HomeMy WebLinkAboutContracts & Agreements_5-1998_CCv0001.pdf Re-corded in official Records, County of
San Bernardino, Errol J. M ck um, Recorder
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lx&V4�� Y Doc No . 19980027623
RECORDING REQUESTED BY AND 12 , 39pm01 /27/98
AND WHEN RECORDED, RETURN TO:
*,tie 0 W
City of Redlands First Pmer'u1 11
35 Cajon Street
Suite 200 z5 E1
Redlands, California 92373 PG FEE APF DIMS P cP CRT PY �PPR �PC
Attn: Office of the City Attorney
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0 / zsv car-c TRANSrax I DA CHRG EXAM
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Orange Village Apartments)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement"') is made and entered into this 2nd day of December, 1997, by and between
MASKAN DEVELOPMENT COMPANY, A CALIFORNIA LIMITED
PARTNERSHIP (the "Owner"), and THOMAS TOMANEK and ANGELITA
TOMANEK, husband and wife as community property (jointly, the "New Owner").
RECITALS
WHEREAS, the Owner has financed the acquisition, development and
construction of a multifamily rental housing project located on the real property described
in Exhibit A hereto in the City of Redlands, County of San Bernardino, State of California
and known as "Orange Village Apartments" (the "Project"), through the use of funds made
available by the City of Redlands (the "Issuer") for such purpose through the issuance of
its Variable Rate Demand Multifamily Revenue Bonds, 1988 Series A and Series B (the
"Bonds") in the original principal amount of$8,000,000.00. The proceeds of the Bonds
were loaned to the Owner in accordance with the provisions set forth in, among others,
the following documents:
1. Indenture of Trust, dated as of July 1, 1988, between the Issuer and
Seattle-First National Bank as predecessor to First Trust Washington (the "Trustee"), in its
capacity as trustee for the owners of the Bonds (the "Indenture");
2. Loan Origination and Servicing Agreement, dated as of July 1,
1988, among the Issuer, the Trustee, Redlands Federal Savings and Loan Association as
predecessor to Redlands Federal Bank, a federal savings bank ("Redlands") and the Owner
(the "Loan Agreement"), and the Developer Loan Documents executed pursuant thereto
(the "Developer Loan .Documents");
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FACSINI[LE -ANSMISSION COYER SHEET
RATE: jannary 2I, 1999
PLEASE {S} �I--•--�COVER
DELMR TRE FOLLOWING x PAG-JE
SU EF,T)TO:
.TRIS IS A GROUP T'ItANSMISSION
RIA S: Dan IMcCue,Es .
FIP:MS� gEpI,A,N'DS CTTY ATTY.
FAX NOS•: 9U9 79&7503
0]RkNGE VILLAGE APTS.
RE
understand that the assumption of the Orange
wouldbe
Ct3'Ml�+1ENTS: Dan: We esterday.
roved by the City Council y the authorized
bond financing was
approved a escrow Company,
if you would have the issuer consent $.er tags Y
appreciated Y and have it delayer the escrow
representative for the Cityuite 120, Irvine, CA 92644 for receipt by
January 23, 1.998. NVe are
4410 Barranca Parkway, not later than Friday, documents must
officer, , . Linda Reichel, January 26 and all recording with this
at 8:40 a.m. on Monday, Problem
recording Give me a call if you foresee any
be in hand on the 23`�
request Thank you for your continuing assistance.
sznissiola is legally
prn�ileg�and
information contained in this tzar above'
if she rem of this
CQNFIDEN ALIT 'NOTE* T2� ual s or entitAies)names distribution or
exl Drily for the use of the indivi }aoti that any u dissemination,
confi r )lens,you are e received this trarastnsssaou u3 erz ,please
transmission is not she int ictly Irohibited. If You ess above via the
Wiping of this trap return the original to gas acidr
immediately 1,s by telephone and--tify hank
brated Staff P
If all pages are
spat�y4 Pj .,call(714)955-915fl.
cc: (via facsimile)
Mr.Thomas Tomanek
jefl'rey Rabin,Esq.
Assignment and Assumption Agreement
Page 2
3. Regulatory Agreement and Declaration of Restrictive Covenants,
dated as of July 1, 1988, executed by the Owner, the Issuer and the Trustee (the
"Regulatory Agreement") (the Indenture, Loan Agreement, the Developer Loan
Documents, and Regulatory Agreement are collectively referred to herein as the "Bond
Documents"); and
WHEREAS, the Owner has agreed to sell, convey and transfer to New
Owner the Project, and the New Owner desires to acquire the right, title and interest of
the Owner in and to the Project;
WHEREAS, a sale, transfer and conveyance of the Project by the Owner
requires the consent of the Issuer and Redlands under Section 5.2 of the Loan Agreement
and the consent of the Issuer the Section 10 of the Regulatory Agreement;
WHEREAS, the Issuer and Redlands are willing to consent to the sale,
conveyance and transfer of the Project to the New Owner, provided the New Owner
assumes in full all of the obligations of the Owner under the Bond Documents; and
WHEREAS, in order to induce the Issuer and Redlands to consent to the
sale, transfer and conveyance of the Project to the New Owner and to induce the
assumption by the New Owner of the obligations of the Owner under the Loan
Documents, the parties have agreed to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which is hereby acknowledged, the Owner and the New Owner agree as follows:
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Assignment and Assumption Agreement
Page 3
SECTION 1. ASSIGNMENT AND ASSUMPTION OF OBLIGATIONS• NO
CONFLICT.
The Owner hereby fully and unconditionally assigns to the New Owner all
of its rights, and delegates to the New Owner all of its obligations, in and under each of
the Bond Documents. The New Owner accepts such assignment and hereby assumes all
of the obligations of the Owner in and under the Bond Documents and agrees to perform
all such obligations in accordance with the terms of this Agreement; provided, however,
that such assumption and agreement are limited to the obligations of the, Owner arising on
or after the Effective Date (as hereinafter defined) and shall not include the Owner's
obligations which were required to be performed on or prior to the Effective Date. With
respect to the period commencing upon the Effective Date, the New Owner agrees to be
bound in every way by all of the grants, terms, conditions, and covenants contained in the
Bond Documents and by all of the grants, terms, conditions, and covenants contained
therein as if the New Owner were named as borrower, trustor, debtor or obligor, as
applicable, thereunder.
The New Owner acknowledges and agrees that it holds or will hold title to
the Project, together with all rights and interests appurtenant thereto, subject to the charge,
lien, terms and conditions of the Regulatory Agreement and the deeds of trust of record
securing the Bond Documents, and that the New Owner shall be bound by all of the
terms, conditions and covenants contained therein and herein. Without in any way
limiting the foregoing, the New Owner acknowledges that the Project is subject to the
requirements and restrictions contained in the Regulatory Agreement and that, by its
assumption of the Bond Documents as set forth herein, the New Owner is bound by, and
has agreed to comply with, the requirements and restrictions contained in the Regulatory
Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF NEW-OWNER. The
New Owner hereby represents and warrants to the Issuer, Redlands and the Owner that as
of the Effective Date (as hereinafter defined):
(i) the New Owner are individuals residing in the state of California and have
the capacity and to enter into, execute and perform this Agreement;
(ii) the New Owner has the power and authority to (a) acquire the Project and
operate the Project in compliance with and as contemplated under the Bond
Documents, and (b) execute and deliver this Agreement and carry out the
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Assignment and Assumption Agreement
Page 4
obligations which are being assigned to and assumed by them under the
Bond Documents;
(iii) the execution, delivery and performance of this Agreement have been duly
authorized by all necessary action and proceeding by or on behalf of the
New Owner;
(,.v) this Agreement and the Bond Documents constitute the legal, valid and
binding obligations of the New Owner, enforceable against the New Owner
in accordance with their respective terms, except to the extent that the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(v) neither the execution and delivery of this Agreement nor the fulfillment of
or compliance with the terms and conditions of this Agreement or the Bond
Documents does or will conflict with or result in any breach or violation of
(a) any law applicable to or binding upon the New Owner or (b) any
judgment or court order applicable to or binding upon the New Owner.
(vi) the property management firm engaged by the New Owner has at least three
years' experience in the ownership, operation and management of income
rental housing projects similar to the Project without any record of material
violations of discrimination restrictions or other state or federal laws or
regulations applicable to such projects; and
(vii) there presently exists no fact (financial or otherwise) unique to the New
Owner which would make the New Owner incapable of complying in all
material respects with or discharging all of its obligations under either the
Loan Documents or the Subordinate Loan Documents.
SECTION 3. REPRESENTATIONS,.AND WARRANTIES OF,.QMTNER. The Owner
hereby represents and warrants to the Issuer, Redlands and the New Owner that as of the
Effective Date:
(i) there are no defaults or events that, with the passage of time or the giving
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Assignment and Assumption Agreement
Page 5
of notice, would constitute an Event of Default under the Bond Documents;
(ii) all provisions of the Bond Documents are unmodified and remain in full
force and effect;
(iii) he has fully power and authority to enter into this Agreement, and this
Agreement is binding upon the Owner in accordance with its terms.
SECTION 4. CONDITIONS PRECEDENT.
Subjectto compliance with the conditions listed below, the execution and
the recordation of this Agreement in the Official Records of San Bernardino County
evidence the satisfaction of all conditions precedent to the Owner's obtaining of the
Issuer's consent to the transfer of the Project to and the assumption by the New Owner of
the Owner's obligations under the Bond Documents. The execution of the Consent of
Redlands shall evidence the satisfaction of all conditions precedent to the Owner's
obtaining of the Redlands' consent to the transfer of the Project to and the assumption by
the New Owner of the Owner's obligations under the Bond Documents, subject to
compliance by the New Owner of each of the following:
(i) the receipt by the Issuer, the Trustee and Redlands of an opinion of
legal counsel to the New Owner in form and substance acceptable to the Issuer and
Redlands;
(ii) the receipt by the Issuer of an opinion of Bond Counsel to the effect
that the sale and transfer will not, in and of itself, adversely affect the exclusion
from gross income for purposes of federal income taxation or State of California
personal income taxation of interest on the Bonds; and
(iii) evidence that the sale or transfer will not cause a reduction in the
current rating on the Bonds maintained by the Rating Agency.
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Assignment and Assumption Agreement
Page 6
SECTION 6. MISCELLANEOUS
A. Continuing Liability of Owner. Notwithstanding the consent by
the Issuer and Redlands to the sale, transfer and conveyance of the Project to the New
Owner, and the assumption by the New Owner of all of the Owner's obligations under the
Bond Documents, the Owner shall remain liable to the Issuer, the Trustee and Redlands
for the performance of its obligations under the Bond Documents with respect to the
period beginning August 18, 1988 and ending on the Effective Date (the "Owner's
Holding Period") and for any claims, demands, losses, liabilities or causes of action
arising under the Bond Documents out of any act or omission of the Owner during the
Owner's Holding Period. Furthermore, the Owner agrees to pay, defend, protect,
indemnify, save and hold harmless the New Owner against any and all liabilities, losses,
damages, costs, expenses (including attorneys fees), causes of action (whether in contract,
tort or otherwise), suits, claims, demands and judgments of any kind, character and nature
caused by or directly or indirectly arising from or in any way relating to the breach,
default or violation by the Owner of the Owner's obligations under the Bond Documents
during the Owner's Holding Period.
B. Effective Date. This Agreement shall become effective on the date
(the "Effective Date") on which this Agreement is recorded in the Official Records
provided that fee title to the Project is transferred to the New Owner by grant deed
recorded in the Official Records.
C. No Further Consents. This Agreement, upon becoming effective,
will satisfy all requirements of consent by the Issuer and Redlands imposed by the Bond
Documents in connection with the transfer and assumption contemplated hereby..
D. Notice. The New Owner notifies the Issuer, the Trustee and
Redlands that the New Owner's address for receipt of notice under the Bond Documents is
as follows:
Mr. Thomas Tomanek
TOMANEK INTERNATIONAL COMPANY
26601 Durham Way
Hayward, CA 94542
With a copy to (which copy shall
not constitute notice to the New Owner):
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Assignment and Assumption Agreement
Page 7
Bret H. Reed, Jr.
A Law Corporation
1300 Dove Street, Suite 200
Newport Beach, CA 92660
E. Construction. This Agreement and all related documents shall be
deemed to be contracts made and delivered in the State of California and shall be
governed by and construed in accordance with the laws of the State of California.
F. Attorneys' Fees. In the event of any dispute, mediation, arbitration
or litigation concerning the enforcement, validity or interpretation of this Agreement, or
any part hereof, the nonprevailing party shall pay all costs, charges, fees and expenses
(including reasonable attorneys' fees and disbursements) paid or incurred by the prevailing
party, regardless of whether any action or proceeding is initiated relative to such dispute
and regardless of whether any such litigation is prosecuted to judgment. For the purpose
of this Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean the
fees and expenses of counsel to the parties hereto, which may include printing,
photocopying, duplicating and other expenses, air freight charges, and fees billed for law
clerks, paralegal, librarians and others not admitted to the bar but performing services
under the supervision of an attorney.
G. Execution in Counterparts. This Agreement may be executed and
acknowledged in counterparts, all of which executed and acknowledged counterparts shall
constitute but one and the same instrument. Signature and acknowledgment pages may be
detached from the counterparts and attached to a single copy of this document to
physically form one document, which may be recorded.
H. No Further Modifications. All other terms and conditions of the
Bond Documents are expressly reaffirmed as if set forth in their entirety herein and shall
remain unaffected, unchanged and unimpaired by reason of the transfer, except as
expressly set forth in this Agreement.
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Assignment and Assumption Agreement
Page 8
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
OWNER: MASKAN DEVELOPMENT COMPANY, A
CALIFORNIA LIMITED PARTNERSHIP
By:
Ali Shashani, General Partner
By:
Mary M. SHshani, Trustee fiof Shashani Family
General tner st dtd 2-1194
NEW OWNER: By: �.-
omas Tolanek
By:
g to mnek
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Assignment and Assumption Agreement
Page 8
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
OWNER: MASKAN DEVELOPMENT COMPANY, A
CALIFORNIA ITER PARTNERSHIP
By: .
A i Sh 1, eneral Partner
NEW OWNER: By:
Thomas Tomanek
By:
Angelita Tomanek
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Assignment and Assumption Agreement
Page 9
State of California }
}
County of }
On -3-40 4\ , 19_±L, before me,
Notary Public, personally appeared All
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are 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 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.
WITNESS my hand and official seal.
•`�' • LARRY COPENRARGE
Signaturl _ : ecllissio #1Q45251
Notary Public-Caiiiomia
ORANGE COUNTY C�3
ltu!}`Commission Expires
14OVEMBER 2o, 1998
(seal)
State of California }
}
County of }
On , 19 , before me, , a
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are 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 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.
WITNESS my hand and official seal.
Signature
(seal)
-9-
971126 jar e675-2.jar
Assignment and Assumption Agreement
Page 9
State of California }
County of A }
On , 19 ; before me, _, a
Notary Public, personally appeared ,� k c�&,
., -C, Vvc,%
proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in hider/their authorized
capacity(ies), and that byhis/her/their 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. q�r.qp. y �``N{iyi (p`n� ��yy
G. MUNSOI V
Comm #1126863 �q
` NOTARY PUBLIC-`CALIFORNiAL6
Signature a y � v Exp Feb' ALAt1NTY {}
o�, Gomm Exp Fis 2001
(seal)
State of California }
}
County of }
On , 19 , before me, , a
Notary Public, personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are 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 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.
WITNESS my hand and official seal.
Signature
(seal)
-9-
971126 jar e675-2.jar
fi
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Calif ornia
,=4=
County of Los Angeles -- —
On 1-26-98 before me, Kellie A. Jarboe, notary Public 2.
'( Date --- Name and Ti>_cOffce .,j_"Jane Doe.Nota ublic"
personally appearedMary M. Shashani
arae;._,-of;ig,ner(s�
OR- x' proved to rise o the basis of satisfactory evidence to be the person(x" f
whose :name(sb iskxe
} me E that
gibe to'the within inst,urnegnt
tr and kn�?'r`+d'IeC�C,�e"�.€ tor.t S€m 3✓I� executed the '}
same it / er'Aauthorized capacity( „ arid that by
�: her xsignat re ) o�g the instrument the person(},
��. A.Jarboe
Comm- ur ; or t; r:`styupon behalf o ` Slh tie person{ acted;
r , � OT
tt - r�z ?LOS A-ArGELES COUNTY
executed theinstrument,
'
instrint,
� ���P_. Comm-cxptiz"SWL S 1993
WITNESS y hand ars H5-fiffic i seal.
r
S,gnaTure of Nolary Pub.
OPTIONAL
Though the information be/ow is not required bylaw. it may prove valuable to persons reelying on fne document and could prevent
fraudulent removal and reattachment of,his farm to another document.
Description of AttachedDocument
�f
?
Title or Type o Document: Assignment and Assumption Agreement
�.3
>_
Document Date. December 2, 1997 Number of Pages:
v
Signer(s) Offer Than Named Above.
{` it _ nes
Signer's Name: ' Signer's Name: —.
Individual Individual �;
..' Corporate Officer Uorrorate Officer
T itlo( Titles :
x 'arty er Limited __x General Partner i nett d _ General
Attorney-ire-FactAttorney-in-Fact
x Trustee Trustee
t
Guardian or'Conservator Guardian or Conservator
Other r Other: Too
r�
ri
Signer Is Representing: Signer Is Representing,
r
1
0:995 Na.o Sal Nota/Assoc'elum>8236 Remme.Ave.,PO Box 7,84.i C anotia Pa,,k..U.A 91309-7184 NY,ci.No,5907 Rez rhe=-tip. -Fres-80j-876-6827
CONSENT OF ISSUER (CITY OF REDLANDS)
Pursuant to Section 5.2 of the Loan Agreement and Section IQ of the
Regulatory Agreement, and in consideration of the foregoing assignment by the Owner
and assumption by the New Owner, the undersigned hereby consents to such assignment
and to the transfer of the Project to the New Owner.
Dated as of January 20, 1998.
CITY OF REDLANDS
By:
ame: William E, nni am
Title: Mayor
ATTEST:
Lorrie Poyzer,
City f Redlands
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971126 jar e675-2.jar
AL1,;-P E ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF SAID BERNARDINO SS
CITY OF REDLANDS �
By the authority granted under Chapter 4, Article 3, Section 1181, of the California Civil Code,
and Chapter 2, Division 3, Section 40814, of the California Government Code, on January 20,
1998, before me, Beatrice Sanchez, Deputy City Clerk, on behalf of Lo .e Poyzer, City Clerk of
the City of Redlands, California., personally appeared 'William E. Cunningham and Lorne Poyer
{ X} personally known to me - or - I } proved to me on the basis of satisfactory evidence to
be the persons whose names) are-subscribed to the within instrument and acknowledged to me
that they executed the same in their authorized capacities and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons.acted, executed the
instrument,
° iWITNESS my hand and off .
LORRIE POYZER, CITY CLERK
s
By
Beatrice Sanchez, Deputy City Clerk
it (909)798-7531
CAPACITY CLAIMED BY ICNER( )
{ Individual(s) signing for oneself/themselves
Corporate Officer(s)
Title(s)
Company
Partner(s)
Partnership
Attorney-In-Fact
Principal(s)
Trustee (s)
Trust
xl tither
Title(s) Layer and City Clerk
Entity Represented .t cif Rgd1ands,,.... —Cajjf—ornia
THIS CERTIFICATE UST BE ATTACHED TO TIME DOCUMENT DESCRIBED BELOW:
Title or Type of Document: Assignment & Assumption. Agreement
Number of Pages : 14 Date of Document: December 2, 1997
Signer(s) Cather Than. Named Above: Maskan Development Company, Thomas and Angelita
Tomanek, and Redlands Federal Bank
CONSENT OF REDLANDS
Pursuant to Section 5.2 of the Loan Agreement and the provisions of the
reimbursement and collateral security documents between Redlands and Owner, which are
being assumed by the New Owner pursuant to and in accordance with a separate
assumption agreement between Redlands and the New Owner, and in consideration of the
foregoing assignment by the Owner and assumption by the New Owner, the undersigned
hereby consents to such assignment and to the transfer of the Project to the New Owner.
Dated as of January 2#A998.
REDLANDS FEDERAL HAMK, a federal
savings bank
By: LAO-
Name: iydia orrantia
Title: Vice President
M109 jar e67544ar
State of California }
}
County of-San Berm d;rio }
On January 9th __, 197 , before me, Anniarie Nomad , a
Notary Public, personally appeared Lydia Orranti.a
personally known to me
tee} to be the person(s) whose name(s) is/,am subscribed to the within instrument and
acknowledged to me that hWshelfty executed the same in his/herft r authorized
capacity(ics), and that by histherhdseir signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(t) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ANWMAMMEAD
112?
No
t
(seal) SM BwKgdw Coto*
480108 jar eMS-3 jar
EXHIBIT A
LEGAL DESCRIPTION OF THE LANA}
All that certain real property, together will all appurtenances thereto and all
improvements now or hereafter located thereon, situated in the City of Redlands, County
of Sari Bernardino, State of California, and described as fellows:
Parcel 3 of Parcel Map No. 9105, as per plat recorded in Book 95 of Parcel'
Maps, Pages 98 and 99, Records of said County
Project Name: Orange Village Apartments
Project Address:
A.P. No(s): 167-151-24
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