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HomeMy WebLinkAbout12-19-95 TSHC Min MINUTES AND CERTIFICATION On December 1995 the Board of Directors (the "Board") of Texas Student Housing Corporation convened in public meeting at the designated meeting place in Westlake, Texas, notice of the time, place, and subject of the meeting having been given in accordance with Chapter 551, Government Code. The roll of the duly constituted officers and members of the Board was called, which are as follows: Name Title James P. Carter President Worth Blake Vice President Abe A. Bush, Jr. Secretary William R. Branum Treasurer John Brooks Member Forrest Watson Member Gary G. Wall Member Carroll Schubert Member vacant Member all of whom were present except the following absentee(s): °. t, v [�1 ( thus constituting a quorum. Among other business, a written Resolution bearing the following caption was introduced: A Resolution authorizing the purchase and financing of certain education-related housing facilities pursuant to certain Installment Sale Agreements, and the execution and delivery of certain documents in connection therewith and resolving related matters The Resolution was read by the Board. After due discussion, it was duly moved and seconded that the Resolution be adopted. The Presiding Officer put the motion to a vote of the Board, and the Resolution was adopted by the following vote: AYES: NOES: ABSTENTIONS: The Presiding Officer then declared the Resolution to be adopted. MINUTES APPROVED AND CERTIFIED TO BE TRUE AND CORRECT and to correctly reflect the duly constituted officers and members of the Board, and the attached copy of the Resolution is hereby certified to be a correct copy of an official copy thereof, on among the official records of the Board, on this \0� day of December, 1995. By P [SEAL] Autho zed Officer Title: E ` r M M0922 3.24799-3 A RESOLUTION AUTHORIZING THE PURCHASE AND FINANCING OF CERTAIN EDUCATION- RELATED HOUSING FACILITIES PURSUANT TO CERTAIN INSTALLMENT SALE AGREEMENTS,AND THE EXECUTION AND DELIVERY OF CERTAIN DOCUMENTS IN CONNECTION THEREWITH AND RESOLVING RELATED MATTERS WHEREAS, this nonprofit corporation(the "TSHC")has been created pursuant to Section 53.35(b) of the Higher Education Authority Act (Chapter 53, Education Code) (the "Act") as a duly constituted authority and instrumentality on behalf of the Town of Westlake, Texas that is authorized, under Section 53.35(b) of the Act, among other things to acquire "educational facilities" and "housing facilities" (within the meaning of the Act); WHEREAS, the TSHC desires to purchase certain education-related housing facilities (consisting of land and improvements thereof) and certain personal property in connection therewith (such facilities and personal property collectively, the "Project") from Rossco Holdings Incorporated (a California corporation) and Lodgeco Properties, Ltd. (a Texas limited partnership), or their respective successors in interest (collectively, the "Project Sellers"); WHEREAS, the TSHC desires to finance the purchase of the Project through an Installment Sale Agreement (collectively, the "Installment Sale Agreements") with each of the respective Project Sellers; WHEREAS, the board of directors (the "Board") of the TSHC deems it appropriate to authorize the purchase of the Project and the execution and delivery of the documents contemplated by the Installment Sale Agreements and any other action necessary therefor; WHEREAS, the members of the Board have been given notice of the meeting at which this Resolution has been considered in accordance with the TSHC's bylaws and applicable law; WHEREAS, the meeting at which this Resolution has been considered was open to the public as required by law, and public notice of the time, place, and subject of such meeting has been given in accordance with Chapter 551, Government Code; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF TEXAS STUDENT HOUSING CORPORATION: SECTION 1. Preamble. The preamble of this Resolution is hereby adopted and made part of this Resolution. SECTION 2. Findin s. The Board, acting on behalf of the TSHC, hereby finds (solely for its own purposes to facilitate accomplishing the purposes of this Resolution)that(1)the Project is in furtherance of the public purposes of the Act and is required or suitable for aiding institutions of higher education by providing educational facilities and/or housing facilities and facilities incidental, subordinate, or related thereto or appropriate in connection therewith and (2) the material requirements and/or prerequisites for final approval by the TSHC of the financing of the Project through the Installment Sale Agreements have been satisfied and the documents approved by this Resolution are satisfactory in form and content to the Board. DMM09225.24799-3 SECTION 3. Purchase of the Project The TSHC hereby authorizes the purchase of the Project from the Project Sellers pursuant to the respective Installment Sale Agreements, copies of which are attached to this Resolution), between the TSHC and each of the Project Sellers, prescribing the terms of such purchase and financing. SECTION 4. Mortgage of Project. The TSHC hereby authorizes the granting of a deed of trust lien and security interest in the Project for the benefit of the "Beneficiary" (as defined in each of the Installment Sale Agreements) under the Deeds of Trust, Security Agreement, Assignment of Rents, and Financing Statement (collectively the "Mortgages," copies of which are attached to this Resolution), from the TSHC to the mortgage trustee identified therein, providing the terms and conditions of such grant. SECTION 5. Management of Project. The TSHC hereby authorizes the operation and management of the Project under the Management Agreements(collectively,the "Management Agreements," copies of which are attached to this Resolution) between the TSHC and the "Project Manager" identified therein. SECTION 6. Approval of Documents. (a) The TSHC hereby approves, and authorizes the execution and delivery of, the Installment Sale Agreements, the Mortgages, and the Management Agreements, and such other documents to which the TSHC will be a party as are authorized under or contemplated by such documents (such documents, the "Purchase Documents") in substantially the form and content attached to this Resolution, and such additional documents (if any) as are otherwise required to effect the transactions contemplated by the Purchase Documents, and hereby authorizes the performance by the TSHC of its duties and functions thereunder. (b) Subsequent to the adoption of this Resolution and prior to the delivery of the Purchase Documents, the provisions of the Purchase Documents (as approved by this Resolution)may be changed, to the extent permitted by law, at the request of the TSHC and/or the Project Sellers, if(1) the purchase price of the Project and the installment payments required to be under the Installment Sale Agreements authorized by this Resolution are not increased by any such change, (2) no obligation is imposed on the TSHC by any such change that is contrary to the Act or other applicable law, (3) the security for the installment payments is not materially and adversely affected by such change, and (4) each such change is approved by the general counsel of the TSHC and by the TSHC, which approval may be given on the TSHC's behalf by the authorized officer(s) of the TSHC executing the document(s) containing such change, which execution shall evidence such approval. (c) A copy of this Resolution and of each of the Purchase Documents shall be filed with the permanent records of the TSHC. SECTION 7. Time Authorized for Closing the Purchase of the Project. The TSHC hereby authorizes the purchase of all or any part of the Project pursuant to the Purchase Documents to be closed on or after the date of this Resolution. Upon the request of either of the Project Sellers, the transactions contemplated by either of the Installment Sale Agreements may be consummated any time from the date of the adoption of this Resolution through February 15, 1996 at any time deemed appropriate by the Project Sellers that is acceptable to the TSHC; provided that, unless both Installment DMM09225.24799-3 -2- Sale Agreements are closed by February 15, 1996, the authorization granted under this Resolution shall terminate. SECTION 8. Appointment of Consultants. (a) The TSHC hereby appoints Thomas Allen Moon, Esq., as finance counsel to the TSHC, for the purpose of advising the TSHC from time to time as requested by or on behalf of the TSHC on matters relating to the exercise of its powers under the Act. (b) The TSHC hereby appoints Principal Financial Securities, Inc., as financial advisor to the TSHC, for the purpose of advising the TSHC from time to time as requested by or on behalf of the TSHC on matters relating to finance and the issuance and management of debt and the management and operation of the Project. SECTION 9. Ratification of Prior Action. The TSHC hereby ratifies (to the extent that it may lawfully do so) all action not inconsistent with this Resolution that has been taken by (or on behalf of) the TSHC prior to the adoption of this Resolution for the purpose of effecting the purchase of the Project. SECTION 10. Authorized Officers. Each of the members and the officers of the Board (each as an authorized officer) is hereby authorized to execute and deliver such certifications as to facts, estimates, and circumstances as are necessary to accomplish the purposes of this Resolution and, on the TSHC's behalf, to (1) do all things necessary or convenient to carry out the terms and purposes of this Resolution, including (without limitation) the execution and delivery of the Purchase Documents, (2) perform all duties and functions of the TSHC under the Purchase Documents and this Resolution in order to accomplish the purposes thereof, and (3) certify as to all matters necessary or appropriate to implementing the transactions contemplated by the Purchase Documents. SECTION Il_ Time of Taking Effect. ffect. This Resolution shall take effect immediately upon its adoption. DMM09223.24799-3 -3- GENERAL CERTIFICATE of TEXAS STUDENT HOUSING CORPORATION Each of the undersigned officers of Texas Student Housing Corporation (the "TSHC"), on behalf of the TSHC, hereby certifies as follows: (a) This Certificate is delivered in connection with the execution and delivery of the Installment Sale Agreement (the "Agreement"), between the TSHC and Rossco Holdings Incorporated ("Rossco"), under which the TSHC will purchase certain dormitory facilities (the "Project"), pursuant to a resolution (the "Authorizing Resolution"), adopted by the Board of Directors (the "Board") of the TSHC on December 1J, 1995, authorizing the purchase of the Project and other matters related thereto. (b) A correct copy of each of the following documents (the "TSHC Corporate Documents") is attached to this Certificate: (1)the TSHC's articles of incorporation, certified by the Secretary of State of Texas, as currently in force and effect (including any amendments thereto); (2) certification of the TSHC's corporate existence by the Secretary of State of Texas; and (3) the TSHC's bylaws, as currently in force and effect (including any amendments thereto). (c) The TSHC is a nonprofit corporation duly incorporated pursuant to Section 53.35(b) of the Higher Education Authority Act (Chapter 53, Education Code) and is validly existing and in good standing under the law of the State of Texas. (d) The following are the duly qualified and acting officers and members of the Board: Name Title James P. Carter President Worth Blake Vice President Abe A. Bush, Jr. Secretary William R. Branum Treasurer Forrest Watson Member Gary G. Wall Member Carroll Schubert Member John Brooks Member Vacant (e) The TSHC has no currently outstanding debt obligations. (f) We are authorized to execute the Agreement, the Deed of Trust, Security Agreement, Assignment of Rents, and Financing Statement (the "Mortgage"), between the TSCH and Fred Bayliss, as mortgage trustee, and the Management Agreement(the"Management Agreement"), between the TSHC and SSRS, Inc. (Collectively, the Agreement, the Mortgage, and the Management Agreement shall be referred to as the "Transaction Documents.") We officially executed the Transaction Documents by manually signing the Transaction Documents. The signatures appearing below in this Certificate are correct specimens of our respective manual signatures. (g) We have caused the official seal (or a facsimile thereof) of the TSHC to be placed on the Transaction Documents, and such seal has been duly adopted by the TSHC as its official seal. DMM0922C.24799-3 (h) There is no litigation, proceeding, inquiry, or investigation pending by or before any court or other governmental authority(or, to the best of our knowledge, threatened)that affects (or would affect) the existence or powers of the TSHC, the authority of the TSHC to purchase of the Project, the title or authority of any member of the Board or other officer of the TSHC, the authority or obligation of the TSHC to issue and deliver the Transaction Documents, or the validity or enforceability of the Transaction Documents. (i) The Authorizing Resolution is in full force and effect, conforms to the TSHC Corporate Documents, and has not been amended since its adoption by the Board. 0) The Transaction Documents were properly signed on behalf of the TSHC by either or both of the undersigned and have not been amended or rescinded, and due performance of the TSHC's obligations thereunder has been authorized by the TSHC. At the time of such signing, each undersigned was, and at the time of signing this Certificate each is, the duly qualified and acting officer of the TSHC indicated therein and in this Certificate, and each is authorized to sign and deliver the Transaction Documents on the TSHC's behalf. (k) None of the Transaction Documents conflicts with, and the performance of the TSHC's obligations under the Transaction Documents will not conflict with, any of the TSHC Corporate Documents or any other instrument or other document to which the TSHC is a party or any restriction to which the TSHC is subject. (1) Neither the "Gross Revenues" (as defined in the Agreement), nor the Project has been pledged to the payment of any obligation of the TSHC or otherwise encumbered, other than pursuant to the Agreement and the Mortgage. (in) The representations and warranties of the TSHC contained in the Transaction Documents are hereby confirmed. (n) The TSHC is acquiring the Project in exchange for making "Installment Payments" (as defined in the Agreement), and consequently, there will be no cash proceeds under the Agreement. (o) All transaction costs incurred in connection with the purchase by the TSHC of the Project are being paid by Rossco under the terms of the Agreement. (p) Apart from the "Debt Service Fund" created under the Agreement, there are no "debt service funds" or "sinking funds," within the meaning of the arbitrage provisions of the federal income tax laws, existing with respect to the Agreement or the purchase of the Project. DNM0922C.24799-3 EXECUTED AND DELIVERED this 2hay of r-atm 12 lqq� By: Pr Secretary Signature Page of General Certificate of Texas Student Housing Corporation DFFOC40F(2479913)