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HomeMy WebLinkAboutBANK OF AMERICA NT&S AND HARRIS TRUST CO. OF CA10A -ate- Od i TRI PARTY AGREEMENT This TRI PARTY AGREEMENT (this "Instrument"), dated as of March 7, 1995 (the "Execution Date"), by and among the Industrial Development Authority of the City of Santa Ana, a public, corporate instrumentality of the State of California (the "Issuer"), Bank of America National Trust and Savings Association, a national banking association duly organized and existing under the laws of the United States of America (the "Original Trustee"), Harris Trust Company of California, a California state trust company (the "Resigning Trustee"), and Harris Trust and Savings Bank, an Illinois state banking corporation (the "Successor Trustee") WITNESSETH WHEREAS, the Issuer and the Original Trustee, successor in interest to Security Pacific National Bank through merger, entered into an indenture, dated as of November 1, 1988 (the "Indenture"), providing for the issuance by the Issuer its Variable Rate Demand Industrial Development Revenue Bonds Series 1988 A (Newport Electronics, Inc. Project) (the 'Bonds"); and WHEREAS, the Original Trustee retained the role of Paying Agent and Registrar, as defined in the Indenture, after its resignation or as Trustee under the Indenture; and WHEREAS, the Resigning Trustee was appointed successor trustee under the Indenture on June 7, 1993; and WHEREAS, Section 11.12 of the Indenture provides that the Trustee may resign and be discharged of the trust created by the Indenture by executing an instrument in writing resigning such trust and specifying the date when such resignation shall take effect, and filing the same with the Secretary of the Issuer and the Bank not less than thirty (30) days before the date specified in such instrument when such resignation shall take effect; and WHEREAS, the Resigning Trustee hereby gives notice to the Issuer and the Bank of its resignation to become effective upon the acceptance of appointment by a successor trustee; and WHEREAS, Section 11.14 of the Indenture provides that in case the trustee shall resign, the Issuer, authorized by resolution and with the approval of the Bank, shall appoint a successor trustee to fill the vacancy until such time as a successor trustee may be appointed, with the consent of the Bank, by a majority in aggregate principal amount of the Bonds then outstanding; WHEREAS, Section 11.15 of the Indenture provides that any successor trustee appointed shall be qualified under the provisions of such Section of the Indenture; and WHEREAS, Section 11.17 of the Indenture provides that any successor trustee appointed under the Indenture shall execute, acknowledge and deliver to the Issuer and the Resigning Trustee an instrument accepting such appointment and thereupon the resignation of the Resigning Trustee shall become effective and the Successor Trustee without any further act, deed or conveyance, shall become fully vested with all the rights, powers, trust duties and responsibilities of the Resigning Trustee; and NOW, THEREFORE, pursuant to the Indenture and in consideration of the covenants herein contained, it is agreed as follows (words and phrases not otherwise defined in this Instrument shall have the meaning given thereto in the Indenture): THE ORIGINAL TRUSTEE 1. Pursuant to the terms of the Indenture, the Original Trustee hereby notifies the Issuer that the Original Trustee is resigning as Paying Agent and Registrar under the Indenture effective as of that date which is fourteen (14) days after the Execution Date or, if such date is not a Business Day, then the next succeeding Business Day (the "Effective Date"). THE RESIGNING TRUSTEE 1. Pursuant to the terms of the Indenture, the Resigning Trustee hereby notifies the Issuer that the Resigning Trustee is resigning as trustee under the Indenture effective as of that date which is March 21, 1995 (the "Effective Date"). 2. Effective as of the Effective Date, the Resigning Trustee hereby assigns, transfers, delivers and confirms to the Successor Trustee all of its rights, powers, trust duties and responsibilities of the Resigning Trustee under the Indenture 3. The Resigning Trustee agrees to execute and deliver such further instruments and shall take such further actions as the Successor Trustee or the Issuer may reasonably request so as to more fully and certainly vest and confirm in the Successor Trustee all the rights, titles, interests, capacities, privileges, duties and responsibilities hereby assigned, transferred, delivered and confirmed to the Successor Trustee, including without limitation, the execution and delivery of any instruments required to re -perfect all liens that it may have on the trust in the name of the Successor Trustee. 4. Promptly after the execution and delivery of this Instrument, the Resigning Trustee shall cause notice of the resignation, appointment and acceptance effected hereby to be given as is required pursuant to Section 11.12 of the Indenture. 5. Promptly after the Effective Date, the Resigning Trustee shall provide the governing documents to the Successor Trustee. THE ISSUER 1. Effective as of the Effective Date, the Issuer hereby accepts the resignation of the Resigning Trustee and appoints the Successor Trustee as successor in trust under the Indenture and confirms to the Successor Trustee all of the rights, titles, interests, capacities, privileges, duties and responsibilities of the trustee under the Indenture. 2. The Issuer agrees to execute and deliver such further instruments and to take such further action as the Successor Trustee may reasonably request so as to more fully and certainly vest and confirm in the Successor Trustee all the rights, titles, interests, capacities, privileges, duties and responsibilities hereby assigned, transferred, delivered and confirmed to the Successor Trustee. 2 3. The Issuer hereby represents and warrants that to the best knowledge of the Issuer there has been no notice of an Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default under the terms of the Indenture, as of the Effective Date. THE SUCCESSOR TRUSTEE 1. Effective as of the Effective Date, the Successor Trustee hereby accepts its appointment as successor trustee under the Indenture and shall be vested with all of the rights, titles, interests, capacities, privileges, duties and responsibilities of the trustee under the Indenture. 2. The Successor Trustee hereby represents that it is qualified and eligible under the provisions of Section 11.15 of the Indenture to be appointed successor trustee and hereby accepts the appointment as successor trustee and agrees that upon the signing of this Instrument it shall become vested with all of the rights, titles, interests, capacities, privileges, duties and responsibilities of the Resigning Trustee as trustee with respect to all series of Securities with like effect as if originally named as trustee under the Indenture. MISCELLANEOUS 1. The parties hereto agree that this instrument does not constitute an assumption by the Successor Trustee of any liability of the Resigning Trustee arising out of any breach by the Resigning Trustee of its duties or obligations under the Indenture (a "Prior Liability"). The parties hereto further agree that, notwithstanding any provision hereof, the Resigning Trustee and its corporate parent shall remain liable for any Prior Liabilities. The Original Trustee shall continue to be liable for its acts or omissions under the Indenture through the effective date of its resignation to the Resigning Trustee and through the Effective Date of its resignation as paying agent and registrar. 2. The parties hereto agree that as of the Effective Date, all references to the Resigning Trustee as trustee in the Indenture shall be deemed to refer to the Successor Trustee. After the Effective Date, all notices or payments which were required by the terms of the Indenture to be given or paid to the Resigning Trustee as trustee, shall be given or paid to: HARRIS TRUST AND SAVINGS BANK 311 West Monroe Street Attention: Indenture Trust Division Chicago, Illinois 60606 3. The resignation, appointment and acceptance effected hereby shall become effective as of the opening of business on the Effective Date. 4. This Instrument shall be governed by and construed in accordance with the laws governing the Indenture. 5. This instrument may be executed in any number of counterparts, each of which shall be an original, but which counterparts shall together constitute but one and the same instrument. 3 8. Nothing contained in this Instrument shall in any way affect the obligations or rights of the Issuer, the Resigning Trustee or any holder of the Bonds under the Indenture. This Instrument shall be binding upon and inure to the benefit of the Issuer, the Resigning Trustee and the Successor Trustee and their respective successors and assigns. 7. The parties hereby agree that from and after the Effective Date, all fees payable by the Issuer to the trustee under the Indenture shall henceforth be invoiced by and paid to the Successor Trustee at such address and account as shall hereafter be provided by the Successor Trustee to the Issuer. 8. Each of the parties hereto hereby represents and warrants for itself that as of the date hereof, the Effective Date; a) it has the power and authority to execute and deliver this Instrument and to perform its obligations hereunder, and all such action has been duly and validly authorized by all necessary proceedings on its part; and b) this Instrument has been duly authorized, executed and delivered by it, and constitute a legal, valid and binding agreement enforceable against it in accordance with its terms, except as the enforceability of this Instrument may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditor's rights or by general principles of equity limiting the availability of equitable remedies. 4 IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be duly executed and attested by their duly authorized officers, all as of the date and year first above written. Attes Title' e.c r e t nary:�� Attest Title: Atte Attest: Title - Industrial Development Authority of the City of Santa Ana, asIssuer By: Title: ChaiLan Harris Trust Company of California, as Resigning Trustee By: Title: A rwsiA Irl Y�CE KLc UEL"r Harris Trust and Savings Bank, as Successor Trustee By: — Title: Vice President Bank of America National Trust and Savings Association, as Original Trustee By: Title, A'Sbis'rANT VICE MESA DE T The undersigned hereby acknowledges and consents to the foregoing as of the date first written above. sanew, doc APPROVED AS TO FORM --14WF R j R CITY ATTO Unibank, as Bank By: Title: Y/ a I larris Tmst Corrip,.,iri 60 � SOUth Ficjuema FeIep� ione, (2 13) 239-06"�, .i lams &.Jte 4900 Lo; Angeles, CaMoirb 90017 City of Santa Ana P.O. Box 1988 Santa Ana, CA 92702 Attention: John Reekstin, Administrative Services Manager RE: Industrial Development Authority of the City of Santa Ana, State of California Variable Rate Demand Industrial Development Revenue Bonds Series 1988 A (Newport Electronics, Inc. Project) Dear Mr. Reekstin: Enclosed is your fully executed Tri-Party Agreement effecting the transfer of the trusteeship and paying agency function from Harris Trust Company of California and Bank of America National Trust and Savings Association to Harris Trust and Savings Bank. Your contact at Harris Trust and Savings Bank is Frank Pierson, (312) 461-2533. We have enjoyed working on this bond issue. Harris Trust Company of California is interested in providing trustee, registrar, paying agent or escrow agent services on future financings. It is very easy to include language in new governing documents which would provide for inclusion of the parent company's assets in the eligibility requirements. Please consider placing Harris Trust Company of California on your request for proposal distribution list. Any requests for proposal should be addressed to Frederick A. ("Rick") Schaal at the above address. Thank you for your assistance in making the above transition. Sincerely, Esther Cervantes, CCTS Assistant Vice President (213) 239-0675 Enclosure Pfte6b.\--1t4,d- Who I ly ()vv[ O)sOin y (A I ris P�v I kc() I I)