HomeMy WebLinkAbout1988-397
SBE00090-87/3024S/es
09/27/88 2:20
RESOLUTION NO. 88-397
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN
CONSENT AND AGREEMENT AND AUTHORIZING CERTAIN ACTIONS
IN CONNECTION WITH THE PUMALO PALMS APARTMENTS PROJECT
WHEREAS, the City of San Bernardino, California (the
"City"), is a "home rule city" duly organized and existing under and
pursuant to a Charter adopted under the provisions of the
Constitution of the State of California; and
WHEREAS, pursuant to its home rule powers, the Ci ty duly
and regularly enacted Ordinance No~ 3815 (the "Ordinance") to
finance various types of projects, as defined in the Ordinance, and
to issue its special revenue bonds for the purpose of enabling
various developers to finance the cost of such proj ects, and has
amended the same from time to time; and
WHEREAS, said Ordinance No. 3815, as amended, is intended
to finance the development of industry and commerce and to thereby
broaden
the
employment
opportunities
and
to
increase
the
availability of moderately priced rental units for residents of the
City and to broaden the tax and revenue base of the City without any
liability whatsoever to the City; and
- 1 -
WHEREAS, the City is authorized and empowered by Health and
Safety Code Section 52075, et sea. (the "Act"), to finance various
types of projects, as defined in the Act, and to issue its special
revenue bonds for the purpose of enabling various developers to
finance the cost of such projects; and
WHEREAS, Pumalo Palms Investors I, a California limited
partnership, and Pumalo Palms Investors II, a California limited
partnership, or its predecessors, successors or assigns
(collectively herein, the "Developer"), has previously submitted a
certain application (the "Application"), to the Mayor and Common
Council of the City of San Bernardino, California (the "Mayor and
Common Council"), for tax-exempt financing for a certain multifamily
rental housing development pursuant to Ordinance No. 3815, as
amended, and the Act, as more fully described in said Application
(the "Project"); and
WHEREAS, the Project consists of the construction and
permanent financing of two multifamily rental housing developments
in the City as more fully described in the Application; and
WHEREAS, pursuant to Resolution No. 85-194 of the Mayor and
Common Council, said Mayor and Common Council have on May 23, 1985,
previously authorized the execution and delivery of the $9,350,000
City of San Bernardino, California Multifamily Mortgage Revenue
Bonds (Pumalo Palms Project - Fannie Mae Program) Series 1985 (the
- 2 -
"1985 Bonds"), for the purpose of acquiring, constructing and
installing the Project; and
WHEREAS, in order to reduce the costs of the financing of
the Proj ect, the Ci ty has provided- for the refunding of the 1985
Bonds; and
WHEREAS, pursuant to Resolution No. 87-125, the Mayor and
Common Council have, on April 20, 1987, previously authorized the
execution and delivery of the $9,350,000 City of San Bernardino,
California, Multifamily Housing Revenue Refunding Bonds (Pumalo
Palms Project) 1987 Series A (the "Bonds"); and
WHEREAS, pursuant to Resolution No. 87-382, the Mayor and
Common Council have, on October 19, 1987, previously authorized the
remarketing of the Bonds; and
WHEREAS, in connection wi th the remarketing of the Bonds,
the City approved an Amended and Restated Indenture of Trust, dated
as of December I, 1987 by and between the City and Seattle-First
National Bank (the "Trustee") (the "Indenture"), Loan Origination
and Servicing Agreements dated as of December I, 1987 by and among
the City, the Trustee and each of the Developers (the "Loan
Agreements") and First Amended and Restated Regulatory Agreements
and Declaration of Restrictive Covenants dated as of December I,
1987 by and among the Ci ty, the Trustee and each of the Developers
(the "Regulatory Agreements"); and
- 3 -
WHEREAS, the obligation to repay the Bonds has been secured
by Letters of Credit (the "Letters of Credit") issued by The
Kai-Ichi Kangyo Bank, Limited, Los Angeles Agency ("Dai-Ichi
Kangyo") and California Federal Savings and Loan Association
("California Federal"), respectively; and
WHEREAS, pursuant to Letter of Credi t Reimbursement
Agreements (the "Reimbursement Agreements") dated as of December 1,
1987 by and between each of Dai-Ichi Kangyo and California Federal
and each of the Developers, the Developers have agreed to reimburse
each of Dai-Ichi Kangyo and California Federal for any and all draws
made under the respective Letters of Credit; and
WHEREAS, the Developers desire to sell the Project (the
"Sale") to Winston and Dorothy Ko, as husband and wife (the "Kos");
and
WHEREAS, in order to effect the Sale, the Developers and
the Kos have requested that the Ci ty and the Trustee enter into a
Consent and Agreement as presented to the Ci ty at this meeting and
on file with the City Clerk (the "Consent and Agreement"); and
WHEREAS, the City must also authorize the execution and
delivery of certain related legal documents in connection with the
Sale and approve same as to form as hereinafter set forth.
- 4 -
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE, DETERMINE AND
ORDER AS FOLLOWS:
Section 1.
true and correct.
The above reci tals, and each of them, are
Section 2. The form of the Consent and Agreement is
hereby approved; and the Director of Communi ty Development of the
City, or any other duly authorized officials, is hereby authorized
and di rected, for and in the name of the Ci ty, to execute such
Consent and Agreement. Said Consent and Agreement shall be executed
in substantially the form hereby approved, only upon the execution
thereof by the other parties to the Consent and Agreement and with
any such changes therein as the officers executing the same may
approve prior to the Sale with the approval by the City Attorney of
any changes, amendments or modifications, and such approval to be
conclusively evidenced by the execution and delivery thereof.
Section 3. The officers of the City are hereby
authorized and directed, jointly and severally, to do any and all
things to execute and deliver any and all documents which they may
deem necessary or advisable in order to consummate the Sale and
otherwise to effectuate the purposes of this Resolution.
- 5 -
Section 4. The Developer has previously provided
appropriate covenants in the tax-exempt financing documents to
assure that not less than twenty percent (20%) of the multifamily
rental housing units included in the Project are to be occupied or
reserved for occupancy by the individuals of low and moderate income
as provided in the Internal Revenue Code of 1986, as amended (the
"Code").
Section 5. The Developer has previously provided to the
City, for recording, a covenant running with the land in form
approved by the Ci ty Attorney or the Ci ty whereunder the Developer
waives any entitlement under State law to a density bonus for the
property on which the proposed Project is to be constructed.
Section 6. The documents necessary for the Bonds
contain language especially intended for the full and complete
protection of the City against liability from any covenants or
agreements wi thin the said Bond documents to assure that, in any
event, the bondholders shall look only to the revenues pledged for
the Bonds, and not to the revenues or general funds of the Ci ty.
- 6 -
For this purpose, Bond Counsel has included in all appropriate
documents for the type of bond issue being considered, language
substantially as follows:
"Non-recourse paragraph:
The Issuer's obligations hereunder and under
the Loan Agreement and the Regulatory Agreement
are on a 'non-recourse' basis, and payment of any
amounts which are owed or may become due
hereunder or under the Loan Agreement or
Regulatory Agreement shall not be enforced
against the Issuer or any of its public
officials, officers, employees, agents, or other
personnel, but only against the property which is
subj ect to the Deed of Trust, and any further
security which may, from time to time, be
hypothecated for this Indenture, the Regulatory
Agreement or the Loan Agreement."
"Exculpation of Issuer:
The Issuer will not be liable to the
company, to any bondholder, or to any other
person for, and the company and the trustee, on
behalf of the bondholders, hereby release the
Issuer from all liability to the company, any
bondholder, or any other person, for losses,
costs, damages, expenses and liabilities even if
such losses, costs, damages, expenses and
liabilities directly or indirectly result from,
arise out of or relate to, in whole or in part,
one or more negligent acts or omissions of the
Issuer or any of the officers, directors,
employees, agents, servants or any other party
acting for or on behalf of the Issuer in
connection with the issuance of the bonds or
performance by the Issuer of its obligations
under the indenture, the loan agreement, the
regulatory agreement, or any other agreement
related to the indenture. The Issuer's
obligations hereunder are on a 'non-recourse'
basis, and payment of any amounts which are owed
or may become due hereunder shall not be enforced
against the Issuer or any of its public
officials, officers, employees, agents, and other
personnel, but only against the property which is
subject to the Deed of Trust and any other
further security which may, from time to time, be
hypothecated hereunder."
- 7 -
Section 7.
This Resolution shall take effect upon
adoption.
I HEREBY CERTIFY that the foregoing
adopted by the Mayor and Common Council
San Bernardino at a n adjourned regular
held on the 24th day of OctohBr
the following vote, to wit:
resolution was duly
of the Ci ty of
meeting thereof,
1988, by
AYES:
Counci 1 Members Estrada, Reilly, Flores, Maudsley,
Minor, Pope-Ludlam
NAYS:
None
ABSENT:
Council Member Miller
~~?3:V~~
c1ty Clerk
day of
The foregoing
Octoher
resolution is hereby approved this ~,!;-.,.[
, 1988.
g 2:
~~-j~ 1J:?4
Mayor 0 -- the Ci ty of .
San Bernardino
Approved as to form and legal content:
By:
J
<Il~
Attorney
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. .
...
SBE00090-86/3023S/1w
10/12/88
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (the
into as of this ztLth day of October,
undersigned parties hereto and is made
following facts:
"Agreement") is entered
1988 by and among the
with reference to the
WHEREAS, pursuant to an Amended and Restated Indenture of
Trust (the "Indenture") by and between the Ci ty of San Bernardino,
Calfornia (the "Issuer") and Seattle-First National Bank as trustee
("Trustee"), dated as of December 1, 1987, the Issuer has remarketed
$9,350,000 City of San Bernardino, California, Multifamily Housing
Revenue Refunding Bonds (Pumalo Palms Project) 1988 Series A (the
"Bonds");
WHEREAS, pursuant to Loan Agreements (the "Loan
Agreements") by and among the Issuer and each of Pumalo Palms
Investors I, a California limited partnership, and Pumalo Palms
Investors II, a California limited partnership (collectively herein,
the "Developer"), dated as of December 1, 1987, Developer has, among
other things, agreed to construct two multifamily rental housing
developments (the "Ploject")in the City;
WHEREAS, pursuant to the Loan Agreements, Developer has
agreed to repay to the Issuer the amount of such loan to Developer
in accordance wi th the terms and condi tions set forth in the Loan
Agreements;
WHEREAS, pursuant to Section 4.5 of the Loan Agreements, as
security for the payment of the Bonds the Issuer has assigned to the
Trustee the Issuer's rights under the Loan Agreement, including its
right to receive payments from Developer thereunder;
WHEREAS, the obligation to repay the Bonds has been secured
by letters of credit (the "Letters of Credit") issued by The
Dai-Ichi Kangyo Bank, Limi ted, Los Angeles Agency ("Dai-Ichi
Kangyo") and California Federal Savings and Loan Association
("California Federal") respectively;
WHEREAS, pursuant to Letter of Credi t Reimbursement
Agreements (the "Reimbursement Agreements") dated as of December 1,
1987 by and between each of Dai-Ichi Kangyo and California Federal
and each of the Developers, Developer has agreed to reimburse each
of Dai-Ichi Kangyo and California Federal for any and all draws made
under the respective Letters of Credit;
WHEREAS, pursuant to First Amended and Restated Regulatory
Agreements (the "Regulatory Agreements") dated as of April 1, 1987,
- 1 -
OCT 21, '88 11 ~ 08 HA~KINS_DELAFiELD & WOOD
P.2/3
'""
the Developer has previously provided appropriate covenants in the
tax-exempt financing documents to assure that not less than twenty
percent (20\) of the multifamily rental housing units included in
the Project are to be occupied or reserved for occupancy by the
individuals of low and moderate income as provided in the Internal
Revenue Code of 1986, as amended (the MCode");
WHEREAS, pursuant to Section 5.2(b)(4) of the Loan
Agreements, the Loan Agreements and the obligations thereunder may
not be assigned without the consent of the Issuer, Dai-Ichi Kangyo
and California Federal;
WHEREAS, pursuant to Section 6.02 (c) of the Reimbursement
Agreements, the Project may not be transferred without the consent
of the Issuer, Oai-lchi Kangyo and California Federal;
WHEREAS, pursuant to
Agreement, the Project may be
Reimbursement Agreements.
Section 10
sold only
of the Regulatory
if permitted by the
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, receipt of which is hereby
aCknowledged, the parties hereto agree as follows:
1. Consent To Sale Under Loan Agreements and Regulator~
Agreements. Upon payment by the Developer of all amounts owing to
the Issuer pursuant to Section 4.3 (e) of the Loan Agreements, the
Issuer hereby consents to the Sale in accordance with Section 5.2(b)
of the Loan Agreements and Section 10 of the Regulatory Agreements.
Each of the Issuer, the xos and the Developer hereby agrees
to be bound by the applicable provisions of the Loan Agreements and
the RegUlatory Agreements. In all other respects, the terms and
conditions of the Loan Agreements and the RegUlatory Agreements
shall not be affected, nor the rights and Obligations of the parties
thereto.
2. Consent to Sa Ie Under
of Dai-Ichi Kangyo and. Calito~nia
Sale by Developer as described in
. .
- 2 -
OCT 21 JBB 11:09 HAWKINS_DELAFIELD & WOOD
, , '
P.3/3
.. .
of California Federal and Dai-Ichi Kan
o er respec s, e
Agreements shall not
the parties thereto.
3. Payment of Other Amounts. The Developer agrees:
(a) to reimburse the Issuer upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer
in connection herewith (including, without limitation, the
reasonable compensation and the expenses and disbursements '..of its
agents and counsel); and (b) to indemnify 'the Issuer for, and hold
it harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on its part, arising out of or in
connection wi th this Agreement, inClUding the costs and expenses
(including reasonable attorneys t fees) of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
4. Evidence of Assignment Under Loan Agreements. By
execution of this Consent and Agreement by the parties hereto, the
Trustee and the Issuer hereby aCknOWledge receipt of the evidence of
the assignment by the Sale in accordance wi th Section 5.2 (b) (3) of
the Loan Agreements.
5. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original and all of which shall constitute but one and the same
instrument.
- 3 -
'.
IN WITNESS WHEREOF, this Consent and Agreement has been
executed as of the date first above written.
BERNARDINO,
By
Name:
Title:
son
nity
THE DAI-ICHI KANGYO BANK, LIMITED,
LOS ANGELES AGENCY
By
Name:
Title:
CALIFORNIA FEDERAL SAVINGS
AND LOAN ASSOCIATION
Name:
Title:
SEATTLE-FIRST NATIONAL BANK,
as Trustee
Name:
Title:
:::::~ fo
B
W
, .
"
PUMALO PALMS INVESTORS I,
a California limited partnership
By: FREDRICKS DEVELOPMENT CORPORATION,
as gener~rtner
By: J~~~-
Title: 1<<.. P,Ah/~
By:
~~~
c2c-J. k~
Title:
PUMALO PALMS INVESTORS II,
a California limited partnership
By: FREDRICKS DEVELOPMENT CORPORATION,
as general partner
By: ,L~~
Title~ I/o.. If-~ 2~f-..
By:
.~~
tZ-J. ~
Title:
/3023S
- 5 -
IN WITNESS WHEREOF, this Consent and Agreement has been
executed as of the date first above written.
CITY OF SAN BERNARDINO,
CALIFORNIA
By
Name: Kenneth J. Henderson;
Title: Director of Community
Development
THE DAI-ICHI KANGYO BANK, LIMITED,
LOS ANGELES AGENCY
By
Name:
Title:
CALIFORNIA FEDERAL SAVINGS
AND LOAN ASSOCIATION
Name:
Title:
DOROTHY KO
By
Dorothy Ko
WINSTON KO
By
Winston Ko
- 4 -
J.
. ,
SBE00090-86/3023S/lw
10/12/88
CONSENT AND AGREEMENT
THIS CONS~~J AND AGREEMENT (the "Agreement") is entered
into as of this 2-.+-th day of October, 1988 by and among the
undersigned parties hereto and is made with reference to the
following facts:
WHEREAS, pursuant to an Amended and Restated Indenture of
Trust (the "Indenture") by and between the City of San Bernardino,
Calfornia (the "Issuer") and Seattle-First National Bank as trustee
("Trustee"), dated as of December 1, 1987, the Issuer has remarketed
$9,350,000 City of San Bernardino, California, Multifamily Housing
Revenue Refunding Bonds (Pumalo Palms Project) 1988 Series A (the
"Bonds");
WHEREAS, pursuant to Loan Agreements (the "Loan
Agreements") by and among the Issuer and each of Pumalo Palms
Investors I, a California limited partnership, and Pumalo Palms
Investors II, a California limited partnership (collectively herein,
the "Developer"), dated as of December 1, 1987, Developer has, among
other things, agreed to construct two multifamily rental housing
developments (the "Project")in the City;
WHEREAS, pursuant to the Loan Agreements, Developer has
agreed to repay to the Issuer the amount of such loan to Developer
in accordance wi th the terms and condi tions set forth in the Loan
Agreements;
WHEREAS, pursuant to Section 4.5 of the Loan Agreements, as
security for the payment of the Bonds the Issuer has assigned to the
Trustee the Issuer's rights under the Loan Agreement, including its
right to receive payments from Developer thereunder;
WHEREAS, the obligation to repay the Bonds has been secured
by letters of credit (the "Letters of Credit") issued by The
Dai-Ichi Kangyo Bank, Limi ted, Los Angeles Agency ("Da i-Ichi
Kangyo") and California Federal Savings and Loan Association
("California Federal") respectively;
WHEREAS, pursuant to Let ter of Credi t Reimbursement
Agreements (the "Reimbursement Agreements") dated as of December 1,
1987 by and between each of Dai-Ichi Kangyo and California Federal
and each of the Developers, Developer has agreed to reimburse each
of Dai-Ichi Kangyo and California Federal for any and all draws made
under the respective Letters of Credit;
WHEREAS, pursuant to First Amended and Restated Regulatory
Agreements (the "Regulatory Agreements") dated as of Apri 1 I, 1987,
- 1 -
,
1
OCT 21 .' 8E1 1 j. :.12 HAI..IKINS_DELRFIELD ~< WOOD
P.3/6
.
the Deve.loper has previc,usly provided appropriate covenants in the
tax-exempt financin9 documents to aSSIJre that not less than twenty
percent (20%) of the multifamily ren':~al hc)using units included in
the Pro:i ect are to be occupied or ::~eserved for occupancy by the
individuals of low and DIDderate income as provided in the Internal
Revenue (:ode of 1986, as ame:nded (the "'Code");
WHEREAS, Developer desires to sell the Project (the "Sale")
to AZUSB; Pacific UnivE:rsity ("Azusa") which is purchasing the
prope['ty for Winst.on a:3d Dorothy K-:), as husband and wife (the
"Kos"), in satisfaction of Azusa' s e;l:change obligation to the Kos
under an Exchange A~reement dated April 25, 1988 and in whose names
title to the Project will vest upon consummation of the Sale;
WHEREAS, pursuant to Section 5.2 (b) (4) of the Loan
Agreements, the Loan Ag]~eements and the obligations thereunder may
not be assigned without the consent c f the Issuer, Dai-Ichi Kangyo
and California Federal;
WHEREAS, pUrSUal:1t to Section 6.02(c) of the Reimbursement
Agreements, the Pro:ject may' not be t::~ansferred without the consent
of the Issuer, Dai-Ichi Kangyo and Cal:..fornia Federal;
WHER,EAS, :;>ursuant to
Agreement, the Project may be
Reimbursf::ment Agreements.
Section 10
sold only
of the Regulatory
if permitted by the
NOW, THEREfORE, in consideral:ion of the foregoing and for
other good and valuable consideration, receipt of which is hereby
aCknowlelj,ged, the parties hereto agree as follows:
1. Consent To Sale Under 1108n Agreements and Regulatory
Agreement!_ Upon pa.yment by the Developer of all amounts owing to
the Issv.c!r pursuant to Section 4.3 (e) of the Loan Agreements, the
Issuer h~reby consents tc the Sale in accordance with Section 5.2(b)
of the L<"an Agreements and Section 10 of the Regulatory Agreements.
Each of the: Issuer" the Ros c:lnd the Developer hereby agrees
to be bound by the lpplicable provisions of the Loan Agreements and
the Regulatory AqrE~ements. In all other respects, the terms and
conditions of the Loan Agreements and the Regulatory Agreements
shall not be affectE~d, n:>r' the rights and obligations of the parties
thereto.
2. Consent to. Sale Under R;~im!lursement Agreements. Each
of Dai-]:.chi Kangyo and California Fuderal hereby consents to the
Sale by Developer cIS described in the Reci tals hereof, provided,
however, California Federal, Developer and the Ros have entered into
a Consent and Assum]>tion Agreement dated of even date herewith and
Dai-Ichi Kangyo, De'''elop,er and the Kos have entered into a Consent
and Assumption Agreement dated of everl date herewith, and the terms
of said Consent and Ass\;imption Agreem:!nts shall govern the Consents
- 2 -
OCT, 21 "8~1 11:,13 HAW~(!NS_DELAFIELD & WOOD
. P. 4/6
"
of Califfornia Federal and lJai-Ichi Kihngyo in all respects. In all
other rospects, tt.,e torm~: and con:3iti.ons of the Reimbursement
Agreements shall not be affected, nor the rights and obligations of
the parties thereto.
3. Paymer.t o:E Other AmOllnts. The Developer agrees:
(a) to :ceimburse the I~;Su.E!r upon it's request for all reasonable
expenses" di,sbursemE~nts and advances :.ncurred or made by the Issuer
in con[Lection herewith (includin~l, without limitation, t'he
reasonable compensation and the expellses: and disbursements of its
agents cl:nd counsel); and (b) to inder:mify 'the Issuer for, and hold
it harmless against, any loss, liability or expense incurred without
negligenc:e or willful m:Lscc)nduct on :..ts part, arising out of or in
connection wi th thi s Ag reement, incl udinq the costs and expenses
(including reasonable a1:torneys' feaf:) of defending itself against
any clclim or lia.bilit:y in connection with the exercise or
performance of any elf itn pc)wers or dUj:ie::: hereunder.
4. Evide~,ce of Assignment. UrLd~:r Loan Agreements. By
execution of this Consent and Agreement by the parties hereto, the
Trustee and the Issuer hereby acknowl,:~dge receipt of the evidence of
the assi c~nrnent by the Sale in accord';lnce ~"i th Section 5.2 (b) (3) of
the Loan Agreements.
5. Count~:!~:s,. This Agr!~eme~nt may be executed in any
number of counterparts, each of whi:::h shall be deemed to be an
otiginal and all eff which shall consti tute but one and the same
instrument.
- 3 -
I ~ ...
. '..
IN WITNESS WHEREOF, this Consent and Agreement has been
executed as of the date first above written.
CITY OF SAN BERNARDINO,
CALIFORNIA
By
Name: Kenneth J. Henderson
Title:: Director of Community
Development
THE DAI-ICHI KANGYO BANK, LIMITED,
LOS ANGELES AGENCY
By
Name:
Title:
CALIFORNIA FEDERAL SAVINGS
AND LO ASSOCIATION
j'~ A Ir _ _
N~me:{J dvr
Tltle:,'
'-~L ?--,,;;/,7, ~-/'
\....., - -.. ....;:. _ .-"tf~~.; ..,......
. -N, me. v ?/~/"'l. ._.,(,. f- ..';;.-~_/(i'eY
sEl~~l]:~Ft~sT ~'NA1~:6N1Lc'A'N{;
as Trustee
Name:
Title:
DOROTHY KO
By
Dorothy Ko
WINSTON KO
By
Winston Ko
- 4 -
I" ..
.,
PUMALO PALMS INVESTORS I,
a California limited partnership
By: FREDRICKS DEVELOPMENT CORPORATION,
as general partner
By:
Title:
By:
Title:
PUMALO PALMS INVESTORS II,
a California limited partnership
By: FREDRICKS DEVELOPMENT CORPORATION,
as general partner
By:
Title:
By:
Title:
/3023S
- 5 -
, .
QCT 21 '88 ~1:11 HAWKINS-DELAFIELD & WOOD
P.2/6
"
SBE00090-86/3023S/1w
10/21/88
CONSENT AND AG~EEMBNT
THIS CONSENT AND AGREEMENT (the "Agreement..> is entered
into as of this ~th day of Octo~er, 1988 by and among the
undersigned parties hereto and is made with reference to the
following facts:
WHEREAS, pursual1t to an Amen'oed and Restated Indenture of
Trust (t.he .Indenture") by and betweE~n the City of San Bernardino,
Calfornia (the "Issuer'.) and Seattle-rirst National Bank as trustee
(.Trustee"), dated as of December 1, 1987, the Issuer has remarketed
$9,350,000 City of San Bernardino, California, Multifamily Housing
Revenue Refunding Bonds (P1Jmalo palm3 Project) 1988 Series A (the
.Bonds");
WHEREAS, pursuant to Lean Agreements (the "Loan
Agreements.) by an~ among the Issuer and each of Pumalo Palms
Investors I, a California limited 'lartnership, and Pumalo Palms
Investors II, a California limited pa~tnership (collectively herein,
the .Developer"), dated as of December I, 1987, Developer has, among
other tbings, agreed to construct two multifamily rental housing
developments (the .J:1rojec:t")in the City;
WHEREAS, pursuant to the Loan Agreements, Dev~loperhas
agreed to repay to the Issuer the amount of su~h loan to Developer
in accordance wi th the terms and con:ii tions set forth in the Loan
Agreements;
WHEREAS, pursuant to Section 4.5 of the Loan Agreements, as
security for the payment of the Bonds the Issuer has assigned to the
Trustee the Issuer's rights under the Loan Agreement, including its
right to receive pal~nts from Developer thereunder;
WHEREAS, the obligation to repay the Bonds bas been secured
by letters of credit (the -Letter3 GfCredit-) issued by The
Dai-Ichi Kanqyo Bank, Limited, Los AngelesAQency ("Dai-lcbi
Kangyo") and California Pederal Savings 'and ,Loan Association
{.California Federal") respectively;
,WHEREAS, pursuant "to Letter of Credit 8eimbursement
. -AQreemel1.ts (the -Reimbursement Agreements") dated -as of December 1,
~'87 by and between' each .of ,Oai-Ichi ~.Kangyo...ndC.liforDia Federal
,,;.and each of the Developers,"Develope:- bas 89reed ~o ..(:eilllburse each
-'of Dai-Ichi Kangyo and ~alifornia .Federal ,-for.ny....Iid...:a11>draws made
"\Ulc1er tb.e respective Letters cf. Cr;edit; '~". ':._<.' '~'7.}:lt.:~;;.'~'~(:~,~. ,
.' _. _ -" _' ,"-:. ; :>r. ..":::;i-"?~:{.; ;,~.:
:..tfHEREAS, . pursuant ,:toYlrst '~nded.nd.e.t.t.d Regulatory
Agreemel3.ts . (the ,tfRegulatory Agreements.) ,dated'.. :~of'Apri 1 1, .1987,
-, . . .' .: . - .' \. .....
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,OCT 21 ' 88 11: 12 H=W<INS..DEL~IELD & '-K)OD
..".
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t:he Deve:loper has previe1usly provided appropriate covenants in the
tas-esempt financing documents to assure that not I... ~han twenty
percent (20\> of the multifamily ren":al housing units included in
tbe Pro:iect are to be occupied or ::eserved for occupancy by the
iDdivi~uals of low and moderate income as provided in the Internal
Revenue Code of 1986, 8S amended (the ~Code.);
WHEREAS~ Developer desires to sell the Project (the .Sale.)
to AzUSB; Pacific University ("Azusa") which is .purchasing the
property for Winstc)n" and Dorothy It.:), as husband and wife (the
-Itos"), in satisfaction of Azusa' s exchange obligation to the Xos
under an Exchange Agreement dated April 25, 1985and in whose names
title to the Project will vest upon consummation of the Sale;
WHEREAS, pursuant to Section 5.2(b)(4) of 'the Loan
Agreements, the Loan Agreements and the obligations thereunder may
not be assigned without the consent cf the Issuer, Dai-Ichi Kangyo
and California Federal;
WHEREAS, pursuant to Section 6.,02(C)of the Reimbursement
Agreements, the Project may not be' t:-ansferred without the consent
of the Issuer, Dai-Ichi Kangyo and Cal :.forniaFederal;
WHEREAS, pursuant to
Agreemen't, the Project may be
Reimburst!ment Agreements.
tlOW, THERErORE, in considerationaf theloregoing and for
other good and valuable consideration, receipt -Gf 'which iahereby
acknowledged, the parties hereto aqree as follows:- .:,
Section 10 of the Regul.tory
sold only ~f permitted by the
--.,:
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1. Consent To Sale Under Loan Agreements 'and '"Reaulatory
Acrreemen.ts. Upon payment by the Developer of 411 amounts owing to
the IsslJ.er pursuant to Section .. .3(e) ,;of . 'the 'Loan Agreements, the'
I..uer h.ereby consents tc the Sale in .ecordanee ..with Section5.2(b)
of the Lt,an Agreements .and Section 10 .of,'the Begul~tory,Agr.emen,ta..,'
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Bach of the Issuer, theltos . aDd :theD8velopertaer.byaar'ees. '
to be bound by the applicable provisions of .~he ~Lo.n t.greements,and
the t.gulatory ',Agreements. -'"tIll ',-,all ~oth.r~-r..pect.~"-:~tb.'.:t.rms ~.nd,
;conditions of. the Loan Agreements ::alld .the '-Ilegulatory ~;Aareement8 .
',_ball not be ,effected, :nor" .therighte and ,oblJ,gati,J)D8:0f :>the partie..
tbereto. J _ _ '. ;', - _ '", :/'_ ;; .:i}{>j:;;~-~.~ ,c, ;~. ",,: ;::
'. ',2. ' ", Consent to'SaleUnder";~:a91rDbut8enient~"'yacir-..meDts. '.:.B.C~"
of ,'>>ai-Ichi ' Kangyo .and 'californiaPederal ~~',I1.r,e))y,;,~D..nts ,totbe':.
Sale by :..Developer .sdescri,bed~~:in '.:~h. fa.c'~-t.~1I '.:4aelreof i ,:'proviCSed, .-',~
however, ,C.lifornia?eder.ll,' ~Developet ".nc! .tlle <<0. -,.laev. .ntered .:into
. COllsent .Ind Assumption Agreement dated of ."en'.4.t. 'ilerewith:and
-Dai-Icbi .,JCangyo, Developer .nc!tbe<<oa .:-_.ve '.n~.r.d~jnto .:.,Consent
. ..and Assumption ,Agreement dated:of even ;-f5ate.,Il.r..,itll,'+-Ad . ,the ,'terms
f . ,of "aaid .conse~t.pd~.UlIIpt~on.9t..ll~nt~~h~1l_,_,C)v.m_~'tlleeOD.ent.,
:~~-~,-; -~ ~ ;.
. .
OCT 2~ ~88 11:14 H8WKINS-DELAtIELD & WOOD
P.5/6
"
. .
IN WITNESS WHE:REOF, this Consent. and Agreement. 'has been
executed as of the date first above written.
CITY OF SAN BERNARDINO~,
CAL I ~"ORNIA
By
Na[~e: Kenneth J. Henderson
Ti i::le: Director of Community
Development
THE DAl-lefil KANGYO BANK, LIMITEDi'
LOS J\NGELES AGEN I
(
By
Nallle:
Title: General
and Agent
CALI]i'ORNIA FEDERAL SAVINGS
AND ]"OAN ASSOCIATION
..!tame:
Title:
SEAT~:'LE-FIRST tlATIORAL BARK,
.as T~ustee'
llama:
. Ti tIe:
. DORO~:1IY :ICO
..;
ct.
'<J3y_
. .:Dorothy -Ka k.,",;' ~~...~..:.,. ; _ . "
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t-'.6/6
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. PUMAI:,O PALMS INVESTORS I,
a California limited partnership
By: ~REDRICKS DEVELOPMENT CORPORATION,
as general partner .
By:
Title:
By:
Title:
P~~O PALMS INVESTORS II,
a California limited partnership
By: li'REDRICKS DEVELOPMENT CORPORATION,
as general partner
By:
Title:
I
~
By:
Title:
/30238
- 5 -