AMENDMENT TO LAND USE REGULATORY AGREEMENT
By and Among
PULASKI COUNTY PUBLIC FACILITIES BOARD
As Issuer
and
UMB BANK & TRUST, N.A. (formerly known as STATE STREET
BANK AND TRUST COMPANY OF MISSOURI, N.A.)
As Trustee
and
BARRINGTON HILLSACQUISITION, L.L.C.
As Substitute Borrower
and
WATERTON RAINTREE, L.L.C.
As Borrower
Dated as of November 14, 2001
Relating to
Pulaski County Public Facilities Board
Multifamily Housing
Revenue Refunding Bonds
(Barrington Hills Apartments Project)
Series 1999
Prepared by
Xxxxxx,Xxxxxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
AMENDMENT TO LAND USE REGULATORY AGREEMENT
THIS AMENDMENT TO LAND USE REGULATORY AGREEMENT (this "Agreement" or this
"Regulatory Agreement") is made and entered into as of November 14, 2001 by and
among the PULASKI COUNTY PUBLIC FACILITIES BOARD, a public body politic and
corporate under the laws of the State of Arkansas (the "Issuer"), and UMB BANK &
TRUST, N.A. (formerly known as STATE STREET BANK AND TRUST COMPANY OF MISSOURI,
N.A.), a national banking association, (the "Trustee"), WATERTON RAINTREE,
L.L.C., a. Delaware limited liability company (the "Borrower"), and BARRINGTON
HILLS ACQUISITION L.L.C., a Missouri limited liability company (the "Substitute
Borrower").
WITNESSETH:
WHEREAS, Issuer is a duly organized and existing public body politic and
corporate, created pursuant to the provisions of the "Public Facilities Board
Act," Arkansas Code Annotated ss. 00-000-000, et seq. (Repl. 1998) (the "Act")
and Ordinance No. 92-OR-26, as amended by Ordinance No. 92-OR-33 of the
Ordinances of Pulaski County, Arkansas (collectively, the "Authorizing
Ordinance"), authorized to issue its bonds to finance and refinance the
purchase, construction, renovation, improvement and equipping of residential
housing for persons of low and moderate income; and
WHEREAS, the Issuer issued its $19,000,000 Pulaski County Public Facilities
Board Multifamily Housing Revenue Bonds (Little Rock Residential Care Center
Project), Series 1998 (the "Prior Bonds"), a portion of the proceeds of which
was allocated to refinance the acquisition and renovation of a multifamily
housing project located in the County of Pulaski, State of Arkansas and commonly
referred to as the Barrington Hills Apartments (the "Project"); and
WHEREAS, in furtherance of the purposes of the Act, the Issuer issued its
$6,100,000 Multifamily Housing Revenue Bonds (Barrington Hills Apartments
Project) Series 1999 (the "Bonds") to refund that portion of the Prior Bonds
allocated to the Project and loan a portion of the proceeds from the Prior Bonds
(the "Loan") to the Borrower to refinance the acquisition and renovation of the
Project, to establish a credit enhancement reserve fund, and to pay a portion of
the costs of issuance of. the Bonds: and
WHEREAS, in order for interest on the Bonds to be excluded from gross
income for federal income tax purposes under the Internal Revenue Code of 1986,
as amended (the "Code"), and the income tax regulations (the "Regulations") and
rulings with respect to the Code, the use and operation of the Project has been
restricted in certain respects; and
WHEREAS, the Issuer, the Trustee and the Borrower previously entered into a
Land Use Regulatory Agreement dated as of July 1, 1999, and filed of record with
the Pulaski County Circuit Clerk on July 28, 1999, as document number 99060975
(the "XXXX") in order to sot forth certain terms and conditions relating to the
financing, improvement and equipping of the Project and in order to ensure that
the Project will be used and operated in accordance with the Code and the
Regulations; and
WHEREAS, the Substitute Borrower has agreed to purchase the Project from
the Borrower and assume all of the Borrower's obligations under the XXXX and the
other related bond documents;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Issuer, the Trustee, the
Substitute Borrower and the Borrower hereby agree as follows:
Section 1. Definitions and Interpretation. All terms not defined herein shall
have the meaning given to them and set forth in the XXXX. Unless the context
clearly requires otherwise, a used in this Regulatory Agreement, words of the
masculine, feminine or neuter gender shall be construed to include each other
gender and words of the singular number shall be construed to include the plural
number, and vice versa. This Regulatory Agreement and all the term and
provisions hereof shall be construed to effectuate the Purposes set forth herein
and to sustain the validity hereof. The titles and headings of the sections of
this Regulatory Agreement have been inserted for convenience of reference only,
and are not to be considered a part hereof and shall not in any way modify or
restrict any of the terms or provisions hereof or be considered or given any
effect in construing this Regulatory Agreement or any provisions hereof or in
ascertaining intent, if any question of intent shall arise.
Section 2. Assumption of Obligations. The Substitute Borrower hereby assumes all
of the duties and obligations of the Borrower set forth in the XXXX in
accordance with its terms and conditions. The Substitute Borrower represents and
warrants that it shall operate the Project in accordance with the provisions of
the XXXX and agrees to abide by and be bound by all the terms of the XXXX, all
as though the XXXX had been made, executed and delivered by the Substitute
Borrower. As a result, the Borrower shall be relieved from all obligations under
the XXXX as of the date of this Agreement and the Substitute Borrower shall be
substituted for the Borrower in all respects with regard to the XXXX, provided
however, that the Borrower shall be liable for the breach or default of any
obligation of the Borrower under the XXXX or that certain Financing Agreement
dated as of July 1, 1999 (the "Financing Agreement"), occurring prior to the
date of this Agreement, as provided in Section 6.3 of the Financing Agreement.
Section 3. Limited Modification. Except as expressly modified hereby, the XXXX
shall remain in full force and effect and this Agreement shall have no effect on
the XXXX other than the substitution of the Substitute Borrower for the
Borrower.
Section 4. Consent to Assumption. Issuer, Trustee and Borrower hereby consent to
the assumption by the Substitute Borrower of all of the obligations of the
Borrower under the XXXX.
Section 5. Release of Borrower. Issuer and Trustee hereby release Borrower. from
all of its obligations under the XXXX, provided, however, that the Borrower is
not released from any liability or ob4adons in the XXXX that relates to the
period prior to the date hereof.
Section 6. Notices. The Substitute Borrower's address for notice, hereunder and
the XXXX is:
Substitute Borrower: Barrington Hills Acquisition, L.L.C.
c/o Maxus Realty Trust, Inc.
000 Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx, XX 00000
Section 7. Multiple Counterparts. This Regulatory Agreement may be
simultaneously executed in multiple counterparts, all of which shall constitute
one and the same instrument and each of which shall be deemed to be an original.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Issuer, the Trustee, the Substitute Borrower and
the Borrower have executed this Regulatory Agreement by duly authorized
representatives, all as of the date first above written.
PULASKI COUNTY PUBLIC FACILITIES BOARD
By: /s/ Xx Xxxxxxxxx
Xx Xxxxxxxxx, Chairman
UMB BANK & TRUST, N.A. (formerly known as
STATE STREET BANK AND TRUST COMPANY OF
MISSOURI, N.A.),
As Trustee
By:____________________________________
BARRINGTON HILLS ACQUISITION, L.L.C., a
Missouri limited liability company
By: /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, Manager
WATERTON RAINTREE, L.L.C., a Delaware
limited liability company
By: Waterton Residential Property Fund II, L.P.,
its Managing Member
By: Waterton Fund II Managers, L.P.
its General Partner
By: VS Managers, L.L.C., its General Partner
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, its Managing Member
ACKNOWLEDGMENT
STATE OF ARKANSAS
COUNTY OF PULASKI
On this the _____ day of November, 2001, before me,, a Notary Public,
personally appeared Xx Xxxxxxxxx, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person who executed the foregoing
instrument as Chairman of the Pulaski County Public Facilities Board, (the
"Issuer"), and acknowledged to me that the Issuer executed it for the purposes
forth therein.
IN WITNESS WHEREOF, I hereunto set my hand add official seal.
My Commission Expires:
________________________________
Notary Public
ACKNOWLEDGMENT
STATE OF MISSOURI
CITY OF ST. LOUIS
On this the ____, day of November, 2001, before me, a Notary Public,
personally appeared ________________, ________________________ of UMB BANK &
TRUST, N.A. (formerly known as State Street Bank and Trust Company of Missouri,
N.A.), proved to me on the basis of satisfactory evidence to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that she executed the same for the purposes and consideration therein
expressed, in the capacity therein stated, and as the art and deed of UMB BANK &
TRUST, N.A. (formerly known as State Street Bank and Trust Company, N.A.).
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Expires:
________________________________
Notary Public
ACKNOWLEDGMENT
STATE OF ___________________________
COUNTY OF ___________________________
On this the _____ day of November, 2001, before me, a Notary Public,
personally appeared Xxxxx Xxxxx, proved to me on the basis of satisfactory
evidence to be the person who executed the foregoing instrument as the
authorized representative of Waterton Raintree, L.L.C., a Delaware limited
liability company (the "Borrower"), and acknowledged to me that the Borrower
executed it for the purposes set forth therein.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Expires:
________________________________
Notary Public
ACKNOWLEDGMENT
STATE OF Missouri
COUNTY OF Clay
On this the 13th day of November, 2001, before me, a Notary Public,
personally appeared Xxxx X. Xxxxx, proved to me on the basis of satisfactory
evidence to be the person who executed the foregoing instrument as the
authorized representative of Barrington Hills Acquisition, L.L.C., a Missouri
limited liability company (the "Substitute Borrower"), and acknowledged to me
that the Substitute Borrower executed it for the purposes set forth therein.
IN WITNESS WHEREOF, I hereunto set my band and official seal.
My Commission Expires: April 24, 2002
/s/ Xxxxx Xxxxx
Notary Public
[Seal]
EXHIBIT A
DESCRIPTION OF PROJECT SITE
LEGAL DESCRIPTION
City of Little Rock, Pulaski County, Arkansas, as shown on plat recorded as Plat
No. A-774, records of Pulaski County, Arkansas.
And
All of that part of the lands dedicated as right of way for Raintree Lane by
said Plat of White Rock Terrace Addition recorded in Plat Book 32, Page 19,
records of Pulaski County, Arkansas.
And
The North half of the forty (40) foot street right of way, closed by City
Ordinance No. 14, 125, filed as Instrument No. 81-40181, records of Pulaski
County, Arkansas.
As being described as follows: Beginning at the northwest corner of said Xxx 0
(Xxxxx Xxxxxxxx), xxxxxx Xxxxx 00 degrees 55 minutes 30 seconds East, along the
North line of said Lot 1, 458.76 feet to the Northeast corner of said Lot 1
(Pagis Monument); thence South 02 degrees 04 minutes 30 seconds West, 15.00
feet; thence south 87 degrees 55 minutes 30 seconds East, 742.6 feet to the
Northeast corner of said Lot 2; thence South 01 degree 19 minutes 30 seconds
West along the West right of way line of Brookside Drive, 256.74 feet to the
Northeast corner of Lot2A, a distance of 300.2 feet; thence South 63 degrees 51
minutes 30 seconds West along said Northerly line of Lot 2A a distance of 418.5
feet; thence North 88 degrees 08 minutes 30 seconds West along said Northerly
line of Lot 2A a distance of 109.73 feet; thence South 49 degrees 51 minutes 30
seconds West along said Northerly line of Lot 2A a distance of 40.2 feet; thence
South 30 degrees 19 minutes 50 seconds East along the Westerly line of said Lot
2A, a distance of 156.2 feet to the Southwest corner of said Lot 2A; thence
South 01 degree 51 minutes 30 seconds West, 20.00 feet; thence North 88 degrees
51 minutes 30 seconds West, 195.49 feet to the East right of way line of
Reservoir Road; thence North 01 degree 28 minutes 30 seconds East. along said
East right of way line of Reservoir Road a distance of 651.03 feet to the point
of beginning. Less and except White Rock Lane right of way.
