HomeMy WebLinkAbout1998-06-23; Housing & Redevelopment Commission; 301; Park La Costa Apts., HOUSING ANu REDEVELOPMENT COMMiiON - AGENDA BILL
TITLE- AUTHORIZATION TO EXECUTE AND DELIVER
AMENDED DOCUMENTS AND TAKE RELATED ACTIONS
WITH RESPECT TO $15,920,000 CARLSBAD HOUSING AND
REDEVELOPMENT COMMISSION MULTIFAMILY HOUSING
REVENUE REFUNDING BONDS - PARK LA COSTA APTS.
RECOMMENDED ACTION:
Adopt Commission Resolution No. &q 9 authorizing the execution and delivery of
amended documents and related actions with respect to the $15,920,000 Carlsbad Housing
and Redevelopment Commission Multifamily Housing Revenue Refunding Bonds for the Park
La Costa Apartments.
ITEM EXPLANATION:
Backqround:
In 1985, the Housing and Redevelopment Commission/City Council issued Multifamily
Housing Revenue Bonds to provide financing for a 320-unit multifamily residential rental
project, known as the Park La Costa Apartments, located at 3393 Calle Cancuna in Carlsbad.
The proceeds of the bond were used to make a loan to La Costa Partners, a California
General Partnership, to fund the construction of the subject apartment units. The incentive to
the City to participate in this project was the restriction of twenty percent (20%) of the units, or
64 units total, to rents affordable to lower income (80% of County median or below)
households. The affordable rent shall not exceed 30% of 80% of the County median, and also
not exceed 90% of the lowest rent charged for a comparable market-rate unit in the project.
In March,1993, the Housing and Redevelopment Commission/City Council agreed to assist
with the refinancing of the outstanding bonds for the subject project and owner to take
advantage of lower interest rates. The refunding was complete as of May I, 1993.
I PROPOSED SALE OF THE PROJECT
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La Costa Partners is now in the process of selling the project to Northwestern Mutual Life
Insurance Company, a Wisconsin Investment Management Company (the Company). The
Company will be assuming the obligations of La Costa Partners with respect to the bonds.
One of those obligations is to make the principal and interest payments on the bonds as they
come due. In order to secure the payment of these amounts, the owner of the project must
provide a credit instrument from an approved institution (such as a surety bond or a letter of
credit). In the event of any future default, the Company will draw on the credit instrument to
make any and all debt service payments. The Commission is not obligated to repay the
bonds. The bonds are fully insured during the entire period they are outstanding.
La Costa Partners has requested that the Commission make certain amendments to the bond
agreements to allow the sale of the project and the assumption of the bond obligations by the
Company. The bond debt will continue to be secured by a letter of credit from Bank of America
National Trust and Savings Association. As previously found, Bank of America is acceptable to
the rating agencies and meets the requirements for a credit facility issuer as specified in the
AB# 01 -
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Page 2
bond indenture. Other than the change in ownership, there are no other substantial
modifications to the agreements. Minor modifications have been made to bring the
agreements up to date and to ensure that the project is able to accept both vouchers and
certificates under the City of Carlsbad’s Section 8 Rental Assistance Program. All documents
have been reviewed by bond counsel, Robert Whalen of Stradling Yocca Carlson & Rauth.
HOUSING AND REDEVELOPMENT COMMISSION ACTION:
Staff recommends that the Housing and Redevelopment Commission adopt the attached
resolution which will approve the form of the revised Loan Agreement and the Assignment and
Assumption Agreement and authorize certain officers to take the actions necessary to
implement the terms of the documents and the remarketing of the bonds.
FISCAL IMPACT:
The sale of the Park La Costa Apartment Project and the assumption of the obligations by the
Company does not impose fiscal obligation on the City of Carlsbad or the Carlsbad
Redevelopment Agency. The City and Agency are not obligated in any way to repay the
bonds. The Redevelopment Agency will continue to receive an annual payment of 0.23% of
the principal amount of the refunded bonds to cover ongoing administrative costs. In addition,
the Company will reimburse the City/Agency for all time spent by staff and the Commission in
completing this transaction.
EXHIBITS:
1.
2.
3.
Housing and Redevelopment Commission Resolution No. a.9 ? authorizing the
execution and delivery of amended documents and related actions with respect to the
$15,920,000 Carlsbad Housing and Redevelopment Commission Multifamily Housing
Revenue Bonds, Series A, of 1993 (La Costa Apartments Project).
First Amendment to Amended and Restated Regulatory Agreement and Declaration of
Restrictive Covenants (on file in the City Clerk’s Office).
Assignment and Assumption Agreement for Bond Documents (on file in the City Clerk’s
Office).
2
1 HOUSING AND REDEVELOPMENT COMMISSION RESOLUTION NO. 299
RESOLUTION OF THE HOUSING AND REDEVELOPMENT
COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA,
AUTHORIZING THE EXECUTION AND DELIVERY OF AN
ASSIGNMENT AND ASSUMPTION AGREEMENT AND RELATED
ACTIONS WITH RESPECT TO THE TRANSFER OF THE LA COSTA
APARTMENTS.
6 WHEREAS, the City of Carlsbad (the “City”) has previously issued its $15,920,000
7 Variable Rate Demand Multifamily Housing Revenue Refunding Bonds, Series A of 1993 (La
a Costa Apartments Project) (the “Bonds”) pursuant to an Indenture of Trust dated as of May 1,
9 1993 (the “Indenture”), between the City and U.S. Bank Trust National Association, formerly
10 known as “First Trust of California, National Association,” as trustee under the Indenture (the
11
“Trustee”), and caused to be made a loan (the “Developer Loan”) from the proceeds of the 12
13 Bonds to La Costa Partners, a California general partnership (the “Original Owner”),
14 pursuant to a Loan Agreement dated as of May 1, 1993 (the “Original Loan Agreement”),
15 among the City, the Trustee and the Original Owner; and
16 WHEREAS, pursuant to the terms of the Indenture, Bank of America National Trust
17 and Savings Association (the “Bank”) has delivered its irrevocable letter of credit to the
’ a Trustee to secure the repayment of the Bonds; and
19
20
WHEREAS, the Original Owner has requested that the City Housing Authority
consent to a transfer and sale of the project (as defined in the Indenture) to the Northwestern
21
Mutual Life Insurance company (the “New Owner”) and enter into an Assignment and
22
23 Assumption Agreement (Bond Documents) (the “Assignment Agreement”) pursuant to
24 which the New Owner will assume the obligations of the original Owner under the
25 documents relating to the Bonds with the consent of the City, the Trustee and the Bank; and
26 WHEREAS, in connection with its approval of the transfer of the Project to the New
27 Owner, the City Housing Authority desires to approve an amendment (the “First
1
-
1 Amendment to Regulatory Agreement”) to the Amended and Restated Regulatory
2 Agreement and Declaration of Restrictive Covenants by and among the City, the Trustee and
3 the Original Owner dated as of May 1,1993 (the “Regulatory Agreement”); and
4
5
WHEREAS, Stradling Yocca Carlson & Rauth, a Professional Corporation, as Bond
Counsel to the City, will render its opinion to the effect that the transfer of the Project will
6
not adversely affect the exclusion from gross income for federal income tax purposes of
7
8 interest on the Bonds; and
9 WHEREAS, the City Housing Authority desires to approve the Assignment
16 Agreement and the amendments to the Regulatory Agreement and to authorize its officers to
I I grant any needed consents or take any other actions required to effectuate the transfer of the
12 Project to the New Owner;
13 NOW, THEREFORE, BE IT RESOLVED BY THE HOUSING AND
l4 REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD:
15 SECTION 1: The above recitals, and each of them, are true and correct.
16
17
SECTION 2: The proposed forms of the Assignment Agreement and the First
18 Amendment to Regulatory Agreement presented at this meeting are hereby approved, and
- 1 g each of the Mayor/Chairman the City Manager/ Executive Director, his designee, and the
26 City Clerk is hereby authorized and directed, for and in the name of the City, to execute,
21 acknowledge and deliver such documents substantially in the form presented, with such
22 additions hereto and changes therein as the officer or officers executing the same may
23 approve, such approval to be conclusively evidenced by the execution and delivery thereof.
24 SECTION 3: All officers of the City Housing Authority are each authorized and
25 directed, jointly and severally, to do any and all things and to execute and deliver any and
26
all documents which they deem necessary or advisable in order to implement the terms of
27
28 the Assignment Agreement and the First Amendment to Regulatory Agreement, and to give
2
1 any consents required to be given by the City Housing Authority under any documents
2 related to the Bonds, and otherwise to effectuate the purposes of this Resolution and the
3 transfer of the Project to the New Owner; and any such actions previously taken by such
4 officers are hereby ratified and confirmed. The City Housing Authority hereby consents to
5 the appointment of Newman and Associates, Inc., as the Remarketing Agent for the Bonds.
6
SECTION 4: Each of the City Manager/Executive Director, or his designee, and the
7
8 City Clerk is further authorized and directed to execute and deliver from time to time any
g documents relating to a future transfer of the Project to a subsequent owner provided that
10 the conditions set forth in Section 11 of the Regulatory Agreement have been satisfied.
11 SECTION 5: This Resolution shall take effect from and after its adoption.
12 PASSED, APPROVED AND ADOPTED at a regular meeting of the Housing and
13 Redevelopment Co mmission of the City of G.&bad, California, on the 16th day of June, 1998,
14 by the following vote, to wit:
15 AYES
NOES:
ABSENT:
26
27
28
II
THE OKIGIML OF THIS DDCUMENT MS RECORDED ON JUN 253 1195
DOCUMENT "HER 199i-oiG~oo GREGORY J. SMITH, COUNTY RECDRDEF SAN DIEGO COUNTY KECORMR'S OFFICE TIME: 121 PM
RECORDING REQUESTED BY:
COMMONWEALTH LAND TITLE COMPANY
RECORDING REQUESTED BY AND )
WHEN RECORDED RETURN TO: )
Robert J. Whalen, Esq. 1
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660 d,$b Lw
1
233 - 3360- 61 -H.~N OY
~OO\--I \.;..\. ' [Space above for Recorder's use.]
FIRST AMENDMENT TO AMENDED AND RESTATED
REGULATORY AGREEMENT AND DECLARATION
OF RESTRICTIVE COVENANTS
By and Among
CITY OF CARLSBAD
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
and
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
Dated as of June 1, 1998
Relating to "
$15,920,000
CITY OF CARLSBAD
MULTIFAMILY HOUSING VARIABLE RATE DEMAND REVENUE BONDS,
SERIES A OF 1993
(LA COSTA APARTMENTS PROJECT)
590394.3\22062.0026
FIRST AMENDMENT TO AMENDED AND
RESTATED REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS FIRST AMENDMENT TO AMENDED AND RESTATED REGULATORY
AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (this “First
Amendment”) dated for reference purposes this first day of June, 1998, is by and among the City of
Carlsbad (the “City”), U.S. BankTrust National Association, formerly known as “First Trust of
California, National Association”, a national banking association, as Trustee (the “Trustee”), and
The Northwestern Life Insurance Company, a Wisconsin corporation, successor to La Costa
Partners, a California general partnership (the “Owner”), with reference to the following facts:
A. The parties hereto have entered into and caused there to be recorded in the
Official Records (the “Official Records”) of the County of San Diego that certain Amended and
Restated Regulatory Agreement and Declaration of Restrictive Covenants dated as of May 1, 1993,
recorded on May 26,1993, as Instrument No. 1993-0332834 (the “Original Regulatory Agreement”)
against that certain real property described in Exhibit A attached hereto (the “Property”), and the
City by its execution hereof has requested the Trustee to join in the execution of this First
Amendment. Initially capitalized terms which are used in this First Amendment without definitions
shall have the same meanings as have been given to such terms in the Original Regulatory
Agreement.
B. The parties hereto agree to amend the Original Regulatory Agreement as
follows:
Section 1. Sections 4(d) and (0 of the Original Regulatory Agreement are
hereby amended and restated in their entirety as follows:
(d) The Owner will: (i) maintain a list of persons who have notified the
Owner of their desire to rent a unit in the Project and who have Adjusted Incomes which
would qualify them as Very Low Income Tenants, and (ii) offer to rent at least half of the
Lower-Income Units (subject to the availability thereof at any time) on a priority basis to the
persons on such list prior to offering to rent such units to any other persons and in choosing
such Very Low Income Tenants shall use selection criteria no more burdensome than shall
be applied to other prospective tenants. To fulfill its obligation under this subparagraph (d),
the Owner shall place on its waiting list persons referred by the City Housing Authority. The
Owner agrees to make the units coming vacant available on a priority basis, first, to any Very
Low Income Tenants who are Section &participants or the recipents of another rent subsidy,
second, to Very Low Income Tenants who are on the Section 8 Rental Assistance waiting list
of the City Housing Authority, and third, to other Very Low Income Tenants. Nothing
contained in this Section shall require the Owner to offer to rent such units to such persons
on terms and conditions which are more favorable than the terms and conditions on which
such units will be offered to Lower Income Tenants generally. Provided that the Owner has
complied with the foregoing to attract Very Low Income Tenants to the Project, nothing
herein shall be construed as requiring the Owner to keep units vacant for occupancy by Very
Low Income Tenants where no Very Low Income Tenants have applied for occupancy.
590394.3W062.0026
(f) The Owner shall accept as tenants on the same basis as all other
prospective tenants persons who are recipients of federal rent subsidies pursuant to the
tenant-based rental assistance program under Section 8 of the United States Housing Act of
1937, or its successor. The Owner shall not apply selection criteria to Section 8 participants
which are more burdensome than criteria applied to any other prospective tenants.
Section 2. Section 21 of the Original Regulatory Agreement is hereby amended
to read as follows:
City: City of Carlsbad
2969 Roosevelt Street, Suite B
Carlsbad, California 92008
Attention: Director
Trustee and U.S. Bank Trust National Association
Program One California Street, 4* Floor
Administrator: San Francisco, California 941 11
Attention: Corporate Trust
Bank:
Owner:
Bank of America National Trust and Savings
Association
231 South La Salk Street, IO* Floor
Chicago, Illinois 60697
Attention: Ms. Linda Love (Ref.
Northwestern Mutual Life)
Northwestern Mutual Life Insurance Company
610 Newport Center Drive, Suite 850
Newport Beach, California 92660
Attention: General Counsel
Section 3. This First Amendment shall be governed by and construed in
accordance with the laws of the State of California.
Section 4. Except as expressly modified by this First Amendment, the Original
Regulatory Agreement shall remain in full force and effect in accordance with its terms. From and
after the date specified in Section 5 below on which this First Amendment becomes effective, all
references in the Original Regulatory Agreement to “this Agreement” and all references in the other
Loan Documents (as defined in the Indenture) s.all mean and refer to the Original Regulatory
Agreement as amended by this First Amendment.
Section 5. This First Amendment shall be effective on the date of its recordation
in the Offkial Records.
Section 6. This First Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall together constitute but one and
the same instrument.
590394.3U2062.0026 -2-
IN WITNESS WHEREOF, the City, the Trustee and the Owner have executed this
First Amendment by their duly authorized representatives, all as of the date first written above.
CITY OF CARLSBAD
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Its: Authorized Officer
THE NORTHWESTERNMUTUAL LIFE
INSURANCE COMPANY, a Wisconsin corporation
By: Northwestern InvestmentManagement
Company, a Wisconsin corporation, its wholly
owned subsidiary and authorized representative
By:
Name:
Title:
CONSENTEDTO BY
BANK OF AMERICANATIONAL
TRUST AND SAVINGS ASSOCIATION
By:
Name:
Title:
590394.3\22062.0026 -3-
IN WITNESS WHEREOF, the City, the Trustee and the Owner have executed this
First Amendment by their duly authorized representatives, all as of the date first written above.
CITY OF CARLSBAD
By:
Its: City Manager
US. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
THENORTHWESTERNMUTUALLIFE
INSURANCE COMPANY, a Wisconsin corporation
By: Northwestern Investment Management
Company, a Wisconsin corporation, its wholly
owned subsidiary and authorized representative
By:
Name:
Title:
CONSENTEDTO BY:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By:
Name:
Title: .. L
590394.3W062.0026 -3-
IN WITNESS WHEREOF, the City, the Trustee and the Owner have executed this
First Amendment by their duly authorized representatives, all as of the date first written above.
CITY OF CARLSBAD
By:
Its: City Manager
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Its: Authorized Officer
THENORTHWESTERNMUTUALLIFE
INSURANCE COMPANY,a Wisconsincorporation
By: Northwestern Investment Management
Company, a Wisconsin corporation,its wholly
CONSENTED TO BY:
BANK OF AMERICANATIONAL
TRUST AND SAVINGS ASSOCIATION
By:
Name:
Title: -
590394.3V22062.0026 -3-
IN WITNESS WHEREOF, the City, the Trustee and the Owner have executed this
First Amendment by their duly authorized representatives, all as of the date first written above.
CITY OF CARLSBAD
By:
Its: City Manager
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Its: Authorized Officer
THENORTHWESTERNMUTUALLIFE
INSURANCECOMPANY, a Wisconsincorporation
By: Northwestern Investment Management
Company, a Wisconsin corporation, its wholly
owned subsidiary and authorizedrepresentative
By:
Name:
Title:
CONSENTEDTO BY
BANK OF AMERICANATIONAL
TRUST AND SAVINGS ASSOCIATION
By:
Name:
Title:
590394.3U2062.0026 -3-
STATE OF CALIFORNIA )
3n sun, 34. I?9Y , before me, Sherr;? 0. dorrp 1 I , Notary Public,
(Print Name of Notary Public)
& .personally known to me
0 proved to me on the basis of satisfactory evidence to be the person@) whose name@)
-or-
idare subscribed to the within instrument and acknowledged to me that helshelthey
executed the same in his/her/their authorized capacity(ies), and that by hidherhheir
signature(s) on the instrument the person@). or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
xevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
I.S+ Am-. tr, @a . Aamk
Title@) Title Or Type Of Document
0 Partner(s) 0 Limited
n General 17
0 Attorney-In-Fact
0 Trustee@)
0 GuardianlConservator
- 1c I
Number Of Pages i
Signer is representing:
Name Of Person@) Or Entity(ies)
Date Of Document
Signer($ Other Than Named Above
590400.5\22062.0026
;TATE OF CALIFORNIA 1
;OUNTY OF ) ss 1 -
In JU 23. Ffj , before me, CLAUDiA J. Sur\! , Notary Public,
(Print Name of Notary Public)
bersonally appeared Tb fi - a x personally known to me
-or- 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare
subscribed to the within instrument and acknowledged to me that helshelthey executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
b(F!JELand Fa1 SL
Signature Of Notary
OPTIONAL
rhough the data below is not required by law, it may prove valuable to persons relying on the document and could
~revent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
0 Individual
0 Corporate Omcer
DESCRIPTION OF ATTACHED DOCUMENT
Title@) Title Or Type Of Document
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 GuardianlConservator
0 Other:
Number Of Pages
Signer is representing:
Name Of Person@) Or Entily(ies)
c Date Of Document
Signer(s) Other Than Named Above
590394.3D2062.0026
,TATE OF WISCONSIN 1
:OUNTY OF MILWAUKEE 1 ) ss.
In June 23, 1998 , before me, Beth N. Larsen , Notary Public,
(Print Name of Notary Public)
lersonally appeared Eugene R. Skaggs
personally known to me
-or-
proved to me on the basis of satisfactory evidence to be the person(s) whose name@) islare
subscribed to the within instrument and acknowledged to me that helshelthey executed the
same in hislherltheir authorized capacity(ies), and that by hislhedtheir signature(s) on the
instrument the person@), or the entity upon behalf of which the person@) acted, executed
the instrument.
WITNESS mv hand and official seal
OPTIONAL
rhough the data below is not required by law, it may prove valuable to persons relying on the document and could
mvent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
0 Individual
Corporate Officer
DESCRIPTION OF ATTACHED DOCUMENT
Title@) Tlle Or Type Of Document
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee@)
0 GuardianlConservator
0 Other:
Number Of Pages
Signer is representing:
Name Of Person@) Or Entity(ies)
Signer(s) Other Than Named Above
590394.3U2062.0026
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
Lots 1 through 4 inclusive of Carlsbad Tract No. 84-7 in the City of Carlsbad, County of San
Diego, State of California, according to map thereof No. 11391, filed in the Office of the County
Recorder of San Diego County, December 17, 1985.
Excepting therefrom, all minerals, mineral rights, oil, oil rights, natural gas, natural gas
rights, petroleum, petroleum rights, other hydrocarbon substances, geothermal steam, all
underground water, and all products derived from any of the foregoing, in or under or which may be
produced from the property which underlies a plane parallel to and 500 feet below the present
surface of the property together with the perpetual right of drilling, mining, exploring and operating
therefor and storing in and removing the same from the property or any other land, including the
right to whipstock or directionally drill and mine from lands other than the property, oil, water, or
gas wells, tunnels and shafts into, through or across the subsurface of the property, and to bottom
such whipstocked or directionally drilled wells, tunnels and shafts under the beneath or beyond the
exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen, and operate any such
wells or mines, without, however, the right to drill, mine, store, explore, and operate through the
surface or the upper five hundred (500) feet of the subsurface of the property; as reserved to Daon
Corporation in Grant Deed recorded October 29, 1984, Official Records, FileE'age No. 84-407544.
590394.3U2062.0026 A-1
AFTER RECORDING RETURN TO:
Robert J. Whalen, Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600 r
THE OHIGINRL OF THIS DOCUMENT WIS RECORDED ON JUN 25, 1% DOCUMENT NUMBER 197a-omoo1 GEGOR' J. SMITH, COUNTY RECORDER SAN DIEGO COUNTY RECORDER'S OFFICE TIME: 121 PM
NewportBeach, California92660
225-36u-bi 4i.w 67 For Recorder'sUse
)W\? \5# y
ASSIGNMENT AND ASSUMPTION AGREEMENT
(BOND DOCUMENTS)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (BOND DOCUMENTS) (this
"Agreement") dated this 23rd day of June, 1998, is by and among the CITY OF CARLSBAD,
CALIFORNIA, a municipal corporation (the "Issuer"), U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association, as Trustee (the "Trustee"), LA COSTA
PARTNERS, a California general partnership (the "Seller"), and THE NORTHWESTERN
MUTUAL LIFE MSURANCE CORPORATION, a Wisconsin corporation (the "Purchaser").
WHEREAS, pursuant to the terms of that certain Indenture of Trust dated as of May 1, 1993
(the "Indenture"), between the Issuer and the Trustee (formerly known as "First Trust of California,
National Association"), as trustee, and that certain Loan Agreement dated as of May 1, 1993 (the
"Loan Agreement"), among the Issuer, the Trustee and the Seller, the Issuer issued its Variable Rate
Demand Multifamily Housing Revenue Refunding Bonds, Series A of 1993 (La Costa Apartments
Project) (the "Bonds"), in the original aggregate principal amount of $1 5,920,000, (the "Loan") and
loaned the proceeds derived from the sale of the Bonds to the Seller to effect a refunding of the
City's Multifamily Housing Revenue Bonds, Series A of 1985 (La Costa Apartments Project) (the
"1985 Bonds"), the proceeds of which financed the acquisition, construction, equipping and
development of a multifamily residential rental development located in the City of Carlsbad,
California and more particularly described on Exhibit "A" attached hereto and made a part hereof
(the "Project"); and
WHEREAS, in connection with the Loan and the issuance of the Bonds, the Seller executed
and delivered that certain First Deed of Trust and Assignment of Rents and Fixture sling dated as of
May 1, 1993 and recorded on May 12, 1993, as Instrument No. 1993-0332835 of the Official
Records of the County of San Diego, California (the "Bond Mortgage") and each of the other
security, loan and financing documents, agreements, instruments and certificates more particularly
described on Exhibit "B" attached hereto and insorporated herein by reference, which evidence,
secure or otherwise relate to the Loan or the Bonds, including the Regulatory Agreement described
below (collectively, the "Existing Bond Documents"); and
WHEREAS, the Issuer, the Seller and the Trustee executed and delivered that certain
Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants dated as of
May 1,1993 and recorded on May 26, 1993, as Instrument No. 1993-0332834 of the Official
Records of the County of San Diego, California (the "Regulatory Agreement") prescribing the use of
590400.5\22062.0026 1
the proceeds of the Loan in compliance with Section 103(b)(4)(A) of the Internal Revenue Code of
1954, as amended, to protect the tax-exempt status of the interest payable on the Bonds; and
WHEREAS, as a condition precedent to the issuance of the Bonds and the making of the
Loan to the Seller, the Issuer required that the Seller deliver or cause to be delivered to the Trustee,
for the benefit of the holders of the Bonds, an irrevocable letter of credit to secure the payment of the
principal of, and interest on, the Bonds and to provide for the payment of the purchase price thereof
in accordance with the terms of the Indenture; and
WHEREAS, Bank of America National Trust and Savings Association (the “Bank”) issued
Letter of Credit No. 21 8026, as amended (the “Original Letter of Credit”), for the account of the
Seller and delivered the Original Letter of Credit to the Trustee; and
WHEREAS, in connection with the issuance of the Letter of Credit, the Seller executed and
delivered that certain Reimbursement Agreement dated as of May 1, 1993 between the Bank, and the
Seller (as heretofore modified or amended, the “Original Reimbursement Agreement“), and certain
other security and other documents, agreements, instruments; and
WHEREAS, the Seller is conveying the Project to the Purchaser, as a result of which the
Seller desires to assign its rights under the Existing Bond Documents listed in Exhibit B to the
Purchaser, and the Purchaser desires to assume the Existing Bond Documents, effective as of the
date of such conveyance, and to take certain other actions required for conveyance of the Project
under the Existing Bond Documents, subject in all respects to the provisions of this Agreement; and
WHEREAS, the Purchaser and the Bank have entered into that certain Application and
Agreement for Direct Pay Letter of Credit dated as of June 1, 1998 (the “Reimbursement
Agreement”), pursuant to which the Bank has agreed to issue a new irrevocable direct pay letter of
credit for the account of the Purchaser (the “New Letter of Credit”) and to deliver the New Letter of
Credit to the Trustee in exchange for the Original Letter of Credit; and
WHEREAS, at the request of the Bank, the Purchaser has agreed to execute and deliver a
Bond Pledge and Security Agreement dated as of June 1,1998 by and between the Bank and the
Purchaser (the “New Pledge Agreement”) in consideration of the Bank‘s agreement to issue and
deliver the New Letter of Credit as security for the Bonds; and
WHEREAS, under the Indenture and certain of the other Existing Bond Documents, the
consent of the Issuer and the Trustee are required for certain of the actions occurring with respect to
the transfer of the Project;
NOW, THEREFORE, in consideration of the conveyance of the Project, the assignment of
certain rights under the Existing Bond Documents, the assumption of the Existing Bond Documents,
the foregoing premises and the mutual promises, covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
and intending to be legally bound, the parties hereto agree as follows:
1. Recitals: Defined Terms. The recitals set forth herein are incorporated herein by
reference. Any capitalizedterms not otherwise defined herein shall have the meaning set forth in the
Indenture.
590400.S.22062.0026 2
2. Ameement to Purchase. The Purchaser has agreed to purchase the Project pursuant to
the terms of that certain Agreement of Purchase and Sale dated as of May 27, 1998 between the Seller
and the Purchaser (the “Purchase Agreement”). Simultaneously with the delivery of this Agreement,
the Purchaser is purchasing the Project subject to the Existing Bond Documents.
3. Assignment of Rights of Seller. The Seller hereby grants, bargains, sells, conveys,
assigns and sets over to the Purchaser, its successors and assigns, all of the Seller’s rights and benefits
in, to and under the Existing Bond Documents from and after the date on which the grant deed
executed by the Seller by which title to the Project is conveyed to the Purchaser is recorded in the
Official Records of the County of San Diego, California (the “Effective Date”), without recourse,
representation or warranty, express or implied, except as may be set forth in the Purchase Agreement.
The Seller acknowledges and agrees that, under the terms of the Existing Bond Documents, it remains
responsible for all of Seller’s obligations, rights, responsibilities and liabilities arising under the
Existing Bond Documents prior to the Effective Date.
4. Assumption of Obligations bv Purchaser. The Purchaser acknowledges and accepts the
terms of the Loan Agreement, the Bond Mortgage, the Indenture, the Regulatory Agreement and each
of the other Existing Bond Documents. The Purchaser hereby agrees to pay, at the times, in the manner
and in the amounts provided in the Existing Bond Documents, the principal of, premium, if any, and
interest on the Loan which are, by the terms of the Existing Bond Documents, payable after the
Effective Date. The Seller hereby delegates to the Purchaser, and the Purchaser hereby assumes the
Seller’s obligations, rights, responsibilities and liabilities set forth in each of the Existing Bond
Documents required to be observed or performed by the Seller from and after the Effective Date.
Further, the Purchaser agrees to observe and perform each and every term, covenant, provision and
condition required to be observed or performed by the Seller from and after the Effective Date under
each of the Existing Bond Documents. As of the date of this Agreement, (i) the Purchaser has
absolutely no defenses, offsets, claims or counterclaims to the payment and performance of the
obligations and duties assumed under this Section 4, and (ii) neither the Issuer nor the Seller has any
knowledge of the existence of any default or “Event of Default” (as defined therein) under the Existing
Bond Documents or the occurrence of any event which, with the giving of notice or passage of time, or
both, would constitute such a default or Event of Default.
5. Amendments to Existing Bond Documents. From and after the Effective Date, all
references in the Existing Bond Documents to the Original Reimbursement Agreement shall be deemed
to refer to the Reimbursement Agreement, all references to the Pledge Agreement shall be deemed to
refer to the New Pledge Agreement and all references to the Letter of Credit shall mean and refer to the
New Letter of Credit. In addition, the parties hereto acknowledge that, in connection with the transfer
of the Project to the Purchaser, the Bank is reconveying its interests in the Second Deed of Trust, and
agreeing to terminate the Intercreditor Agreementand the Guaranty and that in interpreting the Existing
Bond Documents. such facts shall be taken into account.
6. Consent to and Approval of Transfer. The Issuer and the Trustee by their execution of
this Agreement, the Bank and the Remarketing Agent by their execution of their respective consent
certificates attached hereto as Exhibits “D” and “E, respectively, each hereby consent to the transfer of
the Project from the Seller to the Purchaser, the assignment to Purchaser of Seller’s rights and benefits
under the Existing Bond Documents and the assumption by Purchaser of Seller’s obligations under the
Existing Bond Documents in accordance with the terms hereof. The Trustee, by execution of this
590400.5\22062.0026 3
Agreement, hereby representsand warrants that the certificationsmade by it as set forth on Exhibit "C"
attached hereto are true and accurate. The Issuer and the Trustee each hereby acknowledgeand agree
that all fees and expenses of the Issuer and the Trustee, respectively, which accrued or became due
prior to the date of this Agreement have been paid in full and that, relying upon opinions of counsel and
certificatesfurnishedto them in connection with the transfer, all of the other conditionsprecedent to
transfer of the Project contained in the Indenture and the other Existing Bond Documentshave been
satisfied or duly and validly waived by the party entitled thereto. The respective parties hereto
represent that the proper officers or representativesof each of the parties hereto are hereby, or by
proper proceedings therefor, authorized and empowered, and each of the parties hereto agrees, to
execute such further instrumentsas, in the opinion of counsel to the respectiveparties, are necessary in
order to effectuate the transfer herein authorized.
The parties agree that consent to this transfer by the Issuer and Trustee is not intended
to impair the security for repayment of the Loan or the security for the obligationsunder the Existing
Bond Documents,as the case may be, and the performance of the obligationsthereunder. Purchaser
will not assert that such consent has impaired the ability of the Issuer, Trustee, or the Bank to enforce
their respective rights, remedies and recourse with respectto such security;
7. Reuresentationsof Purchaser. The Purchaser represents to the Seller, the Issuer, the
Trustee and the Bank that:
(a) The Purchaser has the management ability, or will retain a property manager
with the management ability, to operate the Project in the manner contemplated by the Existing Bond
Documents;
(b) The Purchaser will reimburse the Issuer, the Trustee and the Bank for all
reasonable fees, costs and expenses incurred by such parties in connectionwith their consent to the sale
and transfer of the Project to the Purchaser;
(c) The Purchaserwill pay the reasonable attorneys' fees and expenses of the
Issuer, the Trustee and the Bank in connectionwith their consent to the sale and transfer of the Project
to the Purchaser;
(d) The Purchaseragrees to execute such other modificationagreements,
supplemental mortgage documents and financing statements which do not materially alter the terms of
this Agreement as the Issuer, the Trustee or the Bank may reasonablyrequest to further evidence the
Purchaser'sobligationsassumed hereunder;
(e) The Purchaser agrees to provide endorsementsto any existing title insurance
policies on the Project or, if required by the Issuer or the Trustee, to acquire new title insurance
policies, to insure the Issuer's or the Trustee's respective liens and security interests with respect to the
Project; and
(0 The Purchaser is qualifiedto do business in the State of California.
8. Reuresentationsof Seller. The Seller representsthat:
4
(a) The Project has been in compliance with all provisionsof the Regulatory
Agreement continuously since the date of issuance of the Bonds and up to and including the date ofthe
Regulatory Agreement with all provisions of the Prior Regulatory Agreement;
(b) The Seller is not in default under any of its obligationsunder the Existing Bond
Documents as of the date hereof.
9. ReDresentationsof Parties. Each of the parties hereto severallyrepresents,each with
respect only to itself, as ofthe date hereof, as follows:
(a) It is duly organized and existing under the laws of the jurisdiction of its
organization,with full power and authority to execute and deliver this Agreement, to enter into the
transactionscontemplated hereby and to perform all the duties and obligations to be performed by it
hereunder;
(b) It has duly authorized this Agreement and the transactionscontemplated hereby
and the performanceof all the duties and obligationsto be performed hereunder by all necessary
governmenta1,corporate andorpartnershipaction;
(c) It has duly executed and delivered this Agreement, and this Agreement
constitutes its valid, legal and binding obligation; and
(d) The execution and delivery of this Agreement and the performaace of the
transactionscontemplatedhereby will not violate any agreementby which it is bound or to which it or
any of its assets are affected, or its organizational documents or any statute, regulation, rule, order or
judgmentapplicableto it.
10. N-. The parties hereto hereby agree that the address for notices to the "Purchaser,"
"Borrower," "Developer," "Mortgagor," "Assignor" or any other term used to refer to the obligor under
the Existing Bond Documents, as the case may be, under the Existing Bond Documents is and shall be
as follows:
The NorthwesternLife Insurance Company
The NorthwesternMutual Life Insurance Company
610NewportCenter Drive, Suite 850
NewportBeach, California92660
Attention: Gary E. Farmer
Telephone: (949) 759-5555
Telecopier: (949)640-5721 ' -
590400.5\22062.0026 5
With copies to:
The NorthwesternLife Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin532024197
Attention: ThomasF. Scheer
Telephone: (414) 299-7357
Telecopier: (414)299-1985
and that the address for notices to the "Bank" or any term referring to the issuer of the Letter of Credit
under the Existing Bond Documents is and shall be as follows:
Bank of AmericaNational Trust and Savings Association
231 South LaSalle Street, 10' Floor
Chicago, Illinois60697
Attention: Ms. ElizabethBishop
Telecopier: (312) 987-0889
With copies to:
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
NewportBeach, California92660
Attention: Frank L. Rugani, Esq.
Telecopier: (949) 823-6994
and that the address for notices to the "Trustee" under the Existing Bond Documents is and shall be as
follows:
US. Bank Trust National Association
One California Street, Suite 400
San Francisco, California 941 11
Attention: CorporateTrust
Telecopier: (415) 273-4591
11. Assumution of Fees. Costs, Etc. The Purchaser acknowledgesthat from and after the
Effective Date, the Purchaserwill be responsible for all fees, costs or payments due in accordancewith
the Existing Bond Documents assumed hereunder.
12. Miscellaneous. .. -
(a) Modificationsand Amendments. This Agreement may only be modified,
altered or amended by an agreement in writing executed by all of the parties hereto.
(b) Validitv of Provisions. Any provision of this Agreementwhich may prove
unenforceable under law shall not affect the validity of the other provisions hereof.
590400.5U2062.0026 6
(c) Construction. This Agreement shall be construed in accordance with the laws
of the State of Califomiawithout regard to the principles of conflicts of laws.
(d) Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(e) Countemarts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all ofwhich shall constitute one and the same
agreement.
(0 Recording. This Agreement shall be recorded in County of San Diego,
California. The recording of this Agreement is not intended to affect the priority of the Regulatory
Agreement or the Existing Bond Documents, and the Purchaser specifically agrees that the Regulatory
Agreement is senior in status and priority to any other claims or liens against the Project.
(g) Third-PartvBeneficiary. The parties hereto acknowledgethat the Bank is
intended to be a third-party beneficiary of this Agreement and may enforce the terms hereof.
(h) Purchase Aereement to Control. The parties hereto agree that, without
affecting the rights of any other party hereunder, as betweenthe Seller and the Purchaser, the
provisions of the Agreement for Purchase and Sale and Escrow Instructions dated May 27,1998 (the
“Sale Agreement”) shall control over any provision herein which is inconsistentwith the Sale
Agreement.
r
590400.5\22062.0026 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorizedrepresentativesall as of the date and year first above written.
LA COSTA PARTNERS,a Californiageneral
partnership
By:
GeorkWFermanian, as Trustee of the I
Fermazan Family Trust, a General Partner
By:
Rodney F. Stone, as Trustee of the Stone
Famil; Trust, a General Partner
THE NORTHWESTERNMUTUAL LIFE
INSURANCE COMPANY, a Wisconsincopration
By: Northwestern Investment Management
Company, a Wisconsin corporation, its wholly
owned subsidiaryand authorizedrepresentative
By:
Name:
Title:
US. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
+. AuthorizedOfficer
590400.5U2062.0026 8
..
M WImESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorized representativesall as of the date and year first above written.
LA COSTA PARTNERS, a California general
partnership
By:
George A. Fermanian, as Trustee of the
Fermanian Family Trust, a General Partner
By:
Rodney F. Stone, as Trustee of the Stone
Family Trust, a General Partner
THE NORTHWESTERNMUTUAL LIFE
INSURANCE COMPANY, a Wisconsincorporation
By: Northwestern Investment Management
Company, a Wisconsincorporation, its wholly
owned subsidiary and au9orizedrepresentative
US. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
r Authorized Officer
590400.5\22062.0026 8
...
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective duly authorized representativesall as ofthe date and year first above written.
LA COSTA PARTNERS, a California general
partnership
By:
George A. Fermanian, as Trustee of the
Fermanian Family Trust, a General Partner
By:
Rodney F. Stone, as Trustee of the Stone
Family Trust, a General Partner
THE NORTHWESTERNMUTUAL LIFE
INSURANCE COMPANY, a Wisconsin corpomtion
By: NorthwesternInvestment Management
Company, a Wisconsincorporation, its wholly
owned subsidiary and authorized representative
By:
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCUTION,
as Trustee
.. Authorized Officer
590400.5\22062.0026 8
590400.5\22062.0026
CITY OF CARLSBAD
c
9
..
STATE OF CALIFORNIA 1
ZOUNTYOF S6h.l D\€Gb 1 ) ss.
3n b/ad-/q8 , before me, ky N Mo LAh) , Notary Public,
(Print Name of Notary Public)
personally appeared GEORGE A. FERMANiAN Aub RODNEY F. STONE
p$ .personally known to me
0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
-or-
islare subscribed to the within instrument and acknowledged to me that helshelthey
executed the same in his/her/their authorized capacity(ies), and that by hislherltheir
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
SigiiaatdrGf Notary
~~~
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF AlTACHED DOCUMENT
0 Individual
0 Corporate Officer
Ttle(s) Titie Or Type Of Document
0 Partner(s) 0 Limited
General
0 Attorney-In-Fact
0 Trustee(s)
0 GuardianlConservator Other:
Number Of Pages -
Signer is representing:
Name Of Penon(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
590400.5\22062.0026
STATE OF WISCONSIN )
COUNTY OF
) ss.
1
I on June 22, 1998 , before me, Beth N. Larsen , Notary Public,
(Print Name of Notary Public) I My commission expires 11/28/99 personally appeared Eugene R. Skaggs
a .personally known to me
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
-or-
islare subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by hislherltheir
signature(s) on the instrument the person(s), orthe entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
I OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
0 Individual
0 Corporate Officer
DESCRIPTION OF ATTACHED DOCUMENT
Title@) Title Or Type Of Document
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 GuardianlConservator
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Number Of Pages
.. ..
Date Of Document
Signer@) Other Than Named Above
590400.N2062.0026
..
;TATE OF CAMRNIA )
In 7- 3%: (y?r , before me,
" 'f?CiWDtA 9. SUN
(Print Name of Notary Public)
, Notary Public,
,ersonally appeared
p$ . personally known to me
0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
-or-
islare subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in hislherltheir authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
UTNESS my hand and officialpql.
Signature Of Notary
OPTIONAL
rhough the data below is not required by law, it may prove valuable to persons relying on the document and could
rrevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
3 Individual 2 Corporate Officer
Title@) Title Or Type Of Document
3 Partner(s) 0 Limited
7 Attorney-In-Fact
General
3 Trustee(s)
3 GuardianlConservator
3 Other
Number Of Pages
.. .-
Signer is representing:
Uame Of Person@) Or Entity(ies)
Date Of Document
Signer@) Other Than Named Above
590400.5\22062.0026
STATE OF CALIFORNIA 1
3n Iunp &. 19 98 , before me, 3ert-;t- b. U\/o,-,-e 11 , Notary Public,
(Print Name of Notary Public)
personally appeared %L
I- 4 R. Pa&* . personally known to me
-or-
islare subscribed to the within instrument and acknowledged to me that helshelthey
executed the same in hislherltheir authorized capacity(ies), and that by hislherltheir
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
WITNESS my hand and ofticial seal.
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 Individual
0 Corporate Officer
en+- k*m &In+
Title($ Title Or Type Of Dogument "
0 Partner(s) 0 Limited
0 General
0 Attorney-In-Fact
0 Trustee(s)
0 GuardianIConservator
0 Other:
I-L
Number Of Pages
.. h.23,9&
Signer is representing:
Name Of Person@) Or Entity(ies)
Date Of Document
Signer($ Other Than Named Above
590400.5\22062.0026
EXHIBIT A
LEGAL DESCRIPTION
Lots 1 through 4 inclusive of Carlsbad Tract No. 84-7 in the City of Carlsbad, County of San
Diego, State of California, according to map thereofNo. 11391, filed in the Office ofthe County
Recorder of San Diego County, December 17,1985.
Excepting therefrom, all minerals, mineral rights, oil, oil rights, natural gas, natural gas
rights, petroleum, petroleum rights, other hydrocarbon substances, geothermal steam, all
underground water, and all products derived from any of the foregoing, in or under or which may be
produced from the property which underlies a plane parallel to and 500 feet below the present
surface of the property together with the perpetual right of drilling, mining, exploring and operating
therefor and storing in and removing the same from the property or any other land, including the
right to whipstock or directionally drill and mine from lands other than the property, oil, water, or
gas wells, tunnels and shafts into, through or across the subsurface of the property, and to bottom
such whipstocked or directionally drilled wells, tunnels and shafts under the beneath or beyond the
exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen, and operate any such
wells or mines, without, however, the right to drill, mine, store, explore, and operate through the
surface or the upper five hundred (500) feet of the subsurface of the property; as reserved to Daon
Corporation in Grant Deed recorded October 29, 1984, Official Records, Filepage No. 84-407544.
r
590400.5\22062.0026 A- 1
EXHIBIT B
Existing Bond Documents
1. Indenture of Trust between the City of Carlsbad and U.S. Bank Trust National Association,
formerly known as “First Trust of California, National Association”, as Trustee, dated as of
May 1,1993.
2. Loan Agreement among the City of Carlsbad, U.S. Bank Trust National Association, formerly
known as “First Trust of California,National Association”, and La Costa Partners, a California
general partnership, dated as of May 1, 1993.
3. First Deed of Trust and Assignment of Rents and Fixture Filing by La Costa Partners, a
California general partnership, as Trustor, to U.S. Bank Trust National Association, formerly
known as “First Trust of California,National Association”, as Beneficiary, dated as of May 1,
1993, and recordedon May 26,1993, as InstrumentNo. 1993-0332835 ofthe OfficialsRecords
of County of San Diego, California.
4. Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants by
and among the City of Carlsbad, La Costa Partners, a California general partnership, and U.S.
Bank Trust National Association, formerly known as “First Trust of California, National
Association”, dated as of May 1, 1993 and recorded on May 26, 1993, as Instrument
No. 1993-9332734of the Official Records of County of San Diego, California.
5. Developer Note dated as of May 26, 1993 from La Costa Partners, a California general
partnership,to the City of Carlsbad.
6. First Security Agreement dated as of May 1, 1993 by and between La Costa Partners and the
City of Carlsbad.
7. Remarketing Agreement dated as of May 1,1993 by and between La Costa Partners and Dean
Witter Reynolds, Inc.
8. Environmental Indemnity dated as of May 1, 1993 by and among the City-of Carlsbad, La
Costa Partners and U.S. Bank Trust National Association, formerly known as “First Trust of
California,National Association.”
590400.5\22062.0026 B-1
EXHIBIT C
EXISTING BONDS
The undersigned, a duly authorized officer of U.S. Bank Trust National Association (the
“Trustee”), hereby certifies that, to the best of its knowledge:
(1) Neither the Indenture of Trust, the Loan Agreement, Developer Note, nor
the Regulatory Agreement has been amended, modified or rescinded, and each such
agreement remains in full force and effect.
(2) The principal amount of Bonds outstanding under the Indenture is
$15,920,000.
(3) The Trustee is not aware of the existence of any ”Event of Default” (as
respectively defined therein) under the Indenture or the Loan Agreement or the
occurrence of any event or the existence of any condition which, with the giving of notice
or the passage of time, or both, would constitute such an Event of Default. The Trustee
has not received notice from the Bank of an event of default under the Reimbursement
Agreement.
(4) No proceedings have been commenced for the redemption of Bonds or the
conversion of the interest rate on the Bonds from the Variable Rate.
(5) The Developer has filed with the Trustee all certificates and other
documents required to be so filed pursuant to the Regulatory Agreement and the Loan
Agreement.
(6) No amounts are currently due to the Trustee as fees or expenses.
(7) The Trustee consents to the sale of the Project by the Seller to the
Purchaser.
(8) The Administration Agreement has not been amended, modified or
rescinded, and remains in full force and effect and no amounts are due it under the
Administration Agreement.
...
590400.5\22062.0026 c-1
EXHIBIT D
CONSENT CERTIFICATE OF THE BANK
Unless expressly defined herein, all capitalized terms used in this certificate (the "Consent
Certificate") shall have the meanings ascribed to them in the Assignment and Assumption Agreement
(Bond Documents) dated as of June 23, 1998 (the "Agreement") to which this Consent Certificate is
attached. The undersigned hereby consents to the terms of the Agreement and the transfer of the
Project from the Seller to the Purchaser, the assignment to Purchaser of Seller's rights and benefits
under the Existirig Bond Documents and the assumption by Purchaser of Seller's obligations under the
Existing Bond Documents in accordance with the terms of the Agreement.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS'ASSOCIATION
Dated: June23,1998
By:
Its:
590400.5\22062.0026
..
D- 1
EXHIBIT E
CONSENT CERTIFICATE OF THE REMARKETING AGENT
The undersigned, a duly authorized oficer of PaineWebber Incorporated, hereby certifies as
follows:
1. Unless expressly defined herein, all capitalized terms used in this certificate
(the "Consent Certificate") shall have the meanings ascribed to them in the Assignment and
Assumption Agreement (Bond Documents) dated as of June 23, 1998 (the "Agreement") to
which this Consent Certificateis attached.
2. The undersigned hereby consents to the terms of the Agreement and the
transfer of the Project from the Seller to the Purchaser, the assignment to Purchaser of Seller's
rights and benefits under the Existing Bond Documents and the assumption by Purchaser of
Seller's obligations under the Existing Bond Documents in accordance with the terms of the
Agreement.
3. PaineWebber Incorporated is now acting as the Remarketing Agent for the
Bonds pursuant to the terms of the Remarketing Agreement dated as of May 1,1993, which has
not been amended, modified or rescinded and remains in full force and effect. No amounts are
due to it under the RemarketingAgreement.
PAINEWEBBERINCORPORATED
Dated: June23,1998
By:
Its:
590400.5\22062.0026
r
E- 1
..
I
) ) ss.
) COUNTY OF
On A hd d 2 , 59 , before me, bW2 hkkk
personally appeared 0 / r4 PAL
(Print Name of Notary Public)
, Notary Public,
[7 . personally known to me
-or- ’ &are subscribed to the within instrument and acknowledged to me that he/she/they
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature@) on the instrument the person(s), or the entity upon behalf of which the
he instrument.
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER 8 Individual
Corporate Officer ~
0 Partner(s) 0 Limited
0 General
0 Trustee(s)
0 Attorney-In-Fact
0 Guardian/Conservator
0 Other:
Signer is representing:
.. -
Name Of Person@) Or Entii(ies)
DESCRIPTION OF ATTACHED DOCUMENT
a h&l.a,
Title Or Type Of Document
(
Number Of Pages
Date Of Document
Signer@) Other Than Named Above
590400.5D2062.0026
MINUTES
MEETING OF : HOUSING AND REDEVELOPMENT COMMISSION (Special Meeting)
DATE OF MEETING Jnne 23,1998
TIME OFMEETING 6:OO p.m.
PLACE OF MEETING Conncil Chambers
CALL TO ORDER Chairman Lewis called the Meeting to order at 837 p.m.
ROLL CALL
Present:
Absent:
Commissioners Hall, Nygaard, Fitmila, Lewis
Commissioner Kulchin
APPROVAL OF MINUTES:
ACTION: were approved as presented.
On motion by Vice-Chair Finnila, the Minutes of the Special Meeting held June 2, 1998,
w AD?& Lewis, Finnila, Nygaard, I&khiw NQw ABEm
None
Kulchin
CONSENT CALENDU:
ACTION On motion by Vice-Chair Finnila, the Commission affirmed the action of the Consent Calendar, Item #I, as follows:
Lewis, Finuila, Nygaard, Hall
ABSENT:
None
Kulchin
AyEs:
-:
WAIVER OF ORDINANCE TEXT READING
The Commission waived the reading of the text of all Ordinances and Resolutions at this Meeting.
Green AB #301 - AMENDED DOCUMENTS RELATING TO MULTIFAMILY HOUSING REVE Nm 2
The Commission adopted RES0 assignment and assumption agreement and relata actions with respect to the transfer of the La Costa
LUTION NO. Bf, authorizing the execution and delivery of au
Apartments.
AAPARTME .
0249
ADJOURNMENT:
By proper motion, the Regular Meeting of Jnne 23,1998 was adjourned at 8:38 p.m.
Respectfully submitted,
ALETHA L. RAUTENKlWNZ
City Clerk
Sherrie D. Worrell Deputy City Clerk