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RESOLUTION NO. 93-134
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN
AUTHORIZING THE EXECUTION AND DELIVERY OF THE TRI-PARTY
AGREEMENT, THE GUARANTEE AGREEMENT, THE FOURTH
SUPPLEMENTAL INDENTURE OF TRUST AND THE AMENDMENT TO THE
REMARKETING AGREEMENT RELATING TO ASSESSMENT DISTRICT NO.
85-1 AND AUTHORIZING CERTAIN RELATED MATTERS
The City Council of the City of Tustin does hereby resolve as
follows:
W]{EREAS, the City Council of the City of Tustin (the "City")
has previously authorized the execution and delivery of an
Indenture of Trust, dated as of August 1, 1986, by and between the
City and Citibank, N.A., as trustee ("Citibank") with respect to
the issuance of $50,650,000 aggregate principal amount of the
City's Assessment District No. 85-1 Improvement Bonds (the
"Bonds"); and
W~EREAS, the City Council has previously authorized the
execution and delivery of the First Supplemental Indenture of
Trust, dated as of February 1, 1987 by and between the City and
Citibank, the Second Supplemental Indenture of Trust, dated as of
September 1, 1989 by and between the City and Citibank, and the
Third Supplemental Indenture of Trust, dated as of June 1, 1990 by
and between the City and Citibank (as amended and supplemented, the
"Original Indenture"); and
W~EREAS, the City has determined to provide for the
maintenance of a standby letter of credit (the "Confirming Letter
of Credit") to be issued by The Sanwa Bank, Limited, acting through
its Los Angeles Branch ("Sanwa Bank"); and
W~EREAS, the maintenance of the Confirming Letter of Credit
will provide additional security for the Bonds secured by the
Letter of Credit (the "Primary Letter of Credit") issued by The
Mitsubishi Trust and Banking Corporation, acting through its Los
Angeles Agency ("Mitsubishi Trust") in the event any drawing made
under the Primary Letter of Credit is not honored; and
W~EREAS, Sanwa Bank intends to issue its Confirming Letter of
Credit in order to further secure the payment of the Bonds
currently secured by the Primary Letter of Credit; and
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WHEREAS, in order to effect the confirmation of the Primary
Letter of Credit by the issuance of the Confirming Letter of
Credit, the city, Mitsubishi Trust and Sanwa Bank desire to enter
into a Tri-Party Agreement, dated as of December 1, 1993 (the "Tri-
Party Agreement"), the proposed form of which is attached hereto as
Exhibit A; and
W~EREAS, Citibank has transferred its municipal corporate
trust accounts to State Street Bank and Trust Company, N.A., as the
intended successor trustee (the "Trustee"); and
W~EREAS, State Street Bank and Trust Company, the parent of
the Trustee, has agreed to guarantee the performance by the
successor Trustee of its obligations under the Original Indenture,
as amended and supplemented by the Fourth Supplemental Indenture
(as defined below); and
W~EREAS, in connection wi~h such guarantee by State 'Street
Bank and Trust Company, the City, Citibank and State Street Bank
and Trust Company, N.A. desire to enter into an Agreement, dated as
of December 1, 1993, relating to the appointment of the Trustee as
successor trustee, the proposed form of which is attached hereto as
Exhibit B; and
WHEREAS, the City and the successor Trustee desire to execute
and deliver the Fourth Supplemental Indenture of Trust, dated as of
December 1, 1993 by and between the City and the successor Trustee
(the "Fourth Supplemental Indenture") in order to provide for the
Confirming Letter of Credit and to facilitate the designation of
State Street Bank and Trust Company, N.A. as the successor Trustee,
the proposed form of which is attached hereto as Exhibit C; and
W~EREAS, the desired amendments to the Original Indenture add
to the conditions, covenants and terms contained therein to be
observed or performed by the City and such additional conditions,
covenants and terms will not adversely affect the interests of the
Owners; and
W~EREAS, the City has determined that the provisions with
respect to the appointment of the successor Trustee are desirable
and necessary and such provisions will not adversely affect the
interests of the Owners; and
WI~EREAS, in accordance with Section 9.01 of the Original
Indenture, this Fourth Supplemental Indenture will become binding
when the written consent of Mitsubishi Trust and a Favorable
Opinion of Bond Counsel (as defined in the Original Indenture) have
been filed with the Trustee; and
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WHEREAS, the City Council of the City has prevSously
authorized the execution and delivery of a Remarketlng Agreement,
dated as of August 1, 1986 by and between the City and Eerrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Original
Remarketing Agreement") in order to facilitate the remarketing of
the Bonds secured by the Primary Letter of Credit; and
W]{EREAS, in connection with the issuance of the Confirming
Letter of Credit the City desires to effect certain amendments to
the Original Remarketing Agreement pursuant to an Amendment to the
Remarketing Agreement dated as of December 1, 1993 by and between
the City and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the "Amendment to Remarketing Agreement"), the proposed form of
which is attached hereto as Exhibit D.
NOW, THEREFORE, the City Council of the City of Tustin does
hereby resolve and order as follows:
Section 1. The City hereby approves the Tri-Party Agreement,
and the Mayor, the Mayor Pro-Tem or the Finance Director and
the City Clerk are hereby authorized on behalf of the City to
execute the Tri-Party Agreement with such additions, deletions
and clarifications as approved by the Mayor, the Mayor Pro-Tem
or the Finance Director, such execution being approval by the
City of such additions, deletions or clarifications.
Section 2. The City hereby approves the Guarantee Agreement,
and the Mayor, the Mayor Pro-Tem or the Finance Director and
the City Clerk are hereby authorized on behalf of the City to
execute the Guarantee Agreement with such additions, deletions
and clarifications as approved by the Mayor, the Mayor Pro-Tem
or the Finance Director, such execution being approval by the
City of such additions, deletions or clarifications.
Section 3. The City hereby approves the Fourth Supplemental
Indenture, and the Mayor, the Mayor Pro-Tem or the Finance
Director and the City Clerk are hereby authorized on behalf of
the City to execute the Fourth Supplemental Indenture with
such additions, deletions and clarifications as approved by
the Mayor, the Mayor Pro-Tem or the Finance Director, such
execution being approval by the City of such additions,
deletions or clarifications.
Section 4. The City hereby approves the Amendment to the
Remarketing Agreement, and the Mayor, the Mayor Pro-Tem or the
Finance Director and the City Clerk are hereby authorized on
behalf of the City to execute the Amendment to the Remarketing
Agreement with such additions, deletions and clarifications as
approved by the Mayor, the Mayor Pro-Tem or the Finance
Director, such execution being approval by the City of such
additions, deletions or clarifications.
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Section 5. The Mayor or Mayor Pro-Tem, the City Manager, the
Finance Director, the Treasurer, the City Clerk and other
appropriate officers of the City are hereby further authorized
and directed to execute and deliver any and all documents and
instruments and to do and cause to be done any and all acts
necessary and proper to carry out the transactions
contemplated by this Resolution.
PASSED ;tND ADOPTED at a regular meeting of the City Council of
the City of Tustin held on the 6th day of December, 1993.
Attest:
Jim
Po~ MAyor
Mary Wynn, Ci.~y Clerk
TRI-PARTY AGREEMENT
This TRI-PARTY AGREEMENT (hereinafter, this
"Agreement"), dated as of December , 1993 (hereinafter, the
"Effective Date"), is entered into between and among the CITY OF
TUSTIN, CALIFORNIA (hereinafter, the "City"), THE MITSUBISHI
TRUST AND BANKING CORPORATION, acting through its Los Angeles
Agency Office (hereinafter, the "Primary Letter of Credit Bank"
or the "Issuing Bank"), and THE SANWA BANK, LIMITED, acting
through its Los Angeles Branch Office (hereinafter, the
"Confirming Letter of Credit Bank"), and is agreed to and acknow-
ledged by STATE STREET BA~rK AND TRUST COMPANY, N.A., a national
banking association, in its capacity as successor Trustee (as
hereinafter defined).
WITNESSETH:
WHEREAS, the City has heretofore entered into an
Indenture of Trust dated as of August l, 1986 by and between the
City and Citibank, N.A., a national banking association
L8601241 .',,'51 -- l-
incorporated under the laws of the United States of America
(hereinafter~ the "Initial Trustee"), as amended and supplemented
by (i) the First Supplemental Indenture of Trust dated as of
February 1, 1987 by and between the City and the Initial Trustee,
(ii) the Second Supplemental Indenture of Trust dated as of
September 1, 1989 by and between the City and the Initial
Trustee, and (iii) the Third Supplemental Indenture of Trust
dated as of June 1, 1990 by and between the City and the Initial
Trustee, and (iv) the Fourth Supplemental Indenture of Trust
dated as of December , 1993 by and between the City and the
Trustee (all of the foregoing collectively, as so amended and
supplemented, the "Indenture") to provide for, among other
things, the issuance and the securing of the City's
U.S.$50,650,000 aggregate principal amount of City of Tustin
Assessment District No. 85-1 Improvement Bonds (hereinafter, the
"Bonds"); and
WHEREAS, STATE STREET BANK AND TRUST COMPANY, N.A., has
duly succeeded to the rights and obligations of the Initial
Trustee in accordance with the provisions of Section 11.02 of the
Indenture, and now serves as the successor Trustee; and
WHEREAS, in order to provide credit enhancement and
liquidity support for the Bonds, the Mitsubishi Trust and Banking
Corporation, acting through its Los Angeles Agency office, issued
LB8012& 1 . t,;51 --2 --
upon August 26, 1986 its Irrevocable Letter of Credit No.
LC-080800 (hereinafter, as amended, the "Primary Letter of
Credit", a copy of which, as so amended to conform to the
administrative and timing requirements of the Confirming Letter
of Credit (as hereinafter defined and described), is attached
hereto as Exhibit "A"), at the request and for the account of the
City and in favor of the Initial Trustee, with the said Primary
Letter of Credit being in the initial aggregate amount of Fifty
One Million Eight Hundred Twenty-Two Thousand Five Hundred
Eighty-Three United States Dollars (U.S.$51,822,583) "
(hereinafter, the "Stated Amount"), of which (i) U.S.$50,650,000
(hereinafter, the "Principal Portion") is available with respect
to principal of, (ii) U.S.$666,083 (hereinafter, the "Interest
Portion") is available with respect to interest on, and (iii)
U.S.$506,500 (hereinafter, the "Premium Portion") is available
with respect to premium on, the Bonds. The Stated Amount
available to be drawn under the Primary Letter of Credit, and
each of the aforementioned Principal Portion, Interest Portion
and Premium Portion, are subject to reduction and reinstatement
as provided by the specific terms and conditions of the Primary
Letter of Credit; and
WHEREAS, the Primary Letter of Credit was itself issued
in conjunction with the execution of a certain Reimbursement
Agreement (hereinafter, the "Reimbursement Agreement") dated as
LBB01241 .t,r51 --3 -
ir ....... il I
of August 1, 19S6 by and between the City and the Primary Letter
of Credit Ba~k, which Reimbursement Agreement (the terms and
conditions of which are incorporated herein by reference as if
fully set forth herein) set forth those terms and conditions upon
which the City, as the Account Party (as defined therein) and the
Primary Letter of Credit Bank, as the Issuing Bank, had mutually
agreed upon the issuance of the Primary Letter of Credit. The
Reimbursement Agreement also set forth other terms and conditions
in regard to the respective rights and obligations of the Account
Party and the Issuing Bank with respect thereto, including-terms
and conditions governing, without limitation and inter alia, the
reimbursements of draws made under the Primary Letter of Credit
and the making of other payments to the Issuing Bank by the
Account Party, certain provisions with respect to Bank Bonds (as
defined therein), specific terms and conditions governing the
operations of the Primary Letter of Credit (including, without
limitation, changes in the Stated Amount of the Primary Letter of
Credit; separate purchase arrangements, and matters relating to
usury; and the payment of drawings made under the Primary Letter
of Credit), specific representations, warranties and covenants
made by the City for the benefit of the Issuing Bank, the
conditions precedent to the issuance and the delivery by the
Issuing Bank of the Primary Letter of Credit, the setting forth
of specific events of default, and numerous miscellaneous matters
(including, without limitation, the right of the Issuing Bank to
LBBO1Z/,1 .%751 -4-
the exercise of its right of setoff; specific actions relating to
the Financin~ Documents (as defined therein) and indemnities
relating thereto; specific security granted to the Issuing Bank
relating to the repayment to the Issuing Bank of any amounts
drawn under the Primary Letter of Credit; and the extension of
the term of the Primary Letter of Credit) and
WHEREAS, Section 8.15 of the Reimbursement Agreement
specifically provides that the security interest granted to the
Issuing Bank pursuant to the terms of the Indenture is
incorporated therein by reference, and extends to and secures all
obligations of the City to the Issuing Bank under the
Reimbursement Agreement, notwithstanding any termination or
discharge of the Indenture, and that the said security interest
shall survive until all sums owing under the Reimbursement
Agreement are paid in full; and
WHEREAS, pursuant to the terms of the Indenture,
including, without limitation, the specific terms and conditions
contained in Article II and Article V thereof, there is pledged
pursuant to the Indenture for the payment of the principal of and
redemption premium, if any, and interest on the Bonds in
accordance with the terms and provisions of the Indenture, and
for the payment of the obligations owing to the Issuing Bank
pursuant to the Reimbursement Agreement to the extent payable in
LBBO12&1 .I.'51 --5--
!1 I
accordance with the Indenture or the Act (as defined therein),
(i) all right, title and interest of the City in the Assessment
Installments (as defined therein) and foreclosure proceeds
relating thereto, (ii) the proceeds of the sale of the Bonds,
(iii) to the Fixed Rate Bonds, the Fixed Rate Reserve Account (as
defined therein), (iv) to the Unit Pricing Bonds and the Demand
Bonds, the Variable Rate Reserve Account and the Interest Reserve
Fund (all as defined therein), and (v) all other funds, accounts,
and sub-accounts, if any, created under the Indenture (subject,
however, to such specific exceptions therefrom as are set forth
in the Indenture); and
WHEREAS, in order to enhance the marketability of the
Bonds, and in order to reduce the expense incurred by the City
with regard to the same said Bonds, it is now desired by the City
and by th% parties hereto to confirm the Primary Letter of Credit
with an irrevocable confirming letter of credit (hereinafter, the
"Confirming Letter of Credit") issued by the Confirming Letter of
Credit Bank;
NOW THEREFORE, in order to effect the confirmation of
the Primary Letter of Credit by the issuance of the Confirming
Letter of Credit, and in order to induce the Confirming Letter of
Credit Bank to issue the same, and for a good and valuable
LB801241 .~a51 --6--
consideration, the receipt and adequacy of which are hereby
acknowledged', the parties hereto agree as follows:
1. Upon the terms and conditions as are set forth in
this Agreement, the Confirming Letter of Credit Bank hereby
agrees to issue the Confirming Letter of Credit (in that form
attached hereto as Exhibit "B"), with an effective date of
December __, 1993.
2. The Confirming Letter of Credit shall be in"an
aggregate commitment amount of up to, but not to exceed, the sum
of U.S. $30,866,000.
3. The term of the Confirming Letter of Credit shall
be for a period from and including December __, 1993 to an expiry
date not to exceed December , 1994.
4. A commitment fee (the "Confirming Commitment Fee")
shall be payable by the City to the Confirming Letter of Credit
Bank of fifteen (15) basis points (0.15%) on its facility, with
such Confirming Commitment Fee being payable at the commencement
of the term of the Confirming Letter of Credit (and, should the
Confirming Letter of Credit be extended (with any such extension
to be in the sole and absolute judgment of the Confirming Letter
of Credit Bank), at the commencement of each subsequent term
/BB012~,1 .t,/51 -7-
thereafter). Should any such payment of the Confirming
Commitment Fee not be paid when due, it shall thereafter bear
interest at the Default Rate (as hereinafter defined).
5. Any and all draws made upon the Confirming Letter
of Credit shall be immediately repayable to the Confirming Letter
of Credit Bank by the Primary Letter of Credit Bank, and if the
same are not so repaid on the date of any such draw, the same
shall bear interest at a variable rate of interest per annum
equal to the prime rate then being charged by the Confirming
Letter of Credit Bank plus two (2%) percent (hereinafter, the
"Default Rate").
6. It is expressly understood and agreed that all
draws made on the Confirming Letter of Credit, together with all
interest and/or other sums due thereupon, will be for the account
of the Primary Letter of Credit Bank, and will be immediately
reimbursed or paid to the Confirming Letter of Credit Bank by the
Primary Letter of Credit Bank. The Confirming Letter of Credit
Bank shall be, and hereby is, subrogated in all rights and
particulars to all of the rights, remedies, and sources of
security provided to the Primary Letter of Credit Bank pursuant
to the above-described terms of the Indenture and the
Reimbursement Agreement, in order to provide repayment security
to the Confirming Letter of Credit Bank against the possibility
LBB01241 .~,151 --8 --
that the Primary Letter of Credit Bank for any reason whatsoever
should fail ko immediately reimburse the Confirming Letter of
Credit Bank for any and all draws made upon the Confirming Letter
of Credit, or should fail to pay any other amounts due to the
Confirming Letter of Credit Bank pursuant to this Agreement.
Such subrogation shall be absolute and without qualification, and
shall remain in full force and effect until such time as the
Confirming Letter of Credit Bank shall have been repaid in full
for all unreimbursed draws and other amounts due and owing to it.
7. Notwithstanding the payment of any amounts by the
Confirming Letter of Credit Bank, it is expressly understood and
agreed that the Primary Letter of Credit Bank shall not be
exonerated or excused thereby from all or any of its obligations
which are owed to the Confirming Letter of Credit Bank hereunder.
8. The Confirming Letter of Credit Bank shall be
under no obligation to take any action with respect to draws
being sought under the Confirming Letter of Credit vithout, as
respectively applicable, there first or concurrently being
received by the Confirming Letter of Credit Bank from the Trustee
(whether by hand delivery, tested telefax, or confirmed
telefacsimile transmission) a specific and ~ritten notice of (i)
in the instance of draws being made under the Confirming Letter
of Credit pursuant to Sections 4.06 (A), (B) or (D) of the
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Indenture, the failure by the Primary Letter of Credit Bank to
honor or to ~therwise pay a draw which the Trustee has sought to
make under the Primary Letter of Credit, in accordance with its
terms, or (ii) in the instance of draws being made under the
Confirming Letter of Credit pursuant to Section 4.06 (C) of the
Indenture, the concurrent demand for the payment of such draw
under the Primary Letter of Credit, in accordance with its terms,
having been duly presented to the Primary Letter of Credit Bank.
The providing of this specific and written notice shall be,
respectively, an express (i) condition precedent or (ii) "
condition concurrent to the honoring by the Confirming Letter of
Credit Bank of its obligations under the Confirming Letter of
Credit.
9. Upon its receipt of a draft or other demand for
payment duly presented to the Primary Letter of Credit Bank,
together with the above-described specific and written notice,
the Confirming Letter of Credit Bank agrees to make the requested
draw payment, in strict compliance with its terms, upon those
terms and conditions as are set forth in Section 4.06 of the
Indenture.
10. In the event that there should be a default in any
of the terms of this Agreement (hereinafter, an "Event of
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Default"), then the Confirming Letter of Credit Bank, at its sole
option, may take all or any of the following actions:
(a) Provide written notice to the Trustee of the
termination of the Confirming Letter of Credit, with such
termination to be effective not less than forty (40)
calendar days from and after the date of such notice, or
upon the expiry date, whichever shall first occur in time.
(b) Pursue all or any of its rights and remedies
with regard to that security provided to it for the payment
of obligations owed to it hereunder.
11. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without
regard to-the principles governing the conflict of laws.
12. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of
which counterparts shall together constitute but one and the same
instrument.
13. This Agreement shall be binding upon and inure to
the benefit of the City, the Primary Letter of Credit Bank, the
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Confirming Letter of Credit Bank, the Trustee, and their
respective successors and assigns.
14. Each of the parties hereto hereby represents and
warrants for itself that as of the date hereof, and the Effective
Date:
(a) It has the power and authority to execute and
deliver this Agreement 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 Agreement has been duly authorized,
executed and delivered by it, and constitutes a legal, valid
and binding agreement enforceable against it in accordance
with its terms, except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforce-
ment of creditor's rights or by general principles of equity
limiting the availability of equitable remedies.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested by their duly
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authorized officers, all as of the date and year first above
written.
CITY OF TUSTIN
ATTEST:
Mayor of th~ Cit~ of Tustin
Clerk of the City of Tustin
THE MITSUBISHI TRUST AND BANKING
CORPORATION, Los Angeles Agency
By:
Its:
L. BB01241 .W51 -- 13 --
THE SANWA BANK, LIMITED,
Los Angeles Branch Office
By:
Its:
By:
Its:
AGREED AND ACKNOWLEDGED:
STATE STREET BANK AND
TRUST COMPANY, N.A.,
as Trustee
By:
Its:
LBB012~l .t,~l
--14--
[MODIFIED MTBC
LETTER OF CREDIT
NO. LC-080800]
EXHIBIT
LBB01;41. t,'51
--15--
[CONFIRMING LETTER
OF CREDIT]
EXHIBIT
LB801~4,1 .t,~l
-16-
E.',:}i l B 1 T B
AGREEMENT dated as of November __, 1993 among the
City of Tustin (the "City"), Citibank, N.A. ("Citibank") and
State Street Bank and Trust Company, N.A. (the "Trust
Company").
Recitals
Citibank is the Trustee under the Indenture of Trust
dated as of August 1, 1986 between the City and Citibank (the
"Indenture") providing for the issuance of Assessment
District No. 85-1 Limited Obligation Improvement Bonds (the
"Bonds"). In connection with the acquisition by the Trust
Company of the municipal trust and agency business of
Citibank on June 28, 1993 Citibank hereby notifies the City
of its intent to resign as Trustee and Paying Agent under the
Indenture and the parties hereto wish to substitute the Trust
Company for Citibank as Trustee and Paying Agent under the
Indenture. State Street Bank and Trust Company, the p~rent
of the Trust Company, has guaranteed in a separate letter the
performance of the obligations of the Trust Company under the
Indenture.
The City, Citibank and the Trust Company believe
that the amendment to Section 8.02 of the Indenture provided
for in the Fourth Supplemental Indenture to the Indenture is
desirable or necessary and not inconsistent with the
Indenture and shall not adversely affect the interests of the
Owners (as defined in the Indenture).
Section 1. Resignation and Appointment. Citibank
hereby resigns as Trustee and Paying Agent under the
Indenture. The City hereby waives the 60 days' notice
requirement under Section 8.06 of the Indenture. The City
hereby appoints the Trust Company as successor Trustee and
Paying Agent under the Indenture and the Trust Company hereby
accepts such appointment. Each such resignation,
appointment and acceptance shall be effective as of the date
hereof.
Section 2. Transfer of Property. Citibank hereby
assigns and transfers to the Trust Company all of its right,
title and interest in and to all property held by it under
the Indenture and shall pay over, assign and deliver to the
Trust Company all money or other property held by it under
the Indenture.
Section 3. Notices. The address of the Trust
Company for receiving notices is 20 Exchange Place, 16th
Floor, New York, New York 10005 or such other address as the
Trust Company may specify to the parties hereto.
Section 4. Counterparts. This Agreement may be
executed in several counterpa[ts and all such counterparts
executed and delivered, each as an original, shall constitute
but one and the same instrument.
THE CITY OF TUSTIN
By
STATE STREET BANK AND TRUST COMPANY, N.A.
By
The appointment of the Trust Company as Trustee and Paying
Agent under the Indenture is hereby consented to and the 60
days' notice requirement under Section 8.06 of the Indenture
is hereby waived.
[BANK]
By
Exhibit C
FOURTH SUPPLEMENTAL INDENTURE OF TRUST
THIS FOURTH SUPPLEMENTAL INDENTURE OF TRUST (this "Fourth
Supplemental Indenture"), dated as of December __, 1993, by and
between the City of Tustin, California (the "City") and State
Street Bank and Trust Company, N.A., a national banking
association, in its capacity as successor Trustee (the "Trustee")
WITNESSETH:
WHEREAS, the City has heretofore entered into an
Indenture of Trust dated as of August 1, 1986 by and between the
City and the Trustee, as amended and supplemented by the First
Supplemental Indenture of Trust dated as of February 1, 1987 by and
between the City and the Trustee, the Second Supplemental Indenture
of Trust dated as of September 1, 1989 by and between the City and
the Trustee and the Third Supplemental Indenture of Trust dated as
of June 1, 1990 by and between the City and the Trustee (as amended
and supplemented, the "Original Indenture") to provide for, among
other things, the securing of the City's $50,650,000 aggregate
principal amount of Assessment District No. 85-1 Improvement Bonds
(the "Bonds"); and
WHEREAS, the City has determined to provide for the
maintenance of a standby letter of credit (the "Confirming Letter
of Credit") to be issued by The Sanwa Bank, Limited, acting through
its Los Angeles Branch Office; and
WHEREAS, the maintenance of the Confirming Letter of
Credit will provide additional security for the Bonds in the event
any drawing made under the Letter of Credit (as originally defined
in the Indenture) (the "Primary Letter of Credit") is dishonored;
and
WHEREAS, on December , 1993, The Sanwa Bank, Limited,
acting through its Los Angeles Branch Office, will issue its
Confirming Letter of Credit to be delivered to the Trustee in order
to further secure the payment of the Bonds currently secured by the
Primary Letter of Credit; and
WHEREAS, Citibank, N.A., the original trustee under the
Original Indenture, has transferred its municipal corporate trust
accounts to State Street Bank and Trust Company, N.A., as successor
Trustee in accordance with Section 11.02 of the Original Indenture;
and
LA01 \2534\10098.3
94691.13
WHEREAS, State Street Bank and Trust Company, the parent
of the Trustee, has guaranteed the performance by the Trustee of
its obligations under the Indenture; and
WHEREAS, the parties desire to amend the Original
Indenture to provide for the maintenance of the Confirming Letter
of Credit and the designation of the successor Trustee; and
WHEREAS, the desired amendments to the Original Indenture
add to the conditions, covenants and terms contained therein to be
observed or performed by the City and such additional conditions,
covenants and terms will not adversely affect the interests of the
Owners; and
WHEREAS, the City has deemed that the provisions with
respect to the appointment of the successor Trustee are desirable
and necessary and not inconsistent with Original Indenture and such
provisions will not adversely affect the interests of the Owners;
and
WHEREAS, in accordance with Section 9.01 of the Original
Indenture, this Fourth Supplemental Indenture shall become binding
when the written consent of The Mitsubishi Trust and Banking
Corporation, Los Angeles Agency (the "Bank") and a Favorable
Opinion of Bond Counsel (as defined in the Original Indenture) have
been filed with the Trustee;
NOW, THEREFORE, KNOW ALL PEOPLE BY THESE PRESENTS, THIS
FOURTH SUPPLEMENTAL INDENTURE OF TRUST WITNESSETH:
That, in consideration of the premises, it is agreed by
and between the City and the Trustee as follows:
ARTICLE I
AUTHORITY AND DEFINITIONS
SECTION 1.01. Supplemental Indenture. This Fourth
Supplemental Indenture is supplemental to the Original Indenture.
SECTION 1.02. Authority for this Fourth Supplemental
Indenture. This Fourth Supplemental Indenture is authorized
pursuant to the provisions of the Act and in accordance with
Section 9.01 of the Original Indenture.
SECTION 1.03. Definitions. Ail terms which are defined
in Section 1.01 of the Original Indenture shall have the same
meanings, respectively, in the Fourth Supplemental Indenture as
such terms are given in said Section 1.01 of the Original
Indenture, except to the extent amended by this Fourth Supplemental
Indenture.
LA01 \2534\10098.3 2 94691 . 13
ARTICLE II
AMENDMENTS TO CERTAIN PROVISIONS OF THE
ORIGINAL INDENTURE
SECTION 2.01. Amendments to certain Provisions of the
Original Indenture. The following amendments to the Original
Indenture shall become effective at such time as this Fourth
Supplemental Indenture is executed and delivered by the City and
the Trustee, and the written consent of the Bank and the Favorable
Opinion of Bond Counsel are filed with the Trustee, all as required
by Section 9.01 of the Original Indenture.
1. Amendments to Section 1.01 of the Indenture.
(a) The following definitions are hereby amended
and restated in the following manner:
"Business Day" means a day of the year on which the
Trustee, Paying Agent, Tender Agent, Remarketing Agent,
the Bank, the Confirming Bank and banks or trust
companies in New York, New York, or in California are not
authorized or required to remain closed.
"Expiration Date" means the stated expiration date
of the Letter of Credit or the Confirming Letter of
Credit, or such stated expiration date as it may be
extended from time to time as provided in the Letter of
Credit or the Confirming Letter of Credit.
"Letter of Credit" means the irrevocable Letter of
Credit issued by the Bank contemporaneously with the
original delivery of the Bonds, except that upon the
issuance of an Alternate Letter of Credit in accordance
with Section 4.06 hereof it shall mean such Alternate
Letter of Credit, provided, however, that if any draw
under the Letter of Credit shall be dishonored, all
references herein (other than those contained in
paragraphs (A), (B), (C) and (D) of Section 4.06) to
"Letter of Credit" shall be deemed to refer to the
Confirming Letter of Credit.
"Moody's" means Moody's Investors Service, a
corporation duly organized and existing under and by
virtue of the laws of the State of Delaware, and its
successors and assigns, except that if such corporation
shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, then
the term "Moody's" shall be deemed to refer to any other
nationally recognized securities rating agency selected
by the City and approved by the Bank and the Confirming
LA01 \2534\10098.3 3
94691.13
Bank (who shall not be under any liability by reason of
such approval) .
"Opinion of Counsel" means a written opinion of Bond
Counsel, appointed and paid by the City and satisfactory
to and approved by the Bank and the Confirming Bank (who
shall not be under any liability by reason of such
approval).
"Reimbursement Agreement" means that certain
Reimbursement Agreement dated as of August 1, 1986, by
and between the Bank and the City and the Tri-Party
Agreement dated as of December , 1993 by and among the
Bank, the Confirming Bank and the City or, if an
Alternate Letter of Credit has been issued, the
reimbursement agreement, if any, in connection with such
Alternate Letter of Credit.
"S&P" means Standard & Poor's Corporation, a
corporation duly organized and existing under and by
virtue of the laws of the State of New York, and its
successors and assigns, except that if such corporation
shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, then
the term "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency selected
by the City and approved by the Bank and the Confirming
Bank (who shall not be under any liability by reason of
such approval).
"Substitution Date" means the date five Business
Days prior to the date upon which an Alternate Letter of
Credit (other than the Confirming Letter of Credit) is to
be substituted for the Letter of Credit then in effect.
"Termination Date" means the date specified in a
notice from the Bank or the Confirming Bank of
termination of the Letter of Credit or the Confirming
Letter of Credit pursuant to the Letter of Credit or the
Confirming Letter of Credit.
"Unit Pricing Interest Period" means, with respect
to a Unit Pricing Bond, that period of time beginning on
a Rate Adjustment Date and ending on the day preceding
the Purchase Date, determined by the Remarketing Agent
and selected by the purchaser of such Bonds by reference
to the Preliminary Scale and Final Scale. No Unit
Pricing Interest Period shall exceed one year in length;
provided that the Unit Pricing Interest Periods may
exceed one year in length upon (i) receipt by the City of
a Favorable Opinion of Bond Counsel and (ii) an increase
in the size of Letter of Credit and the Confirming Letter
LA01 \2534\10098.3 4
94691.13
of Credit to cover additional premium to the extent such
additional premium may be required.
(b) Paragraphs (3) and (5) of the definition of
"Permitted Investments" are hereby amended and
restated in the following manner:
(3) Bills of exchange or time drafts drawn on
and accepted by a commercial bank (including the
Bank, the Confirming Bank, the Paying Agent and the
Trustee), otherwise known as bankers acceptances,
which are eligible for purchase by members of the
Federal Reserve System;
(5) Certificates of deposit issued by a state
or national bank (including the Paying Agent and
the Trustee) or savings and loan association or .a
state-licensed branch of a foreign bank in which
the City is authorized by law to deposit its funds
whose deposits are insured by either the Federal
Deposit Insurance Corporation or the Federal
Savings and Loan Insurance Corporation, as the case
may be, and the short-term debt obligations of
which have the highest short-term rating or the
debentures of which have an "A" or higher rating or
the Bank or the Confirming Bank; and
(c) The following definitions are hereby added to
Section 1.01 of the Indenture:
"Confirming Bank" means The Sanwa Bank, Limited, a
Japanese banking corporation acting through its Los
Angeles Branch Office; and upon the issuance of an
Alternate Letter of Credit to replace the Confirming
Letter of Credit, means the bank or other financial
institution issuing such Alternate Letter of Credit.
"Confirming Letter of Credit" means the irrevocable
Confirming Letter of Credit issued by the Confirming
Bank; and upon the issuance and delivery of an Alternate
Letter of Credit to replace the Confirming Letter of
Credit, means such Alternate Letter of Credit.
2. Amendment to the first sentence of Section 1.03 of the
Original Indenture. The first sentence of Section 1.03 of the
Original Indenture is hereby amended to read as follows:
In consideration of the acceptance of the Bonds by
the Owners, this Indenture shall be deemed to be and
LA01 \25~4\10098.3 5 94691.1~
shall constitute a contract among the city, the Bank, the
Confirming Bank and the Owners to secure the full and
final payment of the principal of and premium, if any,
and interest on the Bonds or amounts or obligations owing
to the Bank or the Confirming Bank pursuant to the
Reimbursement Agreement to the extent payable in
accordance with this Indenture or the Act, and the
application of all moneys on deposit or to be deposited
in accordance herewith including but not limited to
foreclosure proceeds, subject to the pledge made in this
Indenture and the conditions, covenants and terms
contained herein required to be observed or performed by
or on behalf of the City and the Trustee shall be for the
equal benefit, protection and security of all Owners
without distinction, preference or priority of any Bonds
over any other Bonds by reason of the number or date
thereof or the time of authentication or delivery thereof
or otherwise for any cause whatsoever, except as
expressly provided herein.
3. Amendment to the second sentence of Section 2.01 of
the Original Indenture. The second sentence of Section 2.01 of the
Original Indenture is hereby amended to read as follows:
There is hereby created, in the manner and to the
extent provided herein, a continuous pledge and lien to
secure the full and final payment of the principal of,
premium, if any, and interest on the Bonds, other amounts
due and payable hereunder or amounts or obligations owing
to the Bank or the Confirming Bank pursuant to the
Reimbursement Agreement to the extent payable in
accordance with this Indenture or the Act.
4. Amendment to the last paragraph of Section 2.04 of the
Original Indenture. The last paragraph of Section 2.04 of the
Original Indenture is hereby amended to read as follows:
The determination by the Remarketing Agent of each
Adjusted Interest Rate, Variable Interest Rate and Fixed
Interest Rate for any Bond, if in accordance with the
provisions hereof, shall be conclusive and binding upon
the City, the Paying Agent, the Tender Agent, the
Trustee, the Bank, the Confirming Bank and the Owners.
5. Amendment to the last sentence of paragraph (e) of
Section 2.05 of the Original Indenture. The last sentence of
paragraph (e) of Section 2.05 of the Original Indenture is hereby
amended to read as follows:
In no event shall a Unit Pricing Interest Period
extend beyond the fifth Business Day prior to the
Expiration Date.
LASt \2534\10098.3 6
94691.13
6. Amendment to the first sentence of paragraph (A) of
Section 2.10 of the Original Indenture. The first sentence of
paragraph (A) of Section 2.10 of the Original Indenture is hereby
amended to read as follows:
During any Unit Pricing Interest Period, the City
may give written notice at any time to the Bank, the
Confirming Bank, the Remarketing Agent and the Trustee
that it intends to effect a conversion of the interest
rate on all of the Unit Pricing Bonds to a Variable
Interest Rate on the Demand Date or Dates specified in
such written notice, the earliest of which Demand Dates
shall be not less than 40 days from the date of such
notice.
7. Amendment to the first sentence of paragraph (B) of
Section 2.10 of the Original Indenture. The first sentence of
paragraph (B) of Section 2.10 of the Original Indenture is-hereby
amended to read as follows:
During any Demand Mode, the city may give written
notice at any time to the Bank, the Confirming Bank, the
Remarketing Agent and the Trustee that it intends to
effect a conversion of the interest rate on all of such
Demand Bonds to a Unit Pricing Mode on the Unit Pricing
Date specified in such written notice, which shall be not
less than forty (40) calendar days from the date of such
notice.
8. Amendment to the first sentence of paragraph (C) of
Section 2.10 of the Original Indenture. The first sentence of
paragraph (C) of Section 2.10 of the Original Indenture is hereby
amended to read as follows:
The City may give written notice, in conformity with
Section 2.07 hereof, at any time (and shall give such
notice with respect to Bank-Owned Bonds upon the
direction of the Bank or the Confirming Bank on any date
after the Termination Date and before the fifth
anniversary of such Termination Date or Expiration Date
provided, however, that if the Bonds specified in such
notice cannot be converted by the fifth (5th) anniversary
of such Termination Date or Expiration Date, whichever is
applicable, then the Bank or the Confirming Bank may give
such notice with respect to such Bonds until such time as
the Bonds can be converted), to the Bank, the Confirming
Bank, the Remarketing Agent and the Trustee that it
intends to effect a conversion of the interest rate on
all of the Bonds or a portion of the Bonds designated in
such notice to a Fixed Interest Rate on the Proposed
Conversion Date specified in such written notice, which
LA01 %2534%10098.3 7
94691.13
, i ...... ' .......... !1 I
Proposed Conversion Date shall be no~ less than forty
(40) days from the date of such notice.
9. Amendment to Section 2.11 of the Original Indenture.
Section 2.11 of the Original Indenture is hereby amended to read as
follows:
The Bonds and the assignment to appear thereon shall
each be in substantially the forms respectively set forth
in Exhibit A attached hereto and incorporated herein,
with appropriate or necessary insertions, omissions and
variations as permitted or required hereby; provided,
however, if use of a book entry form of Bonds becomes
feasible in the opinion of the City, Trustee, Paying
Agent, Bank, Confirming Bank and the Remarketing Agent,
then the appropriate Sections herein shall be deemed to
permit the use of a book entry form of Bond without
further amendment of this Indenture.
10. Amendment to the last sentence of Section 3.05 of the
Original Indenture. The last sentence of Section 3.05 of the
Original Indenture is hereby amended to read as follows:
The Trustee shall promptly notify the Bank, the
Confirming Bank, the City, the Remarketing Agent and the
Paying Agent in writing of the numbers of the Bonds so
selected for redemption in whole or in part on such date;
provided, however, that if on the date of selection, the
Bank is the Owner of any of the Bonds, such Bonds shall
be selected for redemption by the Trustee prior to
selecting any Unit Pricing Bonds or Demand Bonds.
11. Amendment to the last sentence of the first paragraph
of (A) of Section 4.04 of the Original Indenture. The last sentence
of the first paragraph of (A) of Section 4.04 of the Original
Indenture is hereby amended to read as follows:
The Remarketing Agent shall use its best efforts to
remarket Bonds at a price of par plus accrued and unpaid
interest; provided, however, that if there is on file
with the Remarketing Agent, the Trustee and the Tender
Agent a consent from the Bank and the Confirming Bank,
such Bonds may be remarketed at a price less than par if
the Remarketing Agent certifies that remarketing at less
than par is necessary to remarket such Bonds, if amounts
on deposit in the Remarketing Cost Account are sufficient
to pay to or reimburse the Bank and the Confirming Bank
the difference between par and the discount price and if
the rate on the remarketed Bonds is equal to the Maximum
Rate.
LA01 \2534\10098.3 8
94691.13
12. Amendment to paragraph (A) of Section 4.05 of the
Original Indenture. Paragraph (A) of Section 4.05 of the Original
Indenture is hereby amended to read as follows:
On the 180th day prior to the Expiration Date, the
Trustee shall give written notice to the City, the
Remarketing Agent, the Bank and the Confirming Bank that
the Letter of Credit or the Confirming Letter of Credit
expires on the Expiration Date. Unless the term of the
Letter of Credit or the Confirming Letter of Credit shall
have been extended or there shall have been delivered an
Alternate Letter of Credit in substitution therefor as
provided in Section 4.06 hereof or unless on or before
five days prior to the Expiration Date all Bonds shall
have been converted to the Fixed Interest Rate as
provided in Section 2.10 hereof, all Unit Pricing Bonds
or Demand Bonds shall be purchased by the Tender Agent on
the fifth Business Day prior to the Expiration Date, at
the Tender Price.
13. Amendment to the last paragraph of (C) of Section
4.05 of the Original Indenture. The last paragraph of (C) of
Section 4.05 of the Original Indenture is hereby amended to read as
follows:
If subsequent to the commencement of the giving of
such notice, the term of the Letter of Credit or the
Confirming Letter of Credit shall have been extended or
there shall have been delivered an Alternate Letter of
Credit in substitution therefor as provided in Section
4.06 hereof, then the Trustee shall discontinue giving
the aforementioned notice and shall give notice by mail
to all Owners of such extension of the term of the Letter
of Credit or the Confirming Letter of Credit or the
delivery of an Alternate Letter of Credit, which notice
shall specify (i) that the giving of notice of the
expiration or termination of the Letter of Credit or the
Confirming Letter of Credit has been commenced, (ii) that
subsequent to the commencement of the giving of such
notice the term of the Letter of Credit or the Confirming
Letter of Credit has been extended or that an Alternate
Letter of Credit has been delivered to the Trustee in
accordance with this Indenture, (iii) the rating of the
Bonds by Moody's or S&P by reason of such extension or
delivery, (iv) the date that the term of the Letter of
Credit, the Confirming Letter of Credit or Alternate
Letter of Credit will expire, and (v) that the prior
notice of purchase and any proposed conversion to a Fixed
Interest Rate are cancelled. Such notice that the term
of the Letter of Credit or the Confirming Letter of
Credit has been extended or that an Alternate Letter of
Credit has been delivered shall be given not more than
LA01 \2534\10098.3 9
94691.13
five (5) days following such extension or deliver}' and
not less than five (5) days prior to such Mandatory
Tender Date.
14. A~endment to paragraphs (A), (B), (C) and (D) of
Section 4.06 of the Original Indenture. Paragraphs (A), (B), (C) and
(D) of Section 4.06 of the Original Indenture are hereby amended to
read as follows:
(A) On the last Business Day of each calendar month
the Trustee shall by telex or telegraphic demand given
before 1:00 P.M., New York City time on such day draw on
the Letter of Credit in accordance with the terms thereof
so as to receive thereunder by 12:00 P.M., New York City
time, on the first Business Day of the next calendar
month an amount equal to the amount of interest accrued
on the Unit Pricing Bonds and the Demand Bonds during the
previous calendar month whether or not paid or due and
payable. If on the first Business Day of any calendar
month, the Trustee shall not have received the amounts
demanded in accordance with the preceding sentence, the
Trustee shall by telex or telegraphic demand given before
1:00 P.M., New York City time on such day draw on the
Confirming Letter of Credit in accordance with the terms
thereof so as to receive thereunder by 3:00 P.M., New
York City time, on such date an amount equal to the
amount of interest accrued on the Unit Pricing Bonds and
the Demand Bonds during the previous calendar month
whether or not paid or due and payable. Such money shall
be deposited in the Interest Reserve Fund.
(B) On each Principal Payment Date and each date
Unit Pricing Bonds or Demand Bonds are redeemed pursuant
to Sections 3.01(A), 3.01(C), 3.02 and 3.03 hereof, the
Trustee shall by telex or telegraphic demand given before
11:00 A.M, New York City time, draw on the Letter of
Credit in accordance with the terms thereof so as to
receive thereunder by 12:30 P.M., New York City time, on
such date an amount sufficient to enable the Trustee to
pay principal then payable on the Unit Pricing Bonds and
Demand Bonds, whether at maturity or redemption thereof,
in connection therewith and if on any such Principal
Payment Date and any such date Unit Pricing Bonds or
Demand Bonds are redeemed pursuant to Sections 3.01(A),
3.01(C), 3.02 and 3.03 hereof, the Trustee shall not have
received such amounts demanded under the Letter of
Credit, the Trustee shall by telex or telegraphic demand
given before 1:00 P.M, New York City time, draw on the
Confirming Letter of Credit in accordance with the terms
thereof so as to receive thereunder by 3:00 P.M., New
York City time, on such date an amount sufficient to
enable the Trustee to pay principal then payable on the
LA01 \2534\10098.3 1 0
Unit Pricing Bonds and Demand Bonds, whether at maturity
or re/emption thereof, in connection therewith; provided,
however, the Trustee shall only make such draws in the
event of a redemption pursuant to Section 3.02 or 3.03 to
the extent there is on deposit in the Redemption Account
moneys in an amount equal to such draws and available to
reimburse the Bank for such draw; provided further, that
if the Bank is not reimbursed on the same day for such
draws the Bank shall be deemed to have purchased and the
Trustee shall register, in the name of the Bank, Bonds
which would otherwise have been redeemed or paid at
maturLty, and such Bonds shall be deemed to be
Outstanding notwithstanding that such Bonds have been
paid from such draws on the Letter of Credit.
(C) On each date Unit Pricing Bonds or Demand Bonds
are purchased pursuant to Sections 4.01, 4.02, 4.03,
4.05(A) or 4.05(B) hereof, the Trustee shall by telex or
telegraphic demand given before 1:00 P.M., New York city
time, draw on the Letter of Credit and the Confirming
Letter of Credit in accordance with the terms thereof so
as to receive thereunder by 3:00 P.M. New York City
time, on such date an amount sufficient to enable the
Trustee to pay the Tender Price (except premium and
interest) in connection therewith.
(D) On each date Unit Pricing Bonds are redeemed
pursuant to Sections 3.01(A), 3.01(C) or 3.02 hereof and
each date Unit Pricing Bonds are purchased pursuant to
Section 4.01 and 4.04 hereof, the Trustee shall by telex
or telegraphic demand given before 11:00 A.M, New York
city time draw on the Letter of Credit in accordance with
the terms thereof so as to receive thereunder by 12:30
P.M, New York City time, on such date an amount
sufficient to enable the Trustee to pay premium required
herein in connection therewith and if on any such date
Unit Pricing Bonds are redeemed pursuant to Sections
3.01(A), 3.01(C) or 3.02 hereof and any such date Unit
Pricing Bonds are purchased pursuant to Section 4.01 and
4.04 hereof, the Trustee shall not have received such
amounts demanded under the Letter of Credit, the Trustee
shall by telex or telegraphic demand given before 1:00
p.m, New York City time draw on the Confirming Letter of
Credit in accordance with the terms thereof so as to
receive thereunder by 3:00 p.m, New York City time, on
such date an amount sufficient to enable the Trustee to
pay premium required herein in connection therewith;
provided, however, the Trustee shall only make such draws
in the event of redemption pursuant to Section 3.02 to
the extent there is on deposit in the Redemption Account
moneys in an amount equal to such draws and available to
reimburse the Bank for such draws.
LA01 \2534\1009~.3 11
94691.13
, II ..... I ]
15. Amendment to paragraphs (G),(H) and (I) of Section
4.06 of the Original Indenture. Paragraphs (G),(H) and (I) of
Section 4.06 of the Original Indenture are hereby amended to read
as follows:
(G) If at any time there shall cease to be any Unit
Pricing Bonds or Demand Bonds Outstanding hereunder, or
in the event that all Unit Pricing Bonds or Demand Bonds
have been purchased on a Bank Mandatory Purchase Date and
the Trustee has received notice from the Bank or the
Confirming Bank of termination of the Letter of Credit or
the Confirming Letter of Credit as provided under the
terms of the Letter of Credit, the Trustee shall
thereafter surrender the Letter of Credit or the
Confirming Letter of Credit then in effect to the Bank or
the Confirming Bank in accordance with the terms thereof
for cancellation.
(H) The Trustee shall not sell, assign or otherwise
transfer the Letter of Credit or the Confirming Letter of
Credit, except to a successor Trustee hereunder and in
accordance with the terms of the Letter of Credit, the
Confirming Letter of Credit and this Indenture.
(I) If at any time there shall be a redemption of
Unit Pricing Bonds as provided in Section 3.01(A) herein
and the applicable redemption price shall be in excess of
101% of the aggregate principal amount of the Bonds to be
redeemed, the City shall not redeem and the Remarketing
Agent shall not remarket such Unit Pricing Bonds unless
the amount available under the Letter of Credit and the
Confirming Letter of Credit is sufficient to cover any
premium required to be paid pursuant to Section 3.01(A).
16. Amendment to Section 4.07 of the Original Indenture.
Section 4.07 of the Original Indenture is hereby amended to read as
follows:
The Remarketing Agent shall have no duty to remarket
Bonds pursuant to Sections 4.01, 4.02 or 4.03 hereof if
there shall have occurred and be continuing an Event of
Default described in Section 7.01 (c) relating to an
Assessment bearing interest at other than a fixed
interest rate and the Remarketing Agent shall not so
remarket Bonds on or after a Bank Mandatory Purchase Date
provided, that if any such Event of Default shall
thereafter be cured, as evidenced by a certificate of the
City satisfactory to and approved by the Bank and the
Confirming Bank (which shall not be under any liability
by reason of such approval or disapproval), then the duty
of the Remarketing Agent to remarket Bonds pursuant to
Sections 4.01, 4.02 or 4.03 hereof shall be reinstated.
LA01 \2534\10098.3 12
94691.13
17. Amendment to paragraphs (B) and (C) of Section 4.08
of the Original Indenture. Paragraphs of (B) and (C) of Section
4.08 of the Original Indenture are hereby amended to read as
follows:
(B) Letter of Credit Account. Upon receipt of
moneys from the Bank for payment of all or a portion of
the Tender Price for the Bonds, the Tender Agent shall
deposit such money in the Letter of Credit Account for
application to the Tender Price of the Bonds to the
extent that the moneys on deposit in the Remarketing
Proceeds Account shall not be sufficient. Any amounts
deposited in the Letter of Credit Account and not needed
with respect to any optional Tender Date or Mandatory
Tender Date for the payment of the Tender Price for any
Bonds shall be immediately returned first to the
Confirming Bank, to the extent there has been any draw
under the Confirming Letter of Credit, and second to the
Bank.
(C) Discount Account. Upon receipt of moneys by
the Tender Agent from any person or entity, which moneys
such person or entity has designated to be used to pay
discount in accordance with Section 2.07 hereof, the
Tender Agent shall deposit such amounts in the Discount
Account. On the relevant Conversion Date the Trustee
shall apply such amounts to reimburse the Confirming Bank
for draws on the Confirming Letter of Credit and the Bank
for draws on the Letter of Credit used for the payment of
the Tender Price of the Mandatorily Tendered Bonds.
18. Amendment to the first an4 third paragraphs of (D) of
Section 4.08 of the Original Indenture. The first and third
paragraphs of (D) of Section 4.08 of the Original Indenture are
hereby amended to read as follows:
(D) Remarketinq Cost Account. Moneys on deposit in
the Remarketing Cost Account shall be used for the
purpose of paying, from time to time, remarketing costs
consisting of discounts on the sale of Bonds at less than
par, which discount sale is advised by the Remarketing
Agent as necessary to remarket the Bonds pursuant to
Section 4.04(A) or pursuant to Section 4.05(D) hereof.
Payment of such costs, upon such advisement, shall be
made directly to the Bank and the Confirming Bank by the
Tender Agent from money held in the Remarketing Cost
Account. Payment of remarketing costs to the Bank and
the Confirming Bank shall be made in the amount required
under the terms of the Reimbursement Agreement, which
amount shall be computed by the Bank and the Confirming
Bank and confirmed by the Tender Agent.
LAO1 \2534\10098.3 13
94691.13
Upon written direction of the Bank and the
Ccnfirming Bank, the Trustee shall transfer from the
Remarketing Cost Account to the Fixed Rate Reserve
Account an amount which together with moneys transferred
pursuant to Section 5.04(D) (v) hereof equals the Fixed
Ra~e Reserve Requirement for Bonds being converted to a
Fixed Interest Rate. Such transfers shall be made even
if such transfers result in amounts on deposit in the
Remarketing Cost Account being less than the Remarketing
Cost Account Requirement.
19. A~endment to Section 5.01 of the Original Indenture.
Section 5.01 of the Original Indenture is hereby amended to read as
follows:
Pursuant to this Indenture there is pledged for the
payment of the principal of and redemption premium, if
any, and interest on the Bonds in accordance with the
terms and provisions of this Indenture, and obligations
owing to the Bank or the Confirming Bank pursuant to the
Reimbursement Agreement to the extent payable in
accordance with this Indenture or the Act, subject only
to the provisions of this Indenture permitting the
application thereof for the purposes and on the terms and
conditions set forth in this Indenture, (i) all right,
title and interest of the City in the Assessment
Installments and foreclosure proceeds relating thereto,
(ii) the proceeds of the sale of the Bonds, (iii) to the
Fixed Rate Bonds, the Fixed Rate Reserve Account, (iv) to
the Unit Pricing Bonds and the Demand Bonds, the Variable
Rate Reserve Account and the Interest Reserve Fund and
(v) all other funds, accounts and sub-accounts, if any,
created hereunder (except the Purchase Fund).
20. Amendment to the first sentence of the third
paragraph of Section 5.03 of the Original Indenture. The first
sentence of the third paragraph of Section 5.03 of the Original
Indenture is hereby amended to read as follows:
The fees, costs and indemnifications of the Bank and
the Confirming Bank due and payable under the
Reimbursement Agreement and of the Remarketing Agent due
and payable under the Remarketing Agreement in each case
in excess of the fees, costs and indemnifications paid
from the Reserve Earnings Fund shall also be collected
through the tax bill or direct collections as incidental
expenses from owners of property with Assessments bearing
interest at other than a fixed interest rate.
21. Amendment to the second paragraph of Section 5.04 of
the Original Indenture. The second paragraph of Section 5.04 of the
Original Indenture is hereby amended to read as follows:
LA01 \253~\10098.3 14 94691.13
The City or Trustee, as the case may be, shall
deposit the money contained in the Assessment Fund and in
the Construction Fund, as appropriate, at the following
respective times in the Redemption Fund in the manner
hereinafter provided, which fund and the accounts
described below the Trustee hereby agrees to establish
and maintain so long as the Indenture is not discharged
in accordance with Article X hereof and each such fund
and account shall constitute a trust fund for the benefit
of the Owners of the Bonds, the Bank and the Confirming
Bank, and the money in each such fund and account shall
be disbursed only for the purposes and uses hereinafter
authorized.
22. Amendment to the second paragraph of (A) of Section
5.04 of the original Indenture. The second paragraph of (A) of
Section 5.04 of the Original Indenture is hereby amended to read as
follows: --
So long as a Letter of Credit is in effect, money in
the Interest Account shall be used and withdrawn by the
Trustee on an Interest Payment Date solely for the
purpose of (i) paying interest on Fixed Rate Bonds, (ii)
making payments to the Bank or the Confirming Bank as
required under the terms of the Reimbursement Agreement
or (iii) to pay interest on Bank-Owned Bonds. Following
expiration or termination of the Letter of Credit, the
Confirming Letter of Credit or any Alternate Letter of
Credit and the payment in full of all amounts due to the
Bank or the Confirming Bank hereunder, money in the
Interest Account shall be used and withdrawn by the
Trustee on such Interest Payment Date solely for the
payment of interest on the Outstanding Bonds.
23. Amendment to subparagraph (iv) of (D) of Section 5.04
of the Original Indenture. Subparagraph (iv) of (D) of Section 5.04
of the Original Indenture is hereby amended to read as follows:
(vi) Upon the written direction of the Bank
and the Confirming Bank all or a portion of the
moneys on deposit in the Variable Rate Reserve
Account shall be transferred to the Remarketing
Cost Account to the extent moneys on deposit in the
Remarketing Cost Account are less than the
Remarketing Cost Account Requirement. Such
transfer shall be made even if such transfer
results in amounts on deposit in the Variable Rate
Reserve Account being less than the Variable Rate
Reserve Requirement.
LA01 \2534\10098.3
15
94691.13
24. Amendment to Section 5.05 of the Original Indenture.
Section 5.05 of the Original Indenture is hereby amended to read as
follows:
There is hereby established and there shall be
maintained by the Trustee a separate fund to be known as
the "Reserve Earnings Fund." Such fund shall constitute
a trust fund for the benefit of the Owners of the Bonds
the Bank and the Confirming Bank. Money on deposit in
the Reserve Earnings Fund shall be withdrawn solely for
the payment of fees, expenses and indemnifications of the
Bank, the Confirming Bank or the Remarketing Agent upon
receipt of bills from the Bank, the Confirming Bank or
Remarketing Agent, in accordance with the terms of the
Reimbursement Agreement and the Remarketing Agreement as
the case may be. Upon conversion of all Bonds to a Fixed
Interest Rate or on the date on which no Bonds bearing
interest at other than a Fixed Interest Rate are
Outstanding and so long as all fees, expenses and
indemnifications of the Bank, the Confirming Bank and the
Remarketing Agent are paid, amounts on deposit in the
Reserve Earnings Fund shall be transferred to the
Interest Account and applied as a credit against interest
on all Assessments, with such credit being applied pro
rata based on the principal amount of such Assessments.
25. Amendment to the first sentence of the third
paragraph of Section 5.06 of the Original Indenture. The first
sentence of the third paragraph of Section 5.06 of the Original
Indenture is hereby amended to read as follows:
When the construction of the works of improvement
have been completed, or upon the decision of the City to
terminate such construction the City shall deliver to the
Trustee, the Bank and the Confirming Bank a certificate
of the City stating the fact and date of such completion
or termination of such construction and stating that all
the costs of such construction and equipment and expenses
incidental thereto have been determined and paid (or that
all such costs and expenses have been paid less specified
claims which are subject to dispute and for which a
retention in the Construction Fund is to be maintained in
the full amount of such claims until such dispute is
resolved or that such costs are fees, costs or
indemnifications of the Trustee or Paying Agent).
26. Amendment to the first sentence of Section 5.07 of
the Original Indenture. The first sentence of Section 5.07 of the
Original Indenture is hereby amended to read as follows:
The Trustee hereby agrees to establish and maintain,
so long as any Bonds are Outstanding, the Interest
LA01 \2534\10098.3 16 94691.13
Reserve Fund which fund shall constitute a trust fund for
the benefit of the' Owners of the Bonds, the Bank and the
Confirming Bank.
27. Amendment to Section 6.04 of the Original Indenture.
Section 6.04 of the Original Indenture is hereby amended to read as
follows:
Except as provided in Section 7.02 the City will
within sixty (60) days at the request of the Bank, the
Confirming Bank, the Trustee or any Owner, take such
action from time to time as may be necessary or proper to
remedy or cure any default in the payment of Assessment
Installments and will prosecute all actions, suits or
other proceedings as may be appropriate for such
purposes, including a judicial foreclosure action as set
forth in the Act and Section 7.02 hereof.
28. Amendment to Section 6.05 of the Original Indenture.
Section 6.05 of the Original Indenture is hereby amended to read as
follows:
The City will keep or cause to be kept proper
accounting records in which complete and correct entries
shall be made of all transactions relating to the
receipt, deposit and disbursement of the Assessment
Installments, and such accounting records shall be
available for inspection by the Bank, the Confirming
Bank, the Trustee or any Owner or such Owner's agent duly
authorized in writing at reasonable hours and under
reasonable conditions. Not later than the twenty-fifth
(25th) day of each month, commencing on September 2, 1987
and continuing so long as any Bonds are Outstanding, the
City will, upon request, furnish to the Bank, the
Confirming Bank, the Trustee and any Owner (but at the
expense of such Owner) a complete statement covering the
receipts, deposits and disbursements of the Assessment
Installments for the preceding monthly period.
29. Amendment to Section 6.07 of the Original Indenture.
Section 6.07 of the Original Indenture is hereby amended to read as
follows:
Whenever and so often as requested to do so by the
Trustee, the Bank, the Confirming Bank or any Owner, the
City 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 Trustee and the Owners the
LA01 \2534\10098.3 17
9&691.13
benefit, protection and security conferred or intended to
be conferred.
30. Amendment to the last paragraph of Section 7.03 of
the Original Indenture. The last paragraph of Section 7.03 of the
Original Indenture is hereby amended to read as follows:
Anything to the contrary contained herein
notwithstanding, so long as the Letter of Credit and the
Confirming Letter of Credit are in effect, and neither
the Bank or the Confirming Bank is not in default under
the Letter of Credit or the Confirming Letter of Credit,
the Trustee shall not exercise any of the foregoing
rights which affect Unit Pricing Bonds or Demand Bonds
without the prior written consent of the Bank and the
Confirming Bank and shall, upon the Bank's or the
Confirming Bank's offer to the Trustee of reasonable
security and indemnity against costs, expenses and
liabilities to be incurred by it, exercise all rights of
the Trustee under Section 7.03 at the direction of the
Bank or the Confirming Bank.
31. Amendment to Section 7.08 of the Original Indenture.
Section 7.08 of the Original Indenture is hereby amended to read as
follows:
In the event the Trustee fails to take any action to
eliminate an Event of Default under Section 7.01 hereof,
the Owners of a majority in aggregate principal amount of
Outstanding Bonds may, with the consent of the Bank and
the Confirming Bank if a Letter of Credit and Confirming
Letter of Credit are outstanding, the Bank and the
Confirming Bank are not in default thereunder and to the
extent such failure relates to Unit Pricing Bonds or
Demand Bonds, institute any suit, action, mandamus or
other proceeding in equity or at law for the protection
or enforcement of any right under this Indenture, but
only if such Owners have first made written request of
the Trustee after the right to exercise such powers or
right of action shall have occurred, and shall have
afforded the Trustee a reasonable opportunity either to
proceed to exercise the powers granted therein or granted
under law or to institute such action, suit or proceeding
in its name and unless also, the Trustee shall have been
offered reasonable security and indemnity against the
costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee shall have refused or neglected
to comply with such request within a reasonable time.
32. Amendment to Section 8.02 of the Original Indenture.
Section 8.02 of the Original Indenture is hereby amended to read as
follows:
LA01 \2534\10098.3 18 94691.13
The City may at aL}' time direct the removal of the
Trustee initially appc~nted hereby and any successor
thereto by giving written notice of such removal to the
Trustee and by giving notice by mail of such removal to
the Owners, and the Trustee initially appointed hereby
and any successor thereto may at any time resign by
giving written notice of such resignation to the City and
by giving notice by mail of such resignation to the
Owners. Upon giving any such notice of removal or upon
receiving any such notice of resignation, the City, with
the consent of the Bank and the Confirming Bank(which
consent shall not be unreasonably withheld), shall
promptly appoint a successor Trustee by an instrument in
writing; provided that in the event the City does not
appoint a successor Trustee within sixty (60) days
following the giving of any such notice of removal or the
receipt of any such notice of resignation, the removed or
resigning Trustee may petition any appropriate court
having jurisdiction to appoint a successor Trustee. Any
successor Trustee shall be a bank or trust company doing
business and having a principal corporate trust office in
either New York, New York or Los Angeles, or San
Francisco, California, having a combined capital
(exclusive of borrowed capital) and surplus of at least
fifty million dollars ($50,000,000) and subject to
supervision or examination by state or national
authorities. For the purpose on this Section 8.02, a
bank or trust company shall be considered to have a
combined capital (exclusive of borrowed capital) and
surplus of at least fifty million dollars ($50,000,000)
if it is a wholly-owned subsidiary of a corporation
having a combined capital (exclusive of borrowed capital)
and surplus of at least fifty million dollars
($50,000,000) and such corporation guaranties in writing
the performance of such bank or trust company of its
obligations hereunder.
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 purposes of this Section
8.02 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.
Any removal or resignation of a Trustee and
appointment of a successor Trustee shall become effective
only upon the acceptance of the appointment by the
successor Trustee.
LA01 \2534\10098.3 19
94691.13
.............. II I ] Ii
33. Amendment to Section 8.05 of the Original Indenture.
Section 8.05 of the Original Indenture is hereby amended to read as
follows:
The City hereby appoints the Remarketing Agent to
remarket Bonds pursuant to this Indenture hereof, and to
keep such books and records as shall be consistent with
prudent industry practice and to make such books and
records available for inspection by the Bank, the
Confirming Bank, the City, the Paying Agent and the
Trustee at all reasonable times, and to give telegraphic
or telephonic notice, promptly confirmed by a written
notice, to the Trustee (who shall then promptly notify
the Bank, the Confirming Bank and the Paying Agent),
specifying (i) the principal amount of such Bonds, if
any, remarketed by it as provided in this Indenture, and
(ii) the interest rates on the remarketed Bonds as
determined pursuant to and in accordance herewith. --
The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this
Indenture by giving at least sixty (60) days' notice to
the Bank, the Confirming Bank, the Trustee, the City, the
Paying Agent and the Trustee. The Remarketing Agent may
be removed at any time, at the direction of the Bank, the
Confirming Bank and the City, by an instrument filed with
the Remarketing Agent and the Paying Agent. Any
successor Remarketing Agent shall be selected by the City
with the consent of the Bank and the Confirming Bank (who
shall be under no liability by reason of such consent)
and shall be a member of the National Association of
Securities Dealers, Inc., shall have a capitalization of
at least fifteen million dollars ($15,000,000) or have a
line of credit with a commercial bank in the amount of at
least fifteen million dollars ($15,000,000), and shall be
authorized by law to perform all the duties set forth in
this Indenture.
34. Amendment to Section 8.06 of the Original Indenture.
Section 8.06 of the Original Indenture is hereby amended to read as
follows:
The City hereby appoints the Paying Agent to
authenticate and deliver the Bonds as provided herein and
to hold all Bonds delivered to it pursuant to this
Indenture in trust for the benefit of the respective
Owners who shall have so delivered such Bonds until money
representing the purchase price of such Bonds shall have
been delivered to or for the account of or to the order
of such Owners, to hold all money delivered to it for the
purchase of Bonds in trust for the benefit of the person
or entity which shall have so delivered such money until
LA01 \25~4\10098.3 2 0
94691.
the Bonds purchased with such money shall have been
delivered to or for the account of such person or entity,
to deliver to the Bank, the Confirming Bank, the City,
the Remarketing Agent and the Trustee a copy of each
notice delivered to it in accordance with Section 4.01
hereof and, immediately upon the delivery to it of Bonds
in accordance with Section 4.01 hereof, to give
telephonic or telegraphic notice to the City, the
Remarketing Agent and the Trustee specifying the
principal amount of the Bonds so delivered to it.
The Paying Agent may at any time resign and be
discharged of the duties and obligations set forth in
this Indenture by giving at least sixty (60) days' notice
to the Bank, the Confirming Bank, the City, the
Remarketing Agent and the Trustee. The Paying Agent may
be removed at any time, at the direction of the Bank, the
Confirming Bank and the city, by an instrument filed with
the Paying Agent and the Trustee. Any successor Paying
Agent shall be a commercial bank or trust company doing
business and having an office in New York, New York and
shall be appointed by the city, with the consent of the
Bank and the Confirming Bank (who shall not be under any
liability by reason of such consent), in the same manner
provided in Section 8.02 hereof for appointment of a
successor Trustee.
35. Amendment to the first sentence of the first
paragraph of Section 9.01 of the Original Indenture. The first
sentence of the first paragraph of Section 9.01 of the Original
Indenture is hereby amended to read as follows:
This Indenture and the rights and obligations of the
City, the Trustee, the Remarketing Agent and the Owners
hereunder may be amended or supplemented at any time by
an amendment hereof or supplement hereto which shall
become binding when the written consents of the Owners of
a majority in aggregate principal amount of the Bonds
then Outstanding, exclusive of Bonds disqualified as
provided in Section 9.02 hereof, and the written consent
of the Bank and the Confirming Bank, so long as the Bank
and the Confirming Bank are not in default on its Letter
of Credit or Confirming Letter of Credit, are filed with
the Trustee.
36. Amendment to the second paragraph of Section 9.01 of
the Original Indenture. The second paragraph of Section 9.01 of the
Original Indenture is hereby amended to read as follows:
This Indenture and the rights and obligations of the
City, the Trustee, the Remarketing Agent and the Owners
hereunder may also be amended or supplemented at any time
LA01 \2534\10098.3 2 1
94691.13
by an amendment hereof or supplement hereto which shall
become binding upon execution without the written consent
of any Owners, but with the written consent of the Bank
and the Confirming Bank, but only to the extent permitted
by law and after receipt of a Favorable Opinion of
Counsel and only for any one or more of the following
purposes -
(a) to add to the conditions, covenants and terms
contained herein required to be observed or performed by
the City, or other conditions, covenants and terms
thereafter to be observed or performed by the City, or to
surrender any right reserved herein to or conferred
herein on the City, and which in either case shall not
adversely affect the interests of the Owners;
(b) 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 City
may deem desirable or necessary and not inconsistent
herewith, and which shall not adversely affect the
interests of the Owners; or
(c) to comply with the requirements of Moody's or
S&P for the initial rating of the Bonds in the highest
possible rating category.
37. Amendment to Section 11.01 of the Original. Section
11.01 of the Original Indenture is hereby amended to read as
follows:
Nothing contained herein, expressed or implied, is
intended to give to any person other than the Bank, the
Confirming Bank, the City, the Paying Agent, the
Remarketing Agent, the Trustee and the Owners any claim,
remedy or right under or pursuant hereto, and any
agreement, condition, covenant or term contained herein
required to be observed or performed by or on behalf of
the City shall be for the sole and exclusive benefit of
the Bank, the Confirming Bank, the Paying Agent, the
Remarketing Agent and the Trustee and the Owners.
38. Amendment to Section 11.02 of the Original Indenture.
Section 11.02 of the Original Indenture is hereby amended to read
as follows:
Whenever either the Bank, the Confirming Bank, the
City, the Paying Agent, the Remarketing Agent, the
Trustee or any officer thereof is named or referred to
herein, such reference shall be deemed to include the
successor to the powers, duties and functions that are
LA01 \2534\10098.3 22
94691.13
presently vested in the Bank, the Confirming Bank, the
City, the Paying Agent, the Remarketing Agent or the
Trustee or such officer, and all agreements, conditions,
covenants and terms contained herein required to be
observed or performed by or on behalf of the Bank, the
Confirming Bank, the City, the Paying Agent, the
Remarketing Agent or the Trustee or any officer thereof
shall bind and inure to the benefit of the respective
successors thereof whether so expressed or not.
39. Amendment to Section 11.12 of the Original Indenture.
Section 11.12 of the Original Indenture is hereby amended to
include the following address for notices to the Confirming Bank:
If to the Confirming Bank:
The Sanwa Bank Ltd
Los Angeles Branch
601 S. Figueroa Street
Los Angeles, California
Attention:
90017
40. Amendment to Section 11.13 of the Original Indenture.
Section 11.13 of the Original Indenture is hereby amended to read
as follows:
The Trustee shall give immediate notice to Moody's
in the event:
replaced.
The Trustee or Remarketing Agent resigns or is
2. The Indenture is amended or supplemented.
3. The Letter of Credit or the Confirming Letter of
Credit expires or is terminated.
4. Ail or a portion of the Bonds are converted from one
mode to another mode.
ARTICLE III
ORIGINAL INDENTURE TO REMAIN IN EFFECT;
COUNTERPARTS
SECTION 3.01 Original Indenture to Remain in Effect.
Except as amended by this Fourth Supplemental Indenture, the
Original Indenture shall remain in full force and effect.
SECTION 3.02. Counterparts. This Fourth Supplemental
Indenture may be executed in any number of counterpart, each of
which, when so executed and delivered, shall be an original; but
LA01 \2534\10098.5 2 3 94691.13
such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the City has caused these presents to
be signed in its name and on its behalf by its Mayor, and its
corporate seal to be hereunto affixed and attested by its City
Clerk, thereunto duly authorized, and to evidence its acceptance
hereof, the Trustee has caused these presents to be signed in its
name and on its behalf by its duly authorized officers, and its
official seal to be hereunto affixed.
ATTEST:
y Clerk of the City of Tustin
CITY OF TUSTIN, CALIFORNIA
Mayor of t~e-Cit~y of Tustin
STATE STREET BANK AND TRUST
COMPANY, N.A., as Trustee
ATTEST:
Title:
Title:
Written consent is hereby
given pursuant to the
Protocol Agreement by:
THE IRVINE COMPANY
Written consent is hereby
given pursuant to Section
9.01 of the Original
Indenture by:
THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
Title:
Title:
LA01 \2534\10098.3
24
94691.13
AMENDMENT TO THE REMARKETING AGREEMENT
Exhibit D
THIS AMENDMENT TO THE REMARKETING AGREEMENT, dated as of
December__, 1993, is made and entered into between Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Remarketing Agent"), and
the City of Tustin, California (the "Issuer"), in connection with
the City of Tustin Improvement Bonds Assessment District No. 85-1
(the "Bonds") authorized pursuant to an Indenture dated as of
August 1, 1986, as heretofore amended and supplemented (the
"Indenture") between the Issuer and State Street Bank and Trust
Company, N.A., as trustee (the Trustee").
RECITALS:
WHEREAS, the Issuer has issued and sold the Bonds in
order to better provide financing for certain improvements; and
WHEREAS, the Remarketing Agent has agreed to accept the
duties and responsibilities as the Remarketing Agent under the
Indenture and the Remarketing Agreement; and
WHEREAS, the Issuer and the Remarketing Agent have
heretofore entered into a Remarketing Agreement dated as of August
1, 1986 (the "Original Remarketing Agreement"); and
WHEREAS, the Issuer and Remarketing Agent desire to amend
the Original Remarketing Agreement to reflect the amendments hereto
made in the Indenture;
Ail terms not otherwise defined herein shall have their
respective meanings as provided in the Indenture.
SECTION 1. Amendments to the Original Remarketing
Agreement. The following amendments to the Original Remarketing
Agreement shall become effective at such time as this Amendment to
the Remarketing Agreement is executed and delivered by the Issuer
and the Remarketing Agent, as provided in Section 3.7 of the
Original Remarketing Agreement.
(a) Amendment to the second and last sentences of
paragraph (a) of Section 2.3 of the Original Remarketing Agreement.
The second and last sentences of paragraph (a) of Section 2.3 of
the Original Remarketing Agreement is hereby amended to read as
follows:
If for whatever reason the Remarketing Agent shall
determine that it is unable to obtain the information
concerning the Owner, the Issuer, the Bank, the
LA01 \2534\10160.3
94691.13
Confirming Bank or other parties or circumstances
necessary to prepare appropriate disclosures, if any, or
if the Remarketing Agent shall be unable to procure the
necessary cooperation of the Issuer, the Owner, the Bank,
the Confirming Bank in order to comply with applicable
law, including federal or state securities laws in
connection with the marketing of Tendered Bonds and
Repurchased Bonds, then this Agreement shall terminate
and the Remarketing Agent shall be under no obligation to
perform any of its duties under this Agreement other than
to return any Tendered Bonds, Repurchased Bonds or funds
for the purchase thereof to the appropriate parties.
In addition, if, at any time during the term of this
Agreement, any event known to the Issuer relating to or
affecting the Issuer, the Indenture, the Reimbursement
Agreement, the Letter of Credit, the Bank, the Confirming
Bank, this Agreement or the Bonds shall occur which migkt
affect the correctness or completeness when made of any
statement of a material fact contained in the Official
Statement, the Issuer shall promptly notify the
Remarketing Agent in writing of the circumstances and
details of such event.
(b) Amendment to the last sentence of Section 2.4 of the
Original Remarketing Agreement. The last sentence of Section 2.4 of
the Original Remarketing Agreement is hereby amended to read as
follows:
In the event that the Remarketing Agent determines,
after consultation with such persons as it deems
advisable, that it has no obligation to remarket Tendered
Bonds or Repurchased Bonds pursuant to this Section 2.4
the Remarketing Agent will immediately provide written
notice to that effect to the Bank, the Confirming Bank,
the Issuer, and the Trustee.
(c) Amendment to the first sentence of the first
paragraph of Section 3.2 of the Original Remarketing Agreement. The
first sentence of the first paragraph of Section 3.2 of the
Original Remarketing Agreement is hereby amended to read as
follows:
The Remarketing Agent may be removed at any time by
an instrument, signed by the Issuer and filed with the
Remarketing Agent, the Paying Agent, the Bank, the
Confirming Bank and the Trustee.
(d) Amendment to Section 3.3 of the Original Remarketing
Agreement. Section 3.3 of the Original Remarketing Agreement is
hereby amended to read as follows:
LA01 \2534\10160.3 2 94691 . 13
The Remarketing Agent may at any time resign and be
discharged of all duties and obligations hereunder and
under the Indenture by giving notice, in writing, 60 days
prior to the date set for resignation, to the Bank, the
Confirming Bank, the Issuer, the Trustee and the Paying
Agent.
SECTION 2. Original Remarketing Agreement to Remain in
Effect. Except as amended by this Amendment to the Remarketing
Agreement, the Original Remarketing Agreement shall remain in full
force and effect.
SECTION 3. Counterparts. This Amendment to the
Remarketing Agreement may be executed in any number of counterpart,
each of which, when so executed and delivered, shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the Issuer and the Remarketing'Agent
have caused this Agreement to be executed in their respective names
all as of the date first above written.
CITY OF TUSTIN, CALIFORNIA
By:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
Acknowledged and Agreed to
STONE & YOUNGBERG
By:
Vice President
By:
Title:
LA01 \2534\10160.3 3
94691.13
city of Tustin
RESOLUTION CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
ss
RESOLUTION NO. 93-134
Mary E. Wynn, City Clerk and ex-officio Clerk of the City Council of the
City of Tustin, California, does hereby certify that the whole number of
the members of the City Council is five; that the above and foregoing
resolution was passed and adopted at a regular meeting of the City Council
held on the 6th day of December, 1993, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
Potts, Saltarelli, Pontious, Puckett, Thomas
None
None
None
Mary E.~XWynn, C~ty Clerk