Loading...
HomeMy WebLinkAbout82-0516583B JHHW:SSW:nct 11/16/81 01/19/82 02/18/82 03/18/82 04/06/82 CITY OF SANTA ANA RESOLUTION NO. 82-51 A RESOLUTION AUTHORIZING THE ISSUANCE OF $3,000,000 PRINCIPAL ~J~IOUNT OF CITY OF SANTA ANA 1982 INDUSTRIAL REVENUE NOTE (Mitsubishi Consumer Electronics America, Inc.) Adopted April 19 , 1982 TABLE OF CONTENTS ARTICLE I Section 1.O1 Section 1.02 Section 1.03 Section 1.04 Authorization of Note; Definitions ..... Authorization ...... Definitions ........ (a) Agreement ...... (b) Bank ......... (c) Certificate of the City, Written Request of the City (d) City ........ (e) City Council .... (f) Construction Fund . . (g) Costs of the Project. (h) Deed of Trust . (i) Event of Taxabilit~ (j) Federal Securities. (k) Financial Newspaper (1) Financing . . . (m) Fiscal Year (n) Loan .... (o) Note. . . (p) Note Fund . (q) Ordinance . (r) Outstanding (s) Participating Party (t) Payment Date.. (u) Prime Rate... (v) Project .... (w) Promissory Note (x) Revenues .... (y) Site. (z) Supple~e~t~l'R~solution Content of Certificates and Opinions Equal Security ......... Page 2 2 2 2 2 3 3 3 3 3 3 3 3 3 4 4 4 4 4 4 4 4 4 5 5 5 ARTICLE II Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 The Note .............. Authorization ............. Terms of Note ............ Redemption or Prepayment of Note ...... Execution of Note Note Mutilated, Lo~tl 6e~t~o~e~ ~r'S~oie~ ~ ~ ~ Certificates of Participation ....... 6 6 6 6 7 7 7 Page ARTICLE Section Section Section III 3.01 3.02 3.03 Issue of Note .......... Sale and Delivery of Note ...... Application of Proceeds of Sale of Note . Construction Fund ........... ARTICLE Section Section Section Section IV 4.01 4.02 4.03 4.04 Revenues; Note Fund .......... Pledge of Revenues ........... Note Fund . . . InveJt~e~t'o~ Deposit and MoneYs'in . ~uAd~ Assignment to Bank ......... 10 10 10 10 11 ARTICLE Section Section Section Section Section Section V 5.01 5.02 5.03 5.04 5.05 5.06 Covenants of the City ......... Punctual Payment ........... Against Encumbrances ......... Preservation of Revenu~s~ Amendment of Agreement, Promissory Note and Deed of Trust .......... Accounting Records and Reports ...... Compliance with Resolution ........ Further Assurances .......... 12 12 12 12 12 12 13 ARTICLE Section Section Section Section Section VI 6.0l 6.02 6.03 6.04 6.05 Amendment of Resolution ..... Amendments Permitted .......... Procedure for Amendment with Written Consent of Bank ....... 'Ri ~l'~ti ~ Effect of Supplemental s o ..... Endorsement or Replacement of Note Issued After Amendments .......... Amendatory Endorsement of Note ....... 14 14 14 15 15 15 ii Page ARTICLE Section Section Section Section Section Section Section Section VII 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 Events of Default and Remedies of Bank. Events of Default and Acceleration of Maturities ............ Application of Funds Upon Acceleration. . . Institution of Legal Proceedings by Bank ......... ..... Effect of Delay Or'omission to Pursue Remedy. Remedies Cumulative ......... Control of Proceedings ........ Limitation on Bank's Right to Sue ...... Limitation of Liability to Revenues .... 16 16 16 17 17 18 18 18 18 ARTICLE Section Section Section Section Section Section Section Section Section Section Exhibit VIII 8.01 8.02 8.03 8.04 8.05 8.06 8.07 8.08 8.09 8.10 A Miscellaneous .......... Benefits of Resolution Limited to Parties Successor is Deemed Included in All References to Predecessor. Discharge of Resolution . . . Execution of Documents and Proof of Ownership by Bank ...... Waiver of Personal Liability. Publication for Successive Weeks. Destruction of Cancelled Note Notice and Demands on City.. Partial Invalidity. Effective Date of Re~oiu~i~n~ Form of Note 19 19 19 19 19 20 20 20 20 20 21 iii RESOLUTION NO. 82-51 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE ISSUANCE OF $3,000,000 PRINCIPAL AMOUNT OF CITY OF SANTA ANA 1982 INDUSTRIAL REVENUE NOTE {Mitsubishi Consumer Electronics America, Inc.) WHEREAS, the City of Santa Ana is a chartered city of the State of California duly organized and existing under and by virtue of the constitution of said state, and is duly authorized by its City Charter to issue its revenue bonds, notes or other evidences of indebtedness for the purpose of financing construction of industrial facilities within the City pursuant to Ordinance No. NS1609, adopted by the City Council of the City on November 16, 1981; WHEREAS, pursuant to the Ordinance, Mitsubishi Consumer Electronics America, Inc. has applied to the City for financing in connection with the construction of certain manufacturing and related facilities and property located within the City; and WHEREAS, the City Council of the City of Santa Aha has determined to issue its industrial revenue note to aid in the financing of such construction as in this Resolution provided; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: ARTICLE I AUTHORIZATION OF NOTE; DEFINITIONS Section 1.O1. Authorization. The City Council has reviewed all proceedings heretofore taken and has found, as a result of such review, and hereby finds and determines, that all things, conditions and acts required by law to exist, happen or be performed precedent to and in connection with the issuance of the Note do exist, have happened and have been performed in due time, form and manner as required by law, and the City is now duly empowered, pursuant to each and every requirement of law, to issue the Note in the manner and form provided in this Resolution. Section 1.02. Definitions. Unless the context otherwise requires, the terms defined in subsections (al through (z), inclusive, of this Section 1.02 shall, for all purposes of this Resolution, of any resolution supplemental hereto, and of any certificate, opinion or other document herein mentioned, have the meanings herein specified. (al Agreement. "Agreement" means that certain agreement, entitled "Loan and Security Agreement", dated as of April l, 1982, by and among the City, the Bank and the Participating Party. (b) Bank. "Bank" means The Mitsubishi Bank of California, the purchaser of the Note. (c) Certificate of the City, Written Request of the City. "Certificate of the City" and "Written Request of the City" mean, respectively, a written certificate or request signed in the name of the City by the City Manager or the City Clerk or such other person as may be designated and authorized to sign for the City, with the seal of the City affixed. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more combined shall be read and construed as a single instrument. (d) City. "City" means the City of Santa Aha, a chartered city of the State of Ca(ifornia duly organized and existing under and by virtue of the constitution of said state. (el City Council. "City Council" means the City Council of the City. (fl Construction Fund. "Construction Fund" means the fund by that name created pursuant to Section 3.03 hereof. (g) Costs of the Project. "Costs of the Project" has the meaning given such term in Section 5.02 of the Agreement. 2 (h) Deed of Trust. "Deed of Trust" means the deed of trust, dated as of April l, 1982, from the Participating Party, as trustor to the City, as beneficiary, executed pursuant to the Agreement. (il Event of Taxability. "Event of Taxability" has the meaning given to such term in Section 4.13 of the Agreement. (j) Federal Securities. "Federal Securities" means United States Treasury notes, bonds, bills or certificates of indebtedness or those for which the faith and credit of the United States are pledged for the payment of principal and interest; obligations issued by banks for cooperatives, federa~ land banks, federal intermediate credit banks, federal home loan banks, the Federa! Home Loan Bank Board, the Tennessee Valley Authority, or obligations, participations, or other instruments of or issued by, or fully guaranteed as to principal and interest by, the Federal National Mortgage Association; or participation certificates evidencing beneficial interests in obligations, or in the right to receive interest and principal collections therefrom, which obligations have been subjected by one or more government agencies to a trust or trusts for which any executive department, agency or instrumentality of the United States (or the head thereof) has been named to act as trustee, all as to and the extent that such securities are eligible for the legal investment of City funds. (k) Financial Newspaper. "Financial newspaper" means The Wall Street Journal or The Daily Bond Buyer or any other newspaper printed in the English language, customarily published on each business day, publishing financial news, circulated in New York, New York, and the same or similar newspaper or journa'~circulated in Los Angeles, Ca~fornia, and selected by the Bank, whose decision shall be final and conclusive. (1) Financing. "Financing" and its variants mean the lending of moneys or any other thing of value for the purpose of facilitating the construction of the Project on the Site pursuant to the Ordinance. (m) Fiscal Year. "Fiscal Year" means any twelve-month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both inclusive, or any other twelve-month period hereafter selected and designated by the City as its official fiscal year period. (n) Loan. "Loan" means the loan made by the City to the Participating Party for the Financing of the construction of the Project on the Site pursuant to the Agreement and evidenced by the Promissory Note. (o) Note. "Note" means the City of Santa Ana 1982 Industrial Revenue Note (Mi~'~'~-ishi Consumer Electronics America, Inc.) authorized to be issued by Section 2.01 hereof. (p) Note Fund. "Note Fund" means the fund by that name created pursuant to Section 4.02 hereof. 3 (q) Ordinance. "Ordinance" means Ordinance No. NS160g adopted by the City Council on November 16, lg81, under the Charter, as the same may be amended from time to time. {r) Outstanding. "Outstanding", when used as of any particular time with reference to the Note, means (subject to the provisions of Section 7.04} the principal amount outstanding and unpaid on the Note. {s) Participating Party. "Participating Party" means Mitsubishi Consumer Electronics America, Inc., a corporation organized and existing under the laws of Delaware and in good standing under the laws of the State of California. (t) Payment Date. "Payment Date" means the day of the month with respect to which the term is used herein which is the same as that day of the month on which the Note is delivered or in the event that such day is not a business day, the next preceding day which is a business day. (u) Prime Rate. "Prime Rate" means the floating commercial loan rate of interest of the Bank announced from time to time as its prime rate, as reviewed and adjusted quarterly (to be effective for the subsequent quarter) by the Bank on the Payment Date of the months of January, April, July and October of each year. (v) Project. "Project" means the manufacturing facilities and related appurtenant manufacturing and auxiliary facilities and property, to be constructed on the Site pursuant to the Agreement and the Ordinance. "Project" also means all additions, extensions or improvements thereto, and all subsequent phases thereof, hereafter defined by a Supplemental Resolution as being a part of the Project. (w) Promissory Note. "Promissory Note" means the note executed by the Participating Party evidencing and securing the repayment of the Loan pursuant to the Agreement. (x) .Revenues. "Revenues" means all rents, receipts, payments and other income and revenue received by the City or the Bank with respect to, or otherwise derived from, the Financing of the Project, including without limitation all base loan payments and prepayments thereof received from the Participating Party pursuant to the Agreement and the Promissory Note, all additional payments required to be paid pursuant to Section 1.03(b) of the Agreement, all amounts derived by the City or the Bank from the enforcement of the City's or the Bank's rights and privileges under the Deed of Trust, all proceeds derived by the City or the Bank from the insurance policies maintained pursuant to the Agreement, and all sums required to be deposited in the Note Fund. (y) Site. "Site" means the site of the Project as referenced in the second recita--T-~-f the Agreement. (z) Supplemental Resolution. "Supplemental Resolution" or "supplemental resolution" means any resolution then in full force and effect which has been duly adopted by the City Council of the City under the Ordinance, at a meeting of the City Council duly convened and held, at which a quorum was present and acted thereon, amendatory of or supplemental to this Resolution; but only if and to the extent that such Supplemental Resolution is specifically authorized hereunder. Section 1.03. Content of Certificates and Opinions. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Resolution shall include (a) a statement that the person or persons making or giving such certificate or opinion have read such covenant or condition 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 or opinions contained in such certificate or opinion 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 covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of the signers, such condition or covenant has been compli, ed with. Any such certificate or opinion made or given by a member or officer of the City may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Any such certificate or opinion made or given by counsel may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the City), upon the certificate or opinion of or representations by a member or officer of the City, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Section 1.04. ~gal Security. In consideration of the acceptance of the Note by the Bank, this Resolution shall be deemed to be and shall constitute a contract between the City and the Bank and the covenants and agreements herein set forth to be performed on behalf of the City shall be for the benefit, security and protection of the Bank. ARTICLE II THE NOTE Section 2.01, Authorization. A Note in the aggregate principal amount of Three Million Dollars ($3,000,000) is hereby authorized to be issued by the City under and subject to the terms of this Resolution, the Ordinance, the Charter of the City and the Constitution of the State of California. This Resolution constitutes a continuing agreement with the Bank to secure the full and final payment of principal of and the interest on the Note, subject to the covenants, agreements, provisions and conditions herein contained. The purpose for which the Note shall be issued is to provide funds to make the Loan to the Participating Party for the purpose of Financing the construction of the Project pursuant to the Agreement. The Note shall be designated the "City of Santa Aha 1982 Industrial Revenue Note (Mitsubishi Consumer Electronics America, Inc.)." Section 2.02. Terms of Note. The Note shall be dated as of the date of delivery thereof and payment therefor, and shall be initially issued as a single fully registered Note (without coupons) substantially in the form set forth on Exhibit A attached hereto and by this reference incorporated herein. The Note shall be delivered to the Bank in accordance with Section 3.01. The Note shall mature and become payable on the Payment Date in April, 1992, and shall bear interest, on the unpaid principal balance thereof, at a floating rate equal to the product of (i) Bank's Prime Rate plus one-quarter of one percent (1/4%), multiplied by (ii) sixty percent (60%). Principal on the Note shall be payable in forty (40) consecutive quarterly installments on the Payment Date in the months of January, April, July and October of each year, commencing with the Payment Date in July, 1982, each payment of principal to be in the amount of Seventy-Five Thousand Dollars ($75,000}, all subject to Section 2.03 hereof. Interest shall be paid on the Payment Date in the months of January, April, July and October of each year, commencing with the Payment Date in July, 1982. Both the principal of and interest on the Note shall be payable in lawful money of the United States of America in immediately available funds at the office of the Bank located at 800 Wilshire Boulevard, Los Angeles, California 90017, unless an alternative address is provided pursuant to Section 7.01 of the Agreement. Section 2.03. Redemption or Prepayment of Note. The Note shall be subject to redemption or prepayment before its stated maturity date, as a whole, or in part from prepayment of the Loan made by the Participating Party or from any source of available funds, on any Payment Date at an .amount equal to the principal amount to be redeemed or prepaid, together with accrued interest thereon to the date of redemption or prepayment, without prepayment premium. The Note is also subject to prepayment upon the occurrence of an Event of Taxability, as a whole, but not in part, from funds provided by the Participating Party, on any Payment Date, at the principal amount thereof, together with accrued interest thereon to such date. 6 After the date fixed for redemption, if funds available for the payment of the principal of and interest on the Note have been duly provided, the Note shall cease to be entitled to any benefit under this Resolution other than the right to receive payment of the redemption price, and no interest shall accrue thereon on or after the redemption date. If the Note is redeemed in whole pursuant to this Section, the Note shall be cancelled and shall be surrendered to the City. If the Note is redeemed in part pursuant to this Section, the redemption amount shall be applied against principal due on the Note in inverse order of Payment Date. Section 2.04. Execution of Note. The Note shall be execdted on behalf of the City by the signature of the Mayor and attested on behalf of the City by the signature of the City Clerk who is in office on the date of the adoption of this Resolution or at any time thereafter, and the seal of the City shall be impressed, imprinted or reproduced by facsimile thereon. If any officer whose signature appears on the Note ceases to be such officer before the delivery of the Note to the Bank, such signature on the Note shall nevertheless be as effective as if the officer had remained in office until the delivery of the Note to the Bank. The Note may be signed and attested on behalf of the City by such persons as at the actual date of the execution of the Note shall be the proper officers of the City although at the nominal date of the Note any such person shall not have been such officer of the City. Section 2.05. Note Mutilated, Lost, Destroyed or Stolen. If the Note shall become mutilated, the City, at the expense of the Bank, shall execute and deliver, a new Note of like tenor in exchange and substitution for the Note so mutilated, but only upon surrender to the Bank of the Note so mutilated. Every mutilated Note so surrendered to the Bank shall be cancelled by it and delivered to, or upon the order of, the City. If the Note shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City, and if such evidence is satisfactory to the City and indemnity satisfactory to it shall have been given, the City, at the expense of the Bank, shall execute and deliver, a new Note of like tenor in lieu of and in substitution for the Note so lost, destroyed or stolen. The City may require payment of a sum not exceeding the actual cost of preparing each new Note issued under this Section and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section in lieu of any Note alleged to be lost, destroyed or stolen shall be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Resolution with the Note originally issued pursuant to this Resolution. Section 2.06. Certificates of Participation. Nothing herein shall prevent the Bank from executing and delivering certificates of participation in payments to be made by the City on the Note, provided, however, that such certificates of participation shall not be deemed to be separate obligations of the City and that, notwithstanding such delivery, the Bank shall be considered the holder and owner of the Note for all purposes hereunder and under the Agreement. ARTICLE III ISSUE OF NOTE Section 3.01. Sale and Delivery of Note. At any time after the adoption of this Resolution the City may sell and deliver a Note to the Bank in accordance with the terms of a purchase agreement presented by the Bank. Section 3.02. Application of Proceeds of Sale of Note. The proceeds received by the City from the sale of the Note shall be deposited into the Construction Fund established pursuant to Section 3.03. Section 3.03. Construction Fund. There is hereby created a fund to be designated the "City of Santa Aha 1982 Industrial Revenue Note (Mitsubishi Consumer Electronics America, Inc.) Construction Fund" {herein referred to as the "Construction Fund"), which shall be held by the Bank in trust and applied to the payment of the Costs of the Project. Before any payment is made from the Construction Fund by the Sank, there shall be filed with the Bank a requisition conforming to the requirements of Section 5.02 of the Agreement, stating with respect to each payment to be made (al the requisition number; (b) the name and address of the person, firm or corporation to whom payment is due; {c) the amount to be paid; (d) that each obligation mentioned therein has been properly incurred for a Cost of the Project and is a proper charge against the Construction Fund; and (e) if such payment is a reimbursement to the Participating Party for costs or expenses of the Participating Party incurred by reason of work performed or supervised by officers or employees of the Participating Party or any of its subsidiaries or affiliates, that the amount to be paid does not exceed the actual cost thereof to the Participating Party or any of its subsidiaries or affiliates and that such costs or expenses are to be treated on its books as a capital expenditure in accordance with generally accepted accounting principles applied on a consistent basis. Each such requisition shall be sufficient evidence to the Bank of the facts stated therein. Upon receipt of each such requisition, the Bank shall pay the amount set forth therein as directed by the terms thereof. Upon the receipt by the Bank of a certificate conforming to the requirements of Section 5.04(d) of the Agreement, and after payment of costs payable from the Construction Fund or provision satisfactory to the Bank having been made for payment of such costs not yet due, the Bank shall transfer any remaining balance in the Construction Fund to the Note Fund established pursuant to Section 4.02 to pay the principal of the Note as the same becomes due or, at the direction of the Participating Party, to be used for the redemption of the Note or any portion thereof. 9 ARTICLE IV REVENUES; NOTE FUND Section 4.01. Pledge of Revenues. The Note shall be secured by a first pledge (which pledge shall be effected in the manner and to the extent hereinafter provided) of all of the Revenues and a first pledge of all of the moneys in the Note Fund. The Revenues are hereby allocated in their entirety to the payment of the principal of and interest on the Note and, until the payment in full thereof, the Revenues shall be applied solely to the payment of such principal and interest. The pledge and allocation of Revenues is for the exclusive benefit of the Bank and shall be irrevocable until the Note has been paid and retired or provision made therefor. The City will not issue any obligation or security superior to or on a parity with the Note, howsoever denominated, payable in whole or in part from the Revenues which are hereby pledged to the payment of the principal of and interest on the Note, until the Note has been paid and retired or provision made therefor. The Note shall be a special obligation of the City and shall be payable solely from the funds herein provided therefor. The Note shall not constitute an indebtedness of the City, the State of California or any of its subdivisions, and neither said State nor any of its political subdivisions shall be liable thereon, nor in any event shall the Note be payable out of any funds or properties of the City other than the Revenues as provided herein. Neither the faith and credit nor the taxing power of the City is pledged to the payment of the principal of or interest on the Note. Section 4.02. Note Fund. There is hereby created a special fund to be designated the "City o--F Santa Ana 1982 Industrial Revenue Note (Mitsubishi Consumer Electronics America, Inc.) Note Fund" (herein referred to as the "Note Fund"), which the City hereby covenants and agrees to cause to be maintained and which shall be held in trust for the benefit of the Bank. Upon the receipt thereof, the Bank shall deposit all Revenues in the Note Fund. All Revenues at any time paid into the Note Fund shall be disbursed, allocated and applied solely for the purpose of payment of principal and interest on the Note in accordance with the requirements and provisions of Article II hereof. So long as the Note is outstanding, the City shall not have any beneficial right or interest in the Revenues, except only as in this Resolution provided, and such moneys shall be used and applied by the Bank as hereinafter set forth in this Article IV. When the Note is no longer Outstanding, all fees, charges and expenses of the Bank have been paid or provided for, all expenses of the City relating to the Project have been paid or provided for, and this Resolution has been discharged and satisfied, the Bank shall pay any amounts remaining in the Note Fund to the Participating Party. Section 4.03. Deposit and Investment of Moneys in Funds. All moneys held in the Funds established pursuant to this Resolution shall be deposited lO in demand or time deposits {which may be represented by certificates of deposit) in any bank or trust company authorized to accept deposits of trust funds {including the banking department of the Bank) and, as and to the extent required by law, shall be secured at all times as trust funds. Moneys in the Note Fund and in the Construction Fund may, and upon the written request of the Participating Party shall, De invested, by the Bank in Federal Securities or certificates of deposit of banks maturing prior to the date on which such moneys are estimated to be required to be paid out hereunder. All interest or gain received during the construction of the Project from such investments of moneys shall be deposited in the Construction Fund; following completion of the construction of the Project, such interest or gains shall be deposited in the respective fund or account from which such investments were made. Section 4.04. Assignment to Bank. The City hereby transfers, assigns and sets over to the Bank, as holder of the Note, all of the Revenues and any and all rights, privileges and obligations it has under the Agreement, the Deed of Trust and the Promissory Note including, without limitation, the right to collect and receive directly all of the Revenues, and any Revenues collected or received by the City shall be deemed to be held, and to have been collected or received, by the City as the agent of the Bank, and shall forthwith be paid by the City to the Bank. ll ARTICLE V COVENANTS OF THE CITY Section 5.01. Punctual Payment. The City will punctually pay or cause to be paid (but only out of Revenues as herein provided) the principal and interest to become due in respect of the Note, in strict conformity with the terms of the Note and of this Resolution, and it will faithfully observe and perform all of the conditions, covenants and requirements of this Resolution and all Supplemental Resolutions and of the Note. Nothing herein contained shall prevent the City from making advances of its own moneys howsoever derived to any of the uses or purposes referred to herein. Section 5.02. Against Encumbrances. The City will not encumber, pledge or place any charge or lien upon any of the Revenues superior to or on a parity with the pledge and lien herein created for the benefit of the Note, except as permitted by this Resolution. Section 5.03. Preservation of Revenuesl Amendment of Agreement, Promissory Note and Deed of Trust. The City shall cause to be collected promptly all amounts due from the Participating Party under the Agreement and the Promissory Note as the same become due, and shall promptly and vigorously enforce all of its rights under the Agreement, the Promissory Note and the Deed of Trust. Without the written consent of the Bank the City shall not amend, modify or terminate, or agree or consent to amend, modify or terminate, the Agreement, the Promissory Note or the Deed of Trust; but, with the written consent of the Bank, the City may consent to amendments or modifications thereof. The Bank may give such written consent, and may itself take any such action or consent to an amendment or modification, only {i) if, in the opinion of the Bank such action or such amendments or modifications will not adversely affect the interests of the Bank or result in any impairment of the security hereby given for the payment of the Note, and (ii) such amendments or modifications will not have the effect of extending the time for payment or reducing the amount due and payable by the Participating Party pursuant to the Agreement and the Promissory Note. Section 5.04. Accountin9 Records and Reports. The Bank shall keep proper books of record and account in which complete and correct entries shall be made of all transactions relating to the receipt, disbursement, allocation and application of the Revenues and the proceeds of the Note. The Bank, on or before January 1 of each year, beginning january l, 1983, shall furnish to the City a complete financial statement covering receipts, disbursements, allocation and application of Revenues and Note proceeds for the twelve months ending on the preceding December 1. Section 5.05. Compliance with Resolution. The City shall not suffer or permit any default to occur under this Resolution, but shall faithfully observe and perform all the covenants, conditions and requirements hereof. 12 Section 5.06. Further Assurances. The City will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Resolution, and for the better assurin§ and confirmin§ unto the Bank of the rights and benefits provided in this Resolution. 13 ARTICLE VI AMENDMENT OF RESOLUTION Section 6.01. Amendments Permitted. This Resolution and the rights and obligations of the City and of the Bank may be modified or amended at any time by a Supplemental Resolution and pursuant to the written consent of the Bank. No such modification or amendment shall (1) extend the maturity of any Note or reduce the interest rate thereon, or otherwise alter or impair the obligation of the City to pay the principal thereof, of interest thereon, or any premium payable on the redemption thereof, at the time and place and at the rate and in the currency provided therein, without the express consent of the Sank, or (2) permit the creation by the City of any mortgage, pledge or lien upon the Revenues superior to or on a parity with the pledge and lien created for the benefit of the Note. This Resolution and the rights and obligations of the City and of the Bank may be modified or amended at any time by a Supplemental Resolution, without the consent of the Bank, but only to the extent permitted by law and only for any one or more of the following purposes: (a) to add to the covenants and agreements of the City in this Resolution contained, other covenants and agreements thereafter to be observed, or to surrender any right or power herein reserved to or conferred upon the City which shall not adversely affect the interests of the Bank; and (b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in this Resolution, or in regard to questions arising under this Resolution, as the City may deem necessary or desirable and not inconsistent with this Resolution, and which shall not adversely affect the interests of the Bank. Section 6.02. Procedure for Amendment with Written Consent of Bank. The City may at any time adopt a Supplemental Resolution amending the provisions of the Note or of this Resolution or any Supplemental Resolution, to the extent that such amendment is permitted by Section 6.01, to take effect when and as provided in this Section. A copy of such Supplemental Resolution, together with a request to the Bank for its consent thereto, shall be mailed by the City to the Bank. Notice of the fact of the adoption of such Supplemental Resolution (stating that a copy thereof is available for inspection at the office of the City) shall be published at least once a week for two successive weeks in a financial newspaper, the first publication to be made not more than fifteen (15) days after the date of adoption of such Supplemental Resolution. Such Supplemental Resolution shall not become effective unless there shall be obtained the written consent of the Bank and a notice shall have been published as hereinafter in this Section provided. Any such consent shall be 14 binding upon the Bank unless such consent is revoked in writing by the Bank by filing such revocation with the City prior to the date when the notice hereinafter in this Section provided for has been published. After the Bank shall have filed its consent to the Supplemental Resolution, the City shall mail and publish a notice to the Bank in the manner hereinbefore provided in this Section for the mailing of the Supplemental Resolution and publication of the notice of adoption thereof, stating in substance that the Supplemental Resolution has been consented to by the Bank and will be effective as provided in this Section. Proof of the publication of such notice shall be filed with the City. A record, consisting of the papers required by this Section to be filed and prepared, shall be proof of the matters therein stated until the contrary is proved. The Supplemental Resolution shall become effective upon the filing with the Bank of the proof of the publication of such last-mentioned notice, and the Supplemental Resolution shall be deemed conclusively binding (except as otherwise hereinabove specifically provided in this Article) upon the City and the Bank at the expiration of sixty (60) days after such filing, except in the event of a final decree of a court of competent jurisdiction setting aside such consent in a legal action or equitable proceeding for such purpose commenced within such sixty-day period. Section 6.03. Effect of Supplemental Resolution. From and after the time any Supplemental"~solution becomes effective pursuant to this Article VII, this Resolution shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations under this Resolution of the City and the Bank shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such Supplemental Resolution shall be deemed to be part of the terms and conditions of this Resolution for any and all purposes. Section 6.04. Endorsement or Replacement of Note Issued After Amendments. The City may determine that any Note issued and delivered after the effective date of any action taken as provided in this Article VI shall bear a notation, by endorsement or otherwise, in form approved by the City, as to such action. In that case, upon demand of the Bank and presentation of its Note for that purpose at such office as the City may select and designate for that purpose, a suitable notation shall be made on such Note. The City may determine that a new Note, so modified as in the opinion of the City is necessary to conform to such action, shall be prepared, executed and delivered. In that case, upon demand of the Bank, such new Note shall be exchanged at the office of the Bank, in Los Angeles, California, without cost to the Bank, for the Note then Outstanding, upon surrender of such Note. Section 6.05. Amendator~ Endorsement of Note. The provisions of this Article VI shall not prevent the Bank from accepting any amendment as to the Note held by it, provided that due notation thereof is made on such Note. 15 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF BANK Section 7.01. Events of Default and Acceleration of Maturities. If one or more of the following events ("events of default") shall happen, that is to say (a) if default shall be made in the due and punctual payment of the principal or any installment of interest on the Note when and as the same shall become due and payable, whether at maturity as therein expressed, by declaration or otherwise; (b) if default shall be made by the City in the observance of any of the covenants, agreements or conditions on its part in this Resolution or in the Note contained, and such default shall have continued for a period of sixty {60) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the City by the Bank; or (c) if an event of default (as defined in Section 6.01 of the Agreement) has occurred under the Agreement and is continuing; then, and in each and every such case during the continuance of such event of default, the Bank may, by notice in writing to the City declare the principal of the Note then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Resolution or in the Note contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal of the Note shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due and payable shall have been obtained or entered, there shall have been deposited with the Bank a sum sufficient to pay all principal on the Note matured prior to such declaration and all matured installments of interest (if any) upon the Note, with interest on such overdue installments of principal at the rates borne by the Note, and the reasonable expenses of the Bank, and any and all other defaults known to the Bank (other than in the payment of principal of and interest on the Note due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Bank or, provision deemed by the Bank,to be adequate shall have been made therefor, then, and in every such case, the Bank may, rescind and annul such declaration and its consequences. However, no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Section 7.02. Application of Funds Upon Acceleration. All money in the funds and accounts provided for in Section 3.03 and 4.02 upon the date of the 16 declaration of acceleration Revenues thereafter received Bank in the following order: by the Bank as provided in Section 8.01, and all by the City hereunder, shall be applied by the First, to the payment of the costs and expenses of the Bank in declaring such event of default, including reasonable compensation to its agents, attorneys and counsel; Second, in case the principal of the Note shall not have become due and payable,---~--the payment of the interest in default in the order of the maturity of the installments of such interest, with interest on the overdue installments at the rate equal to two percent (2%) above the rate in effect on the Note at the date of default (to the extent that such interest on overdue installments shall have been collected); Third, in case the principal of the Note shall have become and shall be thence and payable, to the payment of the whole amount then owing and unpaid upon the Note for principal and interest, with interest on the overdue principal and installments of interest at a rate equal to two percent {2%) above the rate in effect on the Note at the date of default, and in case such monies shall be insufficient to pay in full the whole amount so owing and unpaid upon the Note, then to the payment of such principal and interest without preference or priority of principal over interest, or interest over principal, or of any installment of interest over any other installment of interest, ratably to the aggregate of such principal and interest. Section 7.03. Institution of Legal Proceedings b~ Bank. If one or more of the events of default shall happen and be continuing, the Bank in its discretion may, and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its rights under the Ordinance or under this Resolution by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Bank shall deem most effectual in support of any of its rights or duties hereunder. Section 7.04. Effect of Dela~ or Omission to Pursue Remedy. No delay or omission of the Bank to exercise any right or power arising from any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every power and remedy given by this Article VIII to the Bank may be exercised from time to time, and as often as shall be deemed expedient. In case the Bank shall have proceeded to enforce any right under this Resolution, and such proceedings shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been determined adversely to the Bank, then and in every such case the City and the Bank, severally and respectively, shall be restored to their former positions and rights hereunder; and all remedies, rights and powers of the City and the Bank shall continue as though no such proceedings had been taken. 17 Section 7.05. Remedies Cumulative. No remedy herein conferred upon or reserved to the Bank is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Section 7.06. Control of Proceedings. In the event that the Bank, upon the happening of an e~ent of default, shall have taken some action, by judicial proceedings or otherwise, it shall have full power with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other disposal of such action. Section 7.07. Limitation on Bank's Right to Sue. The Bank shall not have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Resolution, unless the Bank shall have been previously given to the City written notice of the occurrence of an event of default hereunder. Such notification is hereby declared, in every case, to be a condition precedent to the exercise by the Bank of any remedy hereunder; it being understood and intended that the Bank shall not have any right in any manner whatever by its action to enforce any right under this Resolution, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Resolution shall be instituted, had and maintained in the manner herein provided. The right of the Bank to receive payment of the principal of and interest on the Note out of Revenues, as herein and therein provided, on and after the respective due dates expressed in such Note, or to institute suit for the enforcement of any such payment on or after such respective date, shall not be impaired or affected without the consent of the Bank, notwithstanding the foregoing provisions of this Section or any other provision of this Resolution. Section 7.08. Limitation of Liability to Revenues. Notwithstanding anything in this Resolution contained, the City shall not be required to advance any moneys derived from the proceeds of taxes collected by the City of Santa Ana or from any source of income of the City of Santa Ana or the City other than the Revenues, for any of the purposes in this Resolution mentioned, whether for the payment of the principal of or interest on the Note or for any other purpose of this Resolution. The Note is payable from and secured by the Revenues and the Deed of Trust. 18 ARTICLE VIII MISCELLANEOUS Section 8.01. Benefits of Resolution Limited to Parties. Nothing in this Resolution, expressed or implied, is intended to give any person other than the City and the Bank any right, remedy, or claim under or by reason of this Resolution. Any covenants, stipulations, promises or agreements in this Resolution contained by and on behalf of the City shall be for the sole and exclusive benefit of the Bank. Section 8.02. Successor is Deemed Included in All References to Predecessor. Whenever in this Resolution or any Supplemental Resolution either the City or the Bank is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Resolution contained by or on behalf of the City or the Bank shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. Section 8.03. Discharge of Resolution. If the City shall pay and discharge the entire indebtedness on the Note Outstanding in any one or more of the following ways: (al by well and truly paying or and interest on the Note Outstanding, payable; or causing to be paid the principal as and when the same become due and (b) by depositing with the Bank, in trust, at or before maturity, money which, together with the amounts then on deposit in the funds and accounts provided for in Sections 3.03 and 4.03, is fully sufficient to pay the Note Outstanding, including all principal and interest; or (c) by depositing with the Bank, in trust, Federal Securities or general obligation bonds of the State of California in such amount as the Bank shall determine will, together with the interest to accrue thereon and moneys then on deposit in the funds and accounts provided for in Section 3.03 and 4.03, be fully sufficient to pay and discharge the indebtedness on the Note (including all principal and interest} at or before its maturity; then, at the election of the City and notwithstanding that the Note shall not have been surrendered for payment, the pledge of the Revenues and other funds provided for in this Resolution and all other obligations of the City and the Participating Party under this Resolution with respect to the Note Outstanding shall cease and terminate. Notice of such election shall be filed with the Bank. Section 8.04. Execution of Documents and Proof of Ownership by Bank. Any request, declaration or other instrument which this Resolution may require or permit to be executed by the Bank may be in one or more instruments of 19 similar tenor, and shall be executed by an officer of the Bank or by its attorneys appointed in writing. Except as otherwise herein expressly provided the ownership of the Note and the amount, number and date of holding the same shall be proved by the registry books. Section 8.05. Waiver of Personal Liability. No member, officer, agent or employee of the City shall be individually or personally liable for the paj~nent of the principal of or interest on the Note; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law. Section 8.06. Publication for Successive Weeks. Any publication to be made under the provisions of this Resolution in successive weeks may be made in each instance upon any business day of the week and need not be made on the same day of any succeeding week or in the same newspaper for any or all of the successive publications, but may be made on different days of the week and in different newspapers. Section 8.07. Destruction of Cancelled Note. Whenever in this Resolution provision is made for the surrender to the City of the Note which has been paid or cancelled pursuant to the provisions of this Resolution, a certificate of destruction duly executed by the Sank shall be deemed to be the equivalent of the surrender of such cancelled Note and the City shall be entitled to rely upon any statement of fact contained in any certificate with respect to the destruction of the Note therein referred to. Section 8.08. Notice and Demands on City. Any notice or demand which by any provision of this Resolution is required or permitted to be given or served to or on the City may be given or served by being deposited postage prepaid in a post office letter box addressed {until another address is filed by the City with the Bank} as follows: City Manager, City of Santa Aha, 20 Civic Center Plaza, Santa Ana, California g2701. Section 8.09. Partial Invalidity. If any Section, paragraph, sentence, clause or phrase of this Resolution shall for any reason be held illegal or unenforceable, such holding shall not affect the validity of the remaining portions of this Resolution. The City hereby declares that it would have adopted this Resolution and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issue of the Note pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Resolution may be held illegal, invalid or unenforceable. If, by reason of the judgment of any court, the Bank is rendered unable to perform its duties hereunder, all such duties and all of the rights and powers of the Bank hereunder shall be assumed by and vest in the Treasurer in trust for the benefit of the Bank. The City covenants for the direct benefit of the Bank that its Treasurer in such case shall be vested with all of the rights and powers of the Bank hereunder, and shall assume all of the responsibilities and perform all of the duties of the Bank hereunder, in trust for the benefit of the Bank. 2O ADOPTED, this 19thday of AYES: Councilmembers: Section 8.10. Effective Date of Resolution. This Resolution shall take effect from and after the date of its passage and adoption. April , 1982, by the following vote: Acosta, Bricken, Griset, Luxembourger, Markel, McGuigan, Serrato NOES: Councilmembers: None ABSENT: Coucilmembers: None Mayor ATTEST: ~/erk of the Council /-- (~-- APPROVED AS TO FORM: City Attorne~ (~ 21 EXHIBIT A UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF ORANGE $3,000,000 CITY OF SANTA ANA 1982 INDUSTRIAL REVENUE NOTE (MITSUBISHI CONSUMER ELECTRONICS AMERICA, INC.} The CITY OF SANTA ANA, a chartered city of the State of California, duly organized and existing under the constitution and laws of the State of California (the "City"), for value received, hereby promises to pay to The Mitsubishi Bank of California (the "Bank") or registered assigns, at the office of the Bank at 800 Wilshire Boulevard, Los Angeles, California 90017, the principal sum of Three Million Dollars {$3,000,000) in lawful money of the United States of America, in immediately available funds, together with interest on the unpaid principal balance hereof from the date hereof until payment of such principal sum in full, at a floating rate per annum equal to the product of {i) Bank's Prime Rate plus one-quarter of one percent (1/4%), multiplied by (ii) sixty percent (60%). Forty (40) consecutive quarterly principal installments due on the Payment Date in the months of January, April, July and October of each year, commencing with the Payment Date in July, 1982, are payable in the amount of Seventy-Five Thousand Dollars ($75,000) each on the Note. Interest shall be paid on the Payment Date in the months of January, April, July and October of each year, commencing with the Payment Date in July, 1982. The term "Prime Rate" as used herein means the floating commercial loan rate of interest of the Bank announced from time to time as its prime rate, as reviewed and adjusted quarterly (to be effective for the subsequent quarter) by t~e Bank on the Payment Date in the months of January, April, July and October of each year. The term "Payment Date" as used herein means the twentieth day ~O___th) day of the month with respect to which the term is used herein or, in the event that such day is not a business day, the next preceding day which is a business day. If any installment due hereunder is not paid when due, the City promises to pay interest on said unpaid installment at the rate of two percent (2%) above the Prime Rate from the date when the same is due hereunder until the same shall be paid. This Note is a duly authorized issue of City of Santa Ana 1982 Industrial Revenue Note (Mitsubishi Consumer Electronics America, Inc.) in the aggregate principal amount of Three Million Dollars ($3,000,000), issued pursuant to provisions of Ordinance No. NS1609, entitled "Ordinance of the City of Santa Ana Relating to the Financing of Industrial and Commercial Development within said City in the Interests of the Public Health, Safety and Welfare," adopted by the City Council of the City of Santa Aha on November 16, 1981, and pursuant to Resolution No. 82-51(the "Resolution") adopted by the City on April 19 , 1982, for the purpose of providing funds for the making of a loan to Mitsubishi Consumer Electronics America, Inc. to finance the construction, improvement and equipping of the Project (as that term is defined in the Resolution). The Note is secured in accordance with the terms and conditions of the Resolution, to which reference is hereby made for a specific description of the security therein provided, and of the nature, extent and manner of enforcement of such security, and a statement of the rights of the registered owner of the Note, to all of the provisions of which the registered owner of this Note, by acceptance thereof, consents and agrees. This Note, and the interest hereon (to the extent set forth in the Resolution), is payable from, and is secured by a charge and lien on, the Revenues derived by the City from the Loan and the Agreement (as those terms are defined in the Resolution). This Note is a special obligation of the City and is not a lien or charge against the .property or funds of the City, except to the extent of the pledge of Revenues, as provided in the Resolution. This Note is not a debt of the City, the State of California, or any of its political subdivisions and neither said City, said State, nor any of its political subdivisions is liable hereon nor in any event shall this Note be payable out of any funds or properties other than the Revenues hereinbefore referred to. Neither the faith and credit nor the taxing power of the City is pledged to the payment of the principal of or interest on this Note. The Note does not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. The Note is subject to redemption or prepayment as a whole or in part, from any source of available funds, on any Payment Date, at the principal amount thereof, together with accrued interest thereon to such date. In addition, the Note is subject to redemption or prepayment as a whole or in part, on any Payment Date without premium, from prepayments pursuant to Section 1.04 of the Agreement, from excess Construction Fund. moneys, or from the proceeds of insurance or condemnation. The Note is also subject to prepayment upon the occurrence of an Event of Taxability (as that term is defined in the Resolution), as a whole but not in part, from funds provided by the Participating Party, on any Payment Date, at the principal amount thereof, together with accrued interest thereon to such quarterly Payment Date. ii If an event of default (as defined in the Resolution) shall occur, all or a portion of the principal amount of the Note may be declared due and payable upon the conditions, in the manner and with the effect provided in the Resolution but such declaration and its consequences may be rescinded and annuled as further provided in the Resolution. This Note shall not be transferred, but nothing therein shall prevent the execution and delivery by the Bank of certificates of participation in payments to be made by the City on the Note, provided, however, that such certificates of participation shall not be deemed to be separate obligations of the City and that, notwithstanding such delivery, the Bank shall be considered the holder and owner of the Note for all purposes hereunder and under the Agreement. It is hereby certified that' all of the things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the amount of this Note, together with all other indebtedness of the City, does not exceed any limit prescribed by any laws of the State of California, and is not in excess of the amount of Note permitted to be issued under the Resolution. IN WITNESS WHEREOF, the CITY OF SANTA ANA has caused this Note to be executed in its name and on its behalf by its Mayor and its City ClerK. and its seal to be reproduced hereon, and this Note to be dated May 20 , 1982. (SEAL) CITY OF SANTA ANA Mayor ~....-~. .... _r w~w Attest: iii