Adoption of a resolution authorizing the issuance of two series of tax-exempt multifamily housing revenue bonds comprised on the Series 2001B Senior Bonds (the “Senior Bonds”) and the Series 2001B Subordinate Bonds (the “Subordinate Bonds”) (together the “Bonds”), in the principal amount not to exceed $9.75 million and approving a loan of bond proceeds to Lenzen Housing, L.P., a California limited partnership created by Core Development, Inc., for financing the construction of the Lenzen Housing project including:
1.
Approving
in substantially final form the Senior Bonds, Trust Indenture, Financing
Agreement, Regulatory Agreement and Declaration of Restrictive Covenants,
Senior Bond Purchase Agreement, Subordination Agreement, and Preliminary
Official Statement.
2.
Approving
in substantially final form the Subordinate Bond Purchase Agreement,
Subordinate Indenture, Subordinate Loan Agreement, and related Bond Purchase
Agreement.
3.
Authorizing
the Director of Finance and the Acting Director of Housing to execute and, as
appropriate, to negotiate, execute and deliver these documents and other
related documents as necessary.
4.
Approval
to allow the proceeds of the Bonds and the repayment of the Mortgage Loan to be
invested in one or more investment agreements with an institution(s) whose
participation in the financing will not adversely affect the expected rating on
the Bonds, as approved by the Director of Finance.
On February 20, 2001, the City Council adopted Resolution No. 70169 expressing its intent to issue up to $10 million in tax-exempt multifamily revenue bonds to finance the construction of a 88-unit multifamily apartment project to be located at 758-762 Lenzen Avenue. This project is known as the Lenzen Housing Project (the “Project”). The resolution also authorized the Director of Housing to file an application with the California Debt Limit Allocation Committee (CDLAC) for an allocation of up to $10 million in private activity bonds. A Tax Equity and Fiscal Responsibility Act (TEFRA) Hearing for the Project was also held at the same Council meeting. On May 8, 2001, the City received an allocation from CDLAC in the amount of $9.75 million. Total Project costs are estimated to be $18.919 million. The par amount of Bonds to be issued will not exceed $9.75 million. The difference between the aggregate par amount of the Bonds and the total Project costs will be paid from developer equity, tax credit equity and a separate loan from the City.
One of CDLAC’s requirements is that the bond closing for the Project must occur within 90 days of receipt of an allocation. Therefore, the Bond closing for this Project must occur by August 16, 2001. It is anticipated that the Bonds will close on or about August 15, 2001.
The developer, Core Development, Inc. (the “Developer”), requested the City to issue tax-exempt multifamily housing revenue bonds for the purpose of lending the bond proceeds to Lenzen Housing, L.P., a California limited partnership (the “Borrower”) created by the Developer. The Borrower is a California limited partnership consisting of Core Development, Inc., a California corporation, and AOF/Pacific Affordable Housing Corporation, a California non-profit corporation. The proceeds of the loan will be used by the Borrower to finance the construction of the Project. After construction is completed and for a period of 55 years, 20% of the occupied units in the Project will be rented to families with incomes that do not exceed 50% of the area median gross income and the remaining 80% of the occupied units in the Project will be rented to families with incomes that do not exceed 60% of the area median gross income.
This portion of the report is divided into several sections
to address the items in staff’s recommendation to proceed with the Project
financing. These sections include:
description of the bond financing structure, bond financing documents,
discussion of financing team participants, and review of financing schedule.
Bond Financing Structure
Overview of Multifamily Bond Financing
As a brief summary, multifamily housing revenue bonds are
issued to finance the development by private developers of certain rental
apartment projects. The City issues the
bonds and then loans the proceeds to the developer/borrower. The bonds are typically issued as tax-exempt
securities. For the bonds to qualify
for tax-exemption, generally, one of two restrictions must apply: either (1) at
least 20 percent of the units in the housing development must be reserved for
occupancy by individuals and families of very-low income (50% of area median
income) or (2) at least 40 percent of the units must be reserved for occupancy
by individuals and families of low income (60% of area median income).
The advantages of tax-exempt bonds to developers include
below-market interest rates and long-term fixed rate financing – features not
available in the conventional multifamily construction loan mortgage
market. The Bonds are limited
obligations of the City, payable solely from payments received from the
repayment of the loan to the Borrower and the credit enhancement.
Structure of the Bonds for the Project
For this Project, the financing structure consists of two
series of bonds comprised of the Senior Bonds and the Subordinate Bonds to be
issued in an amount not to exceed $9.75 million. The Senior Bonds will be issued for a term of approximately 41
years with a final maturity date of October 2042. The Bond proceeds will be
loaned to the Borrower to finance the construction of the Project. During the construction and lease-up period,
the Senior Bonds will pay interest only.
Once the Project is stabilized (i.e., 90% of the units after construction
are rented for 3 consecutive months and the Project has achieved the required
debt service coverage), the Senior Bonds will begin to repay principal on a
40-year amortization schedule.
The Senior Bonds will be payable from a FHA-insured mortgage
loan under HUD’s 221(d)(4) program and wrapped with a Ginnie Mae
mortgage-backed security. The Senior
Bonds will be credit enhanced by the Ginnie Mae mortgage-backed security
resulting in a “AAA” rating from Standard & Poor’s. The Senior Bonds will be issued as fixed
rate bonds with the final interest rate structure determined at the time of the
sale of the Senior Bonds on the basis of the then current interest rate
environment in the market. The City's
rights and enforceability of those rights under the Senior Bond financing
documents are subordinate to the FHA-insured mortgage loan.
It is anticipated that the final commitment for the FHA -
insured mortgage loan will be received in writing after the June 26th
Council meeting. Normally, staff would
not put forth the bond financing documents for Council's approval until all
commitments are received in final form.
However, due to the Council being on recess in July and the need to
market the Bonds prior to the Council's first meeting in August, staff is asking
Council to adopt the necessary bond financing documents based on the receipt of
this commitment prior to mailing the Preliminary Official Statement.
The Subordinate Bonds will mature in November 2042. However,
the Subordinate Bonds will be callable from available moneys of the Borrower
after completion of the Project which is expected to be sometime in 2003. The
Subordinate Bonds will be non-rated and will be secured by a pledge of surplus
cash from the Project as defined by HUD and any other moneys of the Borrower
(including capital contributions made by its partners, which are expected to be
sufficient to redeem the Subordinate Bonds after construction), and secured by
a subordinate mortgage.
The Subordinate Bonds will be structured under terms that
are often referred to as a “soft second”; in other words, they are payable only
if pledged moneys are available therefore and otherwise no default exists with
respect to nonpayment of amounts due on the Subordinate Bonds. The Subordinate
Bonds will be purchased by an affiliate of the Borrower on a private placement
basis. Therefore, the purchaser will have to meet all the requirements for the
purchase of securities on a private placement basis (i.e., $1.0 million minimum
denominations, purchaser a high net worth sophisticated investor, etc.).
Guaranteed Investment Contract
As part of the City Council’s approval process of the
financing, staff is recommending approval to allow the Borrower to invest the
proceeds of the Bonds, and the pledged revenues, in one or more guaranteed
investment agreements (the “Investment Agreement”) pending disbursement for
acquisition of the Ginnie Mae security and Bond repayment, as the case may
be. Investment Agreements are provided
by a financial institution (the “Provider”) that agrees to guarantee a certain
investment return on invested moneys.
As has been the practice of the City, even though the Bond proceeds to
be reinvested are held in trust for the Borrower, the City is requiring that
the Investment Agreement be with an institution whose unsecured, long-term
obligations are rated at least “AA” by Standard & Poor’s. Regardless of the performance of the
Investment Agreement, the Senior Bonds will remain credit enhanced by the
Ginnie Mae mortgage-backed security.
In addition, the following provisions will also apply:
·
Invested
funds will be available for withdrawal without penalty or premium at any time;
·
The
Investment Agreement will be an unconditional and general obligation of the
Provider;
·
The
Trustee receives opinion of counsel that the agreement is legal, valid, binding
and enforceable against the Provider;
·
During
the term of the agreement, if the Provider’s rating falls below the second
highest short-term rating category, the provider must either:
§
Post
collateral, or
§
Repay
principal of, and accrued but unpaid interest on, the investment with no
penalty or premium
The Investment Agreement Provider(s) will be selected by the
City or its agent, which may include the City’s Underwriter or the City’s
Financial Advisor, through a competitive bid process in which at least three
bids will be received to meet the requirements of the Internal Revenue
Code. The Director of Finance, through
approval of this resolution, will be authorized to enter into the Investment
Agreement, if necessary.
The benefits of the Investment
Agreement include:
·
Maximum
liquidity.
·
Efficient
method of managing the interest earnings on Bond proceeds and pledged revenues.
·
Higher
rate of return on undisbursed Bond proceeds and pledged revenues.
·
Efficient
means of managing the investment of funds subject to rebate.
Bond Financing Documents
There are a number of bond financing documents that require
City Council approval in order to proceed with the issuance of the Bonds. All of the documents described below will be
available for review in the City Clerk's office on or about Tuesday, June 19,
2001.
Trust Indenture. The Trust
Indenture (the “Indenture”) is between the City and Wells Fargo Bank, National
Association, as the trustee (the “Trustee”). This document is executed by the Director of Finance, or other
authorized officer on behalf of the City, and attested by the City Clerk. Pursuant to the Indenture, the Trustee is
given the authority to receive, hold, invest and disburse the Senior Bond proceeds
and other funds established under the Indenture; to authenticate the Senior
Bonds; to apply and disburse payments to Senior Bond Owners; and to pursue
remedies on behalf of the Bond Owners.
The Indenture sets forth the guidelines for the administration,
investment and treatment of investment earnings generated by each fund and
account. The Indenture provides for the
Borrower to compensate the Trustee for services rendered under the Indenture.
Financing Agreement. This Agreement (the “Financing Agreement”)
is among the City, the Trustee, the Borrower, and TRI Capital Corporation as
mortgage lender (the “Lender”). This
document is executed by the Director of Finance or other authorized officer on
behalf of the City. The Financing
Agreement provides for the use of the Senior Bond proceeds to fund the loan for
the construction of the Project and for the repayment of such loan and other
fees and amounts by the Borrower. The
interest of the City in receiving payments under the Financing Agreement and
enforcing the receipt of such payments under the Financing Agreement have been
assigned to the Trustee under the Indenture; however, certain reserved rights
have been retained by the City, such as the City’s right to indemnification and
fees.
Regulatory Agreement and Declaration of Restrictive
Covenants. This agreement (the “Regulatory Agreement”)
is among the City, the Trustee and the Borrower. This document is executed by the Director of Finance and the
Acting Director of Housing on behalf of the City. The Regulatory Agreement contains certain covenants and
restrictions regarding the Project and its operations intended to assure
compliance with the Internal Revenue Code of 1986. This Agreement restricts the rental of Project units to the
appropriate percentage of low or very-low income individuals or families for a
period of years required to maintain the tax-exempt status of the Bonds. In the case of the Project, not less than
20% of the units will be restricted for a period of 55 years, to individuals
and families earning 50% of area median income.
Senior Bond Purchase Agreement. The Senior Bond Purchase
Agreement (the “Senior Bond Agreement”) is a contract among the City, the
Borrower, and Banc of America Securities LLC (the “Underwriter”). The Senior
Bond Agreement specifies the conditions to the purchase of the Senior Bonds by
the Underwriter and the purchase price thereof, the representations and
warranties of the City, the Borrower and the Underwriter, the documents to be
delivered at closing, and the conditions that allow the Underwriter to cancel
their purchase of the Senior Bonds.
This document is executed by the Director of Finance or other authorized
officer on behalf of the City.
Preliminary Official Statement.
This document is the public offering statement for the issuance of the
Senior Bonds. This document is executed
by the Director of Finance or other authorized officer on behalf of the City
and by an authorized officer of the Borrower.
This document was prepared by the Underwriter’s counsel and describes
the financing program, the economic, financial and social characteristics of
the participating entities, and the security for the Senior Bonds. The City will not mail the Preliminary Official
Statement until FHA has issued its Commitment to provide credit enhancement and
has given all other approvals.
Copies of the draft Preliminary
Official Statement, in substantially final form, will be distributed to the
City Council under separate cover.
If any councilmember has any personal knowledge that any of the material
information in the Preliminary Official Statement is false or misleading, they
must voice these issues prior to approval of the distribution of the
document. City staff, bond counsel, the Underwriter, and the
financial advisor will be available at the Council meeting on June 26, 2001 to
address any questions, issues and/or concerns.
Subordinate Indenture.
The Subordinate Indenture is between the City and Wells Fargo Bank,
National Association, as the trustee (the “Trustee”). This document is executed by the Director of Finance, or other
authorized officer on behalf of the City, and attested by the City Clerk. Pursuant to the Subordinate Indenture, the
Trustee is given the authority to receive, hold, invest and disburse the Bond
proceeds and other funds established under the Subordinate Indenture; to
authenticate the Bonds; to apply and disburse payments to Bond Owners; and to
pursue remedies on behalf of the Bond Owners.
The Subordinate Indenture sets forth the guidelines for the
administration, investment and treatment of investment earnings generated by
each fund and account. The Subordinate
Indenture provides for the Borrower to compensate the Trustee for services
rendered under the Indenture.
Subordinate Loan Agreement. The Subordinate Loan Agreement is
among the City, the Trustee, and the Borrower.
This document is executed by the Director of Finance or other authorized
officer on behalf of the City. The
Subordinate Loan Agreement provides for the use of the Bond proceeds to fund
the loan for the construction of the Project and for the repayment of such loan
and other fees and amounts by the Borrower.
The interest of the City in receiving payments under the Subordinate Loan
Agreement and enforcing the receipt of such payments under the Subordinate Loan
Agreement have been assigned to the Trustee under the Subordinate Indenture;
however, certain reserved rights have been retained by the City, such as the
City’s right to indemnification and fees.
Subordinate Bond Purchase Agreement. The Subordinate Bond Purchase
Agreement (the “Purchase Agreement”) is a contract among the City, the
Borrower, and the Purchaser of the Subordinate Bonds. The Agreement specifies
the conditions to the purchase of the Subordinate Bonds by the Purchaser on a
private placement basis (i.e., the purchase price thereof, the representations
and warranties of the City and the Borrower and the documents to be delivered
at closing). This document is executed by the Director of Finance or other authorized
officer on behalf of the City.
The financing team participants consist of:
·
City’s
Financial Advisor: E. Wagner &
Associates, Inc.
·
Underwriter: Banc of America Securities LLC
·
Bond
Counsel: Orrick, Herrington & Sutcliffe
LLP
·
Trustee/Dissemination
Agent: Wells Fargo Bank, National Association
All costs associated with the financial advisor, underwriter (including its counsel), bond counsel and trustee/dissemination agent are contingent on the sale of the Bonds and will be paid from Bond proceeds, City loan proceeds and/or Borrower equity.
Financing
Schedule
The current proposed schedule is as follows:
The method of notifying the community of the City’s intent to issue tax-exempt private activity bonds is for the City Council to hold a TEFRA Hearing. The TEFRA Hearing was held on February 20, 2001 by the San Jose City Council. The public hearing notice was published in the San Jose Mercury News on February 4, 2001.
COORDINATION
This report has been prepared by the Housing and Finance Departments in coordination with City Attorney’s Office and the financing team participants.
COST IMPLICATIONS
All costs will be paid from Bond proceeds, the City loan and/or Borrower equity. The Bonds are tax-exempt obligations which are credit enhanced by a Ginnie Mae security. The cost of the Ginnie Mae credit enhancement is provided at the expense of the Borrower. No payment of the Bonds will be paid from or guaranteed through the general taxing power of the City or any other City asset. The City will receive an initial City fee equal to a half of a point (.50%) of the par amount of Bonds issued (based on $9.75 million - $48,750) and an annual City fee equal to one-eighth of a point (.125%) of the original principal amount of the Bonds (based on $9.75 million - $12,187.50) for the staff work involved in the issuance of the Bonds and monitoring of the Bonds and Regulatory Agreement.
SCOTT P. JOHNSON LESLYE CORSIGLIA
Director, Finance Department Director, Housing Department