HomeMy WebLinkAbout1994-225
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RESOLUTION NO.
94-225
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN MUTUAL RELEASE AND SETTLEMENT
AGREEMENT WITH OWNERS OF AND INTEREST
HOLDERS IN UNDEVELOPED PARCELS WITHIN
COMMUNITY FACILITIES DISTRICT NO. 995
WHEREAS, on June 18, 1990, the City of San Bernardino
("City")
created Community Facilities
995
District No.
("District") pursuant to the Mello-Roos Community Facilities Act
of 1982, codified at General Code Section 53311 et. seo. ("Act");
and
WHEREAS, pursuant to the Act, in December, 1990, the
City issued $7,325,000 Special Tax Limited Obligation Bonds,
which are secured by the special taxes authorized to be levied
against all parcels within the District; and
WHEREAS, certain sums of special taxes duly levied
pursuant to the Act against certain undeveloped parcels within
the District subsequently became delinquent and remain unpaid;
and
WHEREAS, on January 14, 1994 and January 24, 1994, four
(4) actions for judicial foreclosure of special tax liens were
commenced in the San Bernardino Superior Court on behalf of the
City against San Bernardino S.B. Five, Limited Partnership,
Lakeview
Seven
Limited
Development
One
Forty
Company,
Partnership, American National (sic) Bank, Donald E. Davis, Ruth
Newbury, Irving M. Feldkamp III, Orange Coast Title Company, Ken
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94-225
A. Kazarian, James C. Bice, Brimar Industries, Inc., and Does 1-
100, bearing Case Nos. SCV09593, SCV09594, SBCI09793 and
SCV09790; and
WHEREAS, pursuant to Section 53356.1 of the Act, the
City has ratified the judicial foreclosure actions filed on
January 14, 1994 and January 24, 1994 bearing San Bernardino
Superior Court Case Nos. SCV09593, SCV09594, SBCI09793 and
SCV09790, and has authorized the filing of an action for judicial
foreclosure of the delinquent special tax liens associated with
the undeveloped parcels owned by California Properties Fund
within the District; and
WHEREAS, the parties to the above referenced actions
for judicial foreclosure now desire to resolve their differences
and to avoid the expense and inconvenience of any future
litigation.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE,
DETERMINE AND ORDER AS FOLLOWS:
Section 1. The Mayor and Common Council hereby
approve the Mutual Release and Settlement Agreement with the
owners of, and interest holders in undeveloped parcels within the
District in the form attached hereto as Exhibit "A" and
incorporated herein by this reference.
III
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94~225
Section 2. The
authorized and directed to
Mayor of the City is hereby
execute the Mutual Release and
Settlement Agreement on behalf of the City with any such changes
as may be approved by the Mayor and Counsel for the City.
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94-225
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN MUTUAL RELEASE AND SETTLEMENT
AGREEMENT WITH OWNERS OF AND INTEREST HOLDERS IN UNDEVELOPED
PARCELS WITHIN COMMUNITY FACILITIES DISTRICT NO. 995
Section 3.
This Resolution shall become effective
immediately upon its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Mayor and Common Council of the City of
rcg1l1;'lr
meeting
San Bernardino at a
1st
August
day of
thereof, held on the
1994, by the following vote, to wit:
4th
AYES:
Council Members Negrete, Curlin, Hernandez,
Oberhelman, Devlin, Pope-Ludlam
and Miller
NAYS:
ABSENT:
~" ('t/i "L
~~7c:.
ity Clerk
The foregoing resolution is hereby approved this
day of August
, 1994.
~ )?itP~
Mayor of the City of
San Bernardino
Approved as to form and legal content:
JAMES F. PENMAN
City Attorney ;')
By/M~L&<~ -'
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94-225
STATE OF CALIFORNIA
COUNTY OF
On before me,
(here insert name and title of the officer), personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s)
whose name (s) islare subscribed to the within instrument 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 instrument.
WITNESS my hand and official seal.
Signature
(Seal)
,
\~-,,~,:?''':':',>
U'___\ <-',"
,
EXHIBI'r "A"
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement
("Agreement") is entered into this day of August, 1994, by
and between the CITY OF SAN BERNARDINO ("City") and James C. Bice,
Thomas W. Coenen and Betsy A. Coenen, One Fifty Limited
Partnership, California Properties Fund, Brimar Industries, Inc.,
Security Trust Company, Julian A. Pearson, National Bank of Long
Beach, Orange Coast Title Company, Donald E. Davis, Ruth Newburg,
Irving M. Feldkamp III, Ken A. Kazarian, Lakeview Development
Company, One Forty-Seven Limited Partnership, American
International Bank, and San Bernardino Sb Five Limited (jointly
referred to herein as "Developers"). The City and Developers are
collectively referred to as the "Parties".
1. RECITALS
1.1. Each of the Developers own or have an interest in
unimproved property located within the City's Mello-Roos District
No. 995, which properties and the Developers owning or having an
interest in them, are more fully described in Exhibit "A" attached
hereto. On or about January 14, 1994, and January 24, 1994, the
City commenced four (4) actions for judicial foreclosure of
delinquent special taxes in the Superior Court of the State of
California for the County of San Bernardino, against certain named
defendants therein, including Developers, bearing Case Nos.
SCV09593, SCV09594, SBCI09793, and SCV09790. A dispute concerning
delinquent special taxes also exists between the City and
California Properties Fund. Case Nos. SCV09593, SCV09594,
SBCI09793, and SCV09790 and the dispute with California Properties
Fund shall collectively be referred to as the "Actions".
1.2. The Parties now desire to resolve their differences
and to avoid the expense and inconvenience of any future
litigation, including without limitation, litigation of the
Actions.
1.3. Except as expressly reserved herein, it is the
intention of the Parties hereto to settle and dispose of, fully and
completely, any and all claims, demands and causes of action
relating to the Actions, or to any dealings between the City and
the Developers prior to the effective date of this Agreement and
relating to the subject matter hereof.
1. 4. In
promises herein
hereafter.
consideration of the covenants,
contained, the Parties agree
conditions and
as set forth
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2. SETTLEMENT TERMS AND CONDITIONS
2.1. Each of the Developers shall pay, with respect to
that Developer's property, delinquent fiscal year 1991- 92, 1992 - 93,
and 1993-94 special taxes in five (5) equal payments of principal
and interest amortized for five (5) years, with the first payment
commencing one (1) year after the effective date of this Agreement
and subsequent payments to be paid annually thereafter. The
principal amount of the debt shall be equal to delinquent special
taxes, interest, penalties, collection costs, legal fees associated
with the Actions, and consultant fees which have been paid or
incurred by the City as of the date of this Agreement, related to
the 1991-92, 1992-93, and 1993-94 delinquent special taxes.
Delinquent tax amounts shall bear interest at the rate of eight
percent (8%) per annum, commencing upon the date of the issuance of
the Refunding Bonds, until paid. The five (5) equal payments made
under this Section and prepayments, if any, shall be applied to
mandatory redemption of the Refunding Bonds, after any deficiencies
under Section 2.9 for the payment of debt service on the Refunding
Bonds have been paid. Late payments shall bear interest at the
rate of ten percent (10%) per annum until paid, and shall also be
applied to cause a mandatory redemption of the Refunding Bonds.
Developers shall be authorized to sell their properties during such
time as the 1991-92, 1992-93, and 1993-94 delinquencies associated
with the properties remain in existence, provided that the City's
security in the properties is not diminished. Upon each and every
sale, Developers shall either substitute collateral as determined
to be adequate by the City, or agree to pay the release price per
lot sale as established by the City.
2.2. In the event any payment due under this Agreement is
not received within ten (10) days of its due date, City may at its
option cause entry of the Judgments as set forth in Sections 2.10
and 5.1 below against the defaulting Developers, bring suit under
this Agreement or proceed with any and all other remedies available
to it at law or in equity.
2.3. Each of the Developers shall also pay, with respect
to that Developer's property, the Verdemont Infrastructure Fees at
such time as development occurs, at the rate applicable in
December, 1990, or such lesser amount as may then be imposed.
2.4. Each of the Developers shall also pay, with respect
to that Developer's Property, school facilities mitigation fees at
such time as development occurs, at the rate then in effect as
determined by the San Bernardino City Unified School District
("School District").
2.5. In addition to the Verdemont Infrastructure Fees to
be paid pursuant to Section 2.3 above, each of the Developers shall
also pay to the City that Developer's proportionate amount of
school facilities mitigation fees representing houses previously
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built for which no school facilities mitigation fees have been paid
(i.e., 163 houses x $3,502 per house = $570,826), unless the School
District otherwise agrees in. writing to waive such school
facilities mitigation fees.
2.6. Developers shall agree that no additional Mello-Roos
bonds with respect to their properties will be issued until the
special tax formula is amended to provide that any special tax
increases which are attributable to such additional bonds will not
cause an increase in the then levied special tax amount to the 163
homeowners as the principal amount of the Refunding Bonds is
reduced by mandatory redemptions from Developer payments of fiscal
year 1992-93 and 1993-94 delinquencies, plus interest pursuant to
Section 2.1 above.
2.7. Each of the Developers shall indemnify, defend and
hold harmless the City, its elected officials, staff, employees and
consultants, other than as provided in Section 2.8 below, from any
financial liability or loss, including attorneys' fees and court
costs as a result of any City actions with respect to the issuance
of the Bonds, the levy of the special tax, the formation of Mello-
Roos District No. 995 and the implementation thereof, the
interpretation of the Bond documents, and from any cross-complaints
or other actions as may be filed as a result of the Developers'
lawsuits pursuant to Section 2.8 below.
2.8. Developers may file suit in an effort to obtain any
financial relief from Orrick, Herrington & Sutcliff, David Taussig
& Associates, prudential-Bache Capital Funding, Lillick & McHose,
and/or Charles R. Wilson & Associates, Inc. No relief shall be
sought or obtained against the City in any such action.
2.9. Refunding Bonds shall be issued, the proceeds of
which, together with unexpended Verdemont Infrastructure Fees and
school facilities mitigation fees, will be sufficient to pay the
September 1, 1994 principal and interest payment on the 1990 Bonds
and will establish a defeasance escrow fund that will satisfy and
discharge the claims of the owners of the 1990 Bonds under the
Fiscal Agent Agreement dated November 1, 1990. The Refunding Bonds
debt service shall be provided from the 163 single family houses
(i.e., 163 houses x $1,300 per house = 211,900 per year).
Mandatory redemptions of the Refunding Bonds shall be made from
payments by the Developers as provided in Section 2.1 above.
Vacant land shall remain contingently liable for the Refunding Bond
debt service and administrative costs, but it is the intent that
the vacant land should pay only a nominal special tax, if any.
2.10. Concurrent with the execution of this Agreement,
Developers shall provide counsel for the City with executed
Stipulations For Entry Of Judgment ("Stipulations"), copies of
which are attached hereto as Exhibit "B" and are incorporated
herein by this reference. Counsel for the City may cause the
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Stipulations to be filed with the San Bernardino Superior Court
immediately thereafter. In accordance with the Stipulations, the
City may cause entry of Judgments, copies of which are attached
hereto as Exhibit "cn and are incorporated herein by this
reference, against Developers in the event any payment due under
this Agreement is not received within ten (10) days of its due
date, or any condition set forth under this Agreement is not
satisfied. The Stipulations further provide that upon payment in
full of the sums due under this Agreement and upon occurrence of
the conditions set forth under this Agreement, the City shall cause
dismissal(s) to be filed in the applicable Action(s).
Notwithstanding Code of Civil Procedure Section 583.310 and any
applicable statute of limitations, the City shall have the right to
cause entry of Judgments in the Actions without penalty should thi:3
Agreement not be consummated. The parties expressly agree to waive
Code of Civil Procedure Section 583.310 and any applicable statute
of limitations to the extent necessary to allow the City to cause
entry of Judgments in the Actions in the event the settlement
contemplated within this Agreement is not consummated.
2.11. Developers shall bear their own attorneys' fees
and costs incurred in connection with the Actions.
2.12. This Agreement has been duly ratified, accepted
and consented to by the City, through the action of its City
Council. The representatives signing this Agreement on behalf of
the City expressly represent that he or they do so with the full
authority and consent of the City.
3 . RELEASE
3.1. Upon the occurrence of the events and conditions set
forth in Sections 2.1 through 2.12, inclusive, the City, on its own
behalf and on behalf of its agents, assignees, transferees,
representatives and successors in interest, fully and generally
release and forever discharge Developers and their past and present
representatives, predecessors, successors and assigns, insurers,
attorneys, employees, officers, trustees, directors, agents,
consultants, servants, partners, limited partners, other
representatives and their related entities, and all persons acting
by, through and/or in concert with any of them, from and against
any and all claims, any and all known and unknown liabilities,
demands, damages, expenses, costs, attorneys' fees, obligations,
and causes of action of any kind whatsoever related to or arising
out of the Actions, or which could have been alleged in the
Actions.
3.2. Upon the occurrence of the events and conditions set
forth in Sections 2.1 through 2.12 inclusive, Developers on their
own behalf and on behalf of their agents, assignees, transferees,
representatives and successors in interest, fully and generally
release and forever discharge the City and its past or present
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representatives, predecessors, successors, assigns, insurers,
attorneys, employees, officers, trustees, directors, agents,
consultants, servants, partners, limited partners, other
representatives and their related entities, and all persons acting
by, through andlor in concert with any of them, from and against
any and all claims, and any and all known and unknown liabilities,
demands, damages, expenses, costs, attorneys' fees, obligations,
and causes of action of any kind whatsoever arising out of the
Actions, or which could have been alleged in the Actions.
3.3. Each Party acknowledges that the release set forth
herein by the Parties hereto is a full and complete general release
of the claims for damages, debts, liabilities, demands,
obligations, costs, expenses, compensation, actions, and causes of
action, which are described herein, and is intended to encompass
all known and unknown, foreseen and unforeseen, claims which
Developers and the City may have against one another. Accordingly,
each Party hereto does hereby expressly waive and relinquish any
and all rights and benefits which each may otherwise have against
the other pursuant to Section 1542 of the California Civil Code
which provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
3.4. Each Party acknowledges that he, she or it may
hereafter discover facts different from, or in addition to, those
which he, she or it now knows or believe to be true, with respect
to the Actions or other matters which are the subject of this
Agreement, and the Parties each hereby expressly agree to assume
the risk of the possible discovery of additional or different
facts, and agree that this Agreement shall be and remain effective
in all respects regardless of such additional or different facts.
3.5. The Parties warrant that, except as provided herein,
each has the power to settle and release fully and completely all
claims, causes of action, demands, charges, and liabilities against
the other, arising out of or relating to the Actions, and that each
person is duly authorized and empowered to sign this Agreement.
4.
MISCELLANEOUS PROVISIONS.
4.1. This Agreement shall
executors, administrators, successors
assignees of each Party herein. It
benefit of each Party's respective
servants, directors, shareholders,
bind the respective heirs,
in interest, transferees, and
shall bind and inure to the
past or present employees,
agents, insurers, partners,
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limited partners, attorneys, successors in interest,
representatives, related entities and assigns.
other
4.2. This Agreement contains the entire understanding of
the Parties with respect to the subject matter hereof, and no
modification or waiver of any of the provisions hereof shall be
valid unless and until it is put into writing and executed by the
Party(s) to be bound thereby.
4.3. This Agreement shall be governed in accordance with
the Laws of the State of California. Any action brought to enforce
or interpret this Agreement, or any part thereof, shall be brought
in the State of California, in the County of San Bernardino.
4.4. Whenever possible, each provision of the Agreement
shall be interpreted in such a manner as to be valid under
applicable California law; but, if any provision of this Agreement
shall be declared or determined by any court to be illegal or
invalid, the validity of the remaining parts, terms or provisions
shall not be affected thereby and any such illegal or invalid part,
term or provision shall not be deemed to be part of this Agreement.
4.5. The Parties each represent that they have
investigated the facts they deem necessary, have consulted with
their respective legal counsel regarding said facts and the
attendant risks of settlement pursuant to this Agreement, and are
not relying upon any representations or acknowledgement, whether
oral or in writing, of any other Party hereto except as contained
herein.
4.6. The Parties hereto agree to perform such acts and to
prepare, execute, file and record any documents or stipulations
reasonably required to perform the covenants and satisfy the
conditions herein contained.
4.7. This Agreement is the compromise of disputed claims
and upon the performance of the covenants contained herein by
Developers, fully and finally settles all claims between Developers
and the City stemming from any and all dealings, contracts or
transactions between them, from the beginning of time, related to
the subject matter hereof, and is intended to buy peace and to
prevent any further involvements and disputes. Neither the payment
of any consideration hereunder or anything contained in this
Agreement shall be interpreted or construed to be an admission on
the part of, or to the prejudice of any Party to this Agreement.
Except for the obligations created by this document and the
Exhibits attached hereto which are incorporated by reference
herein, each Party hereto expressly denies any and all liability
associated with or related to the Actions and claims described
therein.
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, 4.8. Each Party hereto acknowledges and represents that
no promise, representation or inducement not herein expressed has
been made in connection with this Agreement.
4.9. Each Party hereto certifies that he, she or it has
read all of this Agreement and fully understands all of the same.
4.10. This Agreement shall be construed without regard to
who drafted same and shall be construed as though all Parties
hereto participated equally in the drafting of this Agreement.
4.11. This Agreement consists of (___) pages,
including Exhibits "A", "B", and "C" and may be executed in
counterparts, each of which shall be deemed an original, and which
together shall constitute one and the same instrument.
4.12. This Agreement contains the entire agreement
between the Parties hereto and the terms of this Agreement are
contractual and not a mere recital.
4 .13. Notwithstanding the provisions of Section 5.1,
below, in the event any party breaches a material provision of this
Agreement, it may be specifically enforced or rescinded, at the
election of the non-breaching party, in addition to other equitable
and legal remedies.
4.14. In the event that any Party hereto shall institute
any action or proceeding to enforce or interpret any of the rights
granted or released hereunder, the prevailing Party in such action
or proceeding shall be entitled to recover all of his, hers, its or
their costs and expenses incurred in the action or proceeding,
including, but not limited to, reasonable attorneys' fees and court
costs.
4.15. The effective date of the Agreement shall be
deemed to be August __, 1994.
5. JUDICIAL PROCEEDINGS
5.1. The Actions are stayed as of August ,1994. The
Parties agree that the trial date and law and motion dates, if any,
shall be vacated, subject to being reset upon noticed motion
brought by any party, accompanied by appropriate declaration (s)
reciting failure of a condition of the Agreement. The Parties
hereby further agree that the time within which an action must be
brought to trial, pursuant to code of civil Procedure
Section 583.310 (five year limitation), shall be hereby tolled by
the express agreement of the Parties, pursuant to Code of Civil
,Procedure Section 583.330, and that the present date to bring the
matter to trial within the five (5) year period is extended by all
Parties for the period of time that the settlement terms, pursuant
to this Agreement, are pending but not "consummated" (i.e., all
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conditions satisfied and the sums paid as agreed). All applicable
limitations regarding discovery are tolled, pending further order
of the Court.
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
DATED: August
, 1994
CITY OF SAN BERNARDINO
By:
, 1994
James C. Bice
, 1994
Thomas W. Coenen
, 1994
Betsy A. Coenen
, 1994
ONE FIFTY LIMITED PARTNERSHIP
By:
, 1994
CALIFORNIA PROPERTIES FUND
By:
, 1994
BRlMAR INDUSTRIES, INC.
By:
, 1994
SECURITY TRUST COMPANY
, 1994
By:
SAN BERNARDINO Sb FIVE LIMITED
By:
, 1994
Julian A. Pearson
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DATED: August , 1994 NATIONAL BANK OF LONG BEACH
By:
DATED: August , 1994 ORANGE COAST TITLE COMPANY
By:
DATED: August , 1994
Donald E. Davis
DATED: August 1994
Ruth Newburg
DATED: August , 1994
Irving M. Feldkamp III
DATED: August , 1994
Ken A. Kazarian
DATED: August
, 1994
LAKEVIEW DEVELOPMENT COMPANY
By:
DATED: August
1994
ONE FORTY-SEVEN LIMITED PARTNERSHIP
By:
DATED: August
1994
AMERICAN INTERNATIONAL BANK
By:
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fll1 ')t)l':
94 225
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
SABO & GREEN, A Professional Corporation
By:
Timothy J. Sabo
Attorneys for City of San Bernardino
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for James C. Bice
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Thomas W. Coenen
and Betsy A. Coenen
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for California
Properties Fund
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Brimar Industries,
Inc.
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APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Security Trust
Company
APPROVED AS TO FORM AND CONTENT:
DATED: August __, 1994
By:
Attorneys for San Bernardino
Sb Five Limited
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Julian A. Pearson
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for National Bank of
Long Beach
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Orange Coast Title
Company
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94 ??5
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Donald E. Davis
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Ruth Newburg
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1.994
By:
Attorneys for Irving M. Feldkamp III
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Ken A. Kazarian
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for Lakeview Development
Company
APPROVED AS TO FORM AND CONTENT:
DATED: August ,1994
By:
Attorneys for One Forty-Seven
Limited Partnership
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. 94
'>,,!!:
0')5
....
APPROVED AS TO FORM AND CONTENT:
DATED: August __, 1994
By:
Attorneys for American International
Bank
SBEO/0121/DOC/15
7/26/94 12:25
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