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Home My WebLink About1991-498 I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 , '. RESOLUTION NO. 91-498 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AMENDMENT NO, SIX TO THE LOAN AGREEMENT RELATING TO CENTRAL CITY PROMENADE. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1, The Mayor of the City of San Bernardino is hereby authorized and directed to execute Amendment No. Six to the Loan Agreement between the City of San Bernardino and Central City Promenade, in the form of a copy of said Amendment attached hereto as Exhibit "A". SECTION 2. Said Amendment 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 This resolution is rescinded if the parties to the Amendment fail to execute it within ninety (90) days of the passage of this resolution, / / / / / / / / / / / / / / / / / / / / / / / / / / / DA.B: b 1 : i 472A November 25, 1991 ~l - I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION.. .AUTHORIZING THE EXECUTION.. .RELATING TO CENTRAL CITY PROMENADE. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a .It. Regular meeting thereof, held on :he 16 day of D~c~rnb~r , 1991, by the following vote, to wit: Council Members: ESTRADA REILLY HERNANDEZ MAUDSLEY MINOR POPE-LUDLAM MILLER AYES x ---X- -1L ---X- -1L -1L NAYS ABoTAIN ABSENT x Q~~ CitJ.-Cl erk day of December The foregoing resolution is hereby approved this i 991. Approved as to form and legal content: JAMES F. PENMAN, City Attorney ~) DAB: b 1 : 14 72A November 25, 1991 - 2 - ,"'......--~: -?-----~--,/ b, . yor // Bernardino '" F"RITZ R. STRADLING NICK E. YOCCA C. CRAIG CARLSON WILLIAM R. RAUTH III K. C. SCHAAF" RICHARD C. GOODMAN ..JOHN ..J. MURPHY THOMAS P. CLARK, ..JR. SEN A. F"RYDMAN DAVID R. MCEWEN PAUL L. GALE RUDOLPH C. SHEPARD ROBERT ..J. KANE M. D. TALBOT BRUCE C. STUART E. KURT YEAGER ROBERT ..J. WHALEN ROBERT E. RICH THOMAS A. PISTONE RANDALL ..J. SHERMAN SRUCE W. F"EUCHTER MARl< ..J. HUEBSCH I<AREN A. ELL.lS ELiZABETH C. GREEN SRUCE D. MAY DONALD ..J. HAMMAN ..JOHN ..J. SWIGART, ..JR. MICHAEL A. ZABLOCKI NElLA R. BERNSTEIN CELESTE STAHL BRADY CHRISTOPHER..J. KILPATRICK ..JOEL H. GUTH ..JULIE MCCOY AKINS DAWN C. HONEYWELL OWEN B. L.UBOW LAWRENCE B. COHN WARREN B. DIVEN STRADLING, YOCCA, CARLSON & RAUTH A PROFESSIONAL CORPORATION STEPHEN H. LACOUNT HARLEY L. B..JELLAND STEPHEN T. F"f'lEEMAN ROBERT A. WILSON LISA M. KITS UTA CHERYL A. DOW NICHOLAS ..J. YOCCA ...ULIE M. PORTER MARK T. PALl N MICHAEL E. F"LYNN ROBERT C. F"UNSTEN ALETA LOUISE BRYANT RONALD A. VAN BLARCOM STEPHEN M. MCNAMARA GARY A. PEMBERTON CAROL L. LEW DENISE HARBAUGH HERING BARBARA ZEID LEIBOLD ..JON E. GOETZ ALAN ..J. KESSEL GARY P. DOWNS ..JOHN D. IRELAND MICHAEL..J. PENDERGAST DAVID H. MANN CHRISTOPHER M. MOROPOULOS DANA M. KEZMOH DARRYL S. GISSON ..JOHN G. MCCLENDON TODD R. THAKAR RICHARD T. NEEDHAM ROBERT C. WALLACE DAMON C. MOSLER GERARD L. OSKAM ..JOHN F". CANNON ..JOHN E. WOODHEAD IV DOUGLAS P. F"EICK WILLIAM ..J. MORLEY ATTORNEYS AT LAW ..JOHN E. BRECKENRIDGE RENA C. STONE O.COUNSEL 660 NEWPORT CENTER DRIVE, SUITE 1600 POST OFFICE BOX 7680 NEWF'ORT BEACH, CALIFORNIA 9215150-8441 TELEF>HONE (714) 725-4000 TELEPHONE (714) 640-7035 WRITER'S DIRECT DIAL: FAX NUMBER (71.01) 725-.01100 725-4012 March 16, 1992 Ms. Barbara Lindseth Redevelopment Agency of the City of San Bernardino 300 North D Street, 4th Floor San Bernardino, CA 92418 Re: City of San Bernardino, Industrial Development Revenue Bonds, Series 1984A (Central City Promenade Proiect) Dear Ms. Lindseth: Enclosed please find the following documents relating to the referenced financing: Supplement No. Six to the Indenture; Amendment No. Six to the Loan Agreement; Certificate of the Company; Opinion of Counsel for the City; and Opinion of Counsel for the Developer. Please send me one certified copy each of the Resolution of the City Council authorizing the execution of Amendment No. Six to the Loan Agreement and the Resolution authorizing Supplement No. Six to the Indenture so that I may include these with the final transcripts. If you have any questions, please feel free to call me. Very truly yours, STRA~LIN~G...' YOCCA CARL~ON. < ~~-:-- c?/~~ _....~ Eric B. Kummetz Paralegal & RAUTH FRITZ R. STR.DLlNG NICK E. VOCC. C. CR.IG CARL.SON WIL.L.I..."" R. RAUTH III K. C. SCH......F" RICH.RD C. Gooo"""'N ,JOHN ,J. ""URPHY THO....S P. CL....RK. ,JR. .!:N .. ...RYo....N CAVID R. MCEWEN P"'UL. L.. G"'L.E RUOOL.PH C. SHEP...RD RO.ERT ,J. K.NE M.o.T.L..OT INtUCE C. STU.RT E. KURT YE.GER RO.EAT ,J. WH"'L.EN ROIIERT IE. RICH THOM"'S .... PISTON!: ",.NCAL.L. ,J. SHIER....N .RUC!: W. rEUCHTER ....RK ,J. HUEBSCH K.REN .... EL.L.IS EL.IZ.BETH C. GREEN BRUCE D. ....Y DON"'L.D ,J. H..........N ,JOHN ,J. SWIG.RT. ,JR. ...ICH...!:L. .. Z.BL.OCKI NEIL.. R. BERNST!:IN CEL.ESTE ST.HL. BR"'CY CHRISTOPHER,J. KIL.P.TRICK ,JOEL. H. GUTH ,JUL.I!: MCCOY ...KINS DAWN C. HONEYW!:L.L. QWIEN s. L.uaOW L..WAl!:NCE B. COHN W.RR!:N B. DIVEN ,J....ES DEXTER CL..RK STl!:PHEN H. L....COUNT H.RL.EY L.. a.Jl!:L.L....No ST!:PHEN T. ,.REE......N ROBERT A. WIL.SON L.ISA M. KITSUT. CHERYL. A. DOW NICHOL....S ,J. VOCC. ,JUL.IE .... PORTER M"'RK T. P...LlN ...ICH...IEL. E. "L.YNN ROBERT C. ,.UNSTEN "'L.ET'" L.OUISE .RY"'NT RON"'L.o .... V.N BLARCOM STEPHEN .... ",CN"'M...R. G"'RY .. PE"'BERTON ,JOHN .... .NTOCI CAROL L.. L.I[W DENISE E. H.RB"'UGH ....R.....". Z!:lo L.EIBOL.D ,JON E. GOI[TZ AL.AN ,J. KESSEL. GARY P. DOWNS .JOHN O. IREL....ND ...ICIi...EL. ,J. PENDERGAST D.VID H. """'NN G.L.E I. SCHL.ESINGER CMRISTOPMER M. MOROPOUL.OS CAN'" M. Kl!:ZMOH D"'RRYL. S. GIBSON .JOHN G. MeCL.ENDON TODD R. TM"'K.R RICH...RD T. NEED......"" ROBERT C. W"'L.L"'CE CAMON C. ...OSL.ER G!:R"'RD L.. OSK.'" "'OHN ,.. CANNON STRADLING, YOCCA. CARLSON & RAUTH A PROFESSIONAL. CORPORATION A.TTORNEYS AT LAW eeo NEWPORT CENTER DRIVE, SUITE 1600 POST OF'F'ICE BOX 7e80 ,JOHN IE. BRECKENRIDGE. REN'" C. STONE 01'" COI,JHIII!:L. NEWPORT BEACH, CAL.If"ORNIA ~2eeO.e441 TEL.EPHONE (714) 72!5-4000 TEL.EPHONE (714) e040-703!5 WRITER'S DIRECT DIAL: "AX NU"".ER (7'''1) 72S-"'100 January 6, 1992 City of San Bernardino San Bernardino, California Manufacturers Hanover Trust Company New York, New York Re: City of San Bernardino, Industrial Development Revenue Bonds, Series 1984A (Central City Promenade Project) (the "Bonds") 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. In that connection, we have examined originals or copies certified or otherwise identified to our satisfaction of (1) the Trust Indenture dated as of December 15, 1984 between the Issuer and Trust Services of America, Inc., a California corporation as succeeded by Manufacturers Hanover Trust Company (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; City of San Bernardino Manufacturers Hanover Trust Company January 6, 1992 Page 2 (5) Supplement No. Two to the Indenture dated as of February 19, 1990 between the Issuer and the Trustee; (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; (10) Amendment No. Four to the Loan Agreement dated as of February 1, 1991 between the Issuer and the Company; (11) Supplement No. Five to the Indenture dated as of June I, 1991 between the Issuer and the Trustee; (12) Amendment No. Five to the Loan Agreement dated as of June 1, 1991 between the Issuer and the Company; (13) Supplement No. Six to the Indenture dated as of January I, 1992 between the Issuer and the Trustee (the "Supplement No. Six"); (14) Amendment No. Six to the Loan Agreement dated as of January 1, 1992 between the Issuer and the Company (the "Amendment No. Six"); and (15) 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. Six and the Supplement No. Six 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. City of San Bernardino Manufacturers Hanover Trust Company January 6, 1992 Page 3 2. Assuming that interest on the Bonds is exempt from federal income taxation currently, the Supplement No. Six and the Amendment No. Six 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 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 addressees of this opinion and may not be relied upon by any other party. ~l~te~IM 8367u/2266/03 Res. 91-498 adopted 12/16/91 AMENDMENT NO. SIX TO THE LOAN AGREEMENT This Amendment No. Six 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 January 1, 1992 between the Issuer and the Company, with the consent of Manufacturers Hanover Trust Company (the "Trustee") and The Chase Manhattan Bank, N.A. (the "Purchaser") (the "Amendment"). Capitalized terms used in this Amendment 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 January 1, 1992 . . . 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: "(c) Mandatorv Prepayment Upon Demand of Purchaser. Prior to the Conversion Date, the Note is subject to mandatory prepayment, in whole, on January 1, 1993, 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 (.5) 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. ATTEST: By: Q~~~- Its: city Clerk CENTRAL CITY PROMENADE, a California limited partnership Rosaland Jonas General Partn By: By: CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: MANUFACTURERS HANOVER TRUST COMPANY 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 8322u/2266/03 1- CENTRAL CITY PROMENADE, a California limited partnership By: Mark Schurgin, General Partner By: Rosaland Jonas Schurgin, General Partner CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: MANUFACTURERS HANOVER TRUST COMPANY By: Its: Auth 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 8322U/2266/03 .. CENTRAL CITY PROMENADE, a California limited partnership By: Mark Schurgin, General Partner By: Rosaland Jonas Schurgin, General Partner CONSENT OF THE TRUSTEE AS REQUIRED BY SECTION 9.06 OF THE LOAN AGREEMENT: MANUFACTURERS HANOVER TRUST COMPANY 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: 8322u/2266/03 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: January 1, 1992 CENTRAL CITY PROMENADE, a California imited partnership By: R saland Jonas General Partner By: 8368u/2266/03