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HomeMy WebLinkAboutCDC/2001-37 1 RESOLUTION NO. CDC/2001-37 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE 3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, APPROVING THE SALE OF SIL VERWOOD APARTMENTS PROJECT TO 4 SAN BERNARDINO 328/AF XXX, LLC; APPROVING AND AUTHORIZING EXECUTION OF CERTAIN AMENDMENTS TO THE INDENTURE AND 5 LOAN AGREEMENT RELATING TO $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO VARIABLE RATE DEMAND 6 MULTIFAMILY HOUSING REVENUE BONDS (SILVERWOOD APARTMENTS PROJECT) SERIES 1996; APPROVING AND AUTHORIZING 7 EXECUTION OF AN ASSUMPTION AGREEMENT IN CONNECTION WITH THE SALE OF SIL VERWOOD APARTMENTS PROJECT; APPOINTING 8 BOND COUNSEL IN CONNECTION WITH THE SALE OF SILVERWOOD APARTMENTS PROJECT AND AMENDMENTS TO THE INDENTURE AND 9 LOAN AGREEMENT; AND AUTHORIZING DISTRIBUTION OF A SUPPLEMENT TO THE PLACEMENT MEMORANDUM RELATING TO 10 $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO VARIABLE RATE DEMAND MULTIFAMILY HOUSING 11 REVENUE BONDS (SIL VERWOOD APARTMENTS PROJECT) SERIES 1996 12 13 WHEREAS, on May 21, 1996, the Redevelopment Agency ofthe City of San Bernardino (the 14 "Agency") issued its $7,000,000 Variable Rate Demand Multifamily Housing Revenue Bonds 15 (Silverwood Apartments Project) Series 1996 (the "Bonds") pursuant to the provisions of the 16 Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.), a 17 Resolution adopted by the Community Development Commission on behalf of the Agency on April 1, 18 1996 and an Indenture of Trust dated as of May 1, 1996 (the "Original Indenture") by and between the 19 Agency and U.S. Bank Trust National Association (formerly, First Trust of California, National 20 Association), as trustee (the "Trustee"), for the purpose of providing funds to make a loan to Magellan 21 Silverwood & Cross Creek General Partnership, an Arizona general partnership (the "Original 22 Borrower") to assist the Original Borrower with the acquisition, rehabilitation and equipping of a 23 multifamily residential housing development for families and persons of low- and moderate-income 24 located in the City of San Bernardino known as the Silverwood Apartments (the "Project"); and 25 WHEREAS, the Bonds were originally secured by an irrevocable direct-pay letter of credit 26 issued by Bank One, Arizona, NA (the "Bank One Letter of Credit"); and 27 28 SB2001:25568.1 1 CDC/2001-37 1 WHEREAS, the Original Borrower desires at this time to sell the Project to San Bernardino 2 328/AF XXX, LLC, a California limited liability company (the "Borrower"); and 3 WHEREAS, in connection with the sale of the Project, the Bank One Letter of Credit is being 4 replaced by an irrevocable direct-pay letter of credit issued by Wells Fargo Bank, National Association 5 (the "Letter of Credit"); and 6 WHEREAS, in connection with the delivery ofthe Letter of Credit, the Agency and the Trustee 7 propose to execute a First Supplemental Indenture (the "First Supplemental Indenture" and, together 8 with the Original Indenture, the "Indenture") pursuant to the provisions of Article IX of the Indenture; 9 and 10 WHEREAS, in connection with the delivery ofthe Letter of Credit, the Agency, the Trustee and 11 the Borrower propose to execute an amendment to the Loan Agreement dated as of May 1, 1996 by and 12 among the Agency, the Trustee and the Original Borrower (the "Original Loan Agreement") pursuant 13 to a First Amendment to Loan Agreement (the "First Amendment to Loan Agreement" and, together 14 with the Original Loan Agreement, the "Loan Agreement"); and 15 WHEREAS, in connection with the purchase ofthe Project by the Borrower, the Borrower will 16 deliver to the Agency an Assumption Agreement (the "Assumption Agreement") by and among the 17 Agency, the Trustee and the Borrower in accordance with the provisions ofthe Regulatory Agreement 18 and Declaration of Restrictive Covenants dated as of May 1, 1996 (the "Regulatory Agreement") and 19 entered into in connection with the issuance of the Bonds; and 20 WHEREAS, it is necessary and desirable to appoint bond counsel ("Bond Counsel") to assist 21 the Agency in connection with the sale of the Project to the Borrower, the replacement of the Bank One 22 Letter of Credit with the Letter of Credit and the amendments to the Original Indenture and Original 23 Loan Agreement effectuated by the First Supplemental Indenture and the First Amendment to Loan 24 Agreement, respectively; and 25 WHEREAS, in connection with the replacement ofthe Bank One Letter of Credit with the Letter 26 of Credit, a Supplement Dated September 25,2001 (the "Supplement to Placement Memorandum") to 27 28 S82001 :25568. I 2 CDC/2001-37 1 the Placement Memorandum Dated May 20, 1996 relating to the Bonds has been prepared and presented 2 to this Commission. 3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON 4 BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO DOES 5 HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: 6 Section 1. The Recitals set forth above are true and correct. 7 Section 2. The sale ofthe Project by the Original Borrower to the Borrower in accordance 8 with the Indenture, the Loan Agreement and the Regulatory Agreement is hereby approved. 9 Section 3. The First Supplemental Indenture, in substantially the form presented to this 10 Commission, is hereby approved. The Executive Director of the Agency is hereby authorized and 11 directed to execute the First Supplemental Indenture on behalf of the Agency together with such 12 technical and conforming changes as may be recommended by the Executive Director. 13 Section 4. The First Amendment to Loan Agreement, in substantially the form presented 14 to this Commission, is hereby approved. The Executive Director of the Agency is hereby authorized 15 and directed to execute the First Amendment to Loan Agreement on behalf of the Agency together with 16 such technical and conforming changes as may be recommended by the Executive Director. 17 Section 5. The Assumption Agreement, in substantially the form presented to this 18 Commission, is hereby approved. The Executive Director of the Agency is hereby authorized and 19 directed to execute the Assumption Agreement on behalf ofthe Agency together with such technical and 20 conforming changes as may be recommended by the Executive Director. 21 Section 6. Lewis, D'Amato, Brisbois & Bisgaard LLP is hereby appointed to serve as Bond 22 Counsel to the Agency in connection with the transfer ofthe Project to the Borrower and in connection 23 with the amendments to the Original Indenture and the Original Loan Agreement effectuated by the First 24 Supplemental Indenture and the First Amendment to Loan Agreement, respectively. 25 Section 7. The Commission hereby approves distribution of the Supplement to Placement 26 Memorandum, in substantially the form presented to this Commission. 27 28 SB2001 :25568.1 3 CDC/2001-37 1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT 2 AGENCY OF THE CITY OF SAN BERNARDINO, APPROVING THE SALE OF SILVERWOOD APARTMENTS PROJECT TO SAN BERNARDINO 328/AF XXX, LLC; 3 APPROVING AND AUTHORIZING EXECUTION OF CERTAIN AMENDMENTS TO THE INDENTURE AND LOAN AGREEMENT RELATING TO $7,000,000 REDEVELOPMENT 4 AGENCY OF THE CITY OF SAN BERNARDINO VARIABLE RATE DEMAND MULTIFAMIL YHOUSING REVENUE BONDS (SIL VERWOOD APARTMENTS PROJECT) 5 SERIES 1996; APPROVING AND AUTHORIZING EXECUTION OF AN ASSUMPTION AGREEMENT IN CONNECTION WITH THE SALE OF SIL VERWOOD APARTMENTS 6 PROJECT; APPOINTING BOND COUNSEL IN CONNECTION WITH THE SALE OF SIL VERWOOD APARTMENTS PROJECT AND AMENDMENTS TO THE INDENTURE AND 7 LOAN AGREEMENT; AND AUTHORIZING DISTRIBUTION OF A SUPPLEMENT TO THE PLACEMENT MEMORANDUM RELATING TO $7,000,000 REDEVELOPMENT AGENCY 8 OF THE CITY OF SAN BERNARDINO VARIABLE RATE DEMAND MULTIFAMILY HOUSING REVENUE BONDS (SILVERWOOD APARTMENTS PROJECT) SERIES 1996 9 10 Section 8. This Resolution shall become effective immediately upon its adoption. 11 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 12 Development Commission ofthe City of San Bernardino at a joint reg.meeting thereof, held on the 13 17th day of Septembe;r2001, by the following vote, to wit: 14 15 Commission ESTRADA 16 LIEN MCGINNIS 17 SCHNETZ SUAREZ 18 ANDERSON McCAMMACK 19 20 21 22 23 24 25 By: 26 27 28 S82001:25568.\ AYES x X X X NAYS ABSTAIN ABSENT X X ~~d this dl!! day of September ,2001. 4 1 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss 2 CITY OF SAN BERNARDINO ) CDC/2001-37 3 I, Secretary of the Community Development Commission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy of 4 Community Development Commission ofthe City of San Bernardino Resolution No. is a full, true and correct copy of that now on file in this office. 5 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of 6 the Community Development Commission of the City of San Bernardino this day of ,2001. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S82001:25568.1 Secretary of the Community Development Commission of the City of San Bernardino 5 FIRST AMENDMENT TO LOAN AGREEMENT THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered into as of September I, 200 I, among the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic organized under and pursuant to the laws of the State of California (the "Issuer"), U.S. Bank Trust National Association, a national banking association organized and existing under the laws of the United States of America and formerly known as First Trust of California, National Association, as trustee (the "Trustee"), and San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Borrower"). WIT N E SSE T H: WHEREAS, the Issuer and the Trustee entered into that certain Indenture of Trust, dated as of May 1, 1996 (the "Indenture"), in connection with the issuance of the Issuer's $7,000,000.00 Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 (the "Bonds"); and WHEREAS, the Issuer loaned the proceeds of the Bonds to Magellan Silverwood Partnership, an Arizona general paJinership (the "Original Borrower"), pursuant to a Loan Agreement, dated as of May 1, 1996 (the "Loan Agreement"), among the Issuer, the Trustee and the Original Borrower; and WHEREAS, proceeds of the Bonds were used, in part, to construct and pay other costs associated with the construction and development of a multifamily residential rental housing project known as Silverwood Apartments (the "Project") located in San Bernardino, California; and WHEREAS, the Borrower has acquired the Project and has succeeded to the Original Borrower's interest under the Loan Agreement; and WHEREAS, the Borrower has caused to be delivered to the Trustee a letter of credit (the "Letter of Credit") issued by Wells Fargo Bank, National Association (the "Credit Facility Provider"), to replace the existing letter of credit issued by Bank One, Arizona, NA providing credit support for the Bonds; and WHEREAS, in connection with the delivery of the Letter of Credit, the Borrower and the Credit Facility Provider have requested certain amendments to the Loan Agreement requiring the consent of not less than sixty percent (60%) of the owners of all of the Bonds Outstanding; and WHEREAS, the requisite owners of the Bonds Outstanding have consented to and approved the execution of this Amendment. NOW, THEREFORE, in consideration of the above premises and the mutual covenants contained herein and for other good and valuable consideration, the parties hereto agree as follows: 1. Unless defined elsewhere in this Amendment, initially-capitalized terms shall have the respective meanings assigned to such terms in the Loan Agreement. COLEMAJLIIR V1242368.3 2. Subsection (B) of Section 5.8.B(5) of the Loan Agreement is hereby deleted. 3. Section 5.8.B(6) is hereby amended to read as follows: "The Credit Facility must be accompanied by (A) a written statement, signed by a representative of each Rating Agency which then maintains a rating on the Bonds, evidencing that the rating on the Bonds will not be withdrawn as a result of the substitution of the current Credit Facility and that the rating on the Bonds will be in one of the three highest rating categories subsequent to the delivery of such Credit Facility and (B) the Credit Facility Provider's address to which notices are required to be given to the Credit Facility Provider hereunder and under the Regulatory Agreement, the Indenture and the Remarketing Agreement shall be sent. " 4. This Amendment may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 5. This Amendment shall be governed by and construed in accordance with the laws of the State of California. 6. Except as specifically set forth in this Amendment, the terms and provisions of the Loan Agreement are not altered, amended or modified hereby. [Remainder of page intentionally left blank. Signatures appear on following page.] COLEMAJL\IRV\242368.3 2 IN WITNESS WHEREOF, the Issuer, the Trustee and the Borrower have caused this Amendment to be executed as of the date first written above. By: Name: Title: Executive Director U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: Name: Title: SAN BERNARDINO 328/AF XXX, LLC, a California limited liability company By: Van Daele Apartment Communities, LLC, a California limited liability company, Managing Member By: Jeffrey M. Hack, President COLEMAJLIIR V1242J68.J 3 IN WITNESS WHEREOF, the Issuer, the Trustee and the Borrower have caused this Amendment to be executed as ofthe date first written above. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Name: Title: U.S. BANK TRUST NATIONAL ASS CIATION, as Trustee By: Name: Title: SAN BERNARDINO 328/AF XXX, LLC, a California limited liability company By: Van Daele Apartment Communities, LLC, a California limited liability company, Managing Member By: Jeffrey M. Hack, President ':\ IN WITNESS WHEREOF, the Issuer, the Trustee and the Borrower have caused this Amendment to be executed as of the date first written above. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Name: Title: U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: Name: Title: SAN BERNARDINO 328/ AF XXX, LLC, a California limited liability company By: Van Daele Apartment Communities, LLC, a California limited liability company, Managing Member By 4. L- Ief ey M. Hack, President COLEMAJ L\IR V\242368.3 3 Pursuant to Section 6.03 of the Indenture and Section 10.4 of the Loan Agreement, the Credit Facility Provider hereby consents to the terms and the making of this Amendment. By: Name: Mv~1fvI Title: V I c...E f IZ-€:S I oer-rl COLEMAJLIlRV\242368.3 4 FIRST SUPPLEMENTAL INDENTURE THIS FIRST SUPPLEMENTAL INDENTURE TO INDENTURE OF TRUST DATED AS OF MAY 1, 1996 (this "Supplemental Indenture") is entered into as of September I, 200 I, between the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic organized under and pursuant to the laws of the State of California (the "Issuer"), and U.S. Bank Trust National Association, a national banking association organized and existing under the laws of the United States of America and formerly known as First Trust of California, National Association, as trustee (the "Trustee"). WIT N E SSE T H: WHEREAS, the Issuer and Trustee entered into that certain Indenture of Trust, dated as of May I, 1996 (the "Indenture"), in connection with the issuance of the Issuer's $7,000,000.00 Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 (the "Bonds"); and WHEREAS, the Issuer loaned the proceeds of the Bonds to Magellan Silverwood Partnership, an Arizona general partnership (the "Original Borrower"), pursuant to a Loan Agreement, dated as of May 1, 1996 (the "Loan Agreement"), among the Issuer, the Trustee and the Original Borrower; and WHEREAS, proceeds of the Bonds were used, in part, to construct and pay other costs associated with the construction and development of a multifamily residential rental housing project known as Silverwood Apartments (the "Project") located in San Bernardino, California; and WHEREAS, San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Borrower"), has acquired the Project and has succeeded to the Original Borrower's interest under the Loan Agreement; and WHEREAS, the Borrower has caused to be delivered to the Trustee a letter of credit (the "Letter of Credit") issued by Wells Fargo Bank, National Association (the "Credit Facility Provider"), to replace the existing letter of credit issued by Bank One, Arizona, NA providing credit support for the Bonds; and WHEREAS, in connection with the delivery of the Letter of Credit, the Borrower and the Credit Facility Provider have requested certain amendments to the Indenture requiring the consent of not less than sixty percent (60%) of the owners of all of the Bonds Outstanding; and WHEREAS, the requisite owners of the Bonds Outstanding have consented to and approved the execution of this Supplemental Indenture. NOW, THEREFORE, in consideration of the above premises and the mutual covenants contained herein and for other good and valuable consideration, the parties hereto agree as follows: COLEMAJUlR Y\242308.5 I. Unless defined elsewhere in this Supplemental Indenture, initially-capitalized terms shall have the respective meanings assigned to such terms in the Indenture. 2. Article IV of the Indenture is hereby amended by adding the following new Section 4.06: "Section 4.06. Purchase of Bonds in Lieu of Redemption. The Credit Facility Provider shall have the right, in the event of a mandatory redemption of the Bonds pursuant to Section 4.01(d) of this Indenture, to direct the Trustee to purchase the Bonds in lieu of their redemption, at a Purchase Price equal to one hundred percent (100%) of the principal amount thereof, plus accrued interest thereon to the date of purchase. To exercise such right hereunder, the Credit Facility Provider shall give written notice thereof to the Trustee, the Remarketing Agent and the Borrower not less than four (4) Business Days prior to the redemption date. Upon receipt of such written notice, such redemption date shall be deemed to constitute a Demand Date, and the Trustee shall draw under the Letter of Credit pursuant to Section 5.05(d) of this Indenture to effect a purchase of all Bonds Outstanding, it being the intention of the Issuer that the Bonds remain Outstanding after such purchase. Such Bonds so purchased at the direction of the Credit Facility Provider shall be registered in the name of the Borrower and shall, for all purposes under this Indenture, constitute Pledged Bonds. Such Pledged Bonds, if not remarketed, shall be redeemed and canceled automatically, with no further payment required in respect of such redemption, by the Trustee on the date which is not later than five (5) years from the date of purchase, unless an opinion of Bond Counsel is delivered to the Trustee to the effect that not redeeming and canceling the Bonds will not adversely affect the tax-exempt status of the interest on the Bonds for federal income tax purposes. Such Bonds shall remain Pledged Bonds unless and until such Bonds are remarketed at the direction of the Credit Facility Provider." 3. Section 7.01 of the Indenture is hereby amended by adding the following new paragraph (g) immediately after paragraph (f) thereof: "(g) the receipt by the Trustee of written notice from the Credit Facility Provider, within eight (8) calendar days of an Interest Payment Date, that a Letter of Credit will not be reinstated by an amount equal to funds drawn thereunder to pay interest due on the Bonds on such Interest Payment Date." 4. The last two paragraphs of Section 7.01 of the Indenture are hereby amended to read as follows: "During the continuance of any other Event of Default, except an Event of Default specified in (g) above, unless the principal of all of the Bonds shall have already become due and payable, the Trustee may, and, upon the written request of the holders of not less than 25% in aggregate principal amount of the Bonds at the time outstanding, the Trustee shall, by notice in writing to the Issuer, the Remarketing Agent and the Credit Facility Provider declare the principal of all Bonds then outstanding and the interest accrued - 2 - COLEMAJLIIRV\242308.5 thereon to be due and payable immediately, and, upon any such declaration, the same shall become and shall be immediately due and payable, anything contained in this Indenture or in the Bonds to the contrary notwithstanding. In addition, following the occurrence of an Event of Default specified in (g) above, unless the principal of all of the Bonds shall have already become due and payable, the Trustee shall, by notice in writing to the Issuer, the Remarketing Agent and the Credit Facility Provider declare the principal of all Bonds then outstanding and the interest accrued thereon to be due and payable immediately, and, upon any such declaration, the same shall become and shall be immediately due and payable, anything contained in this Indenture or in the Bonds to the contrary notwithstanding. Upon any declaration of acceleration pursuant to this paragraph, the Trustee shall fix a date for the payment ofthe Bonds, which date shall be as soon as practicable after such declaration (and within five Business Days following such declaration), and shall draw on the Credit Facility then outstanding in accordance with their respective terms and Section 5.05(c) hereof and apply the amount so drawn to pay on such date the principal of and interest on the Bonds so due and payable. Notwithstanding the above, so long as a Credit Facility Provider has not denied any properly presented request for a draw under its Credit Facility or delivered to the Trustee the written notice described in (g) above, no action taken by the Bondholders or the Trustee to accelerate the Bonds upon the occurrence of an Event of Default, except an Event of Default specified in (g) above, shall be effective unless the written consent of the such Credit Facility Provider shall first have been obtained. The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds shall have been so declared due and payable (other than a declaration following the occurrence of an Event of Default specified in (g) above), and before any drawing is made under the Credit Facility or any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, there shall have been deposited with the Trustee a sum sufficient to pay all the principal of the Bonds matured prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal, and the reasonable expenses of the Trustee, its agents and counsel and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on the Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then, and in every such case, the holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by prior written notice to the Issuer and to the Trustee and with indemnification satisfactory to the Trustee and with the prior written approval of the Credit Facility Provider may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default (other than an Event of Default specified in (g) above); but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon." 5. The second sentence of Section 8.l3(c) of the Indenture is hereby amended to read as follows: - 3 - COLEMAJL\IR V\242308.5 "A successor Remarketing Agent appointed at the direction of the Borrower with notice to the Issuer and the Trustee of an instrument directing such removal and appointment, signed by the Borrower, and consented to by the Credit Facility Provider, and filed with the Issuer, the Remarketing Agent, the previous Remarketing Agent and the Trustee." 6. This Supplemental Indenture may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 7. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of California. 8. Except as specifically set forth in this Supplemental Indenture, the terms and provisions of the Indenture are not altered, amended or modified hereby. IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Supplemental Indenture to be executed as of the date first written above. Title: U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: Name: Title: - 4 - COLEMAJLIIRV\242308.5 "A successor Remarketing Agent appointed at the direction of the Borrower with notice to the Issuer and the Trustee of an instrument directing such removal and appointment, signed by the Borrower, and consented to by the Credit Facility Provider, and filed with the Issuer, the Remarketing Agent, the previous Remarketing Agent and the Trustee." 6. This Supplemental Indenture may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 7. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of California. 8. Except as specifically set forth in this Supplemental Indenture, the terms and provisions of the Indenture are not altered, amended or modified hereby. IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Supplemental Indenture to be executed as of the date first written above. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Name: Title: U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee :~~ ASSISTANT VICE PRESIDENT Title: - 4- COLEMAJLIlR Vl242308.S Pursuant to Section 9.02 of the Indenture, the Credit Facility Provider and the Borrower hereby consent to the terms and the making of this Supplemental Indenture. Name: (l/t1Yl.tUL ;r:. MUtL{JHf1 T i t1 e: V l c..e; (J Il4!;t;, If> l!f\Il SAN BERNARDINO 328/AF XXX, LLC, a California limited liability company By: Van Dae1e Apartment Communities,LLC, a California limited liability company, Managing Member // By: . j/K-- J ffrey M. Hack, President - 5 - COLEMAJLIIRV\242308.5 . , SUPPLEMENT DATED SEPTEMBER 19,2001 TO PLACEMENT MEMORANDUM DATED MAY 20,1996 NOT A NEW ISSUE $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 This supplement (the "Supplement") is a supplement to the Placement Memorandum dated May 20, 1996, (together with this Supplement, the "Placement Memorandum"), relating to the above-captioned bonds (the "Bonds") issued by the Redevelopment Agency of the City of San Bernardino (the "Issuer"). This Supplement presents certain information that has become available from May 20, 1996 to the date hereof and should be read together with the Placement Memorandum (a copy of which is attached hereto and incorporated herein by reference). To the extent the information in this Supplement conflicts with the information in the Placement Memorandum, this Supplement shall govern. Unless otherwise defined in this Supplement, all terms used herein shall have the same meanings as those terms have in the Placement Memorandum. THE BONDS, THE PREMIUM, IF ANY, AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM THE REVENUES, WHICH REVENUES HAVE BEEN PLEDGED AND ASSIGNED TO THE TRUSTEE TO SECURE PAYMENT THEREOF. THE BONDS AND THE INTEREST THEREON SHALL NEVER CONSTITUTE THE DEBT OR INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY PROVISION OR LIMITATION OF THE CONSTITUTION OR STATUTES OF THE STATE OF CALIFORNIA, AND SHALL NOT CONSTITUTE OR GIVE RISE TO A PECUNIARY LIABILITY OF THE ISSUER. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY OF SAN BERNARDINO, THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS, NOR IS THE ISSUER, THE CITY OF SAN BERNARDINO, THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF IN ANY MANNER OBLIGATED TO MAKE ANY APPROPRIATION FOR PAYMENT. THE ISSUER HAS NO TAXING POWERS. As of September 25, 2001 (the "Substitution Date"), the timely payment of the principal of and interest on, and the purchase price of, the Bonds is secured by an irrevocable, direct-pay letter of credit (the "Letter of Credit") issued by WELLS FARGO BANK, NATIONAL ASSOCIATION The Letter of Credit will terminate on the one-year anniversary of the Substitution Date, unless earlier terminated, or extended, as provided therein. .Bgl2~ . ' INTRODUCTION The Bonds were issued on May 21, 1996, pursuant to an Indenture of Trust dated as of May I, 1996 (the "Original Indenture") between the Redevelopment Agency of the City of San Bernardino (the "Issuer") and First Trust of California, National Association (now known as U.S. Bank Trust National Association, as trustee, the "Trustee"). The Bonds are currently outstanding in the aggregate principal amount of $7,000,000. The proceeds of the Bonds were loaned to Magellan Silverwood & Cross Creek General Partnership. an Arizona general partnership (the "Original Borrower") pursuant to a Loan Agreement dated as of May I, 1996 (the "Original Loan Agreement") by and among the Issuer, First Trust of California, National Association and the Original Borrower, to finance the acquisition, rehabilitation and equipping of a multifamily residential housing project facility located in San Bernardino, California (the "Project"). On September 25, 200 I (the "Substitution Date"), the Original Borrower sold the Project to San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Borrower"). The Bonds were originally secured by an irrevocable direct-pay letter of credit issued by Bank One, Arizona, NA (the "Bank One Letter of Credit"). Effective as of the Substitution Date, pursuant to the terms of a Reimbursement Agreement dated as of September I, 2001 (the "Credit Agreement"), by and between Wells Fargo Bank, National Association (the "Credit Bank") and the Borrower, the Bank One Letter of Credit was replaced by an irrevocable direct-pay letter of credit (the "Letter of Credit") issued by the Credit Bank. A form of the Letter of Credit is attached hereto as Exhibit A. In connection with the delivery of the Letter of Credit, the Issuer and the Trustee executed a First Supplemental Indenture dated as of September I, 200 I (the "First Supplemental Indenture" and, together with the Original Indenture, the "Indenture"). See "CERTAIN AMENDMENTS TO THE INDENTURE" herein. In addition, the Issuer, the Trustee and the Borrower executed a First Amendment to Loan Agreement dated as of September I, 2001 (the "First Supplemental Loan Agreement" and, together with the Original Loan Agreement, the "Loan Agreement"). See "CERTAIN AMENDMENTS TO THE LOAN AGREEMENT" herein. Lewis, D' Amato, Brisbois & Bisgaard LLP, San Bernardino, California, Bond Counsel, has rendered the opinion attached hereto as Exhibit B in connection with the delivery of the Letter of Credit and th: execution and delivery of the First Supplemental Indenture. THE CREDIT BANK The following information is provided by the Credit Bank. None of the Issuer, the Borrower or the Remarketing Agent has made any independent investigation regarding the information presented in this section, nor have such parties verified the accuracy or completeness thereof. and none of the Issuer, the Borrower or the Remarketing Agent assumes any responsibility or liability therefor. The Credit Bank is a national banking association organized under the laws of the United States of America and engages in retail, commercial and corporate banking, real estate lending and trust and investment services. At December 31, 2000, the Credit Bank had total consolidated assets of $115.5 billion, total deposits of$70.6 billion and total shareholders' equity of$13.7 billion. The Credit Bank is a subsidiary of Wells Fargo & Company, a diversified financial services company and a financial holding company and a bank holding company registered under the Bank Holding Company of 1956 ("Wells Fargo"). . , The principal banking office of the Credit Bank is located at 420 Montgomery Street, San Francisco, CA 94104 (telephone number: 1-800-411-4932). Each quarter, the Credit Bank files with the FDIC financial reports entitled "Consolidated Reports of Condition and Income for Insured Commercial Banks with Domestic and Foreign Offices," commonly referred to as the "Call Reports." The Credit Bank's Call Reports are prepared in accordance with regulatory accounting principles, which may differ from generally accepted accounting principles. The publicly available portions of the Call Reports may be obtained from the FDIC, Disclosure Group, Room F518, 550 17th Street, N.W., Washington, D.C. 20429 at prescribed rates, or from the FDIC on its Internet site at http:www.fdic.gov. The Credit Bank's Call Reports for the periods ending December 3 I, 2000 are incorporated into this Offering Memorandum by reference. Copies of the Credit Bank's Call Reports may be obtained by writing to: Corporate Secretary's Office, Wells Fargo Center, Sixth and Marquette, MAC N9305-173, Minneapolis, MN 55479. The Letter of Credit is solely an obligation of Credit Bank and will not be an obligation of, or otherwise guaranteed by, Wells Fargo & Company, and no assets of Wells Fargo & Company or any affiliate of the Credit Bank or Wells Fargo will be pledge to the payment thereof. Payment of the Letter of Credit will not be insured by the FDIC. THE BORROWER AND THE PROJECT The following information has been provided by the Borrower. None of the Issuer, the Credit Bank or the Remarketing Agent has made any independent investigation regarding the information presented in this section, nor has such parties verified the accuracy or completeness thereof, and none of the Issuer, the Credit Bank or the Remarketing Agent assumes any responsibility or liability therefor. The Borrower The Borrower, San Bernardino 328/ AF XXX, LLC, a California limited liability company acquired the Project on the Substitution Date. Van Daele Apartment Communities, LLC (the "Managing Member"), is the managing member of the Borrower. The Managing Member and its affiliates have been involved in the ownership and/or operation of multifamily housing facilities since 1984 and currently owns and/or operates 9 multifamily housing facilities containing approximately 1,758 units located in the Riverside and San Bernardino county areas of California. The ~roject Based on unaudited information provided by the Borrower, occupancy at the Project averaged 90.5% for the calendar year 1998, 90.3% for the calendar year 1999 and 87.8% for the calendar year 2000. As of August 19, 200 I, the most recent date for which occupancy results are available, the Project was 92.4% occupied. Based on unaudited information provided by the Borrower, the following is a summary of the operaling history for the Project for each of the calendar years set forth below: 1998 1999 2000 Revenues Operating Expenses 1 Net Cash Flow Available for Debt Service $1,537,465 < 1.070,045> $467.420 $1,755,184 <L134,299> $620 885 $1,632,433 <1.278.957> $ill.476 I Before depreciation and other non-cash expense items. 2 . . THE PROJECT WAS NOT OWNED OR OPERATED BY THE BORROWER PRIOR TO THE CLOSING DATE. ACCORDINGLY, THE INFORMATION PROVIDED FOR THE PROJECT PRIOR TO THE CLOSING DATE HAS BEEN BASED SOLELY UPON INFORMATION PROVIDED TO THE BORROWER BY THE PRIOR OWNER AND/OR A PROPERTY MANAGEMENT FIRM. WHILE THE BORROWER BELIEVES THE INFORMATION SET FORTH ABOVE IS RELIABLE, THE BORROWER HAS NOT INDEPENDENTLY CONFIRMED THE ACCURACY OF THE INFORMATION SET FORTH ABOVE AND DOES NOT GUARANTEE THE ACCURACY OF SUCH INFORMATION. CERTAIN AMENDMENTS TO THE INDENTURE The following is a brief summary of the First Supplemental Indenture executed in connection with the delivery of the Letter of Credit. The summary does not purport to be complete or definitive and is qualified in its entirety by reference to the First Supplemental Indenture, copies of which are onfile with the Trustee. Purchase of Bonds in Lieu of Redemption Pursuant to the First Supplemental Indenture, the Credit Bank shall have the right, in the event of a mandatory redemption of the Bonds at the direction of the Credit Bank upon an Event of Default under the Credit Agreement, to direct the Trustee to purchase the Bonds in lieu of their redemption, at a Purchase Price equal to 100% of the principal amount thereof, plus accrued interest thereon to the date of purchase. To exercise such right under the Indenture, the Credit Bank shall give written notice thereof to the Trustee, the Remarketing Agent and the Borrower not less than four Business Days prior to the redemption date. Upon receipt of such written notice, such redemption date shall be deemed to constitute a Demand Date, and the Trustee shall draw under the Letter of Credit pursuant to the Indenture to effect a purchase of all Bonds Outstanding, it being the intention of the Issuer that the Bonds remain Outstanding after such purchase. Such Bonds so purchased at the direction of the Credit Bank shall be registered in the name of the Borrower and shall, for all purposes under the Indenture, constitute Pledged Bonds. Such Pledged Bonds, ifnot remarketed, shall be redeemed and canceled automatically, with no further payment required in respect of such redemption, by the Trustee on the date which is not later than five years from the date of purchase, unless an opinion of Bond Counsel is delivered to the Trustee to the effect that not redeeming and canceling the Bonds will not adversely affect the tax-exempt status of the interest on the Bonds for federal income tax purposes. Such Bonds shall remain Pledged Bonds unless and until such Bonds are remarketed at the direction of the Credit Bank. . Events of Default and Acceleration Pursuant to the First Supplemental Indenture, the following Event of Default has been added to the Events of Default set forth in the Original Indenture: (g) the receipt by the Trustee of written notice from the Credit Bank, within eight calendar days of an Interest Payment Date, that a Letter of Credit will not be reinstated by an amount equal to funds drawn thereunder to pay interest due on the Bonds on such Interest Payment Date. During the continuance of any other Event of Default, except an Event of Default described in (g) above, unless the principal of all of the Bonds shall have already become due and payable, the Trustee may, and, upon the written request of the holders of not less than 25% in aggregate principal amount of the Bonds at the time outstanding, the Trustee shall, by notice in writing to the Issuer, the Remarketing Agent and the Credit Bank declare the principal of all Bonds then outstanding and the interest accrued 3 . , thereon to be due and payable immediately, and, upon any such declaration, the same shall become and shall be immediately due and payable, anything contained in the Indenture or in the Bonds to the contrary notwithstanding. In addition, following the occurrence of an Event of Default described in (g) above, unless the principal of all of the Bonds shall have already become due and payable, the Trustee shall, by notice in writing to the Issuer, the Remarketing Agent and the Credit Bank declare the principal of all Bonds then outstanding and the interest accrued thereon to be due and payable immediately, and, upon any such declaration, the same shall become and shall be immediately due and payable, anything contained in the Indenture or in the Bonds to the contrary notwithstanding. Upon any declaration of acceleration as described in this paragraph, the Trustee shall fix a date for the payment of the Bonds, which date shall be as soon as practicable after such declaration (and within five Business Days following such declaration), and shall draw on the Letter of Credit then outstanding in accordance with their respective terms and the Indenture and apply the amount so drawn to pay on such date the principal of and interest on the Bonds so due and payable. Notwithstanding the above, so long as a Credit Bank has not denied any properly presented request for a draw under its Letter of Credit or delivered to the Trustee the written notice described in (g) above, no action taken by the Bondholders or the Trustee to accelerate the Bonds upon the occurrence of an Event of Default, except an Event of Default specified in (g) above, shall be effective unless the written consent of the such Credit Bank shall first have been obtained. The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds shall have been so declared due and payable (other than a declaration following the occurrence of an Event of Default specified in (g) above), and before any drawing is made under the Letter of Credit or any judgment or decree for the payment of the moneys due shall have been obtained or entered as provided in the Indenture, there shall have been deposited with the Trustee a sum sufficient to pay all the principal of the Bonds matured prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal, and the reasonable expenses of the Trustee, its agents and counsel and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on the Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then, and in every such case, the holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by prior written notice to the Issuer and to the Trustee and with indemnification satisfactory to the Trustee and with the prior written approval of the Credit Bank may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default (other than an Event of Defattit specified in (g) above); but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Successor Remarketing Agent Pursuant to the First Supplemental Indenture, the Credit Bank has the right to consent to successor Remarketing Agents. CERTAIN AMENDMENTS TO THE LOAN AGREEMENT The following is a brief summary of the First Supplemental Loan Agreement executed in connection with the delivery df the Letter of Credit. The summary does not purport to be complete or definitive and is qualified in its entirety by reference to the First Supplemental Loan Agreement, copies of which are onfile with the Trustee. 4 Substitute Credit Facility No Preference Opinion. Pursuant to the First Supplemental Loan Agreement, the requirement set forth in the Original Loan Agreement that each substitute Credit Facility be delivered with an opinion of counsel to the provider of the substitute Credit Facility to the effect that payments made by the Credit Facility Provider under the Credit Facility will not be voidable under Section 547 in the context of a case or proceeding by or against the Borrower or by the Issuer under the Federal Bankruptcy Code has been deleted. Rating Confirmation and Notice Address. Pursuant to the First Supplemental Loan Agreement, any substitute Credit Facility must be accompanied by (a) a written statement, signed by a representative of each Rating Agency which then maintains a rating on the Bonds, evidencing that the rating on the Bonds will not be withdrawn as a result of the substitution of the current Credit Facility and that the rating on the Bonds will be in one of the three highest rating categories subsequent to the delivery of such Credit Facility and (b) the Credit Bank's address to which notices are required to be given to the Credit Bank under the Loan Agreement and under the Regulatory Agreement, the Indenture and the Remarketing Agreement shall be sent. RATINGS It is a condition to the delivery of the Letter of Credit that Standard & Poor's Credit Market Services, a division of The McGraw-Hill Companies, Inc. ("S&P") raise the ratings on the Bonds to "AA-I A-I +." The ratings reflect only the views of S&P, and an explanation of the ratings can be obtained from S&P. There is no assurance that such ratings will continue for any given period of time or that they will not be revised downward or withdrawn entirely by S&P if, in the judgment of such rating agency, circumstances so warrant. Any such downward revision or withdrawal of such ratings may have an adverse effect on the marketing price of the Bonds. LIMITED INVOLVEMENT OF THE ISSUER The distribution of this Supplement has been duly consented to by the Issuer, insofar as it relates to the Issuer and the transactions to which the Issuer is a party. The Issuer, however, has not reviewed and is not responsible for any information set forth herein. MISCELLANEOUS This Supplement is submitted in connection with the delivery of the Letter of Credit and the execution and delivery of the First Supplemental Indenture and the First Supplemental Loan Agreement. This Supplement may not be reproduced or used, as a whole or in part, for any other purpose. Any statements in this Supplement involving matters of opinion, whether or not expressly so stated, are intended as such and not as representations of fact. 5 [Borrower's Signature Page to the Supplement to Placement Memorandum] SAN BERNARDINO 328/AF XXX, LLC, a California limited liability company Van Dade Apartment Communities, LLC, a California limited liability company, Managing Member By 4 /~ Jeffrey . Hack, PreSident EXHIBIT A FORM OF THE LETTER OF CREDIT September 25,2001 Letter of Credit No. NZS41 0064 U.S. Bank Trust National Association Corporate Trust Services 550 South Hope Street, Suite 500 Los Angeles, California 90071 Ladies and Gentlemen: We hereby establish in your favor at the request and for the account of San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Applicant"), our irrevocable letter of credit in the amount of U.S. $7,115,069.00 (Seven Million One Hundred Fifteen Thousand Sixty-Nine and 00/1 00 Dollars) in connection with the Bonds (as defined below) available with ourselves by sight payment against presentation of one or more (a) telefacsimile demands or (b) signed and dated demands ("Signed Demands") addressed by you to Wells Fargo Bank, N.A., Letter of Credit Operations Office, San Francisco, California, each in the form of Annex A (an "A Drawing"), Annex B (a "B Drawing"), Annex C (a "C Drawing"), Annex D (a "D Drawing"), Annex E (an "E Drawing"), Annex F (an "F Drawing"), Annex G (a "G Drawing"), or Annex H (an "H Drawing") hereto, with all instructions in brackets therein being complied with. Each such presentation must be made on a Business Day (as hereinafter defined) to our Letter of Credit Operations Office in San Francisco, California (presently located at 525 Market Street, 25th Floor, San Francisco, California, 94105) at or before 5:00 PM, San Francisco time, on or before the Expiration Date (as hereinafter defined). This Letter of Credit expires at our above office on September 25, 2002 but shall be automatically extended, without written amendment, first to September 25, 2003 and then up to, but not beyond, September 25, 2004 unless you shall have received at your address above our written notice sent by registered mail or express courier that we elect not to extend this Letter of Credit beyond the date specified in such notice, which date will be September 25, 2002, or September 25, 2003 and be at least sixty (60) calendar days after the date you receive such notice. As used herein, the term "Expiration Date" means the earlier of (a) September 25, 2004 or (b) the date specified in any notice of non- extension received by you pursuant to the immediately preceding sentence as the date beyond which this Letter of Credit will not be extended. If the Expiration Date falls on a day which is not a Business Day, then such Expiration Date shall be automatically extended to the fifth (5th) succeeding Business Day. As used herein, the term "Business Day" shall mean a day of the year on which our San Francisco Letter of Credit Operations Office is open for business. The amount of any demand presented hereunder will be the amount inserted in numbered Paragraph 4 of said demand. By honoring any such demand we make no representation as to the correctness of the amount demanded. We hereby agree with you that each demand presented hereunder in full compliance with the terms hereof will be duly honored by our payment to you of the amount of such demand, in immediately available funds of Wells Fargo Bank, National Association, and not with funds of the Applicant or its members or guarantors: (i) not later than 10:00 a.m., San Francisco time, on the Business Day following the Business Day on which such demand is presented to us as aforesaid if such presentation is made to us at or before noon, San Francisco time. or (ii) not later than 10:00 a.m., San Francisco time, on the second Business Day following the Business Day on which such demand is presented to us as aforesaid, if such presentation is made to us after noon, San Francisco time. Notwithstanding the foregoing, any demand presented hereunder, in full compliance with the terms hereof, for a C Drawing or D Drawing will be duly honored (i) not later than 12:30 p.m., San Francisco time, on the Business Day on which such demand is presented to us as aforesaid if such presentation is made to us at or before 8:00 a.m., San Francisco time, and (ii) not later than II :00 a.m., San Francisco time, on the Business Day following the Business Day on which such demand is presented to us as aforesaid if such presentation is made to us after 8:00 a.m., San Francisco time. If the remittance instructions included with any demand presented under this Letter of Credit require that payment is to be made by transfer to an account with us or with another bank, we and/or such other bank may rely solely on the account number specified in such instructions even if the account is in the name of a person or entity different from the intended payee. With respect to any demand that is honored hereunder, the total amount of this Letter of Credit shall be reduced as follows: (A) With respect to any A Drawing or B Drawing, the total amount of this Letter of Credit shall be reduced, as to all demands subsequent to the applicable demand, by the amount of the applicable demand as of the time of presentation of such demand and shall not be reinstated; (B) With respect to any C Drawing, D Drawing, E Drawing or F Drawing, the total amount of this Letter of Credit shall be reduced, as to all demands subsequent to the applicable demand, by the amount of the applicable demand as of the time of presentation of such demand subject to reinstatement in full or in part, if and to the extent, prior to the Expiration Date, we are reimbursed from remarketing proceeds for all or a portion of such demand, at which time we shall advise you in writing of such reinstatement and the amount reinstated; and (C) With respect to any H Drawing, the total amount of this Letter of Credit shall be reduced, as to all demands subsequent to the applicable demand, by the amount of the applicable A-2 demand as of the time of presentation of such demand; provided, however, that such amount shall be automatically reinstated on the tenth (10th) calendar day following the date of presentation of such demand unless (i) you shall have received notice from us by telegraph, telex, courier service or registered mail at the above address within seven (7) calendar days after the presentation of such demand that there shall be no such reinstatement, or (ii) the tenth (10th) calendar day after such presentation would be after the Expiration Date. Upon presentation to us of an G Drawing in compliance with the terms of this Letter of Credit, no further demand whatsoever may be presented hereunder. An H Drawing shall not be presented to us (i) more than once during any twenty-seven (27) calendar day period, or (ii) with respect to any single H Drawing, for an amount more than $115,069.00. Except as otherwise provided herein, this Letter of Credit shall be governed by and construed in accordance with the Uniform Customs and Practice for Documentary Credits (1993 Revision), Publication No. 500 of the International Chamber of Commerce (the "UCP"); provided, however, that Article 41, paragraphs d, e, f, g, h, i and j of Article 48 and the second sentence of Article 17 shall not apply to this Letter of Credit. Furthermore, as provided in the first sentence of Article 17 of the UCP, we assume no liability or responsibility for consequences arising out of the interruption of our business by Acts of God, riots, civil commotions, insurrections, wars or any other causes beyond our control, or strikes or lockouts. As to matters not covered by the UCP and to the extent not inconsistent with the UCP or made inapplicable by this Letter of Credit, this Letter of Credit shall be governed by the laws of the State of California, including the Uniform Commercial Code as in effect in the State of California. This Letter of Credit is transferable and may be transferred more than once, but in each case only in the amount of the full unutilized balance hereof to any single transferee who you shall have advised us pursuant to Annex I has succeeded U.S. Bank Trust National Association or a successor trustee as Trustee under the Indenture of Trust dated as of May 1, 1996 as supplemented from time to time (the "Indenture") between the Redevelopment Agency of the City -{)f San Bernardino (the "Issuer") and First Trust of California, National Association, as Trustee, pursuant to which U.S. $7,000,000 in aggregate principal amount of the Issuer's Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 (the "Bonds") were issued. Transfers may be effected without charge to the transferor and only through ourselves and only upon presentation to us of a duly executed instrument of transfer in the form attached hereto as Annex 1. Any transfer of this Letter of Credit as aforesaid must be endorsed by us on the reverse hereof and may not change the place of presentation of demands from our Letter of Credit Operations Office in San Francisco, California. All payments hereunder shall be made from our own funds, and not with funds of the Applicant or its members or guarantors. This Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by reference to any document, instrument or agreement referred to herein (including, without limitation, the Bonds and the Indenture), A-3 except the UCP to the extent the UCP is not inconsistent with or made inapplicable by this Letter of Credit; and any such reference shall not be deemed to incorporate herein by reference any document, instrument or agreement except the UCP. WELLS FARGO BANK, NATIONAL ASSOCIATION By: Authorized Signature Letter of Credit Operations Office Telephone Nos.: (415) 396-5458 and (415) 396-4014 Letter of Credit Operations Office Telefacsimile No.: (415) 284-9453 A-4 Annex A to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS410064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF PRINCIPAL UPON AN OPTIONAL AND/OR MANDATORY REDEMPTION OF LESS THAN ALL OF THE BONDS CURRENTL Y OUTSTANDING. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[INSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT BUSINESS DAY. IF THIS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. . ' Annex B to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS41 0064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF UNPAID INTEREST UPON AN OPTIONAL AND/OR MANDATORY REDEMPTION OF LESS THAN ALL OF THE BONDS CURRENTL Y OUTSTANDING. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[INSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT' BUSINESS DAY. IF THIS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. Annex C to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS41 0064 WELLS FARGO BANK, NA LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF THE PRINCIPAL AMOUNT OF THOSE BONDS WHICH THE REMARKETING AGENT (AS DEFINED IN THE INDENTURE) HAS BEEN UNABLE TO REMARKET WITHIN THE TIME LIMITS ESTABLISHED IN THE INDENTURE. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[INSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE 8:00 A.M., SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 12:30 P.M., SAN FRANCISCO TIME, ON SAID BUSINESS DA Y. IF THIS DEMAND IS RECEIVED BY YOU AFTER 8:00 A.M., SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 11 :00 A.M., SAN FRANCISCO TIME, ON THE BUSINESS DAY FOLLOWING SAID BUSINESS DAY. Annex D to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS4 10064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF THE UNPAID INTEREST ON THOSE BONDS WHICH THE REMARKETING AGENT (AS DEFINED .IN THE INDENTURE) HAS BEEN UNABLE TO REMARKET WITHIN THE TIME LIMITS ESTABLISHED IN THE INDENTURE. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[INSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE 8:00 A.M., SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 12:30 P.M., SAN FRANCISCO TIME, ON SAID BUSINESS DA Y. IF THIS DEMAND IS RECEIVED BY YOU AFTER 8:00 A.M., SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 11 :00 A.M., SAN FRANCISCO TIME, ON THE BUSINESS DAY FOLLOWING SAID BUSINESS DAY. Annex E to Wells Fargo Bank, N.A Irrevocable Letter of Credit No. NZS410064 WELLS FARGO BANK, N.A LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF THE PRINCIPAL AMOUNT OF THOSE BONDS WHICH ARE REQUIRED BY THE BANK TO BE PURCHASED IN LIEU OF REDEMPTION IN ACCORDANCE WITH THE INDENTURE. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[fNSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFQRE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT BUSINESS DAY. IF THIS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 AM., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. Annex F to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS410064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT OF THE UNPAID INTEREST ON THOSE BONDS WHICH ARE REQUIRED BY THE BANK TO BE PURCHASED IN LIEU OF REDEMPTION IN ACCORDANCE WITH THE INDENTURE. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[fNSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT BUSINESS DAY. IF THIS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. Annex G to Wells Fargo Bank, N.A. Irrevocable Letter of Credi t No. NZS410064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT, AT STATED MATURITY, UPON ACCELERATION FOLLOWING AN EVENT OF DEFAULT, OR. UPON REDEMPTION AS A WHOLE, OF THE TOTAL UNPAID PRINCIPAL OF, AND UNPAID INTEREST ON, ALL OF THE BONDS WHICH ARE PRESENTL Y OUTSTANDING. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[INSERT AMOUNT WHICH IS THE SUM OF THE TWO AMOUNTS SET FORTH IN PARAGRAPH 5, BELOW]. (5) THE AMOUNT OF THIS DEMAND IS EQUAL TO THE SUM OF (A) $[INSERT AMOUNT] BEING DRAWN IN RESPECT OF THE PAYMENT OF UNPAID PRINCIPAL OF THE BONDS AND (B) $[INSERT AMOUNT] BEING DRAWN IN RESPECT OF THE PAYMENT OF UNPAID INTEREST ON THE BONDS. (6) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEF ACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. (7) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT BUSINESS DAY. IF THIS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. Annex H to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS410064 WELLS FARGO BANK, NA LETTER OF CREDIT OPERATIONS OFFICE SAN FRANCISCO, CALIFORNIA FOR THE URGENT ATTENTION OF LETTER OF CREDIT MANAGER. [INSERT NAME OF BENEFICIARY] (THE "TRUSTEE") HEREBY CERTIFIES TO WELLS FARGO BANK, N.A. (THE "BANK") WITH REFERENCE TO IRREVOCABLE LETTER OF CREDIT NO. NZS410064 (THE "LETTER OF CREDIT"; THE TERMS THE "BONDS", "BUSINESS DAY" AND THE "INDENTURE" USED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS SET FORTH IN THE LETTER OF CREDIT) THAT: (1) THE TRUSTEE IS THE TRUSTEE OR A SUCCESSOR TRUSTEE UNDER THE INDENTURE. (2) THE TRUSTEE IS MAKING A DEMAND FOR PAYMENT UNDER THE LETTER OF CREDIT WITH RESPECT TO THE PAYMENT, ON AN INTEREST PAYMENT DATE (AS DEFINED IN THE INDENTURE), OF UNPAID INTEREST WITH RESPECT TO THE BONDS. (3) THE AMOUNT OF THIS DEMAND FOR PAYMENT WAS COMPUTED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE BONDS AND THE INDENTURE AND IS DEMANDED IN ACCORDANCE WITH THE INDENTURE, WHICH AMOUNT PLEASE REMIT TO THE UNDERSIGNED AS FOLLOWS: [INSERT REMITTANCE INSTRUCTIONS]. (4) THE AMOUNT HEREBY DEMANDED UNDER THE LETTER OF CREDIT IS $[!.NSERT AMOUNT]. (5) THE TRUSTEE HAS CONTACTED OR ATTEMPTED TO CONTACT BY TELEPHONE AND TELEFACSIMILE AN OFFICER OF THE BANK'S LETTER OF CREDIT OFFICE IN SAN FRANCISCO, CALIFORNIA REGARDING THE AMOUNT OF THIS DEMAND AND THE DATE AND TIME BY WHICH PAYMENT IS DEMANDED. _ (6) IF THIS DEMAND IS RECEIVED BY YOU AT OR BEFORE NOON, SAN FRANCISCO TIME ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE NEXT BUSINESS DAY. IF TillS DEMAND IS RECEIVED BY YOU AFTER NOON, SAN FRANCISCO TIME, ON A BUSINESS DAY, YOU MUST MAKE PAYMENT ON THIS DEMAND AT OR BEFORE 10:00 A.M., SAN FRANCISCO TIME, ON THE SECOND BUSINESS DAY FOLLOWING SUCH BUSINESS DAY. Annex I to Wells Fargo Bank, N.A. Irrevocable Letter of Credit No. NZS410064 WELLS FARGO BANK, N.A. LETTER OF CREDIT OPERATIONS OFFICE 525 MARKET STREET, 25th Floor SAN FRANCISCO, CALIFORNIA 94105 Subject: Your Letter of Credit No. NZS41 0064 Ladies and Gentlemen: For value received, we hereby irrevocably assign and transfer all of our rights under the above-captioned Letter of Credit, as heretofore and hereafter amended, extended or increased, to: [Name of Transferee] [Address of Transferee] - By this transfer, all of our rights in the Letter of Credit are transferred to the transferee, and the transferee shall have sole rights as beneficiary under the Letter of Credit, including sole rights relating to any amendments, whether increases or extensions or other amendments, and whether now existing or hereafter made. You are hereby irrevocably instructed to advise future amendment(s) of the Letter of Credit to the transferee without our consent or notice to us. The original Letter of Credit is returned with all amendments to this date. Please notify the transferee in such form as you deem advisable of this transfer and of the terms and conditions to this Letter of Credit, including amendments as transferred. You are hereby advised that the transferee named above has succeeded U.S. Bank Trust National Association or a successor trustee, as Trustee under the Indenture of Trust dated as of May I, 1996 as supplemented from time to time (the "Indenture") between the Redevelopment Agency of the City of San Bernardino (the "Issuer") and First Trust of California, National Association, as Trustee, pursuant to which U.S. $7,000,000 in aggregate principal amount of Issuer's Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 were issued. Very truly yours, [Insert Name of Transferor] By: [Insert Name and Title] TRANSFEROR'S SIGNATURE GUARANTEED By: [Bank Name] By: [Insert Name and Title] - By its signature below, the undersigned transferee acknowledges that it has duly succeeded U.S. Bank Trust National Association or a successor trustee as Trustee under the Indenture. [Insert Name of Transferee] By: [Insert Name and Title] EXHIBIT B FORM OF OPINION OF BOND COUNSEL September 25, 200 I Redevelopment Agency of the City of San Bernardino 20 I North "E" Street, Third Floor San Bernardino, California 9240 I U.S. Bank Trust National Association 555 South Hope Street, Suite 500 Los Angeles, California 90071 $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 Ladies and Gentlemen: The above-captioned Bonds were issued on May 21, 1996 pursuant to the provisions of the Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.), a Resolution adopted by the Redevelopment Agency of the City of San Bernardino (the "Issuer") on April I, 1996 and an Indenture of Trust dated as of May I, 1996 (the "Original Indenture") by and between the Issuer and U.S. Bank Trust National Association (formerly, First Trust of California, National Association), as trustee (the "Trustee"), for the purpose of providing funds to make a loan to Magellan Silverwood & Cross Creek General Partnership, an Arizona general partnership (the "Original Borrower") to assist the Original Borrower with the acquisition, rehabilitation and equipping of a multifamily residential housing development for families and persons of low- and moderate-income located in the City of San Bernardino known as the Silverwood Apartments and to pay the costs of issuance of the Bonds (the "Project"). The Bonds were originally secured by an irrevocable direct-pay letter of credit issued by Bank One, Arizona, NA (the "Bank One Letter of Credit"). The Internal Revenue Code of ] 986, as amended (the "Code") established certain requirements to be met subsequent to the delivery of the Bonds in order that interest on the Bonds not be included in the gross .income of the owners thereof retroactive to the date of issuance of the Bonds. In the opinion of bond counsel delivered in connection with the issuance of the Bonds, the Original Indenture, the Loan Agreement dated as of May I, 1996, by and between the Issuer, the Original Borrower and the Trustee (the "Original Loan Agreemen('), the First Deed of Trust, Security Agreement, Assignment of Leases and Rents and Financing Statement dated as of May I, 1996 (the "First Deed of Trust"), the Regulatory Agreement and Declaration of Restrictive Covenants dated as of May I, 1996, among the Issuer, the Trustee and the Original Borrower (the "Regulatory Agreement") and the No Arbitrage Certificate of the Issuer and the Original Borrower dated as of May 21, 1996 (the "No Arbitrage Certificate") (the Original Loan Agreement the First Deed of Trust, the Regulatory Agreement and the No Arbitrage Certificate being hereinafter from time to time referred to collectively as the "Bond Documents") established procedures under which, if followed, the requirements of the Code could be met. The Issuer and the Original Borrower covenanted in the Original Indenture and in the Bond Documents to at all times do and perform all acts and things permitted by law and necessary or desirable in order to assure that interest paid on the Bonds not be included in gross income of the owners therefor for Federal income tax purposes. As of the date hereof, the Project is being sold by the Original Borrower to San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Borrower") and the Bank One Letter of Credit is being replaced by an irrevocable direct-pay letter of credit issued by Wells Fargo Bank, National Association (the "Letter of Credit"). In connection with the delivery of the Letter of Credit, the Issuer and the Trustee have executed a First Supplemental Indenture dated as of September 1, 2001 (the "First Supplemental Indenture" and, together with the Original Indenture, the "Indenture") pursuant to the provisions of Article IX of the Indenture and the Issuer, the Trustee and the Borrower have executed a First Amendment to Loan Agreement dated as of September 1, 2001 (the "First Amendment to Loan Agreement"). In addition, the Borrower has delivered to the Issuer a fully executed Assumption Agreement dated as of the date hereof (the "Assumption Agreement") pursuant to which the Borrower has assumed all duties and obligations of the Borrower under the Regulatory Agreement. We have acted as Bond Counsel to the Issuer in connection with the sale of the Project to the Borrower and in connection with the amendments to the Original Indenture and Original Loan Agreement effectuated by the First Supplemental Indenture and the First Amendment to Loan Agreement, respectively. In rendering this opinion, we have assumed compliance by the Issuer and the Original Borrower with, and enforcement by the Issuer and Original Borrower of the provisions of, the Bond Documents, as applicable. We have examined original documents or copies certified or otherwise identified to our satisfaction of: (i) the Original Indenture; (ii) the Original Loan Agreement; (iii) the First Supplemental Indenture; (iv) the First Amendment to Loan Agreement; (v) the Assumption Agreement and (vi) that certain Resolution of the Community Development Commission of the City of San Bernardino, as the Governing Body of the Redevelopment Agency of the City of San Bernardino, adopted September 17, 200 I. We have assumed the genuineness of all signatures, the authenticity of documents, certificates and records submitted to us as originals, the conformity to the originals of all documents, certificates and records submitted to us as certified or reproduction copies, the legal capacity of all natural persons executing documents, certificates and records and the completeness and accuracy as of the date of this opinion letter of the information contained in such documents, certificates and records, which assumption we have not independently verified. We have not undertaken to independently verify the accuracy of the factual matters represented, warranted or certified in such documents. Based upon the foregoing and such other matters of law as we have deemed necessary, we are of the opinion that the sale of the Project to the Borrower will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes. We are further of the opinion that the First Supplemental Indenture is authorized and permitted by the Indenture. We are finally of the opinion that delivery of the Letter of Credit complies with the provisions of the Original Indenture and the Original Loan Agreement and will not cause interest on the Bonds to become includable in gross income for federal income tax purposes. Very truly yours, B-2 ASSUMPTION AGREEMENT $7,000,000 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Variable Rate Demand Multifamily Housing Revenue Bonds (Silverwood Apartments Project) Series 1996 This Assumption Agreement is entered into this 25th day of September, 2001, by and between the Redevelopment Agency of the City of San Bernardino (the "Issuer"), U.S. Bank Trust National Association (formerly, First Trust of California, National Association), as trustee under that certain Indenture dated as of May 1, 1996 (the "Trustee") and San Bernardino 328/AF XXX, LLC, a California limited liability company (the "Borrower") pursuant to Section 7 of the Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1, 1996 (the "Regulatory Agreement") and recorded in Official Records, County of San Bernardino, as Document No. 19960251735 on July 16, 1996. Capitalized terms used herein which are not defined herein shall have the meanings assigned thereto in the Regulatory Agreement. RECITALS WHEREAS, the Issuer has previously issued the above-captioned bonds (the "Bonds") the proceeds of which were loaned by the Issuer to Magellan Silverwood & Cross Creek General Partnership, an Arizona general partnership (the "Original Borrower") pursuant to a Loan Agreement dated as of May I, 1996 (the "Loan Agreement") by and among the Issuer, the Trustee and the Original Borrower to finance the acquisition, rehabilitation and equipping of a multifamily residential housing project facility located in San Bernardino, California (the "Project"); and WHEREAS, on the date hereof, the Original Borrower is selling the Project to the Borrower; and WHEREAS, in connection with the issuance ofthe Bonds, the Borrower, the Trustee and the Issuer entered into the Regulatory Agreement; and WHEREAS, Section 7 ofthe Regulatory Agreement provides that a transferee ofthe Original Borrower who acquires the Proj ect prior to the termination ofthe Rental Restrictions and Occupancy Restrictions provided in the Regulatory Agreement shall assume all duties and obligations of the Original Borrower under the Regulatory Agreement and the Loan Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the Borrower and the Issuer hereby agree as follows: Section 1. Borrower's Assumption of Duties and Obligations under the Regulatory Agreement and Loan Agreement. S82001 :25493.2 The Borrower hereby fully accepts and assumes all of the duties and obligations of the Original Borrower under the Regulatory Agreement and under the Loan Agreement (collectively, the "Assumed Obligations") and agrees to perform all Assumed Obligations in accordance with the terms of the Regulatory Agreement and the Loan Agreement. Notwithstanding anything herein or in the Regulatory Agreement or the Loan Agreement, the Borrower shall not be held responsible for or be subject to duties or obligations arising under the Regulatory Agreement and the Loan Agreement before the date of this Assumption Agreement. Section 2. Miscellaneous Provisions. (a) Notices to be provided to the Borrower shall be provided to the following address: San Bernardino 328/AF XXX, LLC Suite C-25 2900 Adams Street Riverside, California 92504 Attention: Jeffrey M. Hack Telephone: (909) 354-2121 Facsimile: (909) 354-2996 (b) The Borrower represents and warrants to the Issuer and the Trustee that, to the best of its knowledge, as of the date hereof, there exists no event of default under the Regulatory Agreement, the Loan Agreement and the other documents assumed by the Borrower in connection with the Bonds (the "Borrower Documents") and there is no event that, with the giving of notice, the passage of time, or both, would constitute an event of default under the Borrower Documents. (c) This Assumption Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. (d) This Assumption Agreement shall be governed exclusively by and construed in accordance with the laws of the State of California. SB2001 :25493.2 IN WITNESS WHEREOF, this Assumption Agreement has been executed by the parties hereto as of the day and year first hereinabove written. BORROWER San Bernardino 328/ AF XXX, LLC, a California limited liability company By: Van Daele Apartment Communities, LLC, a California limited liability company, Managing Member~.. ~ p By: ~ Jef {:y M. Hack, PresIdent TRUSTEE U.S. Bank Trust National Association, as Trustee By: Its SB2001 :25493.2 SEP-24-2001 12:24 US BANK CORP TRSl SVCS c'L5 ::>.5.5 I:H c':! t-'. ~",/~.5 IN WITNESS WHEREOf, this Assumprion Agreement has be~ c;:xecutec1 by rhe parnes hereto as of the day and year first hereinabove written. BORROWER San Bernardino 328/Af XXX. LLC. ;I Caiifomla limlied liability company By: Van Daele Apartment Communities. LLC, d California limited liability company. Ma.'1aging Member By: Jeffrey M. Hack, Presit!ent lSSUER Redevelopment Agency of the City of San Bcmardino By: Gary Van Osdel. Exec:.l1i\<e Dir"eclor . TRUSTEE By: SBZOOuS"!i] c