HomeMy WebLinkAboutSeries 1994A $107,399,438.50
SANTA ANA FINANCING AUTHORITY
POLICE ADMINISTRATION AND HOLDING FACILITY LEASE REVENUE BONDS,
SERIFS 1994A
TRANSCRIPT INDEX
Legal Documents
1. Indenture, dated as of March 1, 1994.
2. Ground Lease, dated as of March 1, 1994.
3. Lease, dated as of March 1, 1994.
4. Assignment Agreement, dated as of March 1, 1994.
5. Auction Agent Agreement, dated as of March 1, 1994, by and between the Trustee
and the Bank of New York, as Auction Agent.
6, Market Agent Agreement, dated as of March 1, 1989, by and between Smith Barney
Shearson Inc., as Market Agent and the Trustee.
7.. T r ker-Dealer Agreement, dated as of March 1, 1994, by and between the Bank of
New York, as Auction Agent and Smith Barney Shearson Inc., as Broker-Dealer.
Documents Relating to the Sale of the Bonds
8. Purchase Contract, dated March 8, 1994.
9 rolimitiary'Offacial Statetsent,,,ditt 1ebndaty 25 1994 ,k
10. Official: tter3ient,
11 0RRI1e 15c2=$L Certificates,,dated, February 25, 1994. _,. . .
12 PrelxmlSy'aitd Suppler tenial;Blue Sky 1Vleniarauda
Doeu 1 J jto the Authgirte
13 Joint Umiak Of'Power s,Agre *ut, datett as of August 1,.1993, together with
Authorify +`lawas.
cn1 9'4 3
14. Resolution No. 94-001 SAFA of the Authority approving the forms of and authorizing
the execution and delivery by the Authority of a Ground Lease, a Lease, an Indenture
and a Purchase Contract, authorizing the execution and sale of the Bonds, authorizing
and approving the distribution of the Official Statement in connection therewith,
authorizing and approving execution of necessary documents and related actions.
15. Notice filed with Secretary of State pursuant to Section
6503.5 of the California Government Code.
16. Certificate of the Authority.
17. Signature and Bond Delivery Certificate of the Authority.
Documents Relating to City
18. Resolution No. 94-007 of the City approving a form of Ground Lease, Lease and
Purchase Contract; making certain determinations relating thereto; and authorizing
certain other actions in connection therewith.
19. Certificate of the City.
20. Signature and Incumbency Certificate of the City.
Documents Relating to the Trustee
21. Certificate of the Trustee, together with Authorizing Resolution and Incumbency
Certificate.
22. Trustee's Certificate of Deposit and Receipt.
Closing Documents
23. Written request of the Authority regarding delivery of Bonds.
24. Tax Certificate, together with exhibits thereto.
25. Receipt for Purchase Price.
26. Receipt for the Bonds.
27. DTC Letters of Representations. -
LA 1-69935.3 2
28. Rating Letters.
29. Specimen Bonds.
30. California Debt Advisory Commission Notices.
31. Internal Revenue Service Form 8038-G.
32. Requisition No. 1 re Costs of Issuance.
33. Title Insurance.
34. Insurance Certificate.
Documents Relating to Insurer
35. Municipal Bond Insurance Policy.
36. Tax Certificate of Insurer.
37. Insurer's Certificate relating to the Official Statement.
Legal Opinions
38. Opinion of Authority Counsel.
39. Opinion of City Attorney.
40. Opinion of Trustee Counsel.
41. Opinion of Counsel to Insurer.
42. Opinion of Counsel to Underwriters.
43. Supplemental Opinion of Bond Counsel.
44. Final Opinion of Bond Counsel.
Miscellaneous
45. Closing Memorandum.
LA1-69935.3 3
INDENTURE
between the
SANTA ANA FINANCING AUTHORITY
and
MERIDIAN TRUST COMPANY OF CALIFORNIA, AS TRUSTEE
Dated as of March 1, 1994
$107,399,438.50
Santa Ana Financing Authority
Police Administration and Holding Facility
Lease Revenue Bonds, Series 1994A
LA1-63221.5
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01. Definitions 3
SECTION 1.02. Equal Security 17
ARTICLE II
ISSUANCE OF 1994 BONDS;
REGISTRATION AND TRANSFER OF BONDS
SECTION 2.01. Authorization and Purpose of 1994 Bonds 18
SECTION 2.02. Terms of the 1994 Bonds 18
SECTION 2.03. Redemption of 1994 Bonds 23
SECTION 2.04. Global Form; Securities Deposition 26
SECTION 2.05. Execution of Bonds 26
SECTION 2.06. Transfer and Payment of Bonds 27
SECTION 2.07. Exchange of Bonds 27
SECTION 2.08. Bond Registration Books 27
SECTION 2.09. Mutilated, Destroyed, Stolen or Lost Bonds 28
SECTION 2.10. Temporary Bonds 28
SECTION 2.11. Validity of Bonds • 28
SECTION 2.12. Conditions for the Issuance of Additional Bonds 29
SECTION 2.13. Procedure for the Issuance of Additional Bonds 30
ARTICLE III
BOOK-ENTRY SYSTEM
SECTION 3.01. Book-Entry Bonds 32
ARTICLE IV
ESTABLISHMENT OF FUNDS; DEPOSIT AND
APPLICATION OF PROCEEDS
SECTION 4.01. Establishment of Funds 33
SECTION 4.02. Procedure for the Issuance of Bonds 34
SECTION 4.03. Application of Proceeds 34
SECTION 4.04. Use of Moneys in the Acquisition Fund 34
SECTION 4.05. Use of Moneys in the Costs of Issuance Fund 35
LA1-63221.5 I
Page
ARTICLE V
REVENUES
SECTION 5.01. Pledge of Revenues 36
SECTION 5.02. Receipt and Deposit of Revenues in the Revenue Fund 36
SECTION 5.03. Establishment and Maintenance of Accounts for Use of
Money in the Revenue Fund 37
SECTION 5.04. Investment of Moneys in Funds and Accounts 40
ARTICLE VI
COVENANTS OF THE AUTHORITY
SECTION 6.01. Punctual Payment and Performance 40
SECTION 6.02. Against Encumbrances 40
SECTION 6.03. Against Sale or Other Disposition of the Leased Property 41
SECTION 6.04. Tax Covenants; Rebate Fund 41
SECTION 6.05. Use of Net Proceeds 43
SECTION 6.06. Accounting Records and Reports 43
SECTION 6.07. The City's Budgets 43
SECTION 6.08. Lease and Other Documents 43
SECTION 6.09. Other Liens 44
SECTION 6.10. Prosecution and Defense of Suits 44
SECTION 6.11. Further Assurances 44
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Appointment and Acceptance of Duties 45
SECTION 7.02. Duties, Immunities and Liabilities of Trustee 45
SECTION 7.03. Merger or Consolidation 47
SECTION 7.04. Compensation 47
SECTION 7.05, Liability of Trustee 47
SECTION 7.06. Right to Rely on Documents 48
SECTION 7.07. Preservation and Inspection of Documents 49
ARTICLE VDT
AMENDMENT OF THE INDENTURE
SECTION 8.01. Amendment of the Indenture 49
SECTION 8.02. Disqualified Bonds 50
SECTION 8.03. Endorsement or Replacement of Bonds After Amendment 50
SECTION 8.04. Amendment by Mutual Consent 50
LA1-63221.3 Il
Page
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF HOLDERS
SECTION 9.01. Events of Default 51
SECTION 9.02. Proceedings by Trustee 51
SECTION 9.03. Effect of Discontinuance or Abandonment 52
SECTION 9.04. Rights of Owners 52
SECTION 9.05. Restriction on Owners' Action 52
SECTION 9.06. Power of Trustee to Enforce 53
SECTION 9.07. Remedies Not Exclusive 53
SECTION 9.08. Waiver of Events of Default; Effect of Waiver 53
SECTION 9.09. Application of Moneys 53
SECTION 9.10. Bond Insurer's Direction of Proceedings 54
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bonds 55
SECTION 10.02. Unclaimed Money 56
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Authority Limited to Revenues 57
SECTION 11.02. Benefits of the Indenture Limited to Parties 57
SECTION 11.03. Successor Is Deemed Included in All References to
Predecessor 57
SECTION 11.04. Execution of Documents by Owners 57
SECTION 11.05. Waiver of Personal Liability 58
SECTION 11.06. Acquisition of Bonds by Authority 58
SECTION 11.07. Destruction of Cancelled Bonds 58
SECTION 11.08. Content of Certificates 58
SECTION 11.09. Publication for Successive Weeks 59
SECTION 11.10. Accounts and Funds 59
SECTION 11.11. Article and Section Headings and References 59
SECTION 11.12. Partial Invalidity 59
SECTION 11.13. Execution in Several Counterparts 59
SECTION 11.14. Law Governing 60
SECTION 11.15. Notice to Bond Insurer 60
SECTION 11.16. Notices 60
Execution 61
LA I-63221.5 111
Page
Appendix A Special Provisions Relating to ARS and IRS A-1
Exhibit A-1 Form of Fixed Rate Bond A-1-1
Exhibit A-2 Form of Capital Appreciation Bond A-2-1
Exhibit A-3 Form of ARS Bond A-3-1
Exhibit A-4 Form of IRS Bond A-4-1
Exhibit B The Project B-1
LAI-63221.5 iv
THIS INDENTURE, made and entered into as of March 1, 1994, by and
between the SANTA ANA FINANCING AUTHORITY, a joint powers authority duty
created and lawfully existing under the Constitution and laws of the State of California (the
"Authority"), and Meridian Trust Company of California, a banking corporation existing
under and by virtue of the laws of the State of California, as tnistee (the "Trustee");
WITNESSETH:
WHEREAS, the City of Santa Ma, a municipal corporation duly organized
and existing under the Constitution and laws of the State of California (the "City"), wishes to
provide for the acquisition, construction and installation of certain public improvements in
the City, including reimbursing the City for certain of such costs previously incurred as
described in Exhibit B hereto (the "Project"); and
WHEREAS, the City and the Authority have entered into a ground lease dated
as of the date hereof (the "Ground Lease") with respect to certain real property and the
improvements thereon, as described in Exhibit A thereto (the "Parcels"), pursuant to which
the City will lease the Parcels to the Authority, and the Authority and the City have entered
into a lease dated as of the date hereof (the "Lease") pursuant to which the Authority will
sublease the Parcels and the police facilities to be located on one of the Parcels (the
"Project") more particularly described in Exhibit B hereto, to the City (the Parcels and the
Project are collectively referred to as the "Leased Property"); and
WHEREAS, under the Lease, the City is obligated to make Base Rental (as
defined in the Lease) payments to the Authority for the lease of the Leased Property; and
WHEREAS, to provide funds for the acquisition, construction, and installation
of the Project, the Authority has agreed to issue its Santa Ana Financing Authority Police
Administration and Holding Facility Lease Revenue Bonds, Series 1994A (the "1994
Bonds"), in the aggregate principal amount of One Hundred Seven Million Three Hundred
Ninety-Nine Thousand Four Hundred Thirty-Eight Dollars and Fifty Cents
($107,399,438.50);
WHEREAS, the 1994 Bonds will be secured by the payments to be made by
the City pursuant to the Lease;
WHEREAS, in order to provide for the authentication and delivery of the
1994 Bonds and any additional bonds issued hereunder (the 1994 Bonds and any such
additional bonds being collectively referred to as the "Bonds"), to establish and declare the
terms and conditions upon which the Bonds are to be issued and secured and to secure the
payment of the principal thereof and interest thereon, the Authority has authorized the
execution and delivery of this Indenture;
LA1-63221.5
WHEREAS, the Authority represents that all acts and proceedings required by
law necessary to make the Bonds, when executed by the Authority, authenticated and
delivered by the Trustee and duly issued, the valid, binding and legal limited obligations of
the Authority, and to constitute this Indenture a valid and binding agreement for the uses and
purposes herein set forth in accordance with its terms, have been done and taken, and the
execution and delivery of the Indenture have been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to
secure the payment of the principal of and the interest on all Bonds at any time issued and
outstanding under this Indenture, according to their tenor, and to secure the performance and
observance of all the covenants and conditions therein and herein set forth, and to declare the
terms and conditions upon and subject to which the Bonds are to be issued and received, and
in consideration of the premises and of the mutual covenants herein contained and of the
purchase and acceptance of the Bonds by the owners thereof, and for other valuable
consideration, the receipt whereof is hereby acknowledged, the Authority does hereby
covenant and agree with the Trustee, for the benefit of the respective owners from time to
time of the Bonds, as follows:
•
LAI-63221.5 2
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01. Definitions. Unless the context otherwise requires, the
terms defined in this section shall for all purposes hereof and of any Supplemental Indenture
and of any certificate, opinion, request or other document herein or therein mentioned have
the meanings herein specified. Capitalized undefined terms used herein shall, unless the
context otherwise requires, have the meanings ascribed thereto in the Lease.
Accreted Value
The term "Accreted Value" means, with respect to any Capital Appreciation
Bond, an amount equal to the principal amount of such Bond, plus interest accrued thereon
from its date compounded on each January 1 and July 1, commencing July 1, 1994 (through
and including the maturity date of such Bond) at the "original issue yield" for such Bond;
provided, that the Accreted Value on any date other than January 1 and July 1 shall be
calculated by straight line interpolation of the Accreted Values as of the immediately
preceding and succeeding January 1 and July 1. The term "original issue yield" means, with
respect to any particular Bond, the yield to maturity of such Bond from the initial date of
delivery thereof calculated on the basis of semiannual compounding on each January 1 and
July 1.
Acquisition Costs
The term "Acquisition Costs" means all costs of acquiring, constructing and
installing the Project, including but not limited to:
(i) all costs which the Authority or the City shall be required to pay to a
manufacturer, vendor or contractor or any other person under the terms of any
contract or contracts for the acquisition, construction or installation of the Project;
(ii) obligations of the Authority or the City incurred for labor and materials
(including obligations payable to the Authority or the City for actual out-of-pocket
expenses of the Authority or the City) in connection with the acquisition, construction
or installation of the Project, including reimbursement to the Authority or the City for
all advances and payments made in connection with the Project prior to or after
delivery of the Bonds;
(iii) the costs of performance or other bonds and any and all types of
insurance that may be necessary or appropriate to have in effect during the course of
acquisition, construction and installation of the Project;
(iv) all costs of engineering and architectural services, including the actual
out-of-pocket costs of the Authority or the City for test borings, surveys, estimates,
plans and specifications and preliminary investigations therefor, development fees,
LAI-63221.E 3
sales commissions, and for supervising construction and installation, as well as for the
performance of all other duties required by or consequent to the proper acquisition,
construction and installation of the Project: and
(v) any sums required to reimburse the Authority or the City for advances
made by the Authority or the City for any of the above items or for any other costs
incurred and for work done by the Authority or the City which are properly
chargeable to the acquisition, construction or installation of the Project.
Acquisition Fund
The term "Acquisition Fund" shall have the meaning given to such term in
Section 4.01.
Additional Bonds
The term "Additional Bonds" means all lease revenue bonds of the Authority
authorized by and at any time Outstanding pursuant hereto and executed, issued and delivered
in accordance with Sections 2.12 and 2.13 of this Indenture.
Annual Debt Service
The term "Annual Debt Service" means, for any Authority Fiscal Year or
Bond Year, the sum of(1) the interest payable on all Outstanding Bonds in such Authority
Fiscal Year or Bond Year, assuming that all Outstanding Serial Bonds are retired as
scheduled and that all Outstanding Term Bonds are redeemed or paid from sinking fund
payments as scheduled (except to the extent that such interest is to be paid from the proceeds
of the sale of any Bonds), (2) the principal amount or Accreted Value of all Outstanding
Serial Bonds maturing by their terms in such Authority Fiscal Year or Bond Year, and
(3) the principal amount or Accreted Value of all Outstanding Term Bonds required to be
redeemed or paid in such Authority Fiscal Year or Bond Year (together with the redemption
premiums, if any, thereon).
Appendix A
The term "Appendix A" shall mean the Appendix A attached hereto, as
amended from time to time pursuant to Section 14 of Appendix A. Appendix A shall
constitute a part of this Indenture for all purposes hereof and sets forth certain definitions and
mechanics relating to the AIRS issued herein.
Average Annual Debt Service
The term "Average Annual Debt Service" means the average Annual Debt
Service over all Bond Years.
LAI-63221.5 4
Assignment Agreement
The term "Assignment Agreement" means the Assignment Agreement, dated
as of March 1, 1994, between the Authority and the Trustee, as originally executed and as it
may from time to time be amended or supplemented.
Authority
The term "Authority" means the Santa Ma Financing Authority, a joint
powers authority duly created and lawfully existing under the Constitution and laws of the
State.
Authorized Denominations
The term "Authorized Denominations" means, with respect to Current Interest
Bonds, $5,000 and any integral multiple of$5,000 and, with respect to Capital Appreciation
Bonds, $5,000 maturity amount, being denominations of initial principal amount, (as set forth
in Section 2.02 hereof for 1994 Bonds) for Capital Appreciation Bonds of the corresponding
maturity, or any integral multiple thereof.
Authority Fiscal Year
The term "Authority Fiscal Year" means the fiscal year of the Authority
which, as of the date hereof, is the period from July 1 to and including the following
June 30.
Beneficial Owner
The term "Beneficial Owner" means, whenever used with respect to a Bond,
the person whose name is recorded as the beneficial owner of such Bond, or a portion of
such Bond, by a Participant on the records of such Participant or such person's subrogee.
Bond Obligation
The term "Bond Obligation" means, as of any given date of calculation,
(1) with respect to any Outstanding Current Interest Bond, the principal amount of such
Bond, and (2) with respect to any Outstanding Capital Appreciation Bond, the Accreted
Value thereof as of the January 1 or July 1 next preceding such date of calculation (unless
such date of calculation is a January 1 or July 1, in which case as of such date).
Bond Insurance Policy
The term "Bond Insurance Policy" means the municipal bond insurance policy
issued by the applicable Bond Insurer and guaranteeing, in whole or in part, the payment of
principal of and interest on a Series of Bonds.
cn1-6322i.5 5
Bond Insurer
The term "Bond Insurer" means the issuer or issuers of a policy or policies of
municipal bond insurance obtained by the Authority to insure the payment of principal of and
interest on a Series of Bonds issued under this Indenture and which, in fact, are at any time
insuring such Series of Bonds. For the purposes of this definition, all consents, approvals or
actions required by the Bond Insurer shall be by action of a majority of all Bond Insurers
(based upon the aggregate principal amount of Outstanding Bonds insured by each such Bond
Insurer) if there is more than a single Bond Insurer. The Bond Insurer with respect to the
1994 Bonds means Municipal Bond Investors Assurance Corporation, and its successors and
assigns.
Bond Year
The term "Bond Year" means each twelve month period extending from
August 2 in one calendar year to July 1 of the succeeding calendar year, except that the first
Bond Year shall extend from the Closing Date to July 1, 1994.
Bonds; 1994 Bonds; AIRS Bonds; ARS Bonds; Capital Appreciation Bonds; Current
Interest Bonds; IRS Bonds; Serial Bonds; Term Bonds
The term "Bonds" means the 1994 Bonds and all Additional Bonds.
The term "1994 Bonds"'means the Santa Ana Financing Authority Police
Administration and Holding Facility Lease Revenue Bonds, Series 1994A.
The term "AIRS Bonds" or "AIRS" means the ARS and IRS, collectively or
any of them, as appropriate.
The term "ARS Bonds" or "ARS" means the Auction Rate Securities as
defined in Section 2.02 hereof.
The term "Capital Appreciation Bonds" means Bonds the interest on which is
payable at maturity and compounded semiannually on each Interest Payment Date through
and including the maturity dates thereof.
The term "Current Interest Bonds" means Bonds the interest on which is
payable on January 1 and July 1 of each year through and including the maturity dates
thereof.
The term "IRS Bonds" or "IRS" means the Inverse Rate Securities as defined
in Section 2.02 hereof.
The term "Serial Bonds" means Bonds for which no sinking fund payments are
provided.
LA(-63221.5
The term "Term Bonds" means Bonds which are payable on or before their
specified maturity dates from sinking fund payments established for that purpose and
calculated to retire such Bonds on or before their specified maturity dates.
Book-Entry Bonds
The term "Book-Entry Bonds" means Bonds of any Series registered in the
name of the Nominee of a Depository as the Owner thereof pursuant to the terms and
provisions of Section 3.01 hereof.
Business Day
The term "Business Day" means a thy of the year which is not a Saturday or
Sunday, or a day on which banking institutions located in California and New York are
required or authorized to remain closed, or on which the New York Stock Exchange is
closed.
Capitalized Interest Account
The term "Capitalized Interest Account" means the Account by that name
established in the Revenue Fund pursuant to Section 5.03 hereof.
CEDE & Co.
The term "CEDE & Co." shall mean CEDE & Co., the nominee of DTC, and
any successor nominee of DTC.
Certificate of Completion
The term "Certificate of Completion" means a Certificate of the City filed with
the Trustee, stating that the Project has been acquired, constructed and installed and that all
Acquisition Costs have been paid or provided for.
Certificate of the Authority
The term "Certificate of the Authority" means an instrument in writing signed
by the Chairman, the Vice Chairman, the Secretary or any Assistant Secretary of the
Authority, or by any other officer of the Authority duly authorized by the Authority for that
purpose.
Certificate of the City
The term "Certificate of the City" means an instrument in writing signed by
the Mayor, the City Manager, or the Assistant City Manager of the City, or by any other
officer of the City duly authorized by the City for that purpose.
LAI-63221.5 7
City
The term "City" means the City of Santa Ma, a municipal corporation duly
organized and existing under the Constitution and laws of the State.
City Fiscal Year
The term "City of Fiscal Year" means the fiscal year of the City which, as of
the date hereof, is the period from July 1 to and including the following June 30.
Closing Date
The term "Closing Date" means (i) for the 1994 Bonds, March 23, 1994 and
(ii) such date as may be specified by the Authority for any Series of Additional Bonds.
Code
The term "Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute thereto, and any regulations promulgated thereunder or relative thereto.
Corporate Trust Office of the Trustee
The term "Corporate Trust Office of the Trustee" means the principal
corporate trust office of the Trustee, or such other or additional offices as may be specified
to the Authority by the Trustee in writing.
Costs of Issuance
The term "Costs of Issuance" means all the costs of executing and delivering
the Bonds, including, but not limited to, all printing and document preparation expenses in
connection with this Indenture, the Lease, the Ground Lease, the Assignment Agreement, the
Bonds and the preliminary official statement and official statement pertaining to the Bonds;
rating agency fees; CUSIP Service Bureau charges; market study fees; legal fees and
expenses of counsel with respect to the financing of the Project; any computer and other
expenses incurred in connection with the Bonds; initial fees and expenses of the Trustee, the
City, and the Authority; escrow fees; financial and other professional consultant fees and
other fees and expenses incurred in connection with the execution of the Bonds or the
implementation of the financing for the Project, to the extent such fees and expenses are
approved by the Authority.
Costs of Issuance Fund
The term "Costs of Issuance Fund" shall have the meaning given to such term
in Section 4.01.
LAI-63221.5
Dated Date
The term "Dated Date" means March 1, 1994 with respect to 1994 Bonds
which are Current Interest Bonds and the date of initial issuance and delivery thereof with
respect to 1994 Bonds which are Capital Appreciation Bonds.
DTC
The term "DTC" means The Depository Trust Company, New York, New
York, a limited-purpose trust company organized under the laws of the State of New York,
and its successors and assigns.
Event of Default
The term "Event of Default" shall have the meaning given to such term in
Section 9.01.
Federal Securities
The term "Federal Securities" means any direct, obligations of the United
States of America (including obligations issued or held in book-entry form on the books of
the Department of the Treasury of the United States of America) or obligations the principal
of and interest on which are unconditionally guaranteed by the United States of America.
Financial Newspaper
The term "Financial Newspaper" means The Wall Street Journal or The Bond
Buyer or, if neither is then in print, any other newspaper or journal printed in the English
language publishing financial news and selected by the Trustee, whose decision shall be final
and conclusive.
Ground 'Anse
The term "Ground Lease" means the Ground Lease, dated as of March 1,
1994, between the City, as lessor, and the Authority, as lessee, as originally executed and as
it may from time to time be amended or supplemented.
Indenture
The term "Indenture" means this Indenture, dated as of March 1, 1994,
between the Authority and the Trustee, as originally executed and as it may from time to
time be amended or supplemented by all Supplemental Indentures executed pursuant to the
provisions hereof.
LA1-63221.5 9
Information Services
The term "Information Services" means Financial Information, Inc.'s "Daily
Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 17302,
Attention: Editor; Kenny Information Services' "Called Bond Service," 55 Broad Street,
28th Floor, New York, New York 10004; Moody's Investors Service's "Municipal and
Government," 99 Church Street, 8th Floor, New York, New York 10007, Attention:
Municipal News Reports; and Standard and Poor's Corporation's "Called Bond Record," 25
Broadway, 3rd Floor, New York, New York 10004; or, in accordance with then current
guidelines of the Securities and Exchange Commission, to such other addresses and/or such
other services providing information with respect to called bonds, or to such services as the
Authority may designate in a Certificate of the Authority delivered to the Trustee.
Interest Account
The term "Interest Account" shall have the meaning given to such term in
Section 5.03.
Interest Payment Date
The term "Interest Payment Date" means each January 1 and July 1,
commencing January 1, 1995.
Investment Agreement
The term "Investment Agreement" means an investment agreement or
guaranteed investment contract by and between the Trustee and a national or state chartered
bank or savings and loan institution (including the Trustee) or other fmancial institution the
long-term debt obligations of which are rated at the time of execution thereof "AA" or higher
by Standard & Poor's Corporation and "Aa" or higher by Moody's Investors Service. Each
Investment Agreement shall provide, among other matters, that the Trustee may immediately
withdraw all funds or other collateral that are the subject thereof upon any downgrading of
such ratings and that such agreement shall have been reviewed prior to the execution thereof
by Standard & Poor's Corporation and Moody's Investors Service. Any such Investment
Agreement must be approved in writing by the Bond Insurer.
Lease
The term "Lease" means the Lease, dated as of March 1, 1994, entered into
between the Authority, as lessor, and the City, as lessee, as originally executed and as it may
from time to time be amended or supplemented pursuant to the provisions hereof and thereof.
1A1-63221.5 10 •
Mandatory Sinking Fund Payment
The term "Mandatory Sinking Fund Payment" means, with respect to the
Bonds, each amount so designated and established pursuant to this Indenture.
Maximum Annual Debt Service
The term "Maximum Annual Debt Service" means, as of the date of
calculation, the greatest total Annual Debt Service payable in any Bond Year during the
period commencing with the then current Bond Year and terminating with the last Bond Year
in which the Bonds are Outstanding.
Net Proceeds
The term "Net Proceeds" means any insurance proceeds or condemnation
award paid with respect to the Leased Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
Nominee
The term "Nominee" means the nominee of the Depository, which may be the
Depository, as determined from time to time pursuant to Section 3.01 hereof.
Opinion of Counsel
The term "Opinion of Counsel" means a written opinion of counsel of
recognized national standing in the field of law relating to municipal bonds, appointed and
paid by the City or the Authority.
Outstanding
The term "Outstanding," when used as of any particular time with reference to
Bonds, means (subject to the provisions of Section 8.02) all Bonds theretofore or thereupon
executed by the Authority and authenticated and delivered by the Trustee pursuant hereto,
except --
(1) Bonds theretofore cancelled by the Trustee or surrendered to the
Trustee for cancellation;
(2) Bonds paid or deemed to have been paid within the meaning of Section
10.01; and
(3) Bonds in lieu of or in substitution for which other Bonds shall have
been executed by the Authority and authenticated and delivered pursuant hereto.
LAI-63221.5 11
Owner
The term "Owner" means any person who shall be the registered owner of any
Outstanding Bond, as shown on the registration books required to be maintained by the
Trustee pursuant to Section 2.08.
Participants
The term "Participant" or "Participants" means those entities which are
recognized as Participants by DTC.
Permitted Investments
The term "Permitted Investments" means any of the following to the extent
then permitted by law and Section 6.04:
(a) Federal Securities;
(b) bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following federal agencies and provided such obligations are
backed by the full faith and credit of the United State of America (stripped securities
are only permitted if they have been stripped by the agency itself): (i) certificates of
beneficial ownership of the Fanners Home Administration; (ii) debentures of the
Federal Housing Administration; (iii) participation certificates of the General Services
Administration; (iv) guaranteed mortgage-backed bonds or guaranteed pass-through
obligations of the Government National Mortgage Association; (v) guaranteed Title XI
financings of the U.S. Maritime Administration (vi) project notes, local authority
bonds, new communities debentures and U.S. public housing notes and bonds of the
U.S. Department of Housing and Urban Development;
(c) bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following non-full faith and credit U.S. government agencies
(stripped securities are only permitted if they have been stripped by the agency itself):
(i) senior debt obligations of the Federal Home Loan Bank System; (ii) participation
certificates and senior debt obligations of the Federal Home Loan Mortgage
Corporation; (iii) mortgage-backed securities and senior debt obligations of the
Federal National Mortgage Association; (iv) senior debt obligations of the Student
Loan Marketing Association; (v) obligations of the Resolution Funding Corporation;
and (vi) consolidated systemwide bonds and notes of the Farm Credit System;
(d) money market funds registered under the Federal Investment Company
Act of 1940, whose shares are registered under the Federal Securities Act of 1933,
and having a rating by S&P of "AAAm", "AAAm-G", or "AAm";
LA1-63221.3 12
(e) certificates of deposit secured at all times by the following collateral:
senior debt obligations (consolidated debt obligations) of the Federal Home Loan
Bank System and/or participation certificates (mortgage-backed securities) or senior
debt obligations of the Federal Home Loan Mortgage Corporation. Certificates of
deposit must have a one year or less maturity. Such certificates of deposit must be
issued by commercial banks (including the Trustee), savings and loan associations or
mutual savings banks) whose short term obligations are rated A-1+ or better by
S & P. The collateral must be held by a third party and the owners must have a
perfected first security interest in the collateral;
(f) certificates of deposit, savings account, deposit accounts or money
market deposits (including those of the Trustee) which are fully insured by the
Federal Deposit Insurance Corporation, including BIF and SAIF;
(g) commercial paper rated, at the time of purchase, "Prime-1" by
Moody's and "A-1" or better by S&P;
(h) bonds or notes issued by any state or municipality which are rated by
Moody's and S&P in one of the two highest long-term rating categories assigned by
such agencies;
(i) federal funds or bankers acceptances with a maximum term of one year
of any bank with an unsecured, uninsured and unguaranteed obligation rating of
"Prime-1" or "A-3" or better by Moody's and "A-1+" or better by S&P;
(j) repurchase agreements which provide for the transfer of securities from
a dealer bank or securities firm (seller/borrower) to the Trustee and the transfer of
cash from the Trustee to the dealer bank or securities firm with an agreement that the
dealer bank or securities firm will repay the cash plus a yield to the Trustee in
exchange for the securities at a specified date, which satisfy the following criteria;
(i) repurchase agreements must be between the Trustee and (A) a
primary dealer on the Federal Reserve reporting dealer list which falls under
the jurisdiction of the Securities Investors Protection Corporation and which
are rated "A" or better by Moody's and S&P, or (B) a bank rated "A" or
better by Moody's and S&P;
(ii) the written repurchase agreement contract must include the
following: (A) securities acceptable for transfer, which may be direct U.S.
government obligations, or federal agency obligations backed by the full faith
and credit of the U.S. government; (B) the term of the repurchase agreement
may be up to 30 days; (C) the securities must be delivered to the Authority,
Trustee (if Trustee is not supplying the securities) or third party acting as
agent for the Trustee (if the Trustee is supplying the securities)
before/simultaneous with payment (perfection by possession of certificated
LA1-63221.5 13
securities); (D) the Trustee must have a perfected first priority security interest
in the collateral; (E) the collateral must be free and clear of third-party liens
and, in the case of a broker which falls under the jurisdiction of the Securities
Investors Protection Corporation, are not subject to a repurchase agreement or
a reverse repurchase agreement; (F) failure to maintain the requisite collateral
percentage, after a two day restoration period, will require the Trustee to
liquidate the collateral; (G) the securities must be valued no less frequently
than weekly, marked-to-market at current market price plus accrued interest
and the value of collateral must be equal to 104% of the amount of cash
transferred by the Trustee to the dealer bank or securities firm under the
repurchase agreement plus accrued interest (unless the securities used as
collateral are obligations of the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation, in which case the collateral must
be equal to 105% of the amount of cash transferred by the Trustee to the
dealer bank or securities firm under the repurchase agreement plus accrued
interest). If the value of the securities held as collateral falls below 104% of
the value of the cash transferred by the Trustee, then additional cash and/or
acceptable securities must be transferred; and
(iii) a legal opinion must be delivered to the Trustee to the effect that
the repurchase agreement meets guidelines under state law for legal investment
of public funds;
(k) the Local Agency Investment Fund of the State of California, created
pursuant to section 16429.1 of the California Government Code, to the extent the
Trustee is authorized to register such investment in its name. The Trustee may
restrict investments in the Local Agency Investment Fund if required to keep monies
available for the purposes of the Indenture;
(1) Deposits in the Commingled Investment Pool maintained by the
Treasurer-Tax Collector of the County of Orange; provided however that such
deposits shall not be considered Permitted Investments for the Reserve Account;
(m) An Investment Agreement; and
(n) Any other investment approved by the Bond Insurer.
Principal Account
The term "Principal Account" shall have the meaning given to such term in
Section 5.03.
LA1-63221.5 14
Project
The term "Project" means the improvements described in Exhibit B hereto.
Qualified Reserve Instrument
The term "Qualified Reserve Instrument" means a policy of insurance, a surety
bond, a letter of credit or other comparable credit facility meeting the requirements of
Section 5.03(c).
Rebate Fund
The term "Rebate Fund" shall have the meaning given to such term in Section
6.04.
Record Date
The term "Record Date" means the fifteenth day of the month preceding an
Interest Payment Date, whether or not such day is a Business Day.
Redemption Account
The term "Redemption Account" shall have the meaning given to such term in
Section 5.03.
Representation Letter
The term "Representation Letter" means the Letter of Representations from the
Authority and the Trustee to DTC in which the Authority and the Trustee make certain
representations to DTC with respect to any Series of Bonds, the payment thereof and
delivery of notices with respect thereto or any comparable letter to a successor depository to
DTC for any Series of Bonds.
Reserve Account
The term "Reserve Account" shall have the meaning given to such term in
Section 5.03.
Reserve Requirement
The term "Reserve Requirement" means, as of any calculation date, an amount
equal to the least of (i) 10% of the proceeds (within the meaning of Section 148 of the Code)
of the Bonds, (ii) 125% of Average Annual Debt Service, or (iii) Maximum Annual Debt
Service.
cn1-63221.5 15
Revenue Fund
The term "Revenue Fund" shall have the meaning given to such term in
Section 4.01.
Revenues
The term "Revenues" means all Base Rental payments pursuant to the Lease,
and all other benefits, charges, income, proceeds, profits, receipts, rents and revenues
derived by the Authority from the operation or use of the Leased Property, including interest
or profits from the investment of money in any account or fund (other than the Rebate Fund)
pursuant to Section 5.04.
Securities Depositories
The term "Securities Depository" shall mean initially DTC, a New York
banking corporation, its successors and assigns, or if(i) the then Securities Depository
resigns from its functions as depository of the 1994 Bonds or (ii) the Authority discontinues
the use of the Securities Depository pursuant to Section 2.04(c), any other securities
depository which agrees to follow the procedures required to be followed by a securities
depository in connection with the 1994 Bonds and which is appointed by the Authority with
the consent of the Auction Agent and the Market Agent, which consent shall not be
unreasonably withheld.
Series
The term "Series", when used with reference to the Bonds, means all of the
Bonds authenticated and delivered on original issuance and identified pursuant to the
Indenture or a Supplemental Indenture authorizing such Bonds as a separate Series of Bonds,
and any Bonds thereafter authenticated and delivered in lieu of or in substitution for such
Bonds pursuant to the Indenture.
Sinking Account
The term "Sinking Account" shall have the meaning given to such term in
Section 5.03.
State
The term "State" means the State of California.
Supplemental Indenture
The term "Supplemental Indenture" means any indenture then in full force and
effect which has been duly executed and delivered by the Authority and the Trustee
LAI-63221.5 16
amendatory hereof or supplemental hereto; but only if and to the extent that such
Supplemental Indenture is specifically authorized hereunder.
Surplus Account
The term "Surplus Account" shall have the meaning given to such term in
Section 4.04.
Tax Certificate
The term "Tax Certificate" means the Tax Certificate delivered by the
Authority and the City at the time of the issuance and delivery of a Series of Bonds, as the
same may be amended or supplemented in accordance with its terms.
Trustee
The term "Trustee" means Meridian Trust Company of California, a banking
corporation duly created and existing under and by virtue of the laws of the State of
California, or any other association or corporation which may at any time be substituted in
its place as provided in Section 7.02.
Written Request of the Authority
The term "Written Request of the Authority" means an instrument in writing
signed by the President, the Vice President, the Secretary or any Assistant Secretary of the
Authority, or by any other officer of the Authority duly authorized by the Authority for that
purpose.
Written Request of the City
The term "Written Request of the City" means an instrument in writing signed
by the Mayor, the City Manager, or the Assistant City Manager of the City, or by any other
officer of the City duly authorized in writing to the Trustee by the City for that purpose.
SECTION 1.02. Equal Security. In consideration of the acceptance of the
Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a
contract between the Authority and the Trustee for the benefit of the Owners from time to
time of all Bonds authorized, executed, issued and delivered hereunder and then Outstanding
to secure the full and fmal payment of the interest on and principal and Accreted Value of
and redemption premiums, if any, on all Bonds which may from time to time be authorized,
executed, issued and delivered hereunder, subject to the agreements, conditions, covenants
and provisions contained herein; and all agreements and covenants set forth herein to be
performed by or on behalf of the Authority shall be for the equal and proportionate benefit,
protection and security of all Owners of the Bonds without distinction, preference or priority
as to security or otherwise of any Bonds over any other Bonds by reason of the number or
LAI-63221.5 17
date thereof or the time of authorization, sale, execution, issuance or delivery thereof or for
any cause whatsoever, except as expressly provided herein or therein.
ARTICLE H
ISSUANCE OF 1994 BONDS;
REGISTRATION AND TRANSFER OF BONDS
SECTION 2.01. Authorization and Purpose of 1994 Bonds. The Authority
has reviewed all proceedings heretofore taken relative to the authorization of the 1994 Bonds
and has found, as a result of such review, and hereby finds and determines that all acts,
conditions and things required by law to exist, to have happened and to have been performed
precedent to and in the issuance of the 1994 Bonds do exist, have happened and have been
performed in due time, form and manner as required by law, and that the Authority is now
duly authorized to issue the 1994 Bonds in the form and manner provided herein for the
purpose of providing funds to finance the costs of acquisition, construction and installation of
the Project, and that the 1994 Bonds shall be entitled to the benefit, protection and security
of the provisions hereof.
SECTION 2.02. Terms of the 1994 Bonds.
(a) Fixed Rate Bonds. The 1994 Bonds shall be designated "Santa Ma
Financing Authority Police Administration and Holding Facility Lease Revenue Bonds, Series
1994A" and shall be in the aggregate principal amount of One Hundred Seven Million Three
Hundred Ninety-Nine Thousand Four Hundred Thirty-Eight Dollars and Fifty Cents
($107,399,438.50). The 1994 Bonds, other than AIRS and IRS, shall be issued in the
principal amount of Eighty-Six Million One Hundred Ninety-Nine Thousand Four Hundred
Thirty-Eight Dollars and Fifty Cents shall be dated as of the Dated Date, shall be issued only
in fully registered form in Authorized Denominations (not exceeding the principal amount of
1994 Bonds maturing at any one time), numbered as determined by the Trustee, and shall
mature on the dates and in the principal amounts and shall bear or accrete interest, as the
case may be, from their Dated Date at the rates as set forth in the following schedule:
Maturity
Date Principal Interest
July 1 Amount Rate
2001 $185,878.80 0.000%
2002 499,598.80 0.000
2003 784,029.90 0.000
2004 1,820,000.00 5.250
2005 2,465,000.00 5.300
2006 3,075,000.00 5.400
2007 3,240,000.00 5.500
2008 3,420,000.00 5.600
LA1-63221.5 18
Maturity
Date Principal Interest
July 1 Amount Rate
2009 $3,610,000.00 5.625%
2015 5,030,000.00 6.250
2016 5,345,000.00 6.250
2017 5,680,000.00 6.250
2018 6,035,000.00 6.250
2019 6,410,000.00 6.250
2024 38,600,000.00 6.500
The 1994 Bonds which are Capital Appreciation Bonds shall be issued as
fully registered bonds in the denomination of$5,000 maturity amount, being denominations
of initial principal amount as set forth in the table below for 1994 Bonds of the
corresponding maturity. Interest on the 1994 Bonds which are Capital Appreciation Bonds
shall be compounded on each January 1 and July 1, commencing January 1, 1995, and shall
be payable upon maturity or prior redemption.
Table of Initial Principal Amounts
Initial Principal Amount Bond Maturity
(per $5.000 Maturity Amount'l Date
$185,878.80 2001
499,598.80 2002
784,029.90 2003
The 1994 Bonds which are Capital Appreciation Bonds shall have the
following Accreted Values per $5,000 maturity amount, on the following dates, and shall
be payable at maturity according to the tenor of the following tables:
1994 Bonds Maturing July 1, 2001
Date Accreted Value
01/01/95 $3,581.40
07/01/95 3,674.52
01/01/96 3,770.06
07/01/96 3,868.06
01/01/97 3,966.65
07/01/97 4,071.83
01/01/98 4,177.70
07/01/98 4,286.33
LA1-63221.5 19
Date Accreted Value
01/01/99 $4,397.77
07/01/99 4,512.11
01/01/2000 4,629.43
07/01/2000 4,749.80
01/01/2001 4,873.29
07/01/2001 5,000.00
1994 Bonds Maturing July 1. 2002
Date Accreted Value
01/01/95 $3,377.41
07/01/95 3,466.91
01/01/96 3,558.79
07/01/96 3,653.10
01/01/97 3,749.91
07/01/97 3,849.28
01/01/98 3,951.29
07/01/98 4,056.00
01/01/99 4,163.48
07/01/99 4,273.81
01/01/2000 4,387.07
07/01/2000 4,503.33
01/01/2001 4,622.67
07/01/2001 4,745.17
01/01/2002 4,870.92
07/01/2002 5,000.00
1994 Bonds Maturing July 1. 2003
Date Accreted Value
01/01/95 $3,178.85
07/01/95 3,264.68
01/01/96 3,352.82
07/01/96 3,443.35
01/01/97 3,536.32
07/01/97 3,631.81
01/01/98 3,729.87
07/01/98 3,830.57
i.AI-63221.5 20
Date Accreted Value
01/01/99 3,934.00
07/01/99 4,040.22
01/01/2000 4,149.31
07/01/2000 4,261.34
01/01/2001 4,376.40
07/01/2001 4,494.56
01/01/2002 4,615.92
07/01/2002 4,740.55
01/01/2003 4,868.55
07/01/2003 5,000.00
The principal and Accreted Value of and redemption premiums, if any, on
the 1994 Bonds shall be payable in lawful money of the United States of America at the
Corporate Trust Office of the Trustee upon presentation and surrender of such 1994 Bonds.
Each 1994 Bond which is a Current Interest Bond shall bear interest from
the Interest Payment Date next preceding the date of authentication thereof, unless such date
of authentication is during the period commencing after a Record Date through and
including the next succeeding Interest Payment Date, in which event it shall bear interest
from such Interest Payment Date, or unless such date of authentication is prior to the first
Record Date, in which event it shall bear interest from March 1, 1994; provided, however,
that if on the date of authentication of any 1994 Bonds, interest is then in default on the
Outstanding 1994 Bonds, such 1994 Bonds shall bear interest from the Interest Payment
Date to which interest has previously been paid or made available for payment on the
Outstanding 1994 Bonds.
Payment of interest on the 1994 Bonds which are Current Interest Bonds due
on or before the maturity or prior redemption thereof shall be made to the person in whose
name such 1994 Bonds are registered, as of the Record Date preceding the applicable
Interest Payment Date, on the registration books kept by the Trustee pursuant to Section
2.08, such interest to be paid by check mailed by first class mail on such Interest Payment
Date to such Owner at his address as it appears on such books. Interest on the 1994 Bonds
which are Current Interest Bonds shall be payable in lawful money of the United States of
America and shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
The 1994 Bonds which are Current Interest Bonds and Capital Appreciation
Bonds, and the authentication and registration endorsement and assignment to appear
thereon shall be substantially in the forms set forth on Exhibit A-1 and A-2, respectively,
hereto.
u1-63221.5 21
(b) ARS and IRS. The Authority is also issuing Ten Million Six Hundred
Thousand Dollars ($10,600,000) principal amount of its Auction Rate Securities Bonds (the
"Auction Rate Securities," or "ARS") and Ten Million Six Hundred Thousand Dollars
($10,600,000) principal amount of its Inverse Rate Securities (the "Inverse Rate Securities,
or "IRS") (collectively, the ARS and the IRS and referred to as "Auction and Inverse Rate
Securities, or "AIRS"). The AIRS shall bear interest at the rates per annum and be payable
as provided in this Section and shall mature in the following years and amounts:
ASS IRS
Year Amount Amount
2014 $10,600,000 $10,600,000
The AIRS shall bear interest from the Closing Date to January 1, 1995 (the
initial Interest Period), and thereafter for each Interest Period, at the Applicable ARS Rate
(or rates) or the Applicable IRS Rate (or rates), as the case may be, determined pursuant to
the provisions of Appendix A. Interest shall accrue for each Interest Period and shall be
payable in arrears on each Interest Payment Date. Interest on the ARS may not exceed the
Maximum Rate, including the applicable Service Charge Rate as set forth in Appendix A.
Notwithstanding anything herein or in Appendix A, Exhibit A-3 or Exhibit
A-4 hereto to the contrary, the Authority shall pay a blended rate of interest with respect to
any Interest Period relating to the AIRS equal to 5.750% per annum, calculated on the basis
of twelve 30-day months in a year of 360 days, as more fully set forth in Section 3(b) of
Appendix A.
The ARS shall be issued in fully registered form in Authorized
Denominations, and shall be in substantially the form attached hereto as Exhibit A-3. The
IRS shall be issued in Authorized Denominations, and shall be in substantially the form
attached hereto as Exhibit A-4.
Any Beneficial Owner of IRS may from time to time request a mandatory
tender of ARS (having the same maturity date as such IRS) for purchase as provided in
Section 9 of Appendix A. The ARS and the IRS shall be subject to redemption prior to
maturity as provided in Section 4 hereof. A Beneficial Owner of Regular ARS may cause
such ARS to be combined with Regular IRS, or Fixed, in accordance with the procedures
set forth in Section 8 of Appendix A. A Beneficial Owner of Regular Fixed AIRS or
Newly Fixed AIRS may cause such ARS and IRS to be Separated in accordance with the
procedures set forth in Section 8 of Appendix A.
LAI-63221.5 22
SECTION 2.03. Redemption of 1994 Bonds.
(a) (i) 1994 Bonds other than the ARS and IRS maturing on July 1 in the
years 2005 through and including 2009, shall be subject to redemption, at the option of the
Authority, on or after July 1, 2004, in whole at any time or in part (by lot within any
maturity), on any Interest Payment Date, at the following redemption prices, plus accrued
interest to the date fixed for redemption:
Redemption Price
Redemption Period (percentage of
(dates inclusive) principal amount)
July 1, 2004 to June 30, 2005 102%
July 1, 2005 to June 30, 2006 101%
July 1, 2006 and thereafter 100%
(ii) The ARS are subject to redemption at the option of the Authority, on any
Interest Payment Date on or after July 1, 2004, as a whole or in part in an Authorized
Denomination, at a redemption price equal to the principal amount thereof to be redeemed,
plus accrued but unpaid interest to the redemption date, without premium.
The IRS are subject to redemption at the option of the Authority, on any
Interest Payment Date on or after July 1, 2004, as a whole or in part in an Authorized
Denomination, at the redemption price set forth below, expressed as a percentage of the
principal amount thereof to be redeemed, plus accrued but unpaid interest to the redemption
date, as follows:
Redemption Period Redemption Price
July 1, 2004 to June 30, 2005 104%
July 1, 2005 to June 30, 2006 102%
July 1, 2006 and thereafter 100%
(b) (i) The 1994 Bonds other than ARS and IRS maturing on July 1, 2024 are
subject to mandatory redemption prior to their stated maturity in part, by lot, on any July 1
on or after July 1, 2020, at the principal amount thereof and interest accrued thereon to the
date fixed for redemption, without premium,by Mandatory Sinking Account Payments in
the amounts and in the years set forth below:
Principal
July 1 Amount
2020 $6,815,000
2021 7,240,000
2022 7,690,000
LA1-63221.5 23
2023 8,170.000
2024 (maturity) 8,685,000
(ii) The ARS and the IRS are subject to mandatory redemption on the first
Interest Payment Date on or after July 1, 2010 of the years set forth below at a redemption
price equal to the principal amount thereof plus accrued but unpaid interest to the
redemption date, without premium:
Principal Principal
Year Amount of ARS Amount of IRS
2010 $1,900,000 $1,900,000
2011 2,000,000 2,000,000
2012 2,100,000 2,100,000
2013 2,250,000 2,250,000
2014 (maturity) 2,350,000 2,350,000
(c) The 1994 Bonds are subject to redemption prior to their respective
maturity dates, in Authorized Denominations, upon notice as hereinafter provided, on any
date, as a whole or in part, from Net Proceeds, as provided in Section 7.01 of the Lease, at
the principal amount or Accreted Value thereof together with accrued interest to the date of
redemption, and without premium. The redemption date shall be a date, selected by the
Trustee, as soon as practicable and preferably no later than 75 days after receipt of the
Written Request of the Authority delivered to the Trustee pursuant to Section 6.05.
(d) Notice of redemption shall be mailed by the Trustee, not less than
thirty (30) nor more than sixty (60) days prior to the redemption date to (i) the respective
Owners of the Bonds designated for redemption at their addresses appearing on the
registration books of the Trustee by first class mail, (ii) the Securities Depositories and
(iii) the Information Services. Notice of redemption to the Securities Depositories and the
Information Services shall be given by registered mail. Each notice of redemption shall
state the date of such notice, the redemption price, if any, which, in the case of ARS and
IRS to be redeemed, shall be expressed per $1,000 of Regular ARS, Regular IRS, Regular
Fixed AIRS and Newly Fixed AIRS to be redeemed, (including the name and appropriate
address of the Trustee), the CUSIP number (if any) of the maturity or maturities (to the
extent the CUSIP number identified by the Trustee is incorrect, such misidentification shall
be deemed harmless and shall not affect the sufficiency of the proceedings for redemption),
and, if less than all of any such maturity is to be redeemed, the distinctive certificate
numbers of the Bonds of such maturity, to be redeemed and, in the case of Bonds to be
redeemed in part only, the respective portions of the principal amount or Accreted Value
thereof to be redeemed. Each such notice shall also state that on said date there will
become due and payable on each of said Bonds thereof and in the case of a Bond to be
redeemed in part only, the specified portion of the principal amount thereof to be
I A1-63221.5 24
redeemed, together with interest accrued thereon to the redemption date, and that from and
after such redemption date interest thereon shall cease to accrue, and shall require that such
Bonds be then surrendered at the address of the Trustee specified in the redemption notice.
(e) Special Provisions Relating to AIRS. (i) Notwithstanding any other
provision in this Indenture, (1) no ARS shall be redeemed or delivered to the Trustee for
cancellation on any date, unless an equal aggregate principal amount of IRS is redeemed or
delivered to the Trustee for cancellation on the same date and (2) no IRS shall be redeemed
or delivered to the Trustee for cancellation on any date, unless an equal aggregate principal
amount of ARS is redeemed or delivered to the Trustee for cancellation on the same date.
(ii) Whenever provision is made in this Indenture for the redemption of the
ARS and the IRS and less than all of the outstanding ARS and IRS are to be redeemed
(other than pursuant to subsection (b)(ii) above), the Authority will direct the principal
amount of each maturity of the ARS and of the IRS to be redeemed, provided that such
amounts must be in Authorized Denominations. Within a maturity, the Trustee shall select
ARS and IRS for redemption as specified in Section 7 of Appendix A. The Trustee shall
promptly notify the Authority in writing of ARS and IRS so selected for redemption.
(t) Whenever less than all Outstanding Bonds maturing on any one date are
called for redemption at any one time, the Trustee shall select the Bonds to be redeemed by
lot in any manner which the Trustee deems fair; provided, however, that if less than all the
Outstanding Term Bonds of a particular maturity are called for redemption at any one time,
the Trustee shall specify a reduction in any sinking fund payment required to be made with
respect to such Bonds in an amount equal to the Outstanding Term Bonds to be redeemed
which, to the extent possible, results in approximately equal Annual Debt Service on the
Bonds Outstanding following such redemption. For purposes of selecting Bonds for
redemption, Current Interest Bonds shall be deemed to be composed of portions of$5000
principal and Capital Appreciation Bonds shall be deemed to be composed of$5000
maturity amount and any such portion may be separately redeemed.
(g) If notice of redemption has been duly given as aforesaid and money
for the payment of the redemption price of the Bonds called for redemption is held by the
Trustee, then on the redemption date designated in such notice Bonds shall become due and
payable, and from and after the date so designated interest on the Bonds so called for
redemption shall cease to accrue, and the Owners of such Bonds shall have no rights in
respect thereof except to receive payment of the redemption price thereof.
(h) Failure by the Trustee to give notice pursuant to this Section to any
one or more of the Information Services or Securities Depositories, or the insufficiency of
any such notice shall not affect the sufficiency of the proceedings for redemption and shall
not result in any liability to the Trustee. Failure by the Trustee to mail notice of
redemption pursuant to this Section to any one or more of the respective Owners of any
Bonds designated for redemption shall not affect the sufficiency of the proceedings for
u1-63221.5 25
redemption with respect to the Owners to whom such notice was mailed and shall not result
in any liability to the Trustee.
(i) All Bonds redeemed pursuant to the provisions of this Section shall be
cancelled by the Trustee and shall be destroyed and shall not be reissued.
SECTION 2.04. Global Form; Securities Deposition.
Except as otherwise provided herein, each Series 1994 Bond shall be issued
in the form or one global certificate for each maturity of such series, registered in the name
of the Securities Depository or its nominee, and ownership thereof shall be maintained in
book-entry form by the Securities Depository for the account of the Participants thereof.
"Securities Depository" means DTC, appointed as securities depository herein, and its
successors and assigns or if(i) the then Securities Depository resigns from its functions as
depository of the 1994 Bonds or (ii) the Authority discontinues the use of the Securities
Depository pursuant to Section 3.01 hereof, any other securities depository which agrees to
follow the procedures required to be followed by a securities depository in connection with
the 1994 Bonds and which is appointed by the Authority (with the consent of the Auction
Agent and the Market Agent, with respect to any outstanding AIRS, which consent shall
not be unreasonably withheld). "Participant" means a member of, or participant in, the
Securities Depository. Initially, the 1994 Bonds shall be registered in the name of Cede &
Co., as the nominee of The Depository Trust Company. Except as provided in Section
3.01 hereof, the 1994 Bonds may be transferred, in whole but not in part, only to the,
Securities Depository or a nominee of the Securities Depository, or to a successor
Securities Depository appointed or approved by the Authority or to a nominee of such
successor.
SECTION 2.05. Execution of Bonds. The Chairman of the Authority is
hereby authorized and directed to execute each of the Bonds on behalf of the Authority and
the Secretary of the Authority is hereby authorized and directed to countersign each of the
Bonds on behalf of the Authority. The signatures of such President and Secretary may be
by printed, lithographed or engraved by facsimile reproduction. In case any officer whose
signature appears on the Bonds shall cease to be such officer before the delivery of the
Bonds to the purchaser thereof, such signature shall nevertheless be valid and sufficient for
all purposes as if such officer had remained in office until such delivery of the Bonds.
Only those Bonds bearing thereon a certificate of authentication and
registration in substantially the form set forth in Exhibit A hereto, executed manually and
dated by the Trustee, shall be entitled to any benefit, protection or security hereunder or be
valid or obligatory for any purpose, and such certificate of the Trustee shall be conclusive
evidence that the Bonds so authenticated and registered have been duly authorized,
executed, issued and delivered hereunder and are entitled to the benefit, protection and
security hereof.
LAI-63221.5 26
SECTION 2.06. Transfer and Payment of Bonds. Any Bond may, in
accordance with its terms, be transferred in the books required to be kept pursuant to the
provisions of Section 2.08 by the person in whose name it is registered, in person or by his
duly authorized attorney, upon surrender, at the Corporate Trust Office of the Trustee, of
such Bond for cancellation accompanied by delivery of a duly executed written instrument
of transfer in a form approved by the Trustee. Whenever any Bond or Bonds shall be
surrendered for transfer, the Authority shall execute and the Trustee shall authenticate and
deliver a new Bond or Bonds of a like aggregate principal amount. The Trustee shall
require the payment by the Owner requesting such transfer of any tax or other
governmental charge required to be paid with respect to such transfer as a condition
precedent to the exercise of such privilege.
The Authority and the Trustee may deem and treat the Owner of any Bond as
the absolute owner of such Bond for the purpose of receiving payment thereof and for all
other purposes, whether such Bond shall be overdue or not, and neither the Authority nor
the Trustee shall be affected by any notice or knowledge to the contrary; and payment of
the interest on and principal of and redemption premium, if any, on such Bond shall be
made only to such Owner, which payments shall be valid and effectual to satisfy and
discharge liability on such Bond to the extent of the sum or sums so paid.
The Trustee shall not be required to register the transfer of any Bond
(i) during the period commencing on the day five Business Days before the date on which
Bonds are to be selected for redemption and ending on such date of selection, or (ii) which
has been selected for redemption in whole or in part.
SECTION 2.07. Exchange of Bonds. Bonds may be exchanged at the
Corporate Trust Office of the Trustee for a like aggregate principal amount of Bonds of the
same series and maturity of other Authorized Denominations. The Trustee shall require the
payment by the Owner requesting such exchange of any tax or other governmental charge
required to be paid with respect to such exchange as a condition precedent to the exercise
of such privilege.
The Trustee shall not be required to register the transfer of the exchange of
any Bond (i) during any period commencing the day five (5) Business Days before the date
on which Bonds are to be selected for redemption and ending on such date of selection, or
(ii) which has been selected for redemption in whole or in part.
SECTION 2.08. Bond Registration Books. The Trustee will keep at its
office sufficient books for the registration and transfer of the Bonds which shall at all times
be open to inspection by the Authority during normal business hours with reasonable prior
notice, and upon presentation for such purpose the Trustee shall, under such reasonable
regulations as it may prescribe, register or transfer the Bonds in such books as hereinabove
provided.
LA1-63221.5 27
SECTION 2.09. Mutilated, Destroyed, Stolen or Lost Bonds. If any
Bond shall become mutilated, the Trustee, at the expense of the Owner thereof, shall
thereupon authenticate and deliver a new Bond of like series, maturity and Authorized
Denomination in exchange and substitution for the Bond so mutilated, but only upon
surrender, at the Corporate Trust Office of the Trustee, of the Bond so mutilated. Every
mutilated Bond so surrendered to the Trustee shall be cancelled by the Trustee and
delivered to, or upon the order of, the Authority.
If any Bond shall be lost, destroyed or stolen, evidence of such loss,
destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to
the Trustee and indemnity satisfactory to the Trustee shall be given, the Trustee, at the
expense of the Owner, shall thereupon authenticate and deliver a new Bond of like series,
maturity and Authorized Denomination in lieu of and in substitution for the Bond so lost,
destroyed or stolen.
The Trustee may require payment of a reasonable sum for each new Bond
issued under this Section and of the expenses which may be incurred by the Authority and
the Trustee in the premises. Any Bond issued under the provisions of this Section in lieu
of any Bond alleged to be lost, destroyed or stolen shall be equally and proportionately
entitled to the benefits of this Indenture with all other Bonds secured by this Indenture.
Neither the Authority nor the Trustee shall be required to treat both the original Bond and
any replacement Bond as being Outstanding for the purpose of determining the principal
amount of Bonds which may be issued hereunder or for the purpose of determining any
percentage of Bonds Outstanding hereunder, but both the original and replacement Bond
shall be treated as one and the same.
SECTION 2.10. Temporary Bonds. The Bonds issued under this
Indenture may be initially issued in temporary form exchangeable for definitive Bonds when
ready for delivery. The temporary Bonds may be printed, lithographed or typewritten,
shall be of such denominations as may be determined by the Authority, shall be in fully
registered form and may contain such reference to any of the provisions of this Indenture as
may be appropriate. Every temporary Bond shall be executed and authenticated in
accordance with the terms hereof. If the Authority issues temporary Bonds it will execute
and furnish definitive Bonds without delay and thereupon the temporary Bonds shall be
surrendered, for cancellation, at the Corporate Trust Office of the Trustee, and the Trustee
shall deliver in exchange for such temporary Bonds an equal aggregate principal amount of
definitive Bonds of Authorized Denominations. Until so exchanged, the temporary Bonds
shall be entitled to the same benefits under this Indenture as definitive Bonds delivered
hereunder.
SECTION 2.11. Validity of'Bonds. From and after the issuance of the
Bonds the fmdings and determinations of the Authority respecting the Bonds shall be
conclusive evidence of the existence of the facts so found and determined in any action or
proceeding in any court in which the validity of the Bonds shall be required to see to the
existence of any fact or to the performance of any condition or to the taking of any
LA1-63221.5 28
proceeding required prior to such issuance or to the application of the proceeds of sale of
the Bonds. The validity of the issuance of the Bonds shall not be dependent on or affected
in any way by the proceedings taken by the Authority for the financing of the Project or by
any contracts made by the Authority or its agents in connection therewith, and shall not be
dependent upon the completion of the acquisition, construction or installation of the Project
or upon the performance by any person, firm or corporation of his or its obligation with
respect thereto. The recital contained in the Bonds that the same are issued pursuant hereto
shall be conclusive evidence of their validity and of the regularity of their issuance, and all
Bonds shall be incontestable from and after their issuance. The Bonds shall be deemed to
be issued, within the meaning hereof, whenever the definitive Bonds (or any temporary
Bonds exchangeable therefor) shall have been delivered to the purchaser thereof and the
proceeds of sale thereof received.
SECTION 2.12. Conditions for the Issuance of Additional Bonds. The
Authority may at any time issue Additional Bonds payable from the Revenues as provided
herein and secured by a pledge of the Revenues as provided herein equal to the pledge
securing the Outstanding Bonds theretofore issued hereunder, but only subject to the
following specific conditions, which are hereby made conditions precedent to the issuance
of any such Additional Bonds:
(a) The Authority shall be in compliance with all agreements and covenants
contained herein.
(b) The issuance of such Additional Bonds shall have been authorized by the
Authority and shall have been provided for by Supplemental Indenture which shall
specify the following:
(1) The purpose for which such Additional Bonds are to be issued;
(2) The authorized principal amount and designation of such
Additional Bonds;
(3) The dated date and the maturity dates of, and the sinking fund
payment dates, if any, for such Additional Bonds; provided that (i) each
maturity date shall fall upon July 1, (ii) the fmal maturity date shall not
exceed the remaining useful life of the Leased Property, (iii) all such
Additional Bonds of like maturity shall be identical in all respects, except as
to number and denomination and (iv) serial maturities for Serial Bonds or
sinking fund payments for Term Bonds, or any combination thereof, shall be
established to provide for the retirement of such Additional Bonds on or
before their respective maturity dates;
(4) The interest payment dates for such Additional Bonds, which
shall be Interest Payment Dates;
LAI-63221.5 29
(5) That such Additional Bonds shall be issued only in Authorized
Denominations;
(6) The redemption premiums, if any, and the redemption terms, if
any, for such Additional Bonds;
(7) The amount, if any, to be deposited from the proceeds of sale of
such Additional Bonds in the Interest Account;
(8) The amount, if any, to be deposited from the proceeds of sale of
such Additional Bonds in the Acquisition Fund;
(9) The amount to be deposited from the proceeds of sale of such
Additional Bonds in the Reserve Account, which amount shall be sufficient to
cause the amount on deposit in the Reserve Account to equal the Reserve
Requirement upon the issuance of such Additional Bonds;
(10) The forms of such Additional Bonds; and
(11) Such other provisions as are necessary or appropriate and not
inconsistent herewith.
(c) The Lease shall have been amended so as to increase the Base Rental
payable by the City thereunder by an amount at least sufficient to pay the interest on
and principal of such Additional Bonds as the same become due.
(d) Evidence that the Authority has received the written consent of the
Bond Insurer, to any such issuance of Additional Bonds, provided that with respect
to Additional Bonds issued for the purpose of(i) completion of the Project, such
consent shall not be unreasonably withheld, and (ii) refunding Outstanding Bonds for
debt service savings, no consent of the Bond Insurer shall be required.
Nothing contained herein shall limit the issuance of any lease revenue bonds
of the Authority payable from the Revenues and secured by a pledge of the Revenues if
after the issuance and delivery of such lease revenue bonds none of the Bonds theretofore
issued hereunder will be Outstanding.
SECTION 2.13. Procedure for the Issuance of Additional Bonds. The
Authority may, at any time, execute Additional Bonds for issuance hereunder and deliver
them to the Trustee, and thereupon such Additional Bonds shall be authenticated and
delivered by the Trustee to the purchaser thereof upon the Written Request of the
Authority, but only upon receipt by the Trustee of the following documents or money or
securities, all of such documents dated or certified, as the case may be, as of the date of
delivery of such Additional Bonds by the Trustee:
LA1-63221.5 30
(a) An executed copy of the Supplemental Indenture authorizing the issuance
of such Additional Bonds;
(b) A Written Request of the Authority as to the delivery of such Additional
Bonds;
(c) An Opinion of Counsel substantially to the effect that (1) the Authority
and the Trustee have the right and power to execute and deliver the Supplemental
Indenture and the Supplemental Indenture has been duly and lawfully executed and
delivered by the Authority and the Trustee, is in full force and effect and is valid
and binding upon the Authority and the Trustee and enforceable in accordance with
its terms (except as enforcement may be limited by bankruptcy, insolvency,
reorganization and other similar laws relating to the enforcement of creditors' rights
and by equitable principles) and no other authorization for the execution and
delivery thereof is required, (2) the Supplemental Indenture creates the valid pledge
of the Revenues which it purports to create as provided therein, subject to the
application thereof to the purposes and on the conditions permitted hereby, (3) such
Additional Bonds are valid and binding special obligations of the Authority,
enforceable in accordance with their terms (except as enforcement may be limited by
bankruptcy, insolvency, reorganization and other similar laws relating to the
enforcement of creditors' rights and by equitable principles) and the terms hereof
and entitled to the benefits hereof, and such Additional Bonds have been duly and
validly authorized, executed, issued and delivered in accordance herewith, (4) the
amendment to the Lease required by Section 2.12(c) has been duly authorized,
executed and delivered and is valid and binding upon the Authority and the City and
enforceable in accordance with its terms (except as enforcement may be limited by
bankruptcy insolvency, reorganization and other similar laws relating to the
enforcement of creditors' rights and by equitable principles), and (5) the issuance of
such Additional Bonds will not adversely affect the exclusion from gross income for
federal tax purposes of interest on any Outstanding Bonds;
(d) A Certificate of the Authority containing such statements as may be
reasonably necessary to show compliance with the conditions for the issuance of
such Additional Bonds contained herein; and
(e) Such further documents, opinions, money or securities as are required
by the provisions of the Supplemental Indenture providing for the issuance of such
Additional Bonds.
LAt-63221s
31
the bond register. In addition to the execution and delivery of a Representation Letter, the
Authority and the Trustee shall take such other actions, not inconsistent with this Indenture,
as are reasonably necessary to qualify Book-Entry Bonds for the Depository's book-entry
program.
In the event (i) the Depository determines not to continue to act as securities
depository for any Series of Book-Entry Bonds, or (ii) the Depository shall no longer so act
and gives notice to the Trustee of such determination, then the Authority will discontinue
the book-entry system with the Depository. If the Authority determines to replace the
Depository with another qualified securities depository, the Authority shall prepare or direct
the preparation of a new single, separate, fully registered Bond for each of the maturities of
such Book-Entry Bonds, registered in the name of such successor or substitute qualified
securities depository or its nominee. If the Authority fails to identify another qualified
securities depository to replace the Depository, then the Bonds shall no longer be restricted
to being registered in such bond register in the name of the Nominee, but shall be
registered in whatever name or names Owners transferring or exchanging such Bonds shall
designate, in accordance with provisions of Article II hereof. The Trustee shall deliver
such certificates representing the 1994 Bonds to the persons in whose names the 1994
Bonds are so registered. Such delivery in the case of the ARS and the IRS shall be made
on the Business Day immediately preceding the first day of an Auction Period.
Notwithstanding any other provision of this Indenture to the contrary, so long
as any Book-Entry Bond is registered in the name of the Nominee, all payments with
respect to principal of, premium, if any, and interest on such Bond and all notices with
respect to such Bond shall be made and given, respectively, as provided in the
Representation Letter or as otherwise instructed by the Depository.
ARTICLE IV
ESTABLISHMENT OF FUNDS; DEPOSIT AM)
APPLICATION OF PROCEEDS
SECTION 4.01. Establishment of Funds. The Trustee shall establish the
following special trust funds, which the Trustee agrees to maintain and keep separate and
apart from all other funds and moneys held by the Trustee so long as the Bonds are
Outstanding: the "Santa Ana Financing Authority Police Facility Lease Revenue Bond
Revenue Fund" (the "Revenue Fund"), the "Santa Ma Financing Authority Police Facility
Lease Revenue Bond Acquisition Fund" (the "Acquisition Fund") and the "Santa Ma
Financing Authority Police Facility Lease Revenue Bond Costs of Issuance Fund" (the
"Costs of Issuance Fund").
So long as any of the Bonds, or any interest thereon, remain unpaid, the
moneys in the foregoing funds shall be used for no purpose other than those required or
permitted by this Indenture.
LAI-63221.5 33
SECTION 4.02. Procedure for the Issuance of Bonds. The Authority
may, at any time, execute the 1994 Bonds for issuance hereunder and deliver them to the
Trustee, and thereupon the 1994 Bonds shall be authenticated and delivered by the Trustee
to the purchaser thereof upon the Written Request of the Authority and upon receipt of
payment therefor from the purchaser thereof.
SECTION 4.03. Anplication of Proceeds. Upon the receipt of payment
for the 1994 Bonds on the Closing Date, the Trustee shall apply the proceeds thereof as
follows:
(i) The Trustee shall deposit the amount of $315,258.63 in the
Interest Account established within the Revenue Fund pursuant to
Section 5.03 hereof, which amount represents accrued interest received on
the sale of the 1994 Bonds;
(ii) The Trustee shall deposit the amount of$7,219,667.07 in the
Capitalized Interest Account established in the Revenue Fund pursuant to
Section 5.03 hereof;
(iii) The Trustee shall deposit the amount of$9,227,812.50, equal
to the amount of the Reserve Requirement, in the Reserve Account
established within the Revenue Fund pursuant to Section 5.03;
(iv) The Trustee shall deposit the amount of$400,000.00 in the
Costs of Issuance Fund; and
(v) The Trustee shall deposit the remainder of the proceeds of the
1994 Bonds, $92,341,401.07, in the Acquisition Fund.
SECTION 4.04. Use of Moneys in the Acquisition Fund. The moneys in
the Acquisition Fund shall be disbursed from time to time to pay Acquisition Costs and, to
the extent described below, to pay Costs of Issuance. The Trustee shall disburse moneys in
the Acquisition Fund from time to time upon receipt by the Trustee of a Written Request of
the Authority which: (a) states with respect to each disbursement to be made: (i) the
requisition number, (ii) the name and address of the person, firm or corporation to whom
payment is due, (iii) the amount to be disbursed, and (iv) that each obligation therein has
been properly incurred, and is a proper charge against the Acquisition Fund and has not
been the basis of any previous disbursement; (b) specifies in reasonable detail the nature of
the obligation; (c) is accompanied by a bill or statement of account for each obligation; and
(d) states that after such disbursement sufficient funds will remain in the Acquisition Fund
(together with earnings thereon) to complete the acquisition, construction and installation of
the Project. If at any time there are insufficient moneys in the Costs of Issuance Fund to
disburse moneys in accordance with a Written Request of the City delivered pursuant to
Section 4.05, the Trustee shall disburse from the Acquisition Fund such additional amounts
as are necessary to comply with such Written Request.
LAI-63221.5 34
The Trustee shall hold the moneys in the Acquisition Fund and disburse such
moneys therefrom in accordance with this Section. If at any time there are insufficient
moneys in the Acquisition Fund to pay all Acquisition Costs in full, the amount of such
deficiency shall be deposited therein by the City, from and only to the extent it has
additional funds legally available to it for such purpose.
If, after payment by the Trustee of all Written Requests of the Authority
theretofore tendered to the Trustee under the provisions of this Section, and delivery to the
Trustee of a Certificate of Completion, there shall remain any balance of money in the
Acquisition Fund, all money so remaining shall be transferred, first, to the Reserve
Account to the extent necessary to make the amount on deposit therein equal to the Reserve
Requirement and, second, the remainder to a separate account which the Trustee shall
establish and hold in trust, and which shall be entitled the "Surplus Account." The moneys
in the Surplus Account shall be applied (unless some other application of such moneys
would not, in the Opinion of Counsel adversely affect the exclusion from gross income for
federal income tax purposes of interest on the Bonds), at the direction of the City, to one of
the following purposes: (i) to the construction of additional public facilities or (ii) to the
payment of regularly scheduled principal or Accreted Value of or interest on the Bonds, in
which case amounts in the Surplus Account shall be transferred to the Revenue Fund;
provided that if alternative (i) is selected by the City, the fair rental value of the Leased
Property must at all times be equal to or greater than Annual Debt Service in each Bond
Year. Notwithstanding Section 6.04, pursuant to the provisions of the Tax Certificate
relating to determination of yield with respect to investments of Bond proceeds, the moneys
in the Surplus Account shall be invested at the direction of the City at a yield no higher
than the yield on the Outstanding Series of Bonds from which such moneys are derived
(unless, in the Opinion of Counsel, investment at a higher yield would not adversely affect
the exclusion from gross income for federal income tax purposes of interest on the Bonds),
and all such investment income shall be deposited in the Surplus Account and expended or
reinvested as provided above.
SECTION 4.05. Use of Moneys in the Costs of Issuance Fund. The
moneys in the Costs of Issuance Fund shall be disbursed from time to time to pay Costs of
Issuance. The Trustee shall disburse moneys in the Costs of Issuance Fund from time to
time upon receipt by the Trustee of a Written Request of the Authority which: (a) states
with respect to each disbursement to be made: (i) the requisition number, (ii) the name and
address of the person, firm or corporation to whom payment is due, (iii) the amount to be
disbursed, and (iv) that each obligation therein has been properly incurred, and is a proper
charge against the Costs of Issuance Fund and has not been the basis of any previous
disbursement; (b) specifies in reasonable detail the nature of the obligation; and (c) is
accompanied by a bill or statement of account for each obligation.
The Trustee shall hold the moneys in the Costs of Issuance Fund and
disburse such moneys therefrom in accordance with this Section.
LAI-63221.5 35
Upon the earlier of the date six months after the Closing Date for the related
Series of Bonds or the date of receipt of a Certificate of the Authority stating that all Costs
of Issuance have been paid, the Trustee shall transfer any amounts then remaining in the
Costs of Issuance Fund to the Reserve Account to the extent necessary to make the amount
on deposit therein equal to the Reserve Requirement and any amount remaining thereafter
in the Costs of Issuance Fund shall be transferred to the Acquisition Fund; provided that
investment earnings or equivalent amount may be transferred to the Rebate Fund as
provided in Section 6.04.
ARTICLE V
REVENUES
SECTION 5.01. Pledge of Revenues. All Revenues and amounts on
deposit in the funds and accounts established hereunder (other than amounts on deposit in
the Rebate Fund created pursuant to Section 6.04) are hereby irrevocably pledged to the
payment of the interest on and principal of the Bonds as provided herein, and the Revenues
shall not be used for any other purpose while any of the Bonds remain Outstanding;
provided, however, that out of the Revenues there may be allocated such sums for such
purposes as are expressly permitted by Section 5.03.
In order to secure the pledge of the Revenues contained in this Section 5.01,
the Authority hereby transfers, conveys and assigns to the Trustee, for the benefit of the
Owners, all of the Authority's rights under the Ground Lease and the Lease (excepting its
right to indemnification and payment of fees and expenses thereunder), including the right
to receive Base Rental payments from the City, the right to receive any proceeds of
insurance maintained thereunder or any condemnation award rendered with respect to the
Insect Property and the right to exercise any remedies provided therein in the event of a
default by the City thereunder. Subject to the provisions of this Indenture, the Trustee
hereby accepts said assignment for the benefit of the Owners.
The Trustee shall be entitled to and shall receive all of the Revenues, and
any Revenues collected or received by the Authority shall be deemed to be held, and to
have been collected or received, by the Authority as agent of the Trustee and shall
forthwith be paid by the Authority to the Trustee.
SECTION 5.02. Receipt and Deposit of Revenues in the Revenue Fund.
In order to carry out and effectuate the pledge contained herein, the Authority agrees and
covenants that all Revenues when and as received shall be received in trust hereunder for
the benefit of the Owners and shall be deposited when and as received in the Revenue
Fund. All Revenues shall be accounted for through and held in trust in the Revenue Fund,
and the Authority shall have no beneficial right or interest in any of the Revenues except
only as herein provided. All Revenues, whether received by the Authority in trust or
deposited with the Trustee as herein provided, shall nevertheless be allocated, applied and
disbursed solely to the purposes and uses hereinafter in this Article set forth, and shall be
LAI-63221.5 36
accounted for separately and apart from all other accounts, funds, money or other resources
of the Authority.
SECTION 5.03. Establishment and Maintenance of Accounts for Use of
Money in the Revenue Fund. Subject to Section 6.04, all money in the Revenue Fund
shall be set aside by the Trustee in the following respective special accounts within the
Revenue Fund (each of which is hereby created and each of which the Trustee hereby
covenants and agrees to maintain) in the following order of priority:
(a) Interest Account,
(b) Principal Account; and
(c) Reserve Account.
All money in each of such accounts shall be held in trust by the Trustee and shall be
applied, used and withdrawn only for the purposes hereinafter authorized in this section.
(a) Interest Account. On or before each Interest Payment Date, the
Trustee shall set aside from the Revenue Fund and deposit in the Interest Account that
amount of money which, together with any money contained in the Interest Account, is
equal to the aggregate amount of interest becoming due and payable on all Outstanding
Bonds on such Interest Payment Date. No deposit need be made in the Interest Account if
the amount contained in the Interest Account is at least equal to the aggregate amount of
interest becoming due and payable on all Outstanding Bonds on such interest payment date.
All money in the Interest Account shall be used and withdrawn by the Trustee solely for the
purpose of paying the interest on the Bonds as it shall become due and payable (including
accrued interest on any Bonds purchased or redeemed prior to maturity).
(b) Principal Account. On or before July 1 of each year, beginning on
July 1, 2001, the Trustee shall set aside from the Revenue Fund and deposit in the Principal
Account an amount of money equal to the aggregate principal amount or Accreted Value of
all Outstanding Serial Bonds maturing on such July 1 plus the aggregate principal amount
or Accreted Value of all sinking fund payments required to be made with respect to the
Term Bonds on such July 1. No deposit need be made in the Principal Account if the
amount contained therein is at least equal to the aggregate amount of the principal or
Accreted Value of all Outstanding Serial Bonds maturing by their terms on such July 1 plus
the aggregate principal amount or Accreted Value of all sinking fund payments required to
be made on such July 1 for all Outstanding Term Bonds.
The Trustee shall establish and maintain within the Principal Account a
separate sinking account for Term Bonds (the "Sinking Account"). On each mandatory
sinking account payment date established for such Sinking Account, the Trustee shall apply
the mandatory sinking account payment required on that date to the redemption (or payment
at maturity, as the case may be) of Term Bonds upon the notice and in the manner provided
LA1-63221.5 37
herein: provided that, at any time prior to giving such notice of such redemption, the
Trustee, upon Written Request of the Authority, may apply moneys in such Sinking
Account to the purchase of Term Bonds with respect to which such moneys were deposited
in the Sinking Account at public or private sale, as and when and at such prices (including
brokerage and other charges, but excluding accrued interest, which is payable from the
Interest Account) as shall be determined by the Authority, except that the purchase price
(excluding accrued interest) shall not exceed the redemption price that would be payable for
such Bonds upon redemption by application of such mandatory sinking account payment.
If, during the twelve-month period immediately preceding said mandatory sinking account
payment date, the Trustee has purchased Term Bonds of such maturity with moneys in such
Sinking Account, such Bonds so purchased shall be applied, to the extent of the full
principal amount or Accreted Value thereof, to reduce said mandatory sinking account
payment.
All money in the Principal Account shall be used and withdrawn by the
Trustee solely for the purpose of paying the principal or Accreted Value of the Bonds as
they shall become due and payable, except that any money in the Sinking Account shall be
used and withdrawn by the Trustee only to purchase or to redeem or to pay Term Bonds.
(c) Reserve Account. The Trustee shall set aside from the Revenue Fund
and deposit in the Reserve Account an amount of money which, together with the amount
already on deposit therein, will be equal to the Reserve Requirement. No deposit need be
made in the Reserve Account so long as there shall be on deposit therein a sum equal to at
least the Reserve Requirement.
All money in the Reserve Account shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest on, or principal or Accreted Value of,
or redemption premiums, if any, on the Bonds in the event that no other money of the
Authority is lawfully available therefor, or for the retirement of all Bonds then Outstanding.
All interest income received by the Trustee on investment of moneys in the Reserve
Account shall be retained in the Reserve Account so long as amounts on deposit in the
Reserve Account are less than the Reserve Requirement. Subject to the foregoing, earnings
and profits on investments in the Reserve Account shall be transferred to the Capitalized
Interest Account until completion of the Project and thereafter to the Revenue Fund.
Notwithstanding any provision of the Indenture to the contrary, all or any
portion of the Reserve Requirement for the Bonds may be satisfied by the provision of a
policy of insurance, a surety bond, a letter of credit or other comparable credit facility, or a
combination thereof, which, together with moneys on deposit in the Reserve Account,
provide an aggregate amount equal to the Reserve Requirement; provided, that the provider
of any such policy of insurance, surety bond, letter of credit or other comparable credit
facility must be approved in writing by the Bond Insurer.
(d) Redemption Account. In addition to the above accounts, the Trustee
shall establish and maintain within the Revenue Fund a special account designated the
LAis3221.3 38
"Redemption Account." All money in the Redemption Account shall be held in trust by the
Trustee and shall be applied, used and withdrawn only for the purposes authorized in this
section. Any Net Proceeds which, in accordance with a Written Request of the City
delivered to the Trustee pursuant to Section 6.05, are to be used to redeem Bonds and all
prepayments of Base Rental by the City pursuant to Section 5.05 of the Lease shall be
deposited by the Trustee in the Redemption Account. The Trustee shall, on the scheduled
redemption date, withdraw from the Redemption Account and pay to the Owners entitled
thereto an amount equal to the redemption price of the Bonds to be redeemed on such date.
(e) Capitali7ed Interest Account. In addition to the above accounts, the
Trustee shall establish and maintain within the Revenue Fund a special account designated
the "Capitalized Interest Account." All money in the Capitali7ed Interest Account shall be
held in trust by the Trustee and shall be applied, used and withdrawn only for the purposes
authorized in this Section.
There shall be deposited in the Capitalized Interest Account that portion of
the proceeds of the 1994 Bonds required to be deposited therein pursuant to Section 4.03
hereof.
Prior to receiving a Certificate of Completion, on or prior to each of the
following Interest Payment Dates, the Trustee shall transfer money from the Capitalized
Interest Account to the Interest Account the amounts specified below:
Interest Payment
Date Amount
January 1, 1995 $5,240,320.14
July 1, 1995 3,188,888.75
Notwithstanding anything herein to the contrary, amounts, if any, remaining
in the Capitalized Interest Account on the date the Trustee receives a Certificate of
Completion shall be transferred first to the Reserve Account to the extent necessary to make
the amount on deposit therein equal to the Reserve Requirement and thereafter any excess
shall be transferred to the Revenue Fund. Following the transfer of all amounts remaining
in the Capitali7ed Interest Account, the Trustee shall close such account.
(t) Any delinquent Base Rental payments and any proceeds of rental
interruption insurance with respect to the Leased Property shall be applied first to the
Interest Account for the immediate payment of interest payments past due and then to the
Principal Account for immediate payment of principal payments past due according to the
tenor of any Bond, and then to the Reserve Account to the extent necessary to make the
amount on deposit therein equal to the Reserve Requirement. Any remaining money
representing delinquent Base Rental payments and any proceeds of rental interruption
LA1-63221.5 39
insurance shall be deposited in the Revenue Fund to be applied in the manner provided
herein.
SECTION 5.04. Investment of Moneys in Funds and Accounts. Moneys
in the Acquisition Fund, the Revenue Fund and the Costs of Issuance Fund, and any
accounts therein shall, upon the Written Request of the City, be invested by the Trustee in
Permitted Investments. In the absence of a Written Request of the City, the Trustee will
invest moneys in such funds and accounts in Permitted Investments described in
subparagraph (d) of the definition of Permitted Investments. The obligations in which
moneys in the said funds and accounts are invested shall mature prior to the date on which
such moneys are estimated to be required to be paid out hereunder. The obligations in
which moneys in the Reserve Account are so invested shall be invested in obligations
maturing no later than five years after the date of investment or on the final maturity date
of the Bonds, whichever date is earlier; provided, however, that if an obligation may be
redeemed at par for the purposes set forth herein on the business day prior to each Interest
Payment Date during which such obligation is outstanding, such obligation may have any
maturity. Prior to the completion of the acquisition, construction and installation of the
Project, any interest, income or profits from the deposits or investments of all funds and
accounts (except the Rebate Fund and the Reserve Account) shall be deposited in the
Acquisition Fund. After the completion of the acquisition, construction and installation of
the Project, any interest, income or profits from the deposits or investments of all funds and
accounts (except the Rebate Fund and the Reserve Account) shall be deposited in the
Revenue Fund. For purposes of determining the amount of deposit in any fund or account
held hereunder (other than the Reserve Account), all Permitted Investments credited to such
fund or account shall be valued at the lower of the cost thereof or the market value thereof
(excluding accrued interest and brokerage commissions, if any). Permitted Investments
credited to the Reserve Account shall be valued at cost. Except as otherwise provided in
this Section, Permitted Investments representing an investment of moneys attributable to
any fund or account and all investment profits or losses thereon shall be deemed at all times
to be a part of said fund or account.
ARTICLE VI
COVENANTS OF THE AUTHORITY
SECTION 6.01. Punctual Payment and Performance. The Authority will
punctually pay the interest on and the principal of and redemption premiums, if any, to
become due on every Bond issued hereunder in strict conformity with the terms hereof and
of the Bonds, and will faithfully observe and perform all the agreements and covenants
contained herein and in the Bonds.
SECTION 6.02. Against Encumbrances. The Authority will not make any
pledge of or place any charge or lien upon the Leased Property or any part thereof or upon
the Revenues except as provided herein, and will not issue any bonds, notes or obligations
LA1-63221.3 40
payable from the Revenues or secured by a pledge of or charge or lien upon the Revenues
except the Bonds.
SECTION 6.03. Against Sale or Other Disposition of the Leased
Property. The Authority will not sell or otherwise dispose of, or cause or permit to be
sold or otherwise disposed of, the Leased Property or any part thereof essential to its
proper use or to the maintenance of the Revenues. The Authority will not enter into any
agreement which impairs the use of the Leased Property or any part thereof necessary to
secure adequate Revenues for the payment of the interest on and principal of and
redemption premiums, if any, on the Bonds, or which would otherwise impair the rights of
the Owners with respect to the Revenues or the use of the Leased Property. Any real or
personal property constituting part of the Leased Property which has become nonoperative
or which is not needed for the efficient and proper use of the Leased Property or which has
become worn out may be sold at not less than the market value thereof if such sale will not
reduce the Revenues and if the net proceeds of such sale are treated as Revenues and
applied in the manner provided in Section 5.03.
SECTION 6.04. Tax Covenants: Rebate Fund.
(a) In addition to the other funds and accounts created pursuant hereto,
the Trustee shall establish and maintain a fund separate from any other fund or account
established and maintained hereunder designated the "Rebate Fund" (the "Rebate Fund").
Within the Rebate Fund, the Trustee shall maintain such accounts or subaccounts as may be
prescribed in the Tax Certificate. The Trustee shall deposit moneys in the Rebate Fund
pursuant to a Written Request of the City. Subject to the transfer provisions provided in
paragraph (e) below, all money at any time deposited in the Rebate Fund shall be held by
the Trustee in trust, to the extent required to satisfy the Rebate Requirement (as such term
is defined in the Tax Certificate), for payment to the federal government of the United
States of America, and neither the City, the Authority, the Trustee nor the Owner of any
Bond shall have any right in or claim to such money. All amounts deposited into or on
deposit in the Rebate Fund shall be governed by this Section and by the Tax Certificate
(which is incorporated herein by reference). The Trustee shall be deemed conclusively to
have complied with the provisions of this Section 6.04 and the Tax Certificate if it follows
the Written Request of the City, including supplying all necessary information that is
available to it in the manner provided in the Tax Certificate, and except as otherwise
expressly provided herein, shall not be required to take any actions hereunder in the
absence of written directions by the City, and shall have no liability or responsibility to
enforce compliance by the City with the terms of the Tax Certificate or this Section. The
Trustee agrees to comply with all Written Requests of the City given in accordance with the
Tax Certificate.
(b) Upon a Written Request of the City, an amount shall be deposited into
the Rebate Fund by the Trustee from deposits by the City, if and to the extent required, so
that the balance of the amount on deposit thereto shall be equal to the Rebate Requirement.
Computations of the Rebate Requirement shall be furnished by or on behalf of the City in
LA1-63221.5 41
accordance with the Tax Certificate. The City shall provide the Trustee with written
evidence that the computation of the Rebate Requirement has been made.
(c) The Trustee shall have no obligation to rebate any amounts required
to be rebated pursuant to this Section, other than from moneys held in the funds and
accounts created hereunder or from other moneys provided to it by the City.
(d) The Trustee shall invest all amounts held in the Rebate Fund in
Permitted Investments as directed by a Written Request of the City, subject to the
restrictions set forth in the Tax Certificate. Money, including investment earnings, shall
not be transferred from the Rebate Fund except as provided in paragraph (e) below.
(e) Upon receipt of a Written Request of the City, the Trustee shall remit
part or all of the amounts in the Rebate Fund to the United States of America, as so
directed. In addition, if the City so directs, the Trustee will deposit moneys into or transfer
moneys out of the Rebate Fund from or into such accounts or fund as directed by the
Written Request of the City. Any funds remaining in the Rebate Fund after payment or
prepayment of all of the Bonds and payment and satisfaction of any Rebate Requirement,
shall, after payment of all fees and expenses of the Trustee, be withdrawn and remitted to
the City.
(f) Notwithstanding any other provision hereof, including, in particular,
Article X, the obligation to remit the Rebate Requirement to the United States and to.
comply with all other requirements of this Section and the Tax Certificate shall survive the
defeasance or payment in full of the Bonds.
(g) The Authority will not take any action, or fail to take any action, if
such action or failure to take such action would adversely affect the exclusion from gross
income of the interest on the Bonds pursuant to Section 103 of the Code, and specifically
the Authority will not directly or indirectly use or make any use of the proceeds of the
Bonds or any other funds of the Authority or take or omit to take any action that would
cause the Bonds to be "arbitrage bonds" subject to federal income taxation by reason of
Section 148 of the Code or "private activity bonds" subject to federal income taxation by
reason of Section 141(a) of the Code or obligations subject to federal income taxation
because they are "federally guaranteed" as provided in Section 149(b) of the Code; and to
that end the Authority, with respect to the proceeds of the Bonds and such other funds, will
comply with all requirements of such sections of the Code to the extent that such
requirements are, at the time, applicable and in effect.
(h) The Authority specifically covenants to comply with the provisions
and procedures of the Tax Certificate.
(i) Notwithstanding any provisions of this Section 6.04, if the Authority
shall provide to the Trustee an Opinion of Counsel to the effect that any specified action
required under this Section 6.04 is no longer required or that some further or different
LA1-63221.5 42
action is required to maintain the exclusion from gross income for federal income tax
purposes of interest with respect to the Bonds, the Trustee, the Authority and the City may
conclusively rely on such opinion in complying with the requirements of this Section, and,
notwithstanding Article VII hereof, the covenants hereunder shall be deemed to be modified
to that extent.
(j) The provisions of this Section shall not apply to any Series of Bonds
which the Authority shall certify to the Trustee is not intended to comply with the
requirements of the Code necessary to make interest on such Series of Bonds excludable
from gross income for federal income tax purposes.
SECTION 6.05. Use of Net Proceeds. The Authority shall cause the City
to, within fifteen (15) days of the receipt of any Net Proceeds, instruct the Trustee, through
a Written Request of the City, as to what portion, if any, of such proceeds is to be used to
redeem Bonds pursuant to Section 2.03.
SECTION 6.06. Accounting Records and Reports. The Authority will
keep or cause to be kept proper books of record and accounts in which complete and
correct entries shall be made of all transactions relating to the receipts, disbursements,
allocation and application of the Revenues, and such books shall be available for inspection
by the Trustee or by the Bond Insurer, at reasonable hours and under reasonable conditions.
Not more than four months after the close of each Authority Fiscal Year, the Authority
shall furnish or cause to be furnished to the Trustee and the Bond Insurer a complete
financial statement covering receipts, disbursements, allocation and application of Revenues
for such Authority Fiscal Year, and including a profit and loss statement and balance sheet.
The Authority shall also keep or cause to be kept such other information as is required
under the Tax Certificate.
SECTION 6.07. The Citv's Budgets. The Authority will supply to the
Trustee, as soon as practicable after the beginning of each City Fiscal Year but in no event
later than December 31 in each City Fiscal Year, a Certificate of the City certifying that the
City has made adequate provision in its annual budget for such City Fiscal Year for the
payment of all rentals due under the Lease in such City Fiscal Year. If the amounts so
budgeted are not adequate for the payment of all rentals due under the Lease in such City
Fiscal Year, the Authority will take such action as may be necessary and within its power
to cause such annual budget to be amended, corrected or augmented so as to include therein
the amounts required to be paid by the City in such City Fiscal Year for the payment of all
rentals due under the Lease in such City Fiscal Year, and will notify the Trustee of the
proceedings then taken or proposed to be taken by the Authority.
SECTION 6.08. Lease and Other Documents. The Authority will at all
times maintain and vigorously enforce all of its rights under the Lease and the Ground
Lease, and will promptly collect all rents and charges due for the use of the Leased
Property as the same become due under the Lease, and will promptly and vigorously
enforce its rights against any tenant or other person who does not pay such rents or charges
LA1-63221.5 43
as they become due under the Lease. The Authority will not do or permit anything to be
done, or omit or refrain from doing anything, in any case where any such act done or
permitted to be done, or any such omission of or refraining from action, would or might be
a ground for cancellation or termination of the Lease by the lessee thereunder or the
Ground Lease by the lessor thereunder.
SECTION 6.09. Other Liens. The Authority will keep, or cause to be
kept, the Leased Property free from judgments, mechanics' and materialmen's liens (except
those arising from the acquisition, construction and installation of the Project) and free from
all liens, claims, demands and encumbrances of whatsoever prior nature or character to the
end that the security for the Bonds provided herein will at all times be maintained and
preserved free from any claim or liability that might hamper the Authority in conducting its
business or interfere with the City's operation of the Leased Property, and the Trustee at its
option (after first giving the Authority ten (10) days' written notice to comply therewith and
failure of the Authority to so comply within such period) may defend against any and all
actions or proceedings in which the validity hereof is or might be questioned, or may pay
or compromise any claim or demand asserted in any such action or proceeding; provided,
however, that in defending such actions or proceedings or in paying or compromising such
claims or demands the Trustee shall not in any event be deemed to have waived or released
the Authority from liability for or on account of any of its agreements and covenants
contained herein, or from its liability hereunder to defend the validity hereof and the pledge
of the Revenues made herein and to perform such agreements and covenants.
SECTION 6.10. Prosecution and Defense of Suits. The Authority will
promptly from time to time take or cause to be taken such action as may be necessary or
proper to remedy or cure any defect in or cloud upon the title to the Leased Property,
whether now existing or hereafter developing, and shall prosecute or cause to be prosecuted
all such suits, actions and other proceedings as may be appropriate for such purpose and
shall indemnify and hold the Trustee harmless from all loss, cost, damage and expense,
including attorney's fees, which it may incur by reason of any such defect, cloud, suit,
action or proceeding.
The Authority will defend against every suit, action or proceeding at any
time brought against the Trustee upon any claim arising out of the receipt, application or
disbursement of any of the Revenues or involving the rights of the Trustee hereunder;
provided that the Trustee at its election may appear in and defend any such suit, action or
proceeding.
SECTION 6.11. Further Assurances. Whenever and so often as requested
to do so by the Trustee, the Authority will promptly execute and deliver or cause to be
executed and delivered all such other and further assurances, documents or instruments, and
promptly do or cause to be done all such other and further things as may be necessary or
reasonably required in order to further and more fully vest in the Owners all rights,
interests, powers, benefits, privileges and advantages conferred or intended to be conferred
upon them hereby.
LA1-63221.5 44
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Appointment and Acceptance of Duties. The Trustee
hereby accepts and agrees to the trusts hereby created to all of which the Authority agrees
and the respective owners of the Bonds, by their purchase and acceptance thereof, agree.
SECTION 7.02. Duties, Immunities and Liabilities of Trustee. (a) The
Trustee shall, prior to an Event of Default, and after the curing of all Events of Default
which may have occurred, perform such duties and only such duties as are specifically and
expressly set forth in this Indenture and no implied duties or obligations whatsoever shall be
read into this Indenture against the Trustee. The Trustee shall, during the existence of any
Event of Default (which has not been cured), exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) So long as no Event of Default has occurred and is continuing, the
Authority and the Bond Insurer may remove the Trustee at any time and shall remove the
Trustee if at any time requested to do so by an instrument or concurrent instruments in
writing signed by the Owners of not less than a majority in aggregate principal amount of
the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time
the Trustee shall cease to be eligible in accordance with subsection (e) of this Section, or
shall become incapable of acting, or shall commence a case under any bankruptcy,
insolvency or similar law, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take control or charge of the Trustee or its property or affairs for
the purpose of rehabilitation, conservation or liquidation, in each case by giving written
notice of such removal to the Trustee, and thereupon shall appoint a successor Trustee by
an instrument in writing.
(c) The Trustee may resign by giving written notice of such resignation to the
Authority and the Bond Insurer and by giving notice of such resignation by mail, first class
postage prepaid, to the Owners at the addresses listed in the bond register. Upon receiving
such notice of resignation, the Authority shall promptly appoint a successor Trustee
acceptable to the Bond Insurer by an instrument in writing.
(d) Any removal or resignation of the Trustee and appointment of a successor
Trustee shall become effective upon the written consent of the Bond Insurer and upon
acceptance of appointment by the successor Trustee. If no successor Trustee shall have been
appointed and shall have accepted appointment within 45 days of giving notice of removal
or notice of resignation as aforesaid, the resigning Trustee, at the expense of the Authority,
or any Owner (on behalf of himself and all other Owners) may petition any court of
competent jurisdiction for the appointment of a successor Trustee, and such court may
thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee.
LAI-63221.5 45
Any successor Trustee appointed under this Indenture shall signify its acceptance of such
appointment by executing and delivering to the Authority and to its predecessor Trustee a
written acceptance thereof, and thereupon such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the moneys, estates, properties, rights,
powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if
originally named Trustee herein; but, nevertheless, at the written request of the Authority
or of the successor Trustee, such predecessor Trustee shall execute and deliver any and all
instruments of conveyance or further assurance and do such other things as may reasonably
be required for more fully and certainly vesting in and confirming to such successor Trustee
all the right, title and interest of such predecessor Trustee in and to any property held by it
under this Indenture and shall pay over, transfer, assign and deliver to the successor
Trustee any money or other property subject to the trusts and conditions herein set forth.
Upon request of the successor Trustee, the Authority shall execute and deliver any and all
instruments as may be reasonably required for more fully and certainly vesting in and
confirming to such successor Trustee all such moneys, estates, properties, rights, powers,
trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as
provided in this subsection, such successor Trustee shall mail a notice of the succession of
such Trustee to the trusts hereunder by first class mail, postage prepaid, to the Owners at
their addresses listed in the bond register.
(e) Any Trustee appointed under the provisions of this Section shall be a trust
company or bank having the powers of a trust company, having a corporate trust office
in California, and having a combined capital and surplus of at least fifty million dollars
($50,000,000) and if such trust company or bank is affiliated with a bank holding company,
such bank holding company shall have a combined capital and surplus of at least fifty
million dollars ($50,000,000), and subject to supervision or examination by federal or state
authority; and shall be acceptable to the Bond Insurer. If such bank or trust company
publishes a report of condition at least annually, pursuant to law or to the requirements of
any supervising or examining authority above referred to, then for the purpose of this
subsection the combined capital and surplus of such bank or trust company shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this subsection (e), the Trustee shall resign immediately in the manner and
with the effect specified in this Section. Notwithstanding the above, the
(f) No provision in this Indenture shall require the Trustee to risk or expend
its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder if it shall in its sole subjective opinion have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability
is not assured to it.
(g) The Trustee shall not be responsible for the sufficiency, timeliness or
enforceability of the Revenues.
LAI-63221.5 46
(h) The Trustee shall not be accountable or liable for the use or application
by the Authority, the City or any other party of any funds which the Trustee has released
under this Indenture.
(i) The Trustee may employ attorneys, agents, consultants or receivers in the
performance of any of its duties hereunder and shall not be answerable for the misconduct
of any such attorney, agent or receiver selected by it with reasonable care.
SECTION 7.03. Merger or Consolidation. Any company into which the
Trustee may be merged or converted or with which it may be consolidated or any company
resulting from any merger, conversion or consolidation to which it shall be a party or any
company to which the Trustee may sell or transfer all or substantially all of its corporate
trust business, provided such company shall be eligible under Section 7.02(e), shall succeed
to the rights and obligations of such Trustee without the execution or filing of any paper or
any further act, anything herein to the contrary notwithstanding.
SECTION 7.04. Compensation. The Authority shall pay the Trustee, or
cause the Trustee to be paid, reasonable compensation for its services rendered hereunder
and shall reimburse the Trustee for reasonable expenses incurred by the Trustee in the
performance of its obligations hereunder.
The Authority agrees, to the full extent then permitted by law, to indemnify,
protect, hold harmless, save and keep harmless the Trustee, its respective officers,
directors, members, employees, attorneys, consultants, receivers and agents from and
against any loss, liability, expenses, damages, penalties or interest regardless of the cause
thereof incurred without negligence or willful misconduct on their part arising out of or in
connection with the acceptance or administration of the trusts imposed by this Indenture,
including performance of their duties hereunder, including the costs and expenses
of defending themselves against any claims or liability in connection with the exercise or
performance of any of their powers or duties hereunder. Such indemnity shall continue in
full force and effect and shall survive the termination or discharge of the Indenture and
resignation or removal of the Trustee.
SECTION 7.05. Liability of Trustee. (a) The recitals of facts herein and
in the Bonds contained shall be taken as statements of the Authority, and the Trustee
assumes no responsibility or liability whatsoever for the correctness of the same, and makes
no representations as to the validity or sufficiency of this Indenture, the Lease or of the
Bonds, and shall incur no responsibility or liability in respect thereof, other than in
connection with the duties or obligations herein or in the Bonds assigned to or imposed
upon it. The Trustee shall, however, be responsible for its representations contained in its
certificate of authentication on the Bonds. The Trustee shall not be liable in connection
with the performance of its duties hereunder, except for its own negligence or willful
misconduct. The Trustee may become the Owner of Bonds with the same rights it would
have if it were not Trustee or and, to the extent permitted by law, may act as depositary for
and permit any of its officers or directors to act as a member of, or in any other capacity
LA1-63221.5 47
with respect to, any committee formed to protect the rights of Owners, whether or not such
committee shall represent the Owners of a majority in principal amount of the Bonds then
Outstanding.
(b) The Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer, unless the Trustee shall have been negligent in ascertaining
the pertinent facts.
(c) The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Bond Insurer
or the Owners of not less than a majority in aggregate principal amount of the Bonds at the
time Outstanding relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture.
(d) The Trustee shall not be liable for any action taken by it in good faith
and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture, except for actions arising from the negligence or intentional
misconduct of the Trustee. The permissive right of the Trustee to do things enumerated
hereunder shall not be construed as a mandatory duty.
(e) The Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless and until it shall have actual knowledge thereof, or shall have
received written notice thereof at the Corporate Trust Office of the Trustee addressed to the
Trust Officer responsible for this financing. Except as otherwise expressly provided herein,
and subject to Section 7.02, the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or agreements herein
or of any of the documents executed in connection with the Bonds, or as to the existence of
an Event of Default hereunder or thereunder. The Trustee shall not be responsible or liable
whatsoever for the validity or effectiveness of any collateral given to or held by it. Without
limiting the generality of the foregoing, the Trustee shall not be responsible for reviewing
the contents of any financial statements furnished to the Trustee pursuant to Section 6.06
and may rely conclusively on the certificates provided hereunder to establish the compliance
with its financial covenants hereunder.
SECTION 7.06. Right to Rely on Documents. The Trustee shall be
protected and indemnified in acting upon any notice, resolution, request, consent, order,
certificate, report, opinion, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. The Trustee may
consult with counsel, who may be counsel but need not of or to the Authority, with regard
to legal questions, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered by it hereunder in good faith and
in accordance therewith.
LA1-63221.3 48
Whenever in the administration of the trusts imposed upon it by this
Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
to be conclusively proved and established by a Certificate of the Authority, and such
Certificate shall be full warranty to the Trustee for any action taken or suffered in good
faith under the provisions of this Indenture in reliance upon such Certificate, but in its
discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may
require such additional evidence as to it may seem reasonable.
SECTION 7.07. Preservation and Inspection of Documents. All
documents received by the Trustee under the provisions of this Indenture shall be retained
in its possession and shall be subject at all reasonable times with prior notice to the
inspection of the Authority and any Owner of at least 10% in aggregate principal amount of
the Bonds and their agents and representatives duly authorized in writing, at reasonable
hours and under reasonable conditions.
ARTICLE VIII
AMENDMENT OF THE INDENTURE
SECTION 8.01. Amendment of the Indenture. The Indenture and the
rights and obligations of the Authority and of the Owners may be amended at any time by a
Supplemental Indenture which shall become binding when the written consents of the
Owners of at least sixty percent (60%) in aggregate principal amount of Bond Obligation,
exclusive of Bonds disqualified as provided in Section 8.02, and the written consent of the
Bond Insurer are filed with the Trustee. No such amendment shall (1) extend the maturity
of or reduce the interest rate on or otherwise alter or impair the obligation of the Authority
to pay the interest on or principal of or redemption premium, if any, on any Bond at the
time and place and at the rate and in the currency provided herein without the express
written consent of the Owner of such Bond, or (2) permit the creation by the Authority of
any pledge of the Revenues as provided herein superior to or on a parity with the pledge
created hereby for the benefit of the Bonds, or (3) increase the dollar amount appearing in
clause (d) of Section 3.01, or (4) modify any rights or obligations of the Trustee without its
prior written assent thereto.
The Indenture and the rights and obligations of the Authority and of the
Owners may also be amended at any time by a Supplemental Indenture which shall become
binding upon adoption without the consent of any Owners, but only to the extent permitted
by law and after receipt of an approving Opinion of Counsel and only for any one or more
of the following purposes --
(a) to make such provisions for the purpose of curing any ambiguity or of
correcting, curing or supplementing any defective provision contained herein or in
regard to questions arising hereunder which the Authority may deem desirable or
LA1-63221.5 49
necessary and not inconsistent herewith and which shall not adversely affect the
interests of the Owners or the Bond Insurer;
(b) to make any other change or addition hereto which shall not
materially adversely affect the interests of the Owners or the Bond Insurer, or to
surrender any right or power reserved herein to or conferred herein on the
Authority;
(c) to credit a Qualified Reserve Instrument to the Reserve Account; or
(d) to provide for the issuance of Additional Bonds.
Notwithstanding any other provision hereof, any provision of this Indenture
expressly recognizing or granting rights in or to the Bond Insurer may not be amended in
any manner which affects the rights of the Bond Insurer hereunder without the prior written
consent of the Bond Insurer. A copy of any amendment of this Indenture which is
consented to by the Bond Insurer shall be delivered by the Trustee to Standard & Poor's
Ratings Group as soon as practicable after the execution and delivery of such amendment.
SECTION 8.02. Disqualified Bonds. Bonds owned or held by or for the
account of the Authority or the City shall not be deemed Outstanding for the purpose of
any consent or other action or any calculation of Outstanding Bonds provided in this article,
and shall not be entitled to consent to or take any other action provided in this article.
SECTION 8.03. Endorsement or Replacement of Bonds After
Amendment. After the effective date of any action taken as hereinabove provided, the
Authority may determine that the Bonds may bear a notation by endorsement in form
approved by the Authority as to such action, and in that case upon demand of the Owner of
any Outstanding Bond and presentation of his Bond for such purpose at the Corporate Trust
Office of the Trustee a suitable notation as to such action shall be made on such Bond. If
the Authority shall so determine, new Bonds so modified as, in the opinion of the
Authority, shall be necessary to conform to such action shall be prepared and executed, and
in that case upon demand of the Owner of any Outstanding Bond such new Bonds shall be
exchanged at the Corporate Trust Office of the Trustee without cost to each Owner for
Bonds then Outstanding upon surrender of such Outstanding Bonds.
SECTION 8.04. Amendment by Mutual Consent. The provisions of this
article shall not prevent any Owner from accepting any amendment as to the particular
Bonds owned by him, provided that due notation thereof is made on such Bonds.
LAI-63221.5 50
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF HOLDERS
SECTION 9.01. Events of Default. Each of the following events shall
constitute an "Event of Default" hereunder:
(a) if default shall be made in the due and punctual payment of the
interest on any Bond when and as the same shall become due and payable;
(b) if default shall be made in the due and punctual payment of the
principal of or redemption premium, if any, on any Bond when and as the same
shall become due and payable, whether at maturity as therein expressed or by
proceedings for redemption;
(c) if default shall be made by the Authority in the performance of any of
the other agreements or covenants required herein to be performed by the Authority,
and such default shall have continued for a period of thirty (30) days after the
Authority shall have been given notice in writing of such default by the Trustee; or
(d) if the Authority shall file a petition or answer seeking arrangement or
reorganization under the federal bankruptcy laws or any other applicable law of the
United States of America or any state therein, or if a court of competent jurisdiction
shall approve a petition filed with or without the consent of the Authority seeking
arrangement or reorganization under the federal bankruptcy laws or any other
applicable law of the United States of America or any state therein, or if under the
provisions of any other law for the relief or aid of debtors any court of competent
jurisdiction shall assume custody or control of the Authority or of the whole or any
substantial part of its property.
SECTION 9.02. Proceedings by Trustee. Upon the happening and
continuance of any Event of Default the Trustee in its discretion may, and at the written
request of the Owners of not less than twenty-five percent (25%) in aggregate principal
amount of Bond Obligation shall, do the following:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the Owners and require the Authority to enforce all
rights of the Owners of Bonds, including the right to require the Authority to receive and
collect Revenues and to enforce its rights under the Lease and to require the Authority to
carry out any other covenant or agreement with Owners of Bonds and to perform its duties
hereunder;
(b) bring suit upon the Bonds;
(c) by action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Owners; and
LA1-63221.5 51
(d) as a matter of right, have a receiver or receivers appointed for the
Revenues and the issues, earnings, income, products and profits thereof, pending such
proceedings, with such powers as the court making such appointment shall confer.
SECTION 9.03. Effect of Discontinuance or Abandonment. In case any
proceeding taken by the Trustee on account of any default shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Authority, the Trustee and the Owners shall be restored to their
former positions and rights under this Indenture, respectively, and all rights, remedies and
powers of the Trustee shall continue as though no such proceeding had been taken.
SECTION 9.04. Rights of Owners. Anything in this Indenture to the
contrary notwithstanding, subject to the limitations and restrictions as to the rights of the
Owners in Sections 9.01, 9.02 and 9.05, upon the happening and continuance of any Event
of Default, the Owners of not less than twenty-five percent (25%) in aggregate principal
amount of Bond Obligation shall have the right, upon providing the Trustee security and
indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby, by an instrument in writing executed and delivered to the
Trustee, to direct the method and place of conducting all remedial proceedings to be taken
by the Trustee under this Indenture.
The Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines is prejudicial to rights of other Owners or would
subject the Trustee to personal liability.
•
SECTION 9.05. Restriction on Owners' Action. In addition to the other
restrictions on the rights of Owners to request action upon the occurrence of an Event of
Default and to enforce remedies set forth in this Article DC, no Owner of any of the Bonds
shall have any right to institute any suit, action or proceeding in equity or at law for the
enforcement of any trust under this Indenture, or any other remedy under this Indenture or
on said Bonds, unless such Owner previously shall have given to the Trustee and the Bond
Insurer written notice of an Event of Default as hereinabove provided and unless the
Owners of not less than twenty-five percent (25%) in aggregate principal amount of Bond
Obligation shall have made a written request of the Trustee to institute any such suit,
action, proceeding or other remedy, after the right to exercise such powers or rights of
action, as the case may be, shall have accrued, and shall have afforded the Trustee a
reasonable opportunity either to proceed to exercise the powers in this Indenture granted, or
to institute such action, suit or proceeding in its or their name; nor unless there also shall
have been offered to the Trustee security and indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee shall not have
complied with such request within a reasonable time; and such notification, request and
offer of indemnity are hereby declared in every such case, at the option of the Trustee,
to be conditions precedent to the execution of the trusts of this Indenture or for any other
remedy under this Indenture; it being understood and intended that no one or more Owners
of the Bonds secured by this Indenture shall have any right in any manner whatever by his
w1-63221.5 52
or their action to affect, disturb or prejudice the security of this Indenture, or to enforce
any right under this Indenture or under the Bonds, except in the manner in this Indenture
provided, and that all proceedings at law or in equity shall be instituted, had and maintained
in the manner in this Indenture provided, and for the equal benefit of all Owners of
Outstanding Bonds; subject, however, to the provisions of this Section.
SECTION 9.06. Power of Trustee to Enforce. All rights of action under
this Indenture or under any of the Bonds secured by this Indenture which are enforceable
by the Trustee may be enforced by it without the possession of any of the Bonds, or the
production thereof at the trial or other proceedings relative thereto, and any such suit,
action or proceedings instituted by the Trustee shall be brought in its own name, as
Trustee, for the equal and ratable benefit of the Owners of the Bonds subject to the
provisions of this Indenture.
SECTION 9.07. Remedies Not Exclusive. No remedy in this Indenture
conferred upon or reserved to the Trustee or to the Owners of the Bonds is intended to be
exclusive of any other remedy or remedies, and each and every such remedy shall be
cumulative, and shall be in addition to every other remedy given under this Indenture or
now or hereafter existing at law or in equity or by statute.
SECTION 9.08. Waiver of Events of Default: Effect of Waiver. The
Trustee with the written consent of the Bond Insurer shall waive any Event of Default
hereunder and its consequences upon the written request of the Owners of at least a
majority in aggregate principal amount of all Outstanding Bonds. If any Event of Default
shall have been waived as herein provided, the Trustee shall promptly give written notice of
such waiver to the Authority and the Bond Insurer and shall give notice thereof by first
class mail, postage prepaid to all Owners of Outstanding Bonds if such Owners had
previously been given notices of such Event of Default; but no such waiver, rescission and
annulment shall extend to or affect any subsequent Event of Default, or impair any right or
remedy consequent thereon.
No delay or omission of the Trustee or of any Owner of the Bonds to
exercise any right or power accruing upon any default or Event of Default shall impair any
such right or power or shall be construed to be a waiver of any such default or Event of
Default, or an acquiescence therein; and every power and remedy given by this Article IX
to the Trustee and to the Owners of the Bonds, respectively, may be exercised from time to
time and as often as may be deemed expedient.
SECTION 9.09. Application of Moneys. Any moneys received by the
Trustee pursuant to this Article DC, together with any moneys which upon the occurrence of
an Event of Default are held by the Trustee in any of the funds and accounts hereunder
(other than the Rebate Fund and other than moneys held for Bonds not presented for
payment) shall, after payment of all fees and expenses of the Trustee, and the fees and
expenses of its counsel, be applied as follows:
LA1-63221.5 53
FIRST - To the payment of the persons entitled thereto of
all installments of interest then due on the Bonds, in the order of
the maturity of the installments of such interest and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts
due on such installment, to the persons entitled thereto, without any
discrimination or privilege;
SECOND - To the payment of the persons entitled thereto
of the unpaid principal of and premium, if any, on any of the
Bonds which shall have become due (other than Bonds matured or
called for redemption for the payment of which moneys are held
pursuant to the provisions of this Indenture), in the order of their
due dates and, if the amount available shall not be sufficient to pay
in full the principal of and premium, if any, on such Bonds due on
any particular date, then to the payment ratably, according to the
amount due on such date, to the persons entitled thereto without
any discrimination or privilege; and
THIRD - To be held for the payment to the persons entitled
thereto as the same shall become due of the principal of, interest,
and premium, if any, on the Bonds, which may thereafter become
due either at maturity or upon call for redemption prior to maturity
and, if'the amount available shall not be sufficient to pay in full
such principal and premium, if any, due on any particular date,
together with interest then due and owing thereon, payment shall
be made in accordance with the FIRST and SECOND paragraphs
hereof.
Whenever moneys are to be applied pursuant to the provisions of this
Section 9.09, such moneys shall be applied at such times, and from time to time, as the
Trustee shall determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such application
in the future. The Trustee shall give, by mailing by first class mail as it may deem
appropriate, such notice of the deposit with it of any such moneys.
SECTION 9.10. Bond Insurer's Direction of Proceedings.
Notwithstanding any other provision hereof, so long as a Bond Insurance Policy is in effect
with respect to any Series of Bonds, upon the occurrence and continuance of an Event of
Default hereunder, the Bond Insurer shall be entitled to control and direct the enforcement
of all rights and remedies granted to the Owners or the Trustee for the benefit of the
Owners hereunder, and the Bond Insurer shall also be entitled to approve all waivers of
Events of Default.
LAI-63221.5 54
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bonds.
(a) If the Authority shall pay or cause to be paid or there shall otherwise
be paid to the Owners of all Outstanding Bonds the interest thereon and the principal
thereof or the Accreted Value thereof at maturity or upon earlier redemption, and the
redemption premiums, if any, thereon at the times and in the manner stipulated herein and
therein, then the Owners of such Bonds shall cease to be entitled to the pledge of the
Revenues as provided herein, and all agreements, covenants and other obligations of the
Authority to the Owners of such Bonds hereunder shall thereupon cease, terminate and
become void and be discharged and satisfied. In such event, the Trustee shall execute and
deliver to the Authority all such instruments as may be necessary or desirable to evidence
such discharge and satisfaction, and the Trustee shall pay over or deliver to the Authority
all money or securities held by it pursuant hereto which are not required for the payment of
the interest on and principal or Accreted Value of and redemption premiums, if any, on
such Bonds, or for any remaining fees and expenses of the Trustee.
Subject to the provisions of the above paragraph, when any of the Bonds
shall have been paid and if, at the time of such payment, the Authority shall have kept,
performed and observed all the covenants and promises in such Bonds and in this Indenture
required or contemplated to be kept, performed and observed by the Authority or on its part
on or prior to that time, then this Indenture shall be considered to have been discharged in
respect of such Bonds and such Bonds shall cease to be entitled to the lien of this Indenture
and such lien and all covenants, agreements and other obligations of the Authority
hereunder shall cease, terminate become void and be completely discharged as to such
Bonds.
Notwithstanding the satisfaction and discharge of this Indenture or the
discharge of this Indenture in respect of any Bonds, those provisions of this Indenture
relating to the maturity of the Bonds, interest payments and dates thereof, tender and
exchange provisions, exchange and transfer of Bonds, replacement of mutilated, destroyed,
lost or stolen Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds,
and the duties of the Trustee in connection with all of the foregoing, remain in effect and
shall be binding upon the Trustee and the Owners of the Bonds and the Trustee shall
continue to be obligated to hold in trust any moneys or investments then held by the Trustee
for the payment of the principal of, redemption premium, if any, and interest on the Bonds,
to pay to the Owners of Bonds the funds so held by the Trustee as and when such payment
becomes due. Notwithstanding the satisfaction and discharge of this Indenture or the
discharge of this Indenture in respect of any Bonds, those provisions of this Indenture
contained in Section 7.04 relating to the compensation of the Trustee shall remain in effect
and shall be binding upon the Trustee and the Authority.
LA1-63221.5 55
(b) Any Outstanding Bonds shall prior to the maturity date or redemption
date thereof be deemed to have been paid within the meaning of and with the effect
expressed in subsection (a) of this section if (1) in case any of such Bonds are to be
redeemed on any date prior to their maturity date, the Authority shall have given to the
Trustee in form satisfactory to it irrevocable instructions to mail, on a date in accordance
with the provisions of Section 2.03, notice of redemption of such Bonds on said redemption
date, said notice to be given in accordance with Section 2.03, (2) there shall have been
deposited with the Trustee either (A) money in an amount which shall be sufficient or
(B) noncallable Permitted Investments of the type described in clause (a) or clause (b) of
the definition of Permitted Investments and which are not subject to redemption prior to
maturity except by the holder thereof (including any such Permitted Investments issued or
held in book-entry form on the books of the Department of the Treasury of the United
States of America) or tax-exempt securities rated AAA or its equivalent by a nationally
recognized rating agency, including Standard & Poor's Corporation and Moody's Investors
Service if each is then rating the Bonds, the interest on and principal of which when paid
will provide money which, together with the money, if any, deposited with the Trustee at
the same time, shall, as verified by an independent certified public accountant, be sufficient
to pay when due the interest to become due on such Bonds on and prior to the maturity date
or redemption date thereof, as the case may be, and the principal or Accreted Value of and
redemption preniums, if any, due on such Bonds at maturity or upon the redemption date
thereof, and (3) in the event such Bonds are not by their terms subject to redemption within
the next succeeding sixty (60) days, the Authority shall have,given the Trustee in form
satisfactory to it irrevocable instructions to mail as soon as practicable, a notice to the
Owners of such Bonds that the deposit required by clause (2) above has been made with the
Trustee and that such Bonds are deemed to have been paid in accordance with this Section
and stating the maturity date or redemption date upon which money is to be available for
the payment of the principal of and redemption premiums, if any, on such Bonds.
SECTION 10.02. Unclaimed Money. Anything contained herein to the
contrary notwithstanding, any money held by the Trustee in trust for the payment and
discharge of any of the Bonds which remains unclaimed for two (2) years after the date
when such Bonds have become due and payable, either at their stated maturity dates or by
call for redemption prior to maturity, if such money was held by the Trustee at such date,
or for two (2) years after the date of deposit of such money if deposited with the Trustee
shall be repaid by the Trustee to the Authority as its absolute property free from trust, and
the Trustee shall thereupon be released and discharged with respect thereto and the Owners
shall look only to the Authority for the payment of such Bonds; provided, however, that
before being required to make any such payment to the Authority, the Trustee shall, at the
expense of the Authority, cause to be published once a week for two (2) successive weeks
in a Financial Newspaper, a notice that such money remains unclaimed and that, after a
date named in such notice, which date shall not be less than thirty (30) days after the date
of the first publication of each such notice, the balance of such money then unclaimed will
be returned to the Authority.
LA1-63221.5 56
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Authority Limited to Revenues.
Notwithstanding anything contained herein, the Authority shall not be required to advance
any money derived from any source of income other than the Revenues as provided herein
for the payment of the interest on or principal of or redemption premiums, if any, on the
Bonds or for the performance of any agreements or covenants herein contained. The
Authority may, however, advance funds for any such purpose so long as such funds are
derived from a source legally available for such purpose without incurring an indebtedness.
The Bonds shall be limited obligations of the Authority and shall be payable
solely from the Revenues and amounts on deposit in the funds and accounts established
hereunder (other than amounts on deposit in the Rebate Fund created pursuant to
Section 6.04). The Bonds do not constitute a debt or liability of the Agency's, the City, the
State, or any of its political subdivisions and neither the faith and credit of the Agency's,
the City, the State, nor any of its political subdivisions are pledged to the payment of the
principal of or interest on the Bonds.
SECTION 11.02. Benefits of the Indenture Limited to Parties. Nothing
contained herein, expressed or implied, is intended to give to any person other than the
Authority, the Trustee, the Bond Insurer, and the Owners any right, remedy or claim under
or by reason hereof. Any agreement or covenant required herein to be performed by.or on
behalf of the Authority or any member, officer or employee thereof shall be for the sole
and exclusive benefit of the Trustee, the Bond Insurer and the Owners.
SECTION 11.03. Successor Is Deemed Included in All References to
Predecessor. Whenever herein either the Authority or any member, officer or employee
thereof is named or referred to, such reference shall be deemed to include the successor to
the powers, duties and functions with respect to the administration, control and management
of the Leased Property that are presently vested in the Authority or such member, officer or
employee, and all agreements and covenants required hereby to be performed by or on
behalf of the Authority or any member, officer or employee thereof shall bind and inure to
the benefit of the respective successors thereof whether so expressed or not.
SECTION 11.04. Execution of Documents by Owners. Any declaration,
request or other instrument which is permitted or required herein to be executed by Owners
may be in one or more instruments of similar tenor and may be executed by Owners in
person or by their attorneys appointed in writing. The fact and date of the execution by
any Owner or his attorney of any declaration, request or other instrument or of any writing
appointing such attorney may be proved by the certificate of any notary public or other
officer authorized to make acknowledgments of deeds to be recorded in the state or territory
in which he purports to act that the person signing such declaration, request or other
instrument or writing acknowledged to him the execution thereof, or by an affidavit of a
witness of such execution duly sworn to before such notary public or other officer. The
LA1-63221s 57
ownership of any Bonds and the amount, maturity, number and date of holding the same
may be proved by the registration books relating to the Bonds at the office of the Trustee.
Any declaration, request or other instrument or writing of the Owner of any
Bond shall bind all future Owners of such Bond with respect to anything done or suffered to
be done by the Authority in good faith and in accordance therewith.
SECTION 11.05. Waiver of Personal Liability. No member, officer or
employee of the Authority or the Trustee shall be individually or personally liable for the
payment of the interest on or principal of or redemption premiums, if any, on the Bonds by
reason of their issuance, but nothing herein contained shall relieve any member, officer or
employee of the Authority from the performance of any official duty provided by any
applicable provisions of law or hereby.
SECTION 11.06. Acquisition of Bonds by Authority. All Bonds acquired
by the Authority, whether by purchase or gift or otherwise, shall be surrendered to the
Trustee for cancellation.
SECTION 11.07. Destruction of Cancelled Bonds. Whenever provision is
made for the return to the Authority of any Bonds which have been cancelled pursuant to
the provisions hereof, the Authority may, by a Written Request of the Authority, direct the
Trustee to destroy such Bonds and, upon request, furnish to the Authority a certificate of
such destruction.
SECTION 11.08. Content of Certificates. Every Certificate of the
Authority and Certificate of the City with respect to compliance with any agreement,
condition, covenant or provision provided herein shall include (a) a statement that the
person or persons making or giving such certificate have read such agreement, condition,
covenant or provision and the definitions herein relating thereto; (b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements
contained in such certificate are based; (c) a statement that, in the opinion of the signers,
they have made or caused to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not such agreement, condition,
covenant or provision has been complied with; and (d) a statement as to whether, in the
opinion of the signers, such agreement, condition, covenant or provision has been complied
with.
Any Certificate of the Authority and Certificate of the City may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel unless the person making
or giving such certificate knows that the Opinion of Counsel with respect to the matters
upon which his certificate may be based, as aforesaid, is erroneous, or in the exercise of
reasonable care should have known that the same was erroneous. Any Opinion of Counsel
may be based, insofar as it relates to factual matters information with respect to which is in
the possession of the Authority or the City, as applicable, upon a representation by an
officer or officers of the Authority or the City, as applicable, unless the counsel executing
LA1-63221.5 58
such Opinion of Counsel knows that the representation with respect to the matters upon
which his opinion may be based, as aforesaid, is erroneous, or in the exercise of reasonable
care should have known that the same was erroneous.
SECTION 11.09. Publication for Successive Weeks. Any publication
required to be made hereunder for successive weeks in a Financial Newspaper may be made
in each instance upon any Business Day of the first week and need not be made on the
same Business Day of any succeeding week or in the same Financial Newspaper for any
subsequent publication, but may be made on different Business Days or in different
Financial Newspapers, as the case may.be.
SECTION 11.10. Accounts and Funds. Any account or fund required
herein to be established and maintained by the Trustee may be established and maintained in
the accounting records of the Trustee either as an account or a fund, and may, for the
purposes of such accounting records, any audits thereof and any reports or statements with
respect thereto, be treated either as an account or a fund; but all such records with respect
to all such accounts and funds shall at all times be maintained in accordance with sound
industry practice and with due regard for the protection of the security of the Bonds and the
rights of the Owners.
SECTION 11.11. Article and Section Headinas and References. The
headings or titles of the several articles and sections hereof and the table of contents
appended hereto shall be solely for convenience of reference and shall not affect the
meaning, construction or effect hereof. All references herein to "Articles," "Sections" and
other subdivisions or clauses are to the corresponding articles, sections, subdivisions or
clauses hereof; and the words "hereby," "herein," "hereof," "hereto," "herewith,"
"hereunder" and other words of similar import refer to the Indenture as a whole and not to
any particular article, section, subdivision or clause hereof.
SECTION 11.12. Partial Invalidity. If any one or more of the agreements
or covenants or portions thereof required hereby to be performed by or on the part of the
Authority or the Trustee shall be contrary to law, then such agreement or agreements, such
covenant or covenants or such portions thereof shall be null and void and shall be deemed
separable from the remaining agreements and covenants or portions thereof and shall in no
way affect the validity hereof or of the Bonds, and the Owners shall retain all the benefit,
protection and security afforded to them hereunder or any applicable provisions of law.
The Authority and the Trustee hereby declare that they would have executed and delivered
the Indenture and each and every other article, section, paragraph, subdivision, sentence,
clause and phrase hereof and would have authorized the issuance of the Bonds pursuant
hereto irrespective of the fact that any one or more articles, sections, paragraphs,
subdivisions, sentences, clauses or phrases hereof or the application thereof to any person
or circumstance may be held to be unconstitutional, unenforceable or invalid.
SECTION 11.13. Execution in Several Counterparts. This Indenture may
be executed in any number of counterparts and each of such counterparts shall for all
LAI-63221.5 59
•
purposes be deemed to be an original; and all such counterparts, or as many of them as the
Authority and the Trustee shall preserve undestroyed, shall together constitute but one and
the same instrument.
SECTION 11.14. Law Governing. This Indenture shall be governed
exclusively by the provisions hereof and by the laws of the State as the same from time to
time exist.
SECTION 11.15. Notice to Bond Insurer. Whenever any notice,
authorization, request, certificate or demand is required or permitted to be given to any
party or to any Owner pursuant to this Indenture, such notice, authorization, request,
certificate or demand shall also be given in writing to the Bond Insurer, by first class mail
at the address specified by such Bond Insurer. The Trustee shall notify the Bond Insurer of
any known failure of the Agency to provide to the Trustee relevant notices, certificates,
reports or other documents hereunder. Notwithstanding any other provision hereof, the
Trustee shall notify the Bond Insurer immediately if at any time there are insufficient
moneys to make any payments of principal or interest as required hereunder and
immediately upon the Trustee having actual knowledge of the occurrence of any Event of
Default or any event, which with the passage of time could become an Event of Default.
The Agency and the Trustee agree to provide the Bond Insurer with any additional
information concerning the Bonds as the Bond Insurer may reasonably request.
SECTION 11.16. Notices. All approvals, authorizations, consents,
demands, designations, notices, offers, requests, statements or other communications
hereunder by either party to the other shall be in writing and shall be sufficiently given and
served upon the other party if delivered personally or if mailed by United States registered
or certified mail, return receipt requested, postage prepaid, and, if to the City, addressed to
the City do City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702,
Attention: City Manager, or, if to the Authority, addressed to the Authority c/o Santa Ana
Financing Authority, 20 Civic Center Plaza, Santa Ana, California 92702, Attention:
Executive Director, with a copy to the Trustee, addressed to the Trustee do Meridian Trust
Company of California, 650 California Street, Eighth Floor, San Francisco, California
94108, Attention: Corporate Trust Department, or if to the Bond Insurer: Municipal Bond
Investors Assurance Company, 113 King Street, Armonk, New York 10504, or to such
other addresses as the respective parties may from time to time designate by notice in
writing.
LA1fi3221.5 60
IN WITNESS WHEREOF, the SANTA ANA FINANCING AUTHORITY
has caused this Indenture to be signed in its name by its Executive Director and
countersigned by its Secretary and Meridian Trust Company of California, as trustee, in
token of its acceptance of the trusts created hereunder, has caused this Indenture to be
signed by one of the officers thereunder duly authorized, all as of the day and year first
above written.
SANTA ANA FINANCING AUTHORITY
By ! i
Executive Director
ATTEST:
Secretary
MERIDIAN TRUST COMPANY OF
CALIFORNIA, as Trustee
`'/
Authorized Officer
APPROVED AS TO FORM:
Edward J. C ope
City Attorney
LA 1-63221.3
APPENDIX A
TABLE OF CONTENTS
Page
Section 1. Definitions A-1
Section 2. Timing of Actions A-11
Section 3. Payments With Respect to ABS and IRS A-11
Section 4. Calculation of Maximum Rate, Minimum Rate, Non-Payment
Rate and Applicable Factors. A-14
Section 5. Notification of Rates, Amounts and Payment Dates A-15
Section 6. Adjustment in Percentages A-16
Section 7. Selection of ARS and IRS for Redemption A-18
Section 8. Fixing and Separating ARS and IRS A-18
Section 9. Tender of ARS A-20
Section 10. Market Agent A-22
Section 11. Auction Agent A-22
Section 12. Broker-Dealers A-23
Section 13. Provisions Relating to Auctions A-24
Section 14. Amendments. A-24
Section 15. Agreement of Holders. A-24
LA1-63221.5 i
Section 1. Definitions. Unless otherwise defined in this Appendix, the terms
defined in the Indenture shall have the same meaning when used in this Appendix. In
addition, the following terms shall have the following meanings for purposes of this
Appendix unless this context clearly requires otherwise:
"'AA' Composite Commercial Paper Rate" shall mean, as of any date of
determination, the interest equivalent of the 30-day rate on commercial paper placed on
behalf of the issuers whose corporate bonds are rated "AA" by S&P, or the equivalent of
such rating by S&P or another nationally recognized securities rating agency, as such 30-
day rate is made available on a discount basis or otherwise by the Federal Reserve Bank of
New York for the Business Day immediately preceding such date of determination. If,
however, the Federal Reserve Bank of New York does not make available any such rate,
then the "AA" Composite Commercial Paper Rate shall be the arithmetic average of the
interest equivalent of the 30-day rate on commercial paper placed on behalf of such issuers,
as quoted to the Auction Agent on a discount basis or otherwise, by the Commercial Paper
Dealers, as of the dose of business on the Business Day immediately preceding such date
of determination. If any Commercial Paper Dealer does not quote a commercial paper rate
required to determine the "AA" Composite Commercial Paper Rate, the "AA" Composite
Commercial Paper Rate shall be determined on the basis of the quotation or quotations
furnished by the remaining Commercial Paper Dealer or Commercial Paper Dealers. For
purposes of this definition, the "interest equivalent" of a rate stated on a discount basis (a
"discount rate") for commercial paper of a given day's maturity shall be equal to the
product of (i) 100 multiplied by (ii) the quotient (rounded upward to the next higher one
thousandth (.001) of 1%) of (x) the discount rate (expressed hi decimals) divided by (y) the
difference between (1) 1.00 and (2) a fraction, the numerator of which shall be the product
of the discount rate (expressed in decimals) multiplied by the number of days from (and
including) the date of determination to (but excluding) the date on which such commercial
paper matures and the denominator of which shall be 360.
"After-Tax Equivalent Rate" shall mean, on any date of determination, the
interest rate per annum equal to the product of (i) the "AA" Composite Commercial Paper
Rate on such date and (ii) 1.00 minus the Statutory Corporate Tax Rate on such date.
"AIRS" shall mean the ARS and the IRS, collectively.
"Applicable ARS Rate" shall mean the rate or rates per annum at which
interest accrues on the ARS of each maturity for any Auction Period as described in Section
3(b) of this Appendix.
"Applicable CUSIP Number" shall mean, as the context requires, the CUSIP
number set forth below for the particular class of ARS or IRS:
LA1-63221.5 A-1
Credit Ratings Applicable Percentage
Moody's S&P
"Aaa" "AAA" 175%
"Aa" "AA" 175%
"A" "A" 175%
"Baa" "BBB" 200%
Below "Baa" Below "BBB" 265%
provided, that if the ARS are not then rated by a Rating Agency, the Applicable Percentage
shall be 265%. For purposes of this definition, S&P's rating categories of "AAA," "AA,"
"A," and "BBB," and Moody's rating categories of "Aaa," "Aa," "A," and "Baa," refer to
and include the respective rating categories correlative thereto if either or both of such
rating agencies have changed or modified their generic rating categories or if Moody's or
S&P do not rate, or no longer rate, the ARS or have been replaced.
"ARS" shall mean a 1994 Bond issued as an Auction Rate Security, which
includes Regular ARS.
"Auction" shall mean the implementation of the Auction Procedures on an
Auction Date.
'Auction Agent" shall mean the Initial Auction Agent unless and until a.
Substitute Auction Agent Agreement becomes effective, after which Auction Agent shall
mean the Substitute Auction Agent.
"Auction Agent Agreement" shall mean the Initial Auction Agent Agreement
unless and until a Substitute Auction Agent Agreement is entered into, after which Auction
Agent Agreement shall mean such Substitute Auction Agent Agreement.
"Auction Agent Fee" shall have the meaning set forth in the Auction Agent
Agreement.
"Auction Date" shall mean September 19, 1994, and thereafter the Business
Day immediately preceding each Auction Period Accrual Date, other than:
(i) an Auction Period Accrual Date which is immediately preceded by an
Auction Record Date at the close of business on which all of the outstanding ARS
were Fixed;
(ii) each Auction Period Accrual Date commencing after the ownership of the
ARS is no longer maintained in book-entry form by the Securities Depository;
(iii) each Auction Period Accrual Date commencing after the occurrence and
during the continuance of a Payment Default; or
LA1-63221.5 A-3
(iv) any Auction Period Accrual Date commencing less than two Business
Days after the cure or waiver of a Payment Default.
"Auction Period" shall mean the period from and including the Closing Date
to, but not including, the first Auction Period Accrual Date and, thereafter, from and
including each Auction Period Accrual Date to, but not including, the next succeeding
Auction Period Accrual Date; provided, however, that if such date is later than the maturity
date of a maturity of ARS, the last day of such Auction Period shall be the maturity date of
such ARS.
"Auction Period Accrual Date" shall mean September 20, 1994 and every 5th
Tuesday thereafter (or such other day that the Market Agent shall establish as an Auction
Period Accrual Date); provided, however, that if such day is not a Business Day, the
Auction Period Accrual Date shall be the next succeeding Business Day.
'Auction Procedures" shall mean the procedures set forth in the Auction
Agent Agreement.
'Auction Rate" shall mean with respect to the interest rate on each maturity
of ARS, the rate or rates of interest per annum that results from implementation of the
Auction Procedures, and determined as described in Section 2(c)(ii) of the Auction
Procedures.
"Auction Record Date" shall mean the Business Day preceding each Auction
Date.
"Authorized Denomination" shall mean, with respect to the ARS and the IRS,
$50,000 or any integral multiple thereof.
"Beneficial Owner" shall mean the person who is (i) the beneficial owner of
ARS or IRS according to the records of the Securities Depository while such ARS and IRS
are in book-entry form or (ii) the registered holder of ARS or IRS according to the records
of the Trustee while such ARS and IRS are not in book-entry form.
"Broker-Dealer" shall mean Smith Barney Shearson Inc. or any other broker
or dealer (each as defined in the Securities Exchange Act), commercial bank or other entity
permitted by law to perform the functions required of a Broker-Dealer set forth in the
Auction Procedures which (i) is a Participant (or an affiliate of a Participant), (ii) has been
appointed as such by the Authority pursuant to Section 12 of this Appendix, and (iii) has
entered into a Broker-Dealer Agreement that is in effect on the date of reference.
"Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer pursuant to which the Broker-Dealer agrees to participate in
Auctions as set forth in the Auction Procedures, as from time to time amended or
supplemented. Each Broker-Dealer Agreement shall be substantially in the form of the
LA1-63221.5 A-4