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HomeMy WebLinkAbout1991-063 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION NO. 91-63 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO. FOUR TO 3 THE LOAN AGREEMENT RELATING TO CENTRAL CITY PROMENADE. 4 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 5 SECTION 1. The Mayor of the City of San Bernardino is 6 hereby authorized and directed to execute Amendment No. Four to 7 the Loan Agreement between the City of San Bernardino and Central 8 City Promenade, in the form of a copy of said Amendment attached 9 hereto as Exhibit "A". SECTION 2. Said Supplement shall not take effect until fully signed and executed by all parties. The City shall not be obligated hereunder unless and until the Amendment is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. This resolution is rescinded if the parties to the Amendment fail to execute it within Sixty (60) days of the passage of this resolution. I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I DAB/ses/Cen-City.res February 13, 1991 1 1 RESOLUTION...AUTHORIZING THE EXECUTION...RELATING TO CENTRAL CITY PROMENADE. 23 25 26 27 28 2 3 I HEREBY CERTIFY that the foregoing resolution was duly 4 5 adopted by the Mayor and Common Council of the City of San Bernardino at a Regular 6 meeting thereof, held on the 18th February ,1991, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ESTRADA x REILLY x FLORES x MAUDSLEY x MINOR X POPE-LUDLAM X MILLER X day of 7 8 9 10 11 12 13 14 15 16 17 18 cf5~~ 19 February , 1991. The foregoing resolution is hereby approved this 20th /' day of 20 21 22 Approved as to form and legal content: 24 JAMES F. PENMAN, City Attorney ~ DAB/ses/Cen-City.res February 13, 1991 " ~ ( /'--; //,_/7->---:; / -;'// _ ,-__ -- .~ ../ >/.'___ c W, R{H~lcombj Mayor, City of San Bernardino /' 2 CITY OPO SAH BElUD.RDIllO CITY c:r.xmr;' S OP'P'YC:Z FAX ~SlIYSSrON CnvF!R SBEE'l' DATE ':R.U1S!U~: c;/- c;i (.0 / '1 / TIHE: I/.oc)(.,,,,, ~ NfTToIllI"1l, OF PAGES. INCLUDING COVER SllEE'1': / j l"ROIll IUJlB I 2)/4 /,(::~ :l)/I~' 5 ADDRESS I Cj.ty--of San' Bernardino. 300 Nortil "0' St., - - San Bernardino ((7"";/ c~/, / DEPAR'l'HEN'l': PHONE : ')IC/ 3" )'y T/c"] FAX NQVa~: (714) 384-5468 'l'P.U!alI.~ -reI NAHE : / /'1" ..-.- --- K /-( /Y2 P ~.:? ADDRESS: PHONE: ~//c/- /c+F' yo" ) .. FAX NmmER: '7/'/ - 7cl.j- - </,/0(.) Special Commen~s or Descrip~ion of Documen~s. 'T-",,}-"! v_<-,.~(/J(./r'Y ?;/-( ,)[/}/'/ //z.i ih//(j/"lC) r4/JO.. / v Clerk FAX Fo:m 11/89 ~- R.<Y '1. \ ~ 10 "> AMENDMENT NO. FOUR TO THE LOAN AGREEMENT This Amendment No. Four to the Loan Agreement, as amended. as of December 15, 1984 between the City of San Bernardino, a chartered city duly organized and existing under the Constitution of the State of California and its City Charter (the MlssuerM) and Central City Promenade, a California Limited Partnership (the MCompanyM), (the MLoan Agreement") is made and entered into as of February I, 1991 between the Issuer and the Company, with the consent of The Trust Services of America, Inc. a California corporation (the MTrusteeM) and the Chase Manhattan Bank, N.A. (the MPurchaserM),(the MAmendment"). Capitalized terms used in this Supplement and not otherwise defined shall have the same meaning as in the Loan Agreement. WIT N E SSE T H: WHEREAS, Section 9.06 of the Loan Agreement provides that the Issuer and the Company may supplement the Loan Agreement with the consent of the Trustee; and WHEREAS, Section 1202 of the Trust Indenture dated as of December IS, 1984 between the Issuer and the Trustee (the MlndentureM) provides that Mneither the Issuer nor the Trustee shall consent to any . . .amendment of the Loan Agreement . . . without publication of notice and mailing and the written approval or consent of the Holder and Owners of not less than one hundred percent (100\) in aggregate principal amount of the Bonds .. . M; and WHEREAS, the Purchaser is the MHolder or Owner of every BondM; and . . WHEREAS, the Purchaser's consent to this Amendment as indicated by its execution of this Amendment is sufficient to meet the consent and notice requirements of Section 1202 of the Indenture; and WHEREAS, Section 6.03(c) of the Loan Agreement provides that Mprior to the Conversion Date, the Note is subject to Mandatory Prepayment, in whole, on March 1, 1991 . . . unless the Purchaser has given notice in writing evidencing its waiver of such redemption at least forty-five (45) days, but no more than sixty (60) days, prior to such Redemption Date to the Issuer, the Trustee and the CompanyM; and WHEREAS, the Company and the Purchaser desire to amend Section 6.03(c) of the Loan Agreement to provide the necessary time to amend possibly further the Loan Agreement. NOW, THEREFORE, in consideration of the mutual covenants and undertaking set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer and the Trustee hereby agree as follows: 1. Section 6.03(c) of the Loan Agreement is amended and restated as follows: -(c) Mandatorv Prepayment Upon Demand of Purchaser. Prior to the Conversion Date, the Note is sUbject to mandatory prepayment, in whole, on July 1, 1991, and on December 1, 1995 and on each fifth December 1 thereafter until maturity, at a price equal to the principal amount of Outstanding Bonds plus accrued interest to the date of prepayment, without premium, unless the Purchaser shall have given notice in writing evidencing its waiver of such redemption, at least forty-five (45) days, but no more than sixty (60) days, prior to each such Redemption Date to the Issuer, the Trustee and the Company.- 2. This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Loan Agreement to be executed on their behalf by their duly authorized officers, and, if applicable, their corporate seal to be affixed and duly attested all as of the day first above written. . CITY OF SAN BERNARDINO By: Its: Mayor ATTEST: By: Its: City Clerk 3522u/2266/03 ATTEST: By: Its: . Assistant Secretary 3522u/2266/03 CENTRAL CITY PROMENADE, a California limited partnership By: Mark Shurgin, General Partner By: Rosaland Jonas Shurgin, General Partner CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: TRUST SERVICES OF AMERICA, INC. By: Its: Authorized Representative CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN BANK, N.A. By: Its: Authorized Representative February , 1991 City of San Bernardino San Bernardino, California Trust Services of America, Inc. Los Angeles, California Re: City of San Bernardino, Industrial Development Revenue Bonds (Central City Promenade Project) (the wBondsW) Ladies and Gentlemen: . . We have acted as counsel for the City of San Bernardino, a chartered city duly organized and existing under the Constitution of the State of California and its City Charter, (the wIssuerW), in connection with the supplementing and amending of the Indenture and Loan Agreement, as defined below. In that connection, we have examined originals or copies certified or otherwise identified to our satisfaction of (I) the Trust Indenture dated as of December 15, 1984 between the Issuer and Trust Services of America. Inc., a California corporation (the wTrusteeW), as supplemented (the wIndenture"); (2) the Loan Agreement dated as of December 15. 1984 between the Issuer and Central City Promenade, a California limited partnership (the WCompanyW), as amended (the wLoan Agreement"); I , , City of San Bernardino Trust Services of America. Inc. February ,1991 Page Two (4) Supplement No. Four to the Indenture dated as of February 1, 1991 between the Issuer and the Trustee (the .Supplement No. Four"); (5) Amendment No. Four to the Loan Agreement dated as of February 1, 1991 between the Issuer and the Company (the .Amendment No. Four.); and (6) the Internal Revenue Code of 1954 and 1986, as amended. and such regulations, revenue rUlings and private letter rulings promulgated or issued thereunder (the "Code") and predecessor statutes as we have deemed relevant to the rendering of this opinion. Based upon our examination of the foregoing, and in reliance thereon, and on allegations of fact as we deem relevant under the circumstances, we are of the opinion that: 1. The execution and delivery of the Amendment No. Four and the Supplement No. Four have been authorized by the Issuer and, assuming proper authorization, execution and delivery by the respective other parties thereto, including parties consenting thereto, are valid and binding obligations of the Issuer enforceable in accordance with their terms, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, insolvency or other laws affecting creditors' rights generally or by the exercise of judicial discretion in accordance with general principles of equity. 2. Assuming that interest on the Bonds is exempt from federal income taxation currently, the Supplement No. Four and the Amendment No. Four will not cause interest on the Bonds to cease to be exempt from gross income for purposes of federal income taxation or from personal income taxes imposed by the State of California. We note that this office did not serve as bond counsel in connection with the original issuance of the Bonds and has at .' City of San Bernardino Trust Services of America, Inc. February , 1991 Page Three no time rendered an opinion regarding the exemption from federal or State income taxation of interest on the Bonds. We have not reviewed the documents or any underlying facts or circumstances relative to the tax exempt status of interest on the Bonds either at the date of original issuance of the Bonds or at any time since such date. Moreover, in order for interest on the Bonds to remain exempt from federal income taxation subsequent to the bond issuance date, it is necessary that the provisions of Section l03(b)(6)(D), among others, of the Internal Revenue Code of 1954, as amended, be complied with on a continuous basis. Because we have made no independent investigation as to whether there has been such compliance in the present case, for purposes of this opinion, we have assumed that interest on the Bonds is exempt from federal income taxation and State of California personal income taxation as of the date of this opinion and express no opinion as to whether interest on the Bonds is presently exempt from federal income taxation or State of California personal income taxation. We have not undertaken to verify through independent investigation the accuracy of the representations made to us or of the foregoing assumptions made by us in rendering this opinion. The opinions expressed herein may be relied upon by the addressee of this opinion and may not be relied upon by any other party. Respectfully submitted, .. 3524u CITY OF SAN BERNARDINO INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984A (CENTRAL CITY PROMENADE PROJECT) CERTIFICATE OF THE COMPANY The undersigned as the sole general partners of Central City Promenade, a California Limited Partnership (the "Company") hereby certifies that the Company has complied in all material respects as of the date hereof with the terms and conditions of the Indenture, as supplemented, the Loan Agreement, as amended and the Regulatory Agreement, as amended, and no event of default thereunder has been declared as of the date hereof. All capitalized terms used herein and not otherwise defined shall have the meaning given them in the Indenture relating to the above-referenced financing. Dated: February ,1991 CENTRAL CITY PROMENADE, a California limited partnership By: Mark Shurgin, General Partner By: Rosaland Jonas Shurgin, General Partner . 3522u/2266/03 . . FRITZ R. STRADL.ING NICK E. voceA C. CRAIG CARL.SON WiLLI....... R. "'...UT.... III ....C.SCI-l......,. RICHARO C. GOOO.......N .)OHN ..I. MURPHY THOMAS P. CLARK, ,JR. BEN .... FFlYDM...N CAVID R. MCEWEN PAUL L. GAL.E RUDOLPH C. SH!:PARO ROBERT ..... KANE M. O. T"LBOT .RueE C. STUART E. KURT YEAGER ROBERT .J. WHAL.EN ROBE"'''' E. RICH THOMAS .... PISTONE R"'HOALL .... SHERMAN BRUCE W. FEUCHTER ""ARK .J. HUEBSCH KAREN A. EL.LIS EL1Z"SE:TH C. OR!:!:N BRUCE O. MAY DONALD .... ......M......,.., .JOHN ,J, SWIGART, .JR. MICHAEL A. ZASI..OCKI NElLA R. BERNSTEIN CELESTE STAHL BRACY C,",RI$TOPHER..J. KILPATRICK ,,",DEL H. GUT"" .JULIE MCCOY AKINS CAWN C. HONEYWELL OWEN B. LUBOW LAwRENCE B. COMN WARREN B. DIVEN TO: FROM: RE: STRADLING, YOCCA, CARLSON & RAUTH A F'RO"-ESSIONAL CORF'ORATION ATTORNEYS AT LAW ......MES Dl!:XTER CLARI'l. STEPHEN H. L....COUNT H"'RL.EY L.. B,JEL.L....ND STEPHEN T. F'REEM"'N ROBERT .... WIL.SON LISA M. KITSUT... CHERYL. .... DOW NICHOL....S ,J. YOCC'" ..JUL.IE M. PORTER M"''''K T. P"'L.IN MICH"'!!:L. E. FL.YNN ROBERT C. F'UNST!!:N AL.ETA L.OUISE BRYANT RONAL.D A. VAN BL.ARCOM STEPHEN M. M~N"'MAR'" G"'RY A. PEMBERTON ..JOHN M. ANTOCl C"'ROL. L.. L.EW DENISE E. HARBAUGH BARBARA ZElo L.EIBOL.o ..JON E. GOETZ ...L....N..J. KESSEL. G"'RY P. DOWNS ..JOHN o.IREL"'ND MICH...EL. ..J. PENDERGAST D...VIO H. MANN GALE I. SCHL.ESINGER Ct-IRISTOPHER M. MOROPOUL.OS D"'N'" M. KEZMOH C...RRYL. S. GIBSON ..JOHN G. MCCI..ENDON TODD R. TM"'K"'R RICH"Ro T. NEEDH,",M ROBERT C. W,",L.L.ACE DAMON C. MOSI..ER GER"RO 1... OSK"'M ee.o NEWF"QRT CENTER CRIVE, SUITE l600 ..JOHN E. BRECKENRIDGE REN,", C. STONE 0" COUNS[l.. POST OF'F'tCE BOX 7e.ao NEWF"QRT BEACI-l, CALIF"ORNIA 92ee.O-6441 TELEF'I-lONE (714) 725'4000 TELEPHONE (714) 640'7035 WRITER'S OIR!!:CT 01,",1..: FAX NUMBER (7''') 725'..100 October 1, 1991 Persons on the Attached Distribution List Eric B. Kummetz, Legal Assistant City Bonds of San Bernardino Industrial (Central City promenage Revenue 19B4A Development Project) Series and fifth financing. Enclosed supplemental please find transcripts documents relating to of fourth the referenced If you need anything further, please call me. Very truly yours, STRADLING, YOCCA, CARLSON & RAUTH ~/ Eric B. Kummetz .0 ::0 en ~ , , en ~ ~-2 -, ebk -< ,_J encl I ~9-=> .- ~ .< ;J:> ~._) 00 p , j::;. i-'n .:r") 00 ., CITY OF SAN BERNARDINO 1984 SERIES A INDUSTRIAL REVENUE BONDS (CENTRAL CITY PROJECT) TRANSCRIPT DISTRIBUTION LIST Susan V. Noonoo, Esq. Loeb and Loeb 1000 wilshire Boulevard, Suite 1800 Los Angeles, CA 90017 Tel: (213) 688-3400 Fax: (213) 688-3461 E. Kurt Yeager, Esq. Gary P. Downs, Esq. Stradling, Yocca, Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 Tel: (714) 725-4000 Fax: (714) 725-4100 Mr. Howard Isador Corporate Finance Trust Services of America, Inc. 700 Wilshire Boulevard, 4th Floor Los Angeles, CA 90017 Tel: (213) 614-7000 Fax: (213) 629-3241 Richard S. Arfa, Esq. Schurgin Development Companies 12421 West Olympic Boulevard Los Angeles, CA 90064 Tel: (213) 820-5111 Fax: (213) 820-1965 Ms. Barbara Lindseth Redevelopment Agency of the City of San Bernardino 300 North D Street, 4th Floor San Bernardino, CA 92418 Tel: (714) 384-5081 Fax: (714) 888-9413 . . . Arlen Gunner, Esq. Troy and Gould 1801 Century Park East, Suite 1510 Los Angeles, CA 90067 Tel: (213) 553-4441 Fax: (213) 201-4746 Mr. Hank Helley Manufacturers Hanover Trust of California 300 South Grand Avenue Los Angeles, CA 90071 Tel: (213) 621-8260 Fax: (213) 617-9046 Ms. Eileen Gertzog The Chase Manhattan Bank 101 Park Avenue, 15th Floor New York, NY 10178 . . . CITY OF SAN BERNARDINO INDUSTRIAL DEVELOPMENT REVENUE BONDS (CENTRAL CITY PROMENADE PROJECT) SERIES 1984A . DOCUMENT INDEX . 1. Supplement No. Four to the Indenture. 2 . Amendment No. Four to the Loan Agreement. 3 . Resolution Number 91-63 of the City. 4. Resolution Number 91-64 of the City. 5. Certificate of the Company. 6. Opinion of Counsel for the City. 7. Opinion of Counsel for the Developer. i. . . . \Ci :::0 m ~ G m 0 C""J -i ~) I . I:>.l.~ :>:>~ < mp j,;. IT] \0 .n T . . . . . . . . . . I , . . ,---- . . . . . . . . . . . SUPPLEMENT NO. FOUR TO THE INDENTURE This Supplement No. Four to the Trust Indenture, as supplemented, dated as of December 15, 1984 between the City of San Bernardino, a chartered city duly organized and existing under the Constitution of the State of California and its City Charter (the "Issuer") and Trust Services of America, Inc., a California corporation (the "Trustee") (the "Indenture") is made and entered into as of February 1, 1991 between the Issuer and the Trustee, with the consent of The Chase Manhattan Bank, N.A. (the "Purchaser"), and Central City Promenade, a California Limited Partnership (the "Company"), (the "Supplement"). Capitalized terms used in this Supplement and not otherwise defined shall have the same meaning as in the Indenture. WIT N E SSE T H: WHEREAS, Section 1102 of the Indenture provides that the Issuer and the Trustee may supplement the Indenture "as shall be deemed necessary and desirable by the Issuer or the Trustee for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained. .[therein] or in any supplemental indenture; provided, however, that nothing contained in . Section [1102] shall permit, or be construed as permitting, without the consent of the Holder or Owner of every bond, (i) an extension of the maturity of the principal of or the interest thereon or of any redemption dates from the Bond Fund . "; and WHEREAS, the Purchaser is the "Holder or Owner of every Bond"; and WHEREAS, the Trustee or Issuer has deemed it "necessary and desirable" to modify the Indenture; and WHEREAS, Section 1102 of the Indenture provides further that "a supplemental indenture. . which affects the rights of the Company shall not become effective unless and until the Company shall have consented to the adoption of such supplemental indenture"; and WHEREAS, this Supplement "affects the rights of the Company"; and WHEREAS, Section 301(d) of the Indenture provides that "prior to the Conversion Date, the Bonds are subject to mandatory redemption, in whole, on March 1, 1991. . unless the Purchaser shall have given notice in writing to the . . Issuer, the Trustee and the Company, stating that such redemption shall be waived, at least forty-five (45) but no more than sixty (60) days prior to each such redemption date"; and . WHEREAS, the Purchaser and the Company desire to further amend Section 301(d) of the Indenture to provide the necessary time to supplement possibly further the Indenture. . NOW, THEREFORE, in consideration of the mutual covenants and undertaking set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Issuer and the Trustee hereby agree as follows: 1. Section 301(d) of the Indenture is amended and restated as follows: . -(d) Redemption Upon Demand Of Purchaser. Prior to the Conversion Date, the Bonds are subject to mandatory redemption, in whole, on July 1, 1991, and on December 1, 1995 and on each fifth December 1 thereafter until maturity, at a price equal to the principal amount of Outstanding Bonds plus accrued interest to the Redemption Date, without premium, unless the Purchaser shall have given notice in writing to the Issuer, the Trustee and the Company, stating that such redemption shall be waived, at least forty-five (45) but no more than sixty (60) days prior to each such redemption date." . . 2. This Supplement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. . IN WITNESS WHEREOF, the parties hereto have caused this Supplement to the Indenture to be executed on their behalf by their duly authorized officers, and, if applicable, their corporate seal to be affixed and duly attested all as of the day first above written. CITY . . ATTEST: By: Its: ~ , ., Ji. ,,/--'/__;',( .. r~,-...~." 'Y'--=-"'-1/ City Clerk r . 3518u/2266/03 I " . . ATTEST: . By: Its: Assistant Secretary . . . , . . . . 3518u/2266/03 TRUST SERVICES OF AMERICA, INC. By: ~91.~ Its: Authorized Repres ative CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN BANK, N.A. By: Its: Authorized Representative CONSENT OF THE COMPANY AS REQUIRED BY SECTION 1102 OF THE INDENTURE: CENTRAL CITY PROMENADE, a California Limited Partnership By: Mark Shurgin, General Partner By: Rosiland Jonas Shurgin, General Partner . . TRUST SERVICES OF AMERICA, INC. By: Its: Authorized Representative . ATTEST: . By: Its: Assistant Secretary CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: . THE CHASE MANHATTAN BANK, N.A. 1 vi ~/ By: /:1 Its: uthorlzed Representative . CONSENT OF THE COMPANY AS REQUIRED BY SECTION 1102 OF THE INDENTURE: . CENTRAL CITY PROMENADE, a California Limited Partnership . By: Mark Shurgin, General Partner By: . Rosiland Jonas Shurgin, General Partner . . 35l8u/2266/03 . I i . . ATTEST: . By: Its: Assistant Secretary . . . . . . . 3518u/2266/03 TRUST SERVICES OF AMERICA, INC. By: Its: Authorized Representative CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN BANK, N.A. By: Its: Authorized Representative CONSENT OF THE COMPANY AS REQUIRED BY SECTION 1102 OF THE INDENTURE: CENTRAL CITY PROMENADE, a California i 'ted Partnership By: By: Rosa ' d Jonas Schurgin General Partner . AMENDMENT NO. FOUR TO THE LOAN AGREEMENT . . This Amendment No. Four to the Loan Agreement, as amended, as of December 15, 1984 between the City of San Bernardino, a chartered city duly organized and existing under the Constitution of the State of California and its City Charter (the "Issuer") and Central City Promenade, a California Limited Partnership (the "Company"), (the "Loan Agreement") is made and entered into as of February 1, 1991 between the Issuer and the Company, with the consent of The Trust Services of America, Inc. a California corporation (the "Trustee") and the Chase Manhattan Bank, N.A. (the "Purchaser"), (the "Amendment"). Capitalized terms used in this Supplement and not otherwise defined shall have the same meaning as in the Loan Agreement. . WIT N E SSE T H: . WHEREAS, Section 9.06 of the Loan Agreement provides that the Issuer and the Company may supplement the Loan Agreement with the consent of the Trustee; and . WHEREAS, Section 1202 of the Trust Indenture dated as of December 15, 1984 between the Issuer and the Trustee (the "Indenture") provides that "neither the Issuer nor the Trustee shall consent to any .amendment of the Loan Agreement . without publication of notice and mailing and the written approval or consent of the Holder and Owners of not less than one hundred percent (100%) in aggregate principal amount of the Bonds .. "; and . WHEREAS, the Purchaser is the "Holder or Owner of every Bond"; and . WHEREAS. the Purchaser's consent to this Amendment as indicated by its execution of this Amendment is sufficient to meet the consent and notice requirements of Section 1202 of the Indenture; and . WHEREAS, Section 6.03(c) of the Loan Agreement provides that "prior to the Conversion Date, the Note is subject to Mandatory prepayment. in whole, on March 1. 1991. . unless the Purchaser has given notice in writing evidencing its waiver of such redemption at least forty-five (45) days. but no more than sixty (60) days. prior to such Redemption Date to the Issuer, the Trustee and the Company"; and . WHEREAS. the Company and the Purchaser desire to amend Section 6.03(c) of the Loan Agreement to provide the necessary time to amend possibly further the Loan Agreement. . . . NOW, THEREFORE, in consideration of the mutual covenants and undertaking set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer and the Trustee hereby agree as follows: . 1. Section 6.03(c) of the Loan Agreement is amended and restated as follows: . N(C) Mandatory Prepayment Upon Demand of Purchaser. Prior to the Conversion Date, the Note is subject to mandatory prepayment, in whole, on July I, 1991, and on December I, 1995 and on each fifth December 1 thereafter until maturity, at a price equal to the principal amount of Outstanding Bonds plus accrued interest to the date of prepayment, without premium, unless the Purchaser shall have given notice in writing evidencing its waiver of such redemption, at least forty-five (45) days, but no more than sixty (60) days, prior to each such Redemption Date to the Issuer, the Trustee and the Company.N . . 2. This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. . IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Loan Agreement to be executed on their behalf by their duly authorized officers, and, if applicable, their corporate seal to be affixed and duly attested all as of the day first above written. . B I CITY OF SAN BERNARDINO ATTEST: . ~) . . /l" ~~~ :._.~\~~~le;t-c ~';I . . 3522u/2266/03 . . . . . . ATTEST: By: Its: Assistant Secretary . . . . . 1522u/2266/03 ROMENADE, a ited partnership g~n rtner By: CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: TRUST SERVICES OF AMERICA, INC. By: Its: Authorized Representative CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN BANK, N.A. By: Its: Authorized Representative . . ,. . . . :::EST:~7y;, Its: Assistant Secretary . . . . . 3522u/2266/03 CENTRAL CITY PROMENADE, a California limited partnership By: Mark Shurgin, General Partner ~ By: Rosaland Jonas Shurgin, General Partner CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: TRUST SERVICES OF AMERICA, INC. By: ~~~ Its: Authorize Represent ive CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN BANK, N.A. By: Its: Authorized Representative .' . . . . . ATTEST: By: Its: Assistant Secretary . . . . . 3522u/2266/03 CENTRAL CITY PROMENADE, a California limited partnership By: Mark Shurgin, General Partner By: Rosaland Jonas Shurgin, General Partner CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: TRUST SERVICES OF AMERICA, INC. By: Its: Authorized Representative CONSENT OF THE HOLDER OF EACH BOND AS REQUIRED BY SECTION 1102 OF THE INDENTURE: THE CHASE MANHATTAN By: Its: . .' . . . . w' . . 20 . 21 23 . 24 2S 26 27 . 2B . ~."':.!" ' . R~94" .' 1 RRSOLUTION NO. 11-6.\ 2 RBIJOJ,UT10N OF '1'KB MAYOR AND COMMON COUNCII. OF 'l1lB CITY OF SAN RRRNAR!)INO AUTBORIZINQ 'L'H. BXl!:CU'1'ION OP MBNDMBN'l' NO. FOVR '1'0 S 'I'HB LOAN AGUEMENT RBLATING '1'0 CBNTRAI. CITY PROHBNAOB. 4 NOW, THBRSPORB, DB IT RBSOLVBD BY THB MAYOa AND COMMON COUNCIL OP THE CITY OP SAN BBRNARDINO AS POLLOWS: 5 6 'BCTION 1. The Hayor of the C1ty of San Barnard1no 1s hereby authorized and d1:l"ected to execute lWsnc1ment No. Pour to tho Loan AgE'o_en't be'tween 'the Oi'by of Ban DezonaE'dino and Oen't:l"lll Oi ty Promenade, in the form of a copy of sa1d Amendment attached hersto aa Bxh1bit ftA". ,BCTION 2. aa10 Supplemant snal1 not take effact unt1l fully aigned and ezecuted by all partie.. The 0:1. ty lIhall not be obligated heE'eunder unle.e end until 'the Amendment ie tully executed and no oral agreement relating thereto ahall be implied or .uthorized. 7 e 9 10 11 12 13 15 16 17 lSSCTION 3. This "solut10n 111 :l"llsc1ndel1 if tna part1.s to the Amendment feU to execute it with1n Sixty (60) days of the pa.sago of i:h1.a reeolution. I I I I I I I I I I / I / I I I I I I I I I I I I / I / I I 18 10 22 DAB/aea/Cen-City.rea 1 rebzueE'Y 13, 1991 CITY CLERK 09-26-91 11'13AM P002 #30 ~- ,. . . I . . . ....7 15 16 17 18 10 of .. " 1 R.SDLU~IDN...AU~RO.IZINa ~E EZB~IOH...RDLA~ING TO CIN'lRAL CIn PROMBRADB. a 3 4 !5 IS I HBRBBY CBRTIFY ~h.~ ~he for.;o~ng resolution waa duly adopted by the Mayor and Common Council of the City ot San. BernarcU.no .t a _gular 1I..ting thereof, held on the 18th day ot Pebruo,ry , 1991, by the following vota, to wit: COunOil KemberB: AYBS - NAYS - AJI$TAIN 8 p 10 11 BS'1'RADA x MILLY ",OMll MAUDSLBY x x x u MINOR x 13 1.& 'OPI-LWLAM MILLBR x x t? ~ /')L..... ~.... ~ ' ~lerlc ~~l lCrurly The torego~ng reaolution ia hereby approve -thia 20 th dey r.bZ"U&" , 1991. --.J" ,- . 20 . 21 22 Approved a. to .:r0C'll and 18gal oontonto: . . . 11-93% 25" 24 215 26 27 28 3AMBS P. PBNMAN, Qi1;y A~tozon.y ~ DAB/.../C8n-C1ty.rea 2 l'ebruar:y 13, 1991 CITY CLERK 09-26-91 II: 13AM P003 1130 . . . . . . . \ . . . . R-94% " ,~." I' '-'!1 . ~.f/I:;~' EXHIBIT A ~ 110. FOUR TO THE LOU AGIIIltr;IIT 7bi. ....4aent .0, FQu~ to the ~gan ~v~e~t, .. '''nded, .. of o.cembe~ 15, 1"4 betweeD the City of Sin 'ernlrdlBO, a cha~t.~ed cSty Guly orf'Di.ed Ind eziltiaf under the Conatitution of the Stat. of ellifo~nia aDd itl City Chl~t.~ (the .I..u.r.) .ad Oent~al City Promeaade, I Californil Lim1ted F.rtDe~lblp (th. "Comp.ny.), (the "Lo.n Agreement.) 1. made lad Intered lato .1 of Februlry 1, 1991 betwaan the I,.ulr and tb. Compaay, with the conaent of The fru.t Servic.a of America, Ina, . Cllifo~Dil corporatlon (the "T~uate..) InG tbe Chi.. .Inhattan 'Ink, I.A. (the .Purche.er").(thl "Amandment"). Clpltaliaed term. uI.d in thia Supplea.nt Ind not otherwi.e defined Ihal1 b.v. the .ame ...nl89 a. in the LOIn Afr....nt. WIT . I S SIT H: MHEaEAS, Section t,O' of the Loin Agre~'nt provide. that .h. II,ue~ Ind the companr m.y auppl...at the Loan A,reement with tbe cODleat of the Trustee; .nd MHEREAS, "otlon 1302 of the fru.t IDd.ntu~e dlted a. Of o.cenber 15, 1'14 between the la.uer and the Trultee (the "Inde.ture") provid.. that "aeither the I.auer nor the Truate. shin CODlut to In, .:. .lIlIIIndm.nt of the Loan AlIrlemeDt . , , without publication of noticl lad .ai1in, aad the wrltten .....'pronl Dr cona'Dt of tile KOlder IDd o.meu 0 not Ie.. thin one bunOred percent (100\) in a;gr.;ate ,~inei.al lmount ol the IonO. .. .., and ~__.K\I. the Purchl.er il the "Kolder or Own.~ of .v.~y aond.' IlId MalRlAS, the Purchaser', conleat to tbla Amendment .a indleltaG Dr St. ezecutlon of tbil Amendm.nt ia .uffici.nt to ..et tll. conl.nt and notice ~equl~...nt. of Section 1202 of the Indenture: end ~, lection i.03(c) of the LOin Ag~..meDt ,rovid.. tbat "prior to tb. Conver.ion Date, the Rotl i. aub~ect to .Inaatorr '~e"~Dt, in whol.. on MI~ch 1, 1'91 , , , unlel. the Purchl.er bea given notice in writing evidencin; it. waiver Of auoh redemption .t 1ea.t forty.five (45) dey., but no mere than eiat~ (10) .aY'. .~lo~ to lueh Red.mption Date ~D the I,.ulr, tbe Truete. and tbe CompaD)'": Ind ~, the company and the Pureh...~ ...i~e to ...nd S.ction '.03(c) of the Loan Agreement to provide the n.c....ry ti.. to ~end ,o.lib1r fu~the~ th. Loan Afreement. CITY CLERK 09-26-91 II'I3AM P004 #30 ;,.'.~ . . . ION, THIIBPORE, In conliOerltion of the mutuII covenlntl In4 uDde~tlkin, .et fartD aereln, InO otber fo04 .n4 v.lu.ble con.iderltion. the receipt Ind lufflotenay of whiob I~e be~eb7 eokftowled,ld, the tl.yer InO the Trult.. hereby I,ree II Callawl: 1. 'ectlon 6.01(c) of the LOin A'r....nt i. .-ended Ind r..tltea " followl: . ..~.'.." -(c) IlD4ttorY PreDlvment ~emand ~r rurcbAllr.--pjlor to the Conv,rlron-Dlte, t . "at. ~Iub,.~t to manaatory preplyment, In whole. on JUly 1, 1111, Ind on December I, I'D5 Ind on elch fifth Dece.ber 1 therelfter until ..turlty, It I price e~ll to the principal a~uDt of Out.taad!n, lond. plua Iccruea intere.t to tbe dlt, of preplyment, without pre.ium, unle.. the Purchl.er .hall ba.e give. notlae In wrltla, eviOencln, itl w.iver Of .ueh redemption, It lellt forty-five (45) dlf" but no MOre th.n aizty (60) Oly., prior to .aeh au~h .ed-.ptian Dlte to the la.uer, th. rrultee Ind the C!OlIlpla,.. Z. Tbb Amendment lilY be eucute4 in .evenl counterpart., .aeb of whieb Ibal1 .. an ori,ina1 lad all of wbich Ib.ll conatitute but one Ind the .... in.trument. . . . . r. WI~" MHERIOF, tbe part 1.. hereto b... cau..d tht. AllenOment to the LOin Agreement to be eZlcuted on their behllf by their Oulr luthori'ld officerl, .nd, if applic.ble, their oo~poratl ...1 to be .ff1aed anO Ouly at tea tee all I. af tbe ~y firat above wrltteD. . CITr or IAI 81RIAlDIIO . If: IU: Mayor A'l"J'BST I . 87; .. ..,..U.: Clty.Cl.rk . 3522u/22111/03 . R-94~ CITY CLERK 09-26-91 11, 13AM PODS 1130 . . . . . . ! .~.,~ . ATfIIT: . .. . . . · R-94% lara It.: Asaiatant lecretary . . . ~;IIiY~ nUu/UIII03 CEIf1'I&AL CIn PROJIIJW)I, a California limited partnerahi, Iy: lIuk Sbllfgin, G8neul ....tn... BY: loaalan4 30naa ahurgin, Oeneral 'artner CONSENT OF THE TRUSTEE AS IlEQtn:JIr) IY SEC'l'IOII '.06 01' TIll LOAIl AGJlr....1I'l'1 'l'IUST IDVICES 0. AlmRICA, Ille. 1)': Ita: Alltbori.ed-..pr...ntltr;e-- COIIIIHT OF 'I'HI HOLDIR or IACH IOBD AS IEQUIUD BY SICTIOII 1102 01' TIlE IIUIINTUaII TIlE CRASE IfAIilHAT1'U ~, II.A. Iy: Ita: Authorl..d Repr..entlt~ CITY CLERK 09-26-91 Il'13AM P006 #30 . . . . . . . . . . . . . . . . . . . . . · R-93% 5 _ ..0#-. 20 ~. 22 23 24 25 26 27 29 . . 1 .BSOLUTION NO. '1-64 a RBSOLUTION OP '1'H1I: MAYOR AIm c:oHMON COUNCIL OP THE CITY OP IAN IIBJlNAIU)INO AU'l'HOIUIlING '!'lIB 8DCU'1':EON OP IUPPLBMlSN'l' NO. FOUl 3 TO '1'HB INDBNTURB ULA'1'ING '1'0 CIN'l'RAL CITY PROMENADB. 4 NOW,~ TU8ftBPOft8, 88 IT ftBSOLVBD BY THB MAYOR AND COMMON COUNCIL OF '1'HB CITY mr SAN BBRNARDINO AS POLLOWS I 6 7 8 !l 10 11 saCTION 1. The.Mayor ot the. City ot San B.rner~ 18 hereby authOrized and directed to exeoute Supplement Nn. Four to the Indent..re between the City ot san BemareU-no ana 'l'rust Service. of America, Inc., in the tor~ of a copy of .aid SUPPlement attach.d hArAto .. Bxhibit "A". SBeTION 2. Said Supplement shall not take effect until tully sign.d and executed by all parties. the City Bhall not be obligated hereunder unl... end until the Supplement is tUlly executed and no orBl egreement relating thereto Bha11 b. implied 12 13 14 III 16 or authorized. SBC'l'ION 3. '1'hJ.. resolution 1s reecindecl it the pertbB to the Supplement fail to execute i1: within Sirty (60) daill of the 17 p....f. ot ~. ~..olution. 18 I / I I / I I I I I I I I I I I I I I I I / I / I I / I DAB/.e./CenCity2.ree 1 February 13, 1!l!l1 CITY CLERK 09-26-91 11:13AM POlO #30 . . . . 2 . . . . . . . . · R-94% 17 18 19 of 20 8 o 10 11 12 13 ..M. 15 16 . . 1 .SaOLUTION...AUTHOkIZING THB BXBCUTXON OW SUPPL~... aBLATING TO CBNTRAL CITY PRClMBNADB. 3 I HBRBBY CBRTIFY that the foregoing ~..olution ... dUly 4 .dopted by the Mayo~ end Common Council of the C1t~ of San 5 6 7 Derruu;c2:1.no at a ftlSqular me.t1ng 'thareot", nela on the 18th , 1991, by 'the follOWing vote, to wit: ".Y of Februarv Council Member.: ABSTAIN !!!! X ~ BSTRADA DILLY X l"LOftl5S x MAUDSLBY x MINOR POPI-LUDLAM MILLBR x x x Iir~tr){~~~f./r Clerk, Rachal Itr..n. . ..- '!'he foregoing re.olution 18 hereby, .lIPprovecS' t Po=u~ , 1991. d~ - 21 33 Approvec.e to fOrlll end legal content: 23 JAMBS P. PINMAN, 24 City Ailtozoney 25 26 27 28 . . . ...;,r~~" . ~dkl.... / PAB/.e./C6nCityZ,re. Pe~ary 13, 1991 2 CITY CLERK 09-26-91 11: 13AM PO 11 1130 . . . . . . . . . . . . . . R-94" . f\IA, '1/-..l.f EXHIBIT A 8UPM._II'1' 110. rOUR TO 'filii 1IIDlllTURE ~il supplement RO. 'our to the fruit Indenture, II .uppl~ftted, dated aa of December 15, 11.4 ~tween the Citr of '.n .ern.rdino, . ch.rtered city duly or,lniaed .nd eaistin; UDder the COn.tltutlon Of the It.te of C.liforni. .Dd it. City Chlrter (tbe .llluer.) .nd ~rust Service. Of Americ., Inc.. a C.Uforni. corporation (the .Tru.t...)ethe .Xndenture.) h ......d. end entlrld lnto a. of "etlruarr 1, U'l t.t...n tb. Uluer .nd tbe Tru.te., with tbe con.ent of The Ch.le Manh.ttan aank, ..A. (the .lUrcba.er.), and Centr.l Cltf promen.de, a C.lifornia Limited 'artnershlp (the .COmpanr.), (tbe .supplement.). Capitalized terma ulld in tbis Supplement and not otherwl.e defined sh.ll ba.e the .ame ...nln, a. ln the Indenture. " I '1' . I . . I T HI WKIl1AS, Section 1102 of the Indenture provlde. th.t tbe I..uer and the ~ru.tee .ar lupplement the Ind.nture -.. .b.l1 be d....d n.c....ff Ind de.irable by the I..uer or the Trultee fOr tbe purpose of ~difyinv, .lterlag, .mending. .dding to or re.eiuding, in .ny partieular. sny of the Carma or provi.l0nl oont.ined . . .[therein] or in any lupplement.l indenture; prov14ed, huwwver, tbat Doth1ng contalnea 1n . . . Section (1102) sh.ll perftdt. or be canatrued aa permittlag. without tbe coa.ent of tbe Holder or ONner of eyer,r bond. (1) .n ..te~.ion of the .atucitr of the principal of or the iat.relt thereon or of any redemption d.te, from the lond Fund ....,.nd ~, the furcb..er i. the .Holder or own.r of eyery lond., Ind WHIRZlS. the Tru.te. or I..uer b.. de.med lt .aec....ry .nd d..ieable- to .odlfr the Iadenture, .na WHIREAS. Section 1102 of the Ind.nture proYide. further that .. lupplemant.l indenture . . . Wh1eh .ffects the right' of the Complny .b.ll not becomeeffectlve unle., .nd until tbe .''''C'01lP'DJ' .hlll h.ve eon.ented to tbe ..'option ot such lupplemental indenturs.: and MHBRlAa. thi_ Supplement -.ffect' tbe right. of the CO..ny., and WHlIZAS. Section 30l(d) of the Indenture prDYideS tbat .,rlor to the Conversion D.te, the lond. .re 'ub'ect to ..nd.tor,r redemption, in whole, on M.rch 1, 1991. . . unle.. the tucob..er .blll h.ve ,iv8n noti~e in writing to th8 CITY CLERK 09-26-91 11:13Al4 P012 1130 . . . . ..;.#.,~. . J..u.~. tbe ~~u.tee end the Company. .tetlaw tb.t .u~h r~emptlon abell be w.ived. at lee.t forty-fl.e (t5) but no ~re tban lizty (10) daya prior to lacb aucb rede~tion date"l Ind , NR8RIA8. the Purgha.er .ad the Company Oe.ire to further amend Section 30l(d) of thl Indenture to provide tbe nee....fT ti.. to lupplement poI.ibly furthlr tbe Indenturl. ION, THlRlPORE. in con.ideration of the nutual CO.lnant. anO unO,rt..ing let forth herein, and otber vood and v.luabl' con.ldlratlon. tb. reollpt end .uffi~len~r of which berebr ar. acknowledged, tbe Illuer .nd tbl TrUltee blrebf Ivre8 .. fonowlI 1. section 101(4) of tbe Indenture 1, lmended Ind r..tat.d .. fOllow., .Cd) a,d~n UDon Demlnd Of br~h...r. pdii'"'"to the Con.eralon Date. tb, lond. ar. aub'e~t to mandatory redemption. in wbole. on July 1, 1"1, Ind on December 1. I'" end an .ach filth De~e"'r 1 there.fter until .Iturltr, .t I price ~.1 to tbe pri~ipal emount of out.tlnain, Bon41 plua eccrued intereat to the .edemptian Date. wltbout pr~um, unlea. tbe Purch..er Iball ..,,,." ha.. ,h'&n DOUce in wrltin, to the JIIUlr, the Trultee InO the Company, Itltin, thlt luoh ~demption ahall be ..i.ed, It 1la.t forty-five (t5) but no ~re 'biD alztT (10) day. ,rior to .Ich luCb redemption dlte.- 2. thi. Iu,pl.ment a., be .a.out.a in ..v.r.l counterplrt., e.ch of wbich .ball be In original and III of whlcb ebel! cOD.titute but one Ind the lama instrument. II W1TRIBS ~P, tbe p.rtile bereto b..e cauIIO thi. 'u~,l..ent to th. Indentur& to be e&~ute4 on tbeir beh.lf Dr tbeir duly .uthori.ed officer., .nd. if .pplicable. tblir co~por.te ...1 to be Irfiaed .nd duly .tte.tld ell I' of the d.y firlt above written. . . . . . . . . CI'l'lt 01' 8AII Bnl1AJlDIIO By: Itl: .Iyor . ATTE81' : By; Ita: City Clerk . J5JIu~ZZ..~os 1<-94% CITY CLERK 09-26-91 11: 13AM P013 1130 ";: ....;~;!. . . . . . . AftUT: . 111': It.: &allltlat leeretlry . .. .~~.:!,~ . . . . . . . .. - .....".!~ ' . . J5l1u/2261103 ll-94% . . 'J'ItOB'1' IIlVICBI 01' AlllaIeA, IRC. Iy: Ita. Autborl.e4 ",re..ntltlv. COISIIIT OF Till HOLDER or JACM. 10110 AS REQUIRED IY SlCTIOI 1102 OF 'lU Iwo.HTUU I 'l'HE CHASE IlAHJlAftAII 1AIUt, ..A. II'; Ita; Authorl..d .epr.l.ntltrve-- COIISUT or Till COIIPAJIY AS aaQUIRID It IICTIOB 1102 OF THE IIIDAllr.Lud: CDTIAL CI'1'lC PlOMIIIAD!, . California Llmlted .artn.rlbl, 171 iiii'k'l!Ihuraln. aeneral Partner .:v: ROllllad Jonl. Ihurlln, General .artaer CITY CLEllK 09-26-91 11:13AM POl4 #30 . . CITY OF SAN BERNARDINO INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1984A (CENTRAL CITY PROMENADE PROJECT) CERTIFICATE OF THE COMPANY . The undersigned as the sole general partners of Central City Promenade, a California Limited partnership (the "Company") hereby certifies that the Company has complied in all material respects as of the date hereof with the terms and conditions of the Indenture, as supplemented, the Loan Agreement, as amended and the Regulatory Agreement, as amended, and no event of default thereunder has been declared as of the date hereof. All capitalized terms used herein and not otherwise defined shall have the meaning given them in the Indenture relating to the above-referenced financing. . Dated: February ,1991 By: J Schurgin Partner . CENTRAL CITY P MENADE, a California Ii ited partnership By: . . . . . . 3522u/2266/03 ~ I- . F"RITZ R. STRAOLlNG NICK E. YOCeA C. CRAIG CARl-SON WIL.l..IAM R. RAUTH III K. C. BeH......,. RtCHA"'D C. GOODMAN JOHN ..I. MUR~HY THOMAS P. CI.....RK, .JR. .EN.... !'"RYDMAN DAVID R. MCEWEN "'''UL L. GAL.I!: RUDOLPH C. 5HEP""'O ROBERT ..I. KANE "". D. TAl-BOT BRUCE C. STUART E. KURT YEAGER ROBERT ..I. WHALEN ROBERT E. RICH THOMAS A. PISTONE "'''NOALL. ..I. SHERMAN e"'uCE w. FEUCHT!:R """All. oJ. HUEBSCH "'A"'EN.... EI,.LIS ELIZABETH C. GREEN B"'UCE: O. MAY OONAl,.O .J. I-lAMMAN ,JO...N ..I. SWIG...RT, .JR. fo1lCHAEL A. ZABL.OCKI NEIL.... R. BERNSTEIN CELESTE STAM!.. BRACY CHRISTOPHER..J. KILPATRICK ..JOEL H. GUTH .JULIE I<olcCOY AKINS DAWN C. HONEYWELL OWEN B. L.ueow l,....WRENCE B. COHN WARREN B. DivEN . . STRADLING, YOCCA, CARLSON & RAUTH A ~ROF'ESSION"'L CORPORATION ATTORNEYS AT LAW .JOHN E. BRECKENRIDGE RENA C. STONE 01' COU"$I!:~ .JAMES DE:XTEA CL"'AK STE:PlotEN lot. LACOUNT lot...ALEY L. ..JELL"'ND :!5TEPlotEN T. F"AEE.......N ROBEAT .... WILSON LIS'" ..... KITSUT... ClotERYL .... DOW NIClotOL...S .J. YOCC'" .JULIE "'. PORTER M"'RK T. P"'LIN MICHAEL E. F"LYNN ROBERT C. F"UNSTE'" "'LET... LOUISE BRY...NT RON"'LD .... V"'N IIL"'RCOM STEPHEN ..... ....cN...M...R... G"'RY .... PE:MBERTON .JOH'" ..... "'NTOCI C"'ROL L. LEW DENISE E. H"'RS"'UGH B"'Re"'R'" ZEID LEIBOLD .JON E. GOETZ ...L...... ..I. KESSEL G"'RY P. OOW"'S .JOHN D. IREL",ND MICH...EL ..I. PENDERG"'ST D...VID H. M...NN G"'LE I. SCHLESINGER CMRISTOPHER "'. ....OROPOULOS DAN'" ..... KEZI'olOM D"'RRYL S. GIBSON .JOHN G. MCCLENDON TODD R. TH"'K"'R RICH...RD T. NEEDH....... ROBERT C. W"'LL"'CE D..."'ON C. ....OSLER GER...RD L. OSK"'''' 860 NEWPORT CENTER DRIVE, SUITE 1600 ~ST OF'"F'"ICE BOX 7680 NEW~R'T BEACH, CALlF'"OR'N.A &2eeO-6441 TEL.EPHONE (714) 725-4000 TEL.EPHONE (714} 640-7035 WRlTER'S DIRECT DI"'l: F""'X NU"'8ER (7''') 725'''100 As of February 1, 1991 . City of San Bernardino San Bernardino, California Trust Services of America, Inc. Los Angeles, California . Re: City of San Bernardino, Industrial Development Revenue Bonds, Series 1984A (Central City Promenade Proiectl (the "Bonds"l Ladies and Gentlemen: We have acted as counsel for the City of San Bernardino, a chartered city duly organized and existing under the Constitution of the State of California and its City Charter, (the "Issuer"), in connection with the supplementing and amending of the Indenture and Loan Agreement, as defined below. I. In that connection, we have examined originals or copies certified or otherwise identified to our satisfaction of (1) the TIuSt Indenture dated as of December 15, 1984 between the Issuer and Trust Services of America, Inc., a California corporation (the "Trustee") (the "Indenture"); (2) the Loan Agreement dated as of December 15, 1984 between the Issuer and Central City Promenade, a California limited partnerShip (the "Company") (the "Loan Agreement"); (3) Supplement No. One to the Indenture dated as of November 30, 1989 between the Issuer and the Trustee; (4) Amendment No. One to the Loan Agreement dated as of November 30, 1989 between the Issuer and the Company; (5) Supplement No. Two to the Indenture date, as of February 19, 1990 between the Issuer and the Trustee; . . . . . . City of San Bernardino Trust Services of America, Inc. As of February 1, 1991 Page Two (6) Amendment No. Two to the Loan Agreement dated as of February 19, 1990 between the Issuer and the Company; (7) Supplement No. Three to the Indenture dated as of August 24, 1990 between the Issuer and the Trustee; (8) Amendment No. Three to the Loan Agreement dated as of August 24, 1990 between the Issuer and the Company; (9) Supplement No. Four to the Indenture dated as of February 1, 1991 between the Issuer and the Trustee (the "Supplement No. Four"); (10) Amendment No. Four to the Loan Agreement dated as of February 1, 1991 (the "Amendment No. Four"); and (11) the Internal Revenue Code of 1986, as amended, and such regulations, revenue rulings and private letter rulings promulgated or issued thereunder (the "Code") and predecessor statutes as we have deemed relevant to the rendering of this opinion. For purposes of the opinions rendered below, we have assumed, without investigation, that the above-described documents represent all agreements among the Bondholders and all other parties to the transactions contemplated by the Indenture, as amended, and Loan Agreement, as amended. . . . Based upon our examination of the foregoing, and in reliance thereon, and on allegations of fact as we deem relevant under the circumstances, we are of the opinion that: . . . . . . 1. The execution and delivery of the Amendment No. Four and the Supplement No. Four have been authorized by the Issuer and, assuming proper authorization, execution and delivery by the respective other parties thereto, including parties consenting thereto, are valid and binding obligations of the Issuer enforceable in accordance with their terms, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, insolvency or other laws affecting creditors' rights generally or by the exercise of judicial discretion in accordance with general principles of equity. 2 . Assuming that interest on the Bonds is exempt from federal income taxation currently, the Supplement No. Four and the Amendment No. Four will not cause interest on the Bonds to cease to be exempt from gross income for purposes of federal income taxation or from personal income taxes imposed by the State of California. . . City of San Bernardino Trust Services of America, Inc. As of February 1, 1991 Page Three . We note that this office did not serve as bond counsel in connection with the original issuance of the Bonds and has at no time rendered an opinion regarding the exemption from federal or State income taxation of interest on the Bonds. We have not reviewed the documents or any underlying facts or circumstances relative to the tax exempt status of interest on the Bonds either at the date of original issuance of the Bonds or at any time since such date. Moreover, in order for interest on the Bonds to remain exempt from federal income taxation subsequent to the bond issuance date, it is necessary that the provisions of Section 103(b)(6)(D), among others, of the Internal Revenue Code of 1954, as amended, be complied with on a continuous basis. Because we have made no independent investigation as to whether there has been such compliance in the present case, for purposes of this opinion, we have assumed that interest on the Bonds is exempt from federal income taxation and State of California personal income taxation as of the date of this opinion and express no opinion as to whether interest on the Bonds is presently exempt from federal income taxation or State of California personal income taxation. We have not undertaken to verify through independent investigation the accuracy of the representations made to us or of the foregoing assumptions made by us in rendering this opinion. The opinions expressed herein may be relied upon by the addressee of this opinion and may not be relied upon by any other party. . . . . . RespectfUllY, submi tte~" .,-1...1 d~L; j4-<-<'-- (/tJ~ ~ ~~), \ . . . 4242u 2266.003 . . . . . . . . . . . . . CENTRAL CITY PROMENADE . FEDERAL EXPRESS As of February I, 1991 . City of San Bernardino San Bernardino, California RE: City of San Bernardino (the "Issuer") Industrial Development Revenue Bonds - Series 1984 A (Central City Promenade Project) (the "Bonds") Gentlemen: . I am the General Counsel for Central City Promenade, a California Limited Partnership (the "Borrower"). In my capacity as such General Counsel, I have examined originals or copies certified or otherwise identified to our satisfaction as being true copies of the following documents: I. The Trust Indenture dated as of December IS, 1984 between the Issuer and Trust Services of America, Inc., a California corporation (the "Trustee") (the "Indenture"); . 2. The Loan Agreement dated as of December IS, 1984 between the Issuer and Central City Promenade, a California Limited Partnership (the "Company") (the "Loan Agreement"); . 3. Supplement No. One to the Indenture dated as of November 30, 1989 among the Issuer, the Trustee and Chase Manhattan Bank, N.A. (the "Purchaser") (the "Supplement"); 4. Amendment No. One to the Loan Agreement dated as of November 30, 1989 among the Issuer, the Trustee and the Company (the "Amendment"); . S. Amendment No. Two to the Loan Agreement dated as of February 19, 1990; 6. Supplement No. Two to the Indenture dated as of February 19, 1990; 7. Amendment No. Three to the Loan Agreement dated as of August 24, 1990; . 8. Supplement No. Three to the Indenture dated as of August 24, 1990; and 9. Amendment No. Four to the Loan Agreement dated as of February I, 1991; . 10. Supplement No. Four to the Indenture dated as of February I, 1991; II. Certificate of the Company dated February 1991; and 12. The Borrower's Partnership Agreement dated as of May 30, 1984, as amended (collectively the "Loan Documents"). . In the course of my examinations, I have assumed the genuiness of all signatures on all documents and the authenticity of all documents submitted to us as copies. As to questions of fact material to such opinions, I have, when relevant facts were not independently established, relied upon certificates of partners, officers or representatives of the Borrower. I have not independently verified the accuracy of the factual matters contained in such certificates or opinion nor have you requested or required us to undertake any responsibility to independently . . City of San Bernardino As of February I, 1991 Page 2 verify the accuracy of the factual matters contained in such certificates. However, I have no actual knowledge that any statement contained in such certificates is inaccurate or misleading in any material respect. "To the best of my knowledge," as used in this opinion, means to the best of my actual knowledge without independent inquiry, investigation or verification of any facts and without any obligation imposed by you or otherwise to make any independent inquiry, investigation or verification of any facts. . . Furthermore, the use of the term "enforceable" below shall not imply an opinion by me as to the availability of specific performance or other equitable remedies. I further advise you that enforcement of your rights and remedies must be undertaken in a commercially reasonable manner and may be additionally limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or affecting the rights of creditors generally. In giving this opinion, I advise you that a California court may not strictly enforce certain covenants or allow acceleration of the maturity of the indebtedness if it concludes that such enforcement or acceleration (i) would be unreasonable or (ii) would violate the lender's implied covenant of good faith and fair dealing under the then-existing circumstances. On the basis of such examination and assumptions, and subject to the qualifications and limitations set forth herein, I am of the opinion that . I I . . . . . . 1. The Borrower has been duly organized and validly exists as a limited partnership under the laws of the State of California and has the power and authority to enter in into the transactions contemplated by the Loan Documents. 2. To the best of my knowledge, there are no actions, suits or proceedings at law or in equity (including, without limitation, condemnation or eminent domain proceedings) currently pending against or affecting Borrower or involving the validity or enforceability of the Loan Documents or for or by any governmental authority having or exercising jurisdiction over the Borrower. To the best of my knowledge, Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or any governmental authority having or exercising jurisdiction over Borrower. 3. To the best of my knowledge, the consummation of the transactions contemplated by the Loan Documents and the performance by Borrower of its obligations under the Loan Documents will not result in any breach of, or constitute a default under, any mortgage, deed of trust, lease, bank loan or security agreement, or any other instrument to which Borrower is a party or by which Borrower may be bound or affected. 4. Borrower has full power and authority to execute the Loan Documents to which it is a party and to undertake and consummate the transactions contemplated thereby, and to pay, perform and observe the conditions, covenants, agreements and obligations herein and therein contained; and the Loan Documents to which it is a party have been duly and validly executed by Borrower. The Loan Documents, subject to the qualifications listed herein, constitute the legal, valid and binding obligations of Borrower, and are enforceable under the laws of the State of California in accordance with their respective terms. . 3425 McLaughlin Avenue. Los Angeles. CA 90066 (213) 391-1200 Fax: (213) 390-3660 . City of San Bernardino As of February I, 1991 Page 3 . This opinion letter should not be used or relied upon by any other person or entity or in any other connection, and is not to be quoted in whole or in part in any letter or document without the prior written consent of the undersigned. The opinions set forth in this letter are rendered as of the date of this letter, and we disclaim any undertaking to advise you of any changes that may be brought to our attention subsequent to that date. . ~. '. V~trIDu~ou. ~ .~( )\, , ~S'A~ ce Presiden t d General Counsel . . I. . . . . 3425 McLaughlin Avenue. Los Angeles. CA 90066 (213) 391-1200 Fax: (213) 390-3660 .