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96-36. � RESOLUTION NO. 96-36 '� A RESOLUTION AUTHORIZING AND RATIFYING THE FORM OF ASSUMPTION AGREEMENT; AUTHORIZING EXECUTION THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, by Ordinance No. 5256-92, enacted by the City on August 13, 1992, the City authorized the issuance of its not to exceed $6,a50,000 Mortqage Revenue Refunding Bonds, Series 1992A (FHA Insured Mortgage Loan - Drew Gardens Apartments) (the "Bonds"), which Bonds were issued in the principal amount of $3,425,000 pursuant to Resolution No. 92-54, adopted on August 13, 1J92, and WHEREAS, in connection with the issuance of the Bonds, the City caused to be delivered and re�orded against the financed project (the "Project"), that certain Supplemental Regulatory Agreement as to Tax Exemption (the "Requlatory Agreement"); and WHEREAS, the Regulatory Agreement requires that the City approve the form of Assumption Agreement in connection with a transfer of ownership oP the Project; and WHEREAS, Drew Garden Associates Limited, a Florida limited partnership, the current owner of the Project desires to transier the ownership of the Project to Clearwater-Park Associates, L.P., a Ca].ifornia limited partnership, and in furtherance thereof, has submitte$ an Assumption Agreement, the form of which is attached hereto as Exhibi� A, to the City and to the United States Department of Tiousing and Urban Develapment (HUD) for approval.. NOW� THEREFORE, BE YT RE5b�V�b BY �HE C�TY COMMZSSZOt� C7�' TH� CiTY t�F CLEARYi1��`ER, �s �'tr�.lo�se ��1� ��`�'�� ,, �`�:,SECTION 1. The form of Assumption Agreement (the "Assumption 'r�; ` Agreement") in substantially the form attached hereto as Exhibit :- : "A" is hereby approved, and the Mayor, the City Clerk and the Ci�y � Attorney, or any other authorized officers of the City, are hereby authorized and directed to execute and deliver the acknowlec2gment to the Assumption Agreement on behalf of and in the name of the City, with such additional changes, insertions and omissions therein as may be otherwise made and approved by the said officers of the City executing the same, such execution to be conclusive evidence of such approval. SECTION 2. The Mayor, City Clerk and City Attorney are hereby authorized and directed to execute any and all certifications or other instruments or documents required by the Assumption Agreement and any representation made therein shall be deemed to be made on behalg of the City. SECTION 3. This resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED by the City Commission of the City� of Clearwater, Florida, this 1 th day of May , 1996. (SEAL) CIT OF CLE RWATER, FLORIDA ,. s. . ATTEST: . Mayor � C� Gre��. G3ty e k APPRO't7ED A5 TO FORM AND CO CTN S: ,�� City At� rney z �� EXTiIBIT "A" FORM OF ASSUMPTION AGREEMENT � /�, � � � � N r .--�. ASSUMPTION AGREEMEN'1' _--� THIS ASSUMPTION AGREEMENT (the "Assumption Agreement") is entered into this day of 1996 between (i) CLEARWATER-PARK ASSOCIA'�'ES, L.P., a California limited partnership (the "Owner"), owner of the property covered by the First Mortgage (as hereinafter defined) and the Second Mortgage (as hereinafter defined), (ii) Continental S�urities Corp. ("Condnental Securities"), the holder of that ceriain Mortgage Note dated October 12, 1983, in favor of Bank One, Columbus, NA, as Trustee ("Bank One"), in the ori$inal princigal amount of Six Million Ninety-Four Thousand Nine Hundred Dollars ($6,094,9�U. W), as thereafter assigned to the Secretary of the Department of Housing and Urban Development ("HUD") on July 14, 1992, and reassigned to Bank One on August 18, 1992, and thereafter anmdi�ied by that certain Modification of Mortgage Note and Mortgage dated August 1�, 1992 (coll�ctively, the "Senior lVote"), which indebtedness is secured by that certain �ortgage dated �cfober 12, 1983 in favor of Bank One, which is recorded in Book 5622, page 128, Officia� �es.c�rds of Pinellas County, Florida, as assigned to HUD by virtue of that certain Assignment of Mortgage dated July 14, 1992, which is recorded in Book 7969, page 1638, Official Records oP Pinellas County, Florida, as reassigned to Bank One by virtue of that certain Reassignment of IVlortgage ATote and Id�ortgage dated August 18, 1992, which is recorded in Boflk 8002, page 1195, Official Records of Pinellas County, Florida, and thereafter modified by that certain Malificadon of Mortgage Note and Mortgage daied August 18, 1992, which is recorded in Book 8002, page 1199, Official Records of Pinellas County, Florida, (collectively, the "First Niortgage") and (iii) HUD the holder of that certain Second Mortgage Note datecl August 1$, 1992 in favor of HtTD, in the original principal amount of Three Million Four ��.�rrt�'t.c�t�t 1 {nr�a 1��iu��n �� -� �, Hundred Fifteen Thousand Five Hundred Twenty Eight Dollars and T�enty Five Cents ($3,415,528.25), as modifed by thatcertain Modificadon to Second Mortgage Agreements dated , 1996 (collectively, the "Junior Note"), which indebtedness is secured by that Second Mortgage dated August 18, 1992 in favor of HUD which is recorded in Baok 8002, page 1230, Official Records of Pinellas County, Florida, as modified by that certain Modification to Secand Mortgage Agreements dated , 1996 (collectively, the "Second Mortgage"). T'he First Mortgage and the Second Mortgage both relate to the reat property described in Exhibit "A" hereto and any improvements constructed thereon, cunently known as the Pazkview Retirement Residence, a 180 unit congregate living facility in Clearwater, Pinellas Covnty, Flozida (the "Project"). The Senior Note and the Junior Note shall sometimes be referred to collectively herein as the "Notes," and the First Mortgage and the Second Mortgage shall someiimes be r�fened to collecdvely herein as the "Mortgages." WITNESSET�i: �n consideration of the consent of �IUD eo the transfer of the Property to the Owner, and in order to camply with the requirernents of HL7D, the National Housing Act, and the Regularions adopted pursuant thereto, the Owner agrees to assume, except as limited below, and � be bound by said Notes and Mortgages, and that certain Regulatory Agreement dated Qctober 12, 1983 by and among the City of Clearwater ("issuer"), Bank One and Drew Gardens, Ltd. a Florida limited partnership ("Seller"), which Regulatory Agreement is recorded in Book 5622, page 133, Official. Rec,�rds of Pinellas County, Florida, as amended by that certain Supplem�ental Regulatary Agreement as to Tax Exemption dated as of August 1, 19�2, by and arnong �ssuer Bank One and Seller, which agreement is recorded in Book 8002, page I210, Official Records xsru�i«�a.ussit�r.c�x 2 uima �1�� ,r,� '� of Pinellas County, Florida (collecdvely, the "Regulatory Agreement"). The Notes, the Mortgages and the Regulatory Agreement shall sometimes be referred to collectively herein as the "Loan Documents." The Owner does not assume any personal liability for payments due under the Notes or the Mortgages, or for the payments to the reserve for replacements under the Regulatory Agreement, or for matters not under its control, provided that the Owner shall remain liable under said Regulatory Agreement only with respe.�t to the matters hereinafter stat�, namely: (a) for funds or property of the Project coming into its hands which, by the provisions thereof, the Owner is not entitled to retain; and (b) for the Owner's own acts and deeds or acts and deeds of others which it has expressly authoriz�d in violation of the provisions thereof. The O�vner is to he bound by the Notes, the Mortgages and the Regulatory Agreement, subject to the limitations of personal liability set forth herein, from the date of this Assumpiion Agreement to the same extent as if iY had been an original party to said instrument�. The outstanding principal balances of the Senior Note and the Junior Note are $ �d $ , respectively, as of the date hereof. Owner further releases Seller from all payment obligations in connection with the above, and upon the reasonable written request of Seller, agrees to execute all documents reasonably requested by Seller in order for Continental Securities and HUD to release Seller from Seller's obligations in connection wiih the above. Owner agrees that there shall be full compliance with the provisions of (1) any laws pralubiting discrimination in housing on the basis of race, calor, creed or national origin; �nd , (2) the Regutations of the Federal Housing Administration providing for nondiscrimination and �tav�.v►ssu�rtr.ccx 3 tr.trsa ��i�ri�� '� °�� ,�.y - , � equal opportunity in housing. It is understood and agreed that failure or refusal to comply with any such provisions shall be a proper basis for the Secretary to take any corrective action he may deem necessary, including, but not limited to, the rejecdon of future applications for FHA mortgage insurance and the refusal to enter into future contracts of any kind with which the Owner is identified; and further, the Secretary shall have a similar right of corrective action (1) wiYh respect to any individuals who are officers, directors, principal shareholders, trustees, managers, genera� partners ar associates of the Owner; and (2) with respect to any corporation or any other type of business association or organizadon with which the officers, directors, principal shareholders, trustees, managers, general partners or associates of the Owner may be identified. I�TOTWI�S'TANDING A1�IYTHING TO THE CONTRARY CONTAIlOTED �iEREIN 0�2 I1�1 ANY OF T��E �.(DAN DOCUMENTS, �'I�YE LO�,NS EVIDENCED BY TgiE NOTES (�E f°I,OANS°9) i�VYI.L BE NON-I2ECOURSE AS T'O THE BOIdItOWElt, � �OItPZ�WER'S G�.I`TERAL PAItTNEit, BO�tROiWER'S LIlVIITED I'ARTNEILS, t�ND THE OFFICEiiS, SHAItEHOLD�RS, AND D�CTORS OF THE BO�OVYE�'S GENERt�L PARTNER (COLLECTIVELY, TIiE "NON-RECOURSE PAItTIFS"). Notwithstanding anything to the contrary herein, in the Notes or in any of the other Loan Documents, the liability of the Non-Recourse Parties for the payment of principa� and interest and agreed charges, and the observance and performance of all of the terms, covenants and conditions and provisions of the Notes and or any of the other Loan Documents against the property, assets, or funds of the Non-Recourse Parties, other than the collateral and the proceeds thereof. It is expressly understood and agreed, however, that nothing contained in this paragraph shall in any manner or ways constitute or otherwise affect or impair the enforceability �cs.v��,w;d.�ssttr�r.c�.� 4 anrss �.�.sY�lcL�il�n q� 3� �. ' against the Non-Recourse Parties of the liens, mortgage, assignments, rights, and security interesfs cre�ated by mortgage or any other agreement evidencing, securing, or reladng to the Loans. Nothing in this paragraph shall: (a) preclude Continental Securides or HLTD from foaeclosing ihe lien of the Loan Documents or from enforcing any of its rights or remedies, at law os in equity, against the Non-Itecourse Parties or their assets except as stated in this paragraph; (b) impair, in any manner, any right, remedy or recourse Continental Securities or HUD may l�ave against any party executing a guaranty or indemnity; (c) imgair, in any manner, any right, remedy, or recourse Continental Securities or HUD may have against a party, other than the Nan-Recourse Parties, pursuant to the terms of any of the Loan Documents; (d) impair, in any manner, any right, remedy or recourse Contin�ntal Securities or HUI� may have against a party, including the Non-ltecourse Parties, for intentional misrepresentafion, fraud or intentional waste, or xesulting from the misapplication of condemnadon or insuranc� groceeds. x�rit�;e�v,ssur,�r.ct.a 5 anr� �.�lu.�i�n qb�� _ .-. .�-. IN WITNESS VVkiEREOF, Owner Continental Securities and HUD have executed this Agreement as oP the date first set forth above. CLEARWATER-Pt1RK ASSOCI�►TES, L.P., a California limite�i partz�ership �y; IC & Y Investments, Inc., a California corporation, Generat Partner By: Gary ICading, Fi`esident CONTII�TENT�4L SECURITIES, CORP. By: U.S. I��PARTMEN'i' QF HOUSIIdG AND LTRI3AN 1�EVELOPMEI�IT �y: � xsv�r�;e.ussu�r.ct.n 6 4/3196 �eso�t�-fibn ��--t31� � State of Galifornia CounEy of i,os Angeles �, �n (date), before me, the undersigned, a Notary Public for the state, personally appeared (subscribing witness's name), personally known to me (or proved to me an the oath of [credible �itness's name] who is personally known to me) to be the person whose name is subscribed to the within instrument, as a witness thereto, who, being by me duly sworn, deposes and says that he/she was present and �w (name of principal), the same person describc�i in and �Whose name is subscribed to the within and annexed instrument a�s a party theretc�, execute the sa�►e, and that said affiant subscribed his/her name to the within instrument a.s a witn�ess at the rec�uest of (name of principal). (signature of Notary) (Seal of Notary) State af ) ) County �f _ _ ) On (date), before me, the undersigned, a Notary Public for the state, gersonally appeared (subscribing witness's name), gersonally known to me (or proved to me on khe oath of [credible witr�ess's name� who is gersanally lrnown to me) to be the person whose name is subscribed to khe within instrumene, as a witness thereto, who, being by me duly sworn, deposes and sayc that he/she wras present and saw (name of principal), the same person described in and whose name is subscribed to the within and annexed instrument as a party thereto, execute the same, and that said affiant subscribed his/her name to the within instrument as a wimess at the request of (name of principal.). (signature of Notary) (Seal of Notary) �-esalulion 9�—�� R'^� State of ) ) County of ) �n (date), before me, the undersigned, a Notary Public for the state, persanally appeared (subscribing witness's name), gersonally known to me (or proveai ta m� on 4�►e oath of [credible witsiess's name] who is persanally lrnown to me) to be the person whose name is subscribed to the within instrument, as a witness Ehereto, who, being by me duly swom, deposes and says that he/she was present and saw (name of principal), the same person described in ansl whoss name is subscribed io the within and annexed instrument as a garty ther�t�, execute ehe s�m�, and tha2 said �ffiant subscribed his/her name to the within instrument as a watness at the request of (name of principal). (signature of Notary) (Seal of Notary) ��'�lu�ton �'� �-�� °"� � ^NSENT AND APPROVAL OF ISSUER The City of Clearw+ater, Florida ("Issuer"), hereby consents ta the above Assumption f�greement and approves the sale of the Project from the 5eller to the Owner. CITY OF CLEARWATER, FLORIDA By: Mayor-Commissioner �,.TTE��t �y: �'ity �lerk A�FI�OVED AS TU FORM: City �ttc�mey STA'T� OF ]FLOItIDA C�'UNTY OF PINELLAS � The foregoing Consent and Approval of Issuer was acknowledged before me this �y og , 1996 by , Mayor of th� City oi Clearwater, Florida, who is personally knawr� to me or who. has produced as identificadon and who did (did not) take an oath, who executed the within Consent and Approval af Issuer and acknowledged that he did such on behalf of the City of Clearwater, Florida. My cammission expues: (Official Notarial Seal) . Notary Public State and County aforesaid 1��lu.�n �6�--� � ,� �QNSENT OF HUD The U.S. D�partment of Housing and Urban Development ("HUB") hereby consents to the above Assumption Agreement and approves the sale of the Project from the Seller to the Owner. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT By: I�ISTRICT �F COLUMBIA The foregoing Coasent oP HUD was acknowledged before me this day of , 1996 by , as of the U.S. Degartment of Housing and Urban Development, who is personally known to me or who has pr�u� as identification and who did (did not) take an oath, who ex�uied the within Cons�nt of HUD and acknowledged that he did such on behalf of the LT.S. i�epartmernt of I�i�using and Uahan Development. 1►�y cr�mmission expires; Notary Publia (63fiicial TIotarial Seal) State and County aforesaid ��'alu��idn R� �.�� nN�ENT AND APPROVAL OF TRUSTEE 0 Bank One, NA, as Trustee ("TRUSTEE"), hereby consents to the above Assumption Agreement and approves the sale of the Project from the Seller to the Owner. BANK ONE, COLUMBUS, NA, as Trustee By: � STA'TE QF CAi.IFO1tNIA COU�'TY OF The foregoing Consent and Approval of Issuer was acknowledged before me this day of , 1996 by , as of Bank One, Columbus, IoTA, who is personally known tome or who has produced as identification and who did (did not) take an oath, who executed the weithin Consent and Assignment and acknowledged that he did such on behalf of Bank One, Columbus, 1�TA. My commission expires: Notary Public (Official2doiarial Se.�lj State and County aforesaid /�es��u�ion �6 �'��