited liability company By: McKinley Associates, Inc., a Michigan corporation, its managing member By: Name: Title: The undersigned parties by their respective execution and delivery hereof by their authorized officers hereby consent to the transfer of the Project and the assignment and assumption of obligations effected by this Agreement. CITY OF CARMEL, INDIANA /f~ayor James Brainard CITY OF CARMEL, INDIANA ATTEST: CITY OF CARMEL, INDIANA By: Diana L. Cordray, IAMC, C~kZ~reasurer BANK ONE, N.A. (formerly known as BANK ONE, COLUMBUS, N,A.), as trustee By: Name: Title: BANK ONE, N.A. (formerly known as BANK ONE, INDIANAPOLIS, N.A.), as trustee By: Name: Title: STATE OF ) ) SS. COUNTY OF ) On ,2003, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their author/zed capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Public My Commission expires: County of residence: STATE OF ) ) SS. COUNTY OF ) On ,2003, before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within insmunent and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the within instrument. WITNESS my hand and official seal. Notary Public My Commission expires: County of residence: This instrument was prepared by Vanessa Albert Lowry, Esquire Greenberg Traurig, LLP 2700 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Phone: (215) 988-7811 Exhibit Legal Descfi~ion of Projec~ PART OF ~ ~ ~ OP ~ ~0~ ~ O~ S~I~ 1~, ~ RZ~-OF-~ Li~ O~ ~TAT/ RO~ .NO. 5679.6 F~ ~ S~T~ BY A'~ ~ ~G A B~ OP 199.9a P~ ~ ~ 4~ D~ ~T ~-OP-~Y L~' 100,0% ~R~T; LI~ 300.00 FE~; ~ S~ ~0 D~ 39 RiG~-OF-~Y; ~ SOu'r~ g6 D~S 19 ~ 00 ~C0~S ~ 301 0N P~qB 89g OF S~D ~s); D~S 23 ~ O0 SECts ~T l~0.z3 ~; ~ ;O~ 8~' D~ 40 ~ 00 gB~$ ~ST 60~,62 ~i~ ~ ~ ~T ~,~ ~ ~ N~ ~; ~ NOR~ O0 DE~RS 13 ~ O0 g00-0O F~TI ~ ~R~ ~9 D~S~ 14 ~ ~16 O~ PA~ 409 0P ~D ~C~S) TO 'a'a~ 9~ OF P~cloflp~e EXHIBIT B Assumed Documents A. Loan Agreement (the "Loan Agreement"), dated as of March 15, 1995, among the Issuer, the Trustee and the Assignor. B. Regulatory Agreement and Declaration of Restrictive Covenants dated as of March 15, 1995 among the Issuer, the Assignor and the Trustee recorded on March 16, 1995 in the real property records of Hamilton County, Indiana as Instrument No. 9508267 (the "1995 Regulatory Agreement"). C. Tax Regulatory Agreement and Declaration of Covenants. dated as of April 1, 1985 by and among the Issuer, American Fletcher Mortgage Company, Inc., as monitoring agent, Bank One, N.A. (formerly known as Bar& One, Indianapolis, N.A.) (formerly American Fletcher National Bank and Trust Company), as trustee (the "1985 Trustee") and the Assignor, recorded May 10, 1985 in the real property records of Hamilton County, Indiana at Miscellaneous Record 182 Page 930, record 855974, as amended by Amendment No. I to Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants dated as of March 15, 1995 among the Issuer, the 1985 Trustee and Assignor and recorded on March 16, 1995 in the real property records of Hamilton County, Indiana as Instrument No. 9508268 (collectively, the "1985 Regulatory Agreement"). D. Bond Fund Investment Agreement among TMG Financial Products Inc., the Assignor and the Trustee, dated March 16, 1995.