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Home My WebLink About15 ASSESS DIST REFUND 01-15-96NO. 15 1-15-96 DATE: JANUARY 9· 1996 Inter-Com TO: FROM' WILLIAM~TTON, CITY MANAGER RONALD A~· FINANCE DIRECTOR SUBJECT: ASSESSMENT DISTRICT REFUNDING RECOMMENDATION Adopt the following Resolutions: No. 96-8 Adopting the ReassesSment Report for Reassessment District No. 95-1 and rescinding Resolution No. 95-116. No. 96-9 Authorizing the issuance of not to exceed $46,000,000 aggregate principal amount of Limited Obligation Improvement Bonds, Reassessment District No. 95-1, approving a Fiscal Agent Agreement; an Escrow Agreement; a Bond Purchase Agreement and a continuing Disclosure Agreement and rescinding Resolution No. 95-117. No. 9'6-10 Adopting the Reassessment Report for Reassessment District No. 95-2 and rescinding Resolution No. 95-119. No. 96-11 Authorizing the issuance of not to exceed $51,000,000 aggregate principal amount of Limited Obligations Improvement Bonds, Reassessment District No. 95-2, approving a Fiscal AgeNt Agreement; an Escrow Agreement; a Bond Purchase Agreement and a continuing DisclOsure Agreement and rescinding Resolution No. 95-120. DISCUSSION At their meeting of November 20, 1995 the City Council took actions which adopted the Reassessment Reports and gave staff direction to proceed with certain actions regarding the Reassessment Districts. The City Council also took action at that meeting to amend the zoning on the ex-school site in Assessment District 85-1 which necessitated the revision of the Reassessment Reports to include the newly approved parcels. Page 2. The closing schedule has been revised, to pre-pricing the week of January 22 and the actual closing to take place on Thursday, February 15. The notice to Bondholders will go out on Tuesday, January 30 per reqUirements of the original Indenture. RAN4 A:Assmt. Ref RESOLUTION NO. 96-8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN ADOPTING THE REASSESSMENT REPORT FOR REASSESSMENT DISTRICT NO. .95-1 (TUSTIN RANCH), CONFIRMING AND ORDERING THE REASSESSMENT PURSUANT TO SUMMARY PROCEEDINGS THEREFOR AND DIRECTING ACTIONS WITH RESPECT THERETO AND RESCINDING RESOLUTION NO. 95-116 Reassessment District No. 95-1 (Tustin Ranch) WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City")., by a Resolution entitled "A Resolution of the City Council of the City of Tustin of Intention to Levy Reassessments and to Issue Refunding Bonds Upon the Security Thereof", adopted on November 20, 1995 (the "Resolution of Intention"), resolved its intention to form Reassessment Dista'ict No. 95-1 (Tustin Ranch) (the "District") as security for the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Bonds") and therein directed the. making and filing of a reassessment report (the "Report") in writing in accordance with and pursuant to the Refunding Act of 1984 for 1915 Improvement Act Bonds; Division 11.5 of the California Streets and Highways Code (the "Act"); and WHEREAS, the Report was duly made and filed, and duly considered by the City Council and found to be sufficient in every particular, and the Report shall stand for all subsequent proceedings under and pursuant to the aforesaid Resolution of Intention. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Tustin as follows: Section 1. Pursuant to Section 9525 of the Act, and based upon the Report, the City Council finds that all of the following conditions are satisfied: (a) Each of the estimated annual installments of principal and interest on the reassessment as set forth in the Report is less than the corresponding annual installment of principal and interest on the original assessment as also set forth in the Report, by the same percentage for all subdivisions of land with the Disu'ict; (b) The number of years to maturity of all Bonds proposed to be issued is no more than the number of years to the last maturity of the bonds being refunded (the "Prior Bonds"); and (c) The principal amount of the reassessment on each subdivision of land within the District is less than the unpaid principal amount of the original assessment by the same percentage for each subdivision of land in the-District. Section 2. The public irite~'est, convenience and necessity require that said reassessment be made. Section 3. The district benefited by said reassessment and to be reassessed to pay the costs and expenses thereof, and the exterior boundaries thereof, are as shown by a map thereof heretofore filed in the office of the City Clerk, which map is made a part hereof by reference thereto. Section 4. Pursuant to the findings hereinabove expressed with respect to Section 9525 of the Act, said conditions, and all of them, are deemed satisfied and the following elements of the Report are hereby finally approved and confirmed without further proceedings, including the conduct of a public hearing under the Act: (a) a schedule setting forth the unpaid principal and interest on the Prior Bonds to be refunded and the total amounts thereof; (b) an estimate of the total principal amount of the reassessment and of the Bonds and the maximum interest thereon, together with an estimate of the cost of the reassessment and of issuing the Bonds, including expenses incidental thereto; (c) the auditor's record kept pursuant to Section 8682 of the California Streets and Highways Code showing the schedule of principal installments and interest on all unpaid original assessments and the total amounts thereof; (d) the estimated amount of each reassessment, identified by reassessment number corresponding to the reassessment number of the reassessment diagram, together with a proposed auditor's record for the reassessment prepared in the manner described in said Section 8682; and (e) a reassessment diagram showing the District and the boundaries and dimensions of the subdivisions of land'therein. Section 5. Final adoption and approval of the Report as a whole, the estimate of the costs and expenses, the reassessment diagram and the reassessment, as contained in the Report, as · hereinabove determined and ordered, is intended to and-shall refer and apply to the Report, or any portion thereof, as amended, modified, revised or corrected by, or pursuant to and in accordance with, any resolution or order, if any, heretofore duly adopted or made by the City Council. Section 6. Said reassessment, including all costs and expenses thereof, is hereby levied. Pursuant to the provisions of the Act, reference is hereby made to the Resolution of Intention for further particulars. . . Section 7. Based on the oral and documentary evidence, including the Report, offered and received by the City Council, the City Council expressly, finds and determines: (a) -that each of said Several subdivisions of land will be specially benefited by said reassessment at least in the amount, if not more than the amount, of the reassessment apportioned against such subdivision of land; and (b) that there is substantial evidence to support, and the weight of said evidence preponderates in favor of, the aforesaid finding and determination as to special benefits. Section 8. That the City Clerk shall forthwith cause: (a) the reassessment to be delivered to the official of the City who is the Superintendent of Streets of the City, together with said reassessment diagram, as approved and confirmed by the City Council, with a certificate of such confirmation and of the date thereof, executed by the City Clerk, attached thereto. Said Superintendent of Streets shall record said reassessment and reassessment diagram in a suitable book to be kept for that purpose, and append thereto a certificate of the date of such recording, and such recordation shall be and constitute the reassessment roll herein; (b) a copy of said reassessment diagram and a notice of reassessment, executed by the City Clerk, to be filed and recorded, respectively, in the office of the County Recorder of the County of Orange, such notice to be in substantially the form provided in Section 3114 of the California Sn'eets and Highways Code; and (c) a copy of this Resolution .to be provided to the Auditor of the County of Orange. From the date of recording of said notice of reassessment, all persons shall be deemed to have notice of the contents of such reassessment, and each of such reassessments shall thereupon be a lien upon the property against which it is made and, unless sooner discharged such liens shall so continue for the period of 19 years from the date of said recordation, or in the event bonds are issued to represent said reassessments, then such liens shall continue until the expiration of four years after the due date of the last installment upon said bonds or of the last installment of principal of said bonds. The appropriate officer or officers are hereby authorized to pay any and all fees required by law in connection with the above. Section 9. Resolution No. 95-116, adopted by the City Council on November 20, 1995, is hereby rescinded, repealed and annulled and shall be of nO further force and effect. Section 10. The officers and employees of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof. Section 11. This Resolution shall take effect immediately upon its adoption. APPROVED and ADOPTED by the City Council of the City of Tustin on January 15, 1996. Jim Potts, Mayor ATTEST: Pamela Stoker, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of a Resolution duly adopted at a regular meeting of the City Council of said City duly and regularly held at the regular meeting place thereof on January 15, 1996, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present; and 'that at said meeting said Resolution was adopted by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS-' ABSENT: COUNCIL MEMBERS: An agenda of said meeting was posted at least 72 h°urs before said meeting at 300 Centennial Way, Tustin, California, a location freely accessible to members of the public, and a brief general description of said Resolution appeared on said agenda. I further certify that I have carefully compared the same with the original minutes of said meeting on file and of record in my office; that the foregoing Resolution is a full, tree and correct copy of the original Resolution adopted at said meeting and entered in said minutes; and that said Resolution has not been amended, modified or rescinded since the date of its adoption, and the same is now in full force and effect. Dated: ,1996 Pamela Stoker, City Clerk RESOLUTION NO. 96-9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $46,000,000 AGGREGATE PRINCIPAL AMOUNT OF CITY OF TUSTIN LIMITED OBLIGATION IMPROVEMENT BONDS, REASSESSMENT DISTRICT NO. 95-1 (TUSTIN _RANCH), APPROVING THE EXECUTION AND DELIVERY OF A FISCAL AGENT AGREEMENT, AN ESCROW AGREEMENT, A BOND PURCHASE AGREEMENT AND A CONTINUING DISCLOSURE AGREEMENT AND THE PREPARATION OF AN OFFICIAL STATEMENT AND OTHER MATTERS' RELATED THERETO AND RESCINDING RESOLUTION NO. 95-117 Reassessment District No. 95-1 (Tustin Ranch) WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City"), by Resolution No. 86-81, adopted on June 16, 1986, resolved its intention to form City of Tustin Assessment District No. 85-1 ("District 85-1") and to issue bonds to represent unpaid assessments therein; WHEREAS, the City Council, by Resolution No. 86-81, adopted on June 16, 1986, confirmed said assessments; WHEREAS, pUrsuant to Resolution No. 86-102 of the City Council, adopted on August 18, 1986, an IndentUre of Trust, dated as of August 1, 1986 (the "85-1 Indenture"), by and between the City and Citibank, N. A., as trustee, and the Improvement Bond Act of 1915, being Dix/ision 10 of the Califomia Streets and Highways Code (the "Bond Law"), the City issued City of Tustin Assessment District No. 85-1 Improvement Bonds (the "85-1 Bonds") in the original principal amount of $50;650,000; WHEREAS, the City Council, by Resolution No. 88-61, adopted on June 13, 1988, resolved its intention to form City of Tustin Assessment District No. 86.2 ("District 86-2,) and to issue bonds to represent unpaid assessments therein; WHEREAS, the City Council, by Resolution No. 88-81, adopted on July 18, 1988} confirmed said assessments; WHEREAS, pursuant to Resolution No. 88-97 of the City Council, adopted on September 6, 1988, an Indenture of Trust, dated as of September 1, 1988 (the "86-2 IndentUre"), by and between the City and Citibank, N. A., as trustee, and the Bond Law, the City issued City of Tustin Assessment District No. 86-2 Limited Obligation Improvement Bonds (the "86-2 Bonds") in the original principal amount of $81,400,000; WHEREAS, State Street Bank and Trust Company, N.A. (the "Trustee") is the successor trustee under the 85-1 Indenture and the 86-2 Indenture; WHEREAS, - certain savings and efficiencies may be obtained by refunding the $14,490,000 aggregate principal amount of 85-1 Bonds that have been converted to fixed interest rates pUrsuant to the 85-1 Indenture (the "Fixed 85-1 Bonds")and the $35,910,000 aggregate principal amount of 86-2 Bonds that have been converted to fixed interest rates pursuant to the 86-2 Indenture (the "Fixed 86-2 Bonds" and, together with the Fixed 85-1 Bonds, the "Prior Bonds"): WHEREAS, the City Council, by a Resolution entitled "A Resolution of the City Council of the City of Tustin of Intention to Levy Reassessments and to Issue Refunding Bonds Upon the Security Thereof", adopted on November 20, 1995 (the "Resolution of Intention"), has conducted reassessment and refunding proceedings under the Refunding Act of 1984 for 1915 Improvement Act Bonds, Division 11.5 (commencing with Section 9500) of the California Streets and Highways Code~ for the City's Reassessment District 95-1 (Tustin Ranch) (the "District") to which proceedings reference is hereby made for further particulars; WHEREAS, there is on file with the Treasurer of the City a list of all reassessments. within the District which remain unpaid (the "List of Unpaid Reassessments"), to which list reference is made for further particulars; WHEREAS, the City desires to refund the Prior Bonds; WHEREAS, in order to provide the moneys required to refund the Prior Bonds, the City desires to authorize the issuance of the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Bonds"), in an aggregate principal amount of not to exceed $46,000,000; WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and secured and to secure the payment of the principal thereof, premium, if any, and interest thereon, the City proposes to enter into a Fiscal Agent Agreement with State Street Bank and Trust .Company of California, N.A., as fiscal agent (the "Fiscal Agent") (such Fiscal Agent Agreement, ~n the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Fiscal Agent Agreement"); WHEREAS, in order to provide for the defeasance and redemption of the Prior Bonds, the City proposes to enter into an Escrow Agreement (95-1) with State Street Bank and Trust Company, N.A. as escrow bank (such Escrow Agreement in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution being referred to herein as the "EScrow Agreement"); WHEREAS, the Tustin Public Financing Authority (the "Authority") intends to issue its Revenue Bonds (Tustin Ranch), Series A (the "Authority Bonds") and use .a portion of the proceeds of the sale thereof to purchase the Bonds from the City; WHEREAS, the Authority has presented the City with a proposal, in the form of a Bond Purchase Agreement, to purchase the Bonds (such Bond Purchase Agreement, 'in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Bond Purchase Agreement"); WHEREAS, PaineWebber Incorporated, as underwriter (the "Underwriter") has submitted to the Authority a proposed form of an agreement'to purchase the Authority Bonds; WHEREAS, Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 ("Rule 15c2-12") requires that, in order to be able to purchase or sell the Authority Bonds, the Underwriter must have reasonably determined that an obligated person has undertaken in a written agreement or contract for the benefit of the holders of the Authority Bonds to provide disclosure of certain financial information and certain material events On an ongoing basis; WHEREAS, in order to cause such requirement to be satisfied, the City desires to enter into a Continuing Disclosure Agreement (the "Continuing Disclosure Agreement") with the Authority Trustee; WHEREAS, there have been prepared and submitted to this meeting forms of.' (a) the Fiscal Agent Agreement; (b) the Escrow Agreement; ,. (c) the Bond Purchase Agreement; (d) the Continuing Disclosure Agreement; and (e) the Preliminary Official Statement to be used in connection With the offering and sale of the Authority Bonds, which contains certain information about the City, the Fiscal 'Agent Agreement, the Bonds, the District and the proceedings relating thereto (such Preliminary Official Statement in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Preliminary Official Statement"); and 'WHEREAS, the City desires to proceed to issue and sell the Bonds and to authorize the execution of such documents and the performance of such acts as may be necessary or desirable to effect the offering, sale and issuance of the Bonds; NOW, THEREFORE, BE IT RESOLVED by the City Council the City of Tustin as follows: Section 1. The reassessments now remaining unpaid are as shown on the List of Unpaid Reassessments, which list is hereby approved and incorporated herein by this reference. The total amount of the unpaid reassessments is not to exceed $46,000,000. For a particular description of the lots, pieces and parcels of land bearing the respective reassessment numbers set forth in the List of Unpaid Reassessments, reference is hereby made to the reassessment and to the reassessment diagram, and any amendments thereto approved by the City Council, all as recorded in the office of the Director of Public Works of the City, as the Superintendent of Streets of the City, after confirmation thereof by'the City Council. Section 2. Subject to the provisions of Section 3 hereof, the issUance of the Bonds, in the aggregate principal amount of not to exceed $46,000,000, on the terms and conditions set forth in, and subject to the limitations specified in, the Fiscal Agent Agreement, is hereby authorized and approved. The Bonds shall be dated, shall bear interest at the rates, shall mature on the dates, shall be issued in the form, and shall be as otherwise provided in the' Fiscal Agent Agreement, as the same shall be completed as provided in this Resolution. Section 3. The Fiscal Agent Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth herein, be and the same is hereby approved. The Mayor of the City, or such other member of the City Council as. the Mayor may designate, the City Manager of the City and the Director of Finance/Treasurer of the City (the "Authorized Officers") are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Fiscal Agent Agreement in the form submitted to this meeting, with such changes, insertions and omissions, as the' Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Fiscal Agent Agreement by such Authorized Officer; provided, .however, that such changes, insertions and omissions shall not authorize an aggregate principal amount of Bonds in excess of $46,000,000, shall not result in a final maturity date of the Bonds later than September 2, 2013 and shall not result in a true interest cost on the Bonds in excess of 7.0%. Section 4. The Escrow Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Escrow Agreement in the form presented to this meeting,' with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Escrow Agreement by such Authorized Officer. Section 5. The Bond Purchase Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Bond Purchase Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Bond Purchase Agreement by such Authorized Officer. Section 6. The Continuing Disclosure Agreement, in substantially the'form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Continuing Disclosure Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Continuing Disclosure Agreement by such Authorized Officer. Section 7. The Preliminary Official Statement, in substantially the form presented to this meeting and made a part hereof as though set forth in full herein, with such changes therein as may be approved by an Authorized Officer, be and the same is hereby approved, and the use of the Preliminary Official Statement in connection with the offering and sale of the Authority Bonds'is hereby aUthorized and approved. 'The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to certify to PaineWebber Incorporated, the underwriter of the Authority Bonds, that the Preliminary Official Statement has been "deemed final" for purposes of Rule 15c2-i2 promulgated by the Securities and Exchange . Commission. Section 8. The preparation and delivery of a final Official Statement (the "Official Statement"), and its use in connection with the Offering and sale of the Authority Bonds, be and the same is hereby authorized and approved. The Official Statement shah be in substantially the form of the Preliminary Official Statement with such changes, insertions and omissions as may be 'approved by an Authorized Officer, such approval to be conclusively evidenCed by the execution and delivery thereof. The Authorized Officers are, and each of them is, hereby authorized and directed to execute the final Official Statement, and any amendment or supplement thereto, for and in the name of the City. Section 9. The Authorized Officers are hereby authorized and directed to investigate, or cause to be investigated, the availability and economic viability of bond insurance for the Bonds and/or the Authority Bonds and, if such insurance is determined to be cost effective, .to select a bond insurer and to negotiate the terms of such bond insurance. Section 10. The Authorized Officers are, and each of them hereby is, 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 and things necessary or proper for carrying out the issuance of the Bonds and the transactions contemplated by the Fiscal Agent Agreement, the Escrow Agreement, the Bond Purchase Agreement, the Continuing Disclosure Agreement, the Official Statement and this Resolution. Section 11. All actions heretofore taken by the officers and employees of the City with respect to the District, the reassessments, the refunding of the Prior Bonds or the issuance and sale of the Bonds, or in' connection with or related to any of the agreements or documents referenced herein, are hereby approved, confkmed and ratified. Section I2. Resolution No. 95-117, adopted by the City Council on November 20, 1995,. is hereby rescinded, repealed and annulled and shall be of no further force and effect~ 1996. Section 13. This Resolution shall take effect immediately upon its adoption. APPROVED and ADOPTED by the City Council of the City of Tustin on January 15, · ATTEST: Jim Potts, Mayor Pamela Stoker, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of a Resolution duly adopted at a regular meeting of the City Council of said City duly and regularly held at the regular meeting place thereof on January 15, 1996, of which meeting all of the members of said City Council had due notice and at which a majority thereof~were present; and that at ~aid meeting said Resolution was adopted by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: An agenda of said meeting was posted at least 72 hours before said meeting at 300 Centennial Way, Tustin, California, a location freely accessible to members of the public, and a brief general description of said Resolution appeared on said agenda. I further certify that I have carefully compared the same with the original minutes of said meeting on f'fle and of record in my office; that the foregoing Resolution is a full, true and correct copy of the original Resolution adopted at said meeting and entered in said minutes; and that said Resolution has not been amended, modified or rescinded since the date of its adoption, and the same is now in full force and-effect. Dated: ,1996 Pamela Stoker, City Clerk FISCAL AGENT AGREEMENT by and between the CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Fiscal Agent Dated as of 1, 1995 RELATING TO $ CITY OF TUSTIN LIMITED OBLIGATION IMPROVEMENT BONDS REASSESSMENT DISTRICT NO. 95-1 (TUSTIN RANCH) · Section 1.01. Section 1.02. Section 1.03. Section 1.04. Section 2.01. Section 2.02. Section 2.03. Section 2.04. Section 2.05. Section 2.06. Section 2.07. Section 2.08. Section 2.09. Section 2.10. Section 2.11. Section 3.01. Section 3.02. Section 3.03. Section 3:04. Section 4.01. Section 4.02. Section 4.03. Section 4.04. Section 4.05. Section 5.01, Section 5.02. TABLE OF CONTENTS ARTICLE I STATUTORY AUTHORITY AND DEFINITIONS Authority for this Agreement.. 'Definitions. ' .......................................................................... 2 """""'"'""""'"'""""""" --------.--................ 2 Interpretation ........................ ... Agreement Constitutes Contract ....... 8 ARTICLE II THE BONDS Authorization of Bonds ..................................................................................... 9 Terms of Bonds ................................................................................................. 9 Transfer and Exchange of Bonds .................................................................... 10 Registration Books ......................................................................................... , Execution of Bonds ......................................................................................... 10 10 Authentication of Bonds ....................... : ................................................ . ......... 10 Temporary Bonds ............................................................................................ 11 Bonds Mutilated, Lost, Destroyed or Stolen ................................................... 11 Limited Obligation .............. No Acceleration ........ ' ............................................................................ 11 Refunding of Bonds ........................................ 11 .................................. 11 ARTICLE llI ISSUANCE oF BONDS Issuance of Bonds ................................................................ ~ .......................... 12 Application of Proceeds of the Bonds ................................... : ......................... 12 Costs of Issuance FUnd ................................................................................... 12 Improvement Fund .......................................................................................... 12 ARTICLE IV REDEMPTION OF BONDS Redemption ............... Notice of Redemption ..................... j ................................................................ 14 Selection of Bonds for'~'~i~;~ iiiiiiii~iiiiiiii~iiiiiiiiiiiiiiiii ' 15 Partial Redemption of Bonds .......................................................................... Effect of Notice of Redemption ...................................................................... 16 16 ARTICLE V SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENTS Pledge and Assignment .... ' Redemption Fund ........ ' .............................................................................. 17 ....................... ' ............................................................ 17 -i- Section 5.03. Section 5.04. Section 5.05. Section 5.06. Section 6.01. Section 6.02. Section 6.03. Section 6.04. Section 6.05. Section 6.06. Section 6.07. Section 6.08. Section 6.09. Section 6.10. Section 6.11. Section 6.12. Section 7.01. Section 7.02. Section 7.03. Section 7.04. Section 7.05. Section 7.06. Section 7.07. Section 7.08. Section 7.09. Section 7.10. Section 7.11. Section 8.01. Section 8.02. Section 8.03. Section 8.04. Section 8.05. Section 8.06. Prepayment Account ....................................................................................... 18 Continuing Costs Account .............................................................................. 18 Reserve Fund ................................................................................................... 18 Investment of Moneys ................................................................................. .,... 19 ARTICLE VI COLLECTION AND APPLICATION OF REASSESSMENTS; PARTICULAR COVENANTS Collection and Application of Reassessments ................................................ 21 Foreclosure ...................................................................................................... 22 No Advances from Available Surplus Funds .................................................. 22 Punctual Payment .................................................................... : ....................... 22. EXtension of Payment of Bonds .................... : ..... ,.::.: ....................................... 22 Against Encumbrances .................................................................................... 22 Power to Issue Bonds and Make Pledge and Assignment .............................. 23 Accounting Records and Financial Statements ............................................... 23 Waiver of Laws ............................................................................................... 23 Tax Covenants ................................................. ~ ................................................ 23 Report to California Debt Advisory Commission ........................................... 24 Further Assurances .......................................................................................... 24 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Events of Default ............................................................................................ 25 Foreclosure ...................................................................................................... 25 Other Remedies of Bond Owners ................................................................... 25 Application of Reassessments and Other Funds After Default ....................... 26 Fiscal Agent to Represent Bond Owners ........................................................ 26 Bond Owners' Direction of Proceedings .................... ~ ................................... 27 Limitation on Bond Owners' Right to Sue ..................................................... 27 Absolute Obligation of City ......................... : .................................................. 27 Termination of Proceedings ............................................................................ 27 Remedies Not Exclusive .................................................................. : .............. 28 No Waiver of Default ..................................................... ~ ................................ 28 ARTICLE VIH FISCAL AGENT Duties and Liabilities of Fiscal Agent ............................................................. 29 Merger or Consolidation ................................................................................. 30 Liability of Fiscal Agent .......... : ...................................................................... 30 Right to RelY on Documents ' 31 Preservation and Inspection of Documents ..................................................... 31 Compensation and Indemnification ................................................................ 32 ARTICLE IX MODIFICATION OR AMENDMENT Section 9.01. Amendments Permitted ................................................................................... 33 Section 9.02. Effect of Supplemental Agreement ................................................................. 34 Section 9.03. Endorsement of Bonds; Preparation of New Bonds ....................................... 34 Section 9.04. ' Amendment of Particular Bonds ...................................................................... 34 ARTICLE X DEFEASANCE Section 10.01. Discharge of Agreement ................................................................................ 35 Section 10.02. Discharge of Liability on Bonds., .................................................................. 35 Section 10.03. Deposit of Money or Securities with Fiscal Agent ...........; ................... . ...... 36 Section 10.04. Payment of Bonds After Discharge of Agreement ........................................ 36 ARTICLE XI MiSCELLANEOUS Section 11.01. Limited Obligation... .......................... 37 Section 11.02. Successor Is Deemed Included in All References to Predecessor .................37 Section 11.03. Limitation of Rights to Parties and Bond Owners ......................................... 37 Section 11.04. Waiver of Notice; Requirement of Mailed Notice ..................... j .................. 37 Section 11.05. Destruction of Bonds ........... ................................................. ~ ............... : ........ 37 Section 11.06. Severability of Invalid Provisions ................................................................. 37 Section 11.07. Notices ............................ ~ .............................................................................. 38 Section 11.08. EVidence of Rights of Bond Owners ............................................................. 38 Section 11.09. DisqualiFied Bonds ........................................................................................ 38 Section 11.10. Money Held for Particular Bonds .................................................................. 39 Section 11.11. Funds and Accounts ....................... ~ ............................. , ................................. 39 Section 11.12. Payment on Non-Business Days ........................................ ~ ................ , .......... 39 Section 11.13. Waiver of Personal Liability .................................. ' 39 Section 11.14. Conflict with Act or Bond Law ................................................................. .... 39 Section 11.15: Conclusive Evidence of Regularity ....... ........................................................ 39 SectiOn 11.16. Execution-in Several Counterparts ................................................................ 39 Section 11.17. Governing Laws. EXHIBIT A - Form of Bond ....................................................... ~ .................................... 39 -111- "Costs of Issuance Fund" means the fUnd by' that name established and held by the Fiscal Agent pursuant to Section 3.03. "Council" means the City Council, as the legislative body of the City. "County" means the County of Orange, State of California. "Dated Date" means the dated date of the Bonds, being ,1995. "Escrow Agreement" means the Escrow Agreement (95-1), dated as of ,1995, by and between the City and State Street Bank and Trust Company, N.A., as the escrow bank, as originally executed or as it may from time to time be amended or supplemented in accordance with its terms. "Escrow Bank" means State Street Bank and Trust Company, N.A., as the escrow bank under the Escrow Agreement, or any successor thereto as Escrow Bank thereunder. "Fair Market Value" means the price at which a'willing buyer would purchase the investment from a willing seller in a bona fide, arm's length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of section 1273 of the Code).and, otherwise, the term "fair market value" means the acquisitions price in a bona fide arm's length transaction (as referenced above) if (a) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (c) the investment is a United States Treasury Security--State and Local Government Series that is acquired in accordance with apPlicable regulations of the United States Bureau of Public Debt, or (d) the investment is the Local Agency Investment Fund of the State of California but only if at all times during which the investment is held in such fund its yield is reasonably expected to be equal to or greater than the yield on a reasonably, comparable direct obligation of the United States. "Federal Securities" means any of the following which at the time of investment are legal investments under the laws of the State of California for the funds proposed to be invested therein: (a) direct general obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), and (b) obligations of any agency, department or instrumentality of the United States of America the timely payment of principal of and interest on which are fully guaranteed by the United States of America. "Fiscal Agent" means State Street Bank and Trust Company of California, N.A., a national banking association organized and existing under the laws of the United States of America, or any successor thereto as Fiscal Agent hereunder, appointed as provided herein. "Fiscal Year" means the period beginning on July 1 of each year and ending on the next succeeding June 30, or any other twelve-month period hereafter selected and designated as the official fiscal year period of the City designated in a Written Certificate of the City delivered to the Fiscal Agent. 'qmprovement Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 3.04. · _4-¸ by or pursuant to a resolution of the Board of Directors of the Fiscal Agent or the by-laws of the Fiscal Agent. "Bond Counsel" means a firm of nationally recognized bond counsel selected by the City and acceptable to the Fiscal Agent. "Bond Year" means each twelve-month period beginning on September 3 in each year and extending to the next succeeding September 2, both dates inclusive; except that the first Bond Year shall begin on the Closing Date and end on September 2, 1996. "Bonds" means the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch). "Bonds (85-1)" means the City of Tustin Assessment District No. 85-1 Improvement Bonds issued pursuant to the Indenture (85-1). "Bonds (86-2)" means the City of Tustin Assessment District No. 86,2 Limited Obligation Improvement Bonds issued pursuant to the Indenture (86-2). "Business Day" means a day which is not a Saturday, Sunday or legal holiday on which banking institutions in the State of California, or in any state in which the Office of the Fiscal Agent is located, are closed. "City" means the City of Tustin, and any successor thereto. "Clerk" means the Clerk or Deputy Clerk of the City. "Closing Date" means the date upon which the Bonds are delivered to the Original Purchaser, being ,1995. · "Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance of the Bonds or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the date of issuance of the Bonds, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code. . "Continuing Costs Account" means the account within the Redemption Fund by that name established and held by the Fiscal Agent pursuant to Section 5.04. "Continuing Costs of the Bonds" means the continuing costs of the Bonds, including the fees, costs and indemnifications due the Fiscal Agent or the City. "Costs of Issuance" means all items of expense directly or indirectly payable by or reimbursable to the City relating to the authorization, issuance, sale and delivery of the Bonds and the Authority Bonds, including but not limited to printing expenses, rating agency fees, filing and recording fees, initial fees, expenses and charges of the Fiscal Agent and its counsel, including the Fiscal Agent's first annual administrative fee, fees, expenses and charges of the Authority Trustee and its counsel, including the Authority Trustee's first annual administrative fee, fees, expenses and charges of the Escrow Bank and its counsel, fees, charges and disbursements of attorneys, financial advisors, accounting firms, consultants and other professionals, fees and charges for preparation, execution and safekeeping of the Bonds and the Authority Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds and the Authority Bonds. -3- ARTICLE I STATUTORY AUTHORITY AND DEFINITIONS Section 1.01. Authority for this Aereement. This Agreement is entered into pursuant to the provisions of the Act and the ResolutiSn of Issuance. Section 1.02. Definitions. Unless the context otherwise requires, the terms defined in this Section 1.02 shall for all purposes of this Agreement, of any Supplemental Agreement and of any certificate, opinion or other document herein or therein mentioned, have the meanings herein specified. "Act" means, collectively, the Improvement Bond Act of 1915, as amended, being Division 10 of the California Streets and Highways Code, and the Refunding Act of 1984 for 1915 ImProvement Act Bonds, as amended, being Division 11.5 of the California Streets and Highways Code. "Agreement" means this Fiscal Agent Agreement, as originally executed or as it may from time to time be amended or supplemented by any Supplemental Agreement. "Assessment Consultant" means Muni ~Financial Services, Inc. or any other consultant or firm of financial consultants appointed by the City and who or each of whom (a) is judged by the City to have experience with respect to the administration of assessment districts, (b) is in fact independent and not under the domination of the City, (c) does not have any substantial interest, direct or indirect, with the City, and (d) is nOt connected with the City as an officer or employee of the City, but who may be regularly retained to make reports to the City. "Assessment District" means the area designated "Reassessment District No. 95-1 (Tustin Ranch)", formed by the City under the Act. "Auditor" means the auditor/controller of the County, or such other official of the County who is responsible for preparing property tax bills. · "Authority" means the Tustin Public Financing Authority, a joint exercise of powers authority Organized and existing under Sections 6500 et seq. of the California Government Code. "Authority Bonds" means the "Tustin Public Financing Authority Revenue Bonds (Tustin Ranch), .Series A." "Authority Indenture" means th~ Indenture of Trust, dated as of ,1995, by and between the Authority and State Street Bank and Trust Company of. California, N.A., as trustee, as originally executed or as it may from time to time be amended or supplemented in accordance with its terms. "Authority Trustee" means State Street Bank and Trust Company of California, N.A., as trustee under the Authority Indenture or any successor thereto as trustee thereunder. "Authorized Representative" means (a) with respect to the City, its City Manager, Assistant City Manager or Finance Director, or any other Person designated as an Authorized Representative of the City in a Written Certificate of City filed with the Fiscal Agent, and (b) with respect to the Fiscal Agent, the Senior Vice President, any Vice President, any Assistant' Vice President or any Trust Officer of the Fiscal Agent, and when used with reference to any act or document also means any other Person authorized to perform such act or sign any document -2- FISCAL AGENT AGREEMENT THIS FISCAL AGENT AGREEMENT (this "Agreement") is made and entered into as of 1, 1995 by and between the CITY OF TUSTIN, a general law city and municipal corporation organized and existing under and by virtue of the laws of the State of CalifOrnia (the "City"), and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking association organized and existing under and by virtue of the laws of the United States of America, as fiscal agent (the "Fiscal Agent"). WIT N E S S E T H: WHEREAS, on .. , 1995, the City Council of the City passed and adopted Resolution No. (the "Resolution of Intention") relating to the levy of reassessments and issuance of refunding bonds pursuant to the Refunding Act of 1984 for 1915 Improvement Bonds, Division 11.5 (commencing with Section 9500) of the Streets and Highways Code of California (the "Refunding Law") in and for a portion of the City's.Assessment District No. 85-1 and a portion of the City's Assessment District No. 86-2 and, by the Resolution of Intention, the City Council of the City provided that serial and/or term bonds would be issued thereunder pursuant to the provisions of the Improvement Bond Act of 1'915, Division 10 of the Streets and Highways Code of California (the "Bond Law" and, together with the Refunding Law, the "Act") and reference to the Resolution of Intention is hereby expressly made for further particulars; WHEREAS, under the provisions of the Act, on ... ,1995, the City Council of the City adopted Resolution No. (the "Resolution of Issuance"), which, among other matters, authorized the issuance of refunding improvement bonds of the City designated "City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Bonds"), upon the security of the unpaid reassessments and provided that said issuance would be in accordance with the Act and this Agreement, and authorized the execution hereof; WHEREAS, it is in the public interest and for the benefit of the City and the owners of the Bonds that the City enter into this Agreement to provide for the isg-uance of the Bonds, the disbursement of proceeds of the Bonds, the disposition of the reassessments securing the Bonds and the administration and payment of the Bonds; and WHEREAS, the City has determined that all things necessary to cause the Bonds, when authenticated by the Fiscal Agent and issued as provided in the Act, the Resolution of Issuance and this Agreement, to be legal, Valid and binding and limited obligations in accordance with their terms, and all things necessary to cause the creation, authOrization, execution and delivery of this Agreement and the creation, authorization, execution and issuance of the Bonds, subject to the terms hereof, have in all respects been duly authorized; 'NOW, THEREFORE, in consideration of the covenants and provisions herein set forth and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows: -1- "Indenture (85-1)" means the Indenture of Trust. dated as of August 1, 1986, by and between the City and Citibank, N.A., as trustee, as supplemented and amended, pursuant to which the Bonds (85-1) were issued. "Indenture (86-2)" means the Indenture of Trust, dated as of September I, 1988, by 'and between the City and Citibank, N.A., as supplemented and amended, pursuant to which the Bonds (86-2) were issued'. "Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30 Montgomery Street, 10th Floor, jersey City, New Jersey 07302, Attention: Editor; Kenny Information Services' Called Bond Service, 55 Broad Street, 28th Floor, New York, New York 10004; Moody's Investors Service Municipal and Government," 5250 77 Center Drive, Suite 150, Charlotte, North Carolina 28217, Attention: Municipal News Reports; Standard & Poor's Corporation "Called Bond Record," 25. Broadway, 3rd Floor, New York, New York 10004; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such services providing information with respect to called bonds as the City may designate in a Written Certificate of the City delivered to the Fiscal Agent. "Interest Payment Dates" means March 2 and September 2 of each year, commencing MarCh 2, 1996, so long as any Bonds remain Outstanding. "Moody's" means Moody's Investors Service, Inc., 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 seledted by the City. "Office" means the principal corporate umst office of the Fiscal Agent in Los Angeles, California, or such other office as may be specified to the City by the Fiscal Agent in writing. "Original Purchaser" means the Authority, as the original purchaser of the Bonds. "Outstanding," when used as of any particular time with reference to Bonds, means (subject to the provisiOns of Section 11.09) all Bonds theretofore, or thereupon being, authenticated and delivered by the Fiscal Agent under this Agreement except: (a) Bonds theretofore canceled by the Fiscal Agent or surrendered to the Fiscal Agent for cancellation; (b) Bonds with respect to which all liability of the City shall have been discharged in accordance with Section 10.02, inclUding Bonds (or portions of Bonds) disqualified under Section 11.09; and (c) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Fiscal Agent pursuant to this Agreement. ."Owner" means, with respect to a Bond, the Person in whose name such Bond is registered on the Registration Books. "Permitted Investments" means the following, but only to the extent that the same are acquired at Fair Market Value: ' -5- (a) Federal Securities: (b) any of the following direct or indirect obligations of the following agencies of the United States of America-: (i) direct obligations of the Export-Import Bank: (ii) certificates of beneficial ownership issued by the Farmers Home Administration; (iii) participation certificates issued by the General Services Administration; (iv) mortgage-backed bonds or pass-through obligations issued and guaranteed by the Government National Mortgage Association, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation or the Federal Housing Administration; (v) project notes issued by the United States Department of Housing and Urban' Development; and (vi) public housing notes and bonds guaranteed by the United States of America; (c) interest-bearing demand or time deposits (including certificates of deposit) or deposit accounts in federal or state chartered savings and loan associations or in federal or State of California banks (including the Fiscal Agent), provided that (i) the unsecured short-term obligations of such commercial bank or savings and loan association shall be rated A1 or better by s&p, or (ii) such demand or time deposits shall be fully insured by the Federal Deposit Insurance Corporation; (d) commercial paper rated in the highest short-term rating category by S&P, issued by corporations which are organized and operating within the United States of America, and which matures not more than 180 days following the date of investment therein; (e) bankers acceptances, consisting of bills of exchange or time drafts drawn on and accepted by a commercial bank whose short-term obligations are rated in the highest short-term rating category by S&P, which mature not more than 270 days following the date 'of investment therein; (f) obligations the interest on which is excludable from gross income pursuant to Section 103 of the Tax Code and which are rated A or better by S&P; (g) obligations issued by any corporation organized and operating within the United States of America having assets in excess of $500,000,000, which obligations are rated A or better by S&P; (h) money market funds which are rated Am or better by S&P; (i) any investment agreement which is approved in writing by S&P prior to the time of initial investment; and (j) the Local Agency Investment Fund established pursuant to Section 16429.1 of the Government Code of the State of California to the extent the Fiscal Agent may deposit and withdraw funds directly, provided that the Fiscal Agent may restrict such investment if required to keep moneys available for the purposes of this Agreement. "Person" means an individual, corporation, f'am, association, partnership, trust, or other legal entity or group of entities, including a governmental entity or anY agency or political subdivision thereof. "Prepayment Account" means the account within the Redemption Fund by that name established and held by the Fiscal Agent pursuant to Section 5.03. "PriOr Bonds" means, collectively, the $14,490,000 aggregate principal amount of Bonds (85-1) that have been converted to a fixed interest rate purs. uant to the Indenture (85-1) -6- and the $35,910,000 aggregate principal amount of Bonds (86-2) that have been converted to a fixed interest rate pursuant to the Indenture (86-2). "Prior District 85-1" means City of Tustin Assessment District No. 85-1, the assessments in which were confirmed by ResolutiOn No. 86-81, adopted by the City Council of the City on June 16, 1986. "Prior District 86-2" means City of Tustin Assessment District No. 86-2, the assessments in which were confirmed by Resolution No. 88-81 adopted by the City Council of the City on July 18, 1988. ' "Project" means the improvements to be acquired, constructed and installed described in the Resolution of Intention. -"Reassessments" means the reassessments levied within the Assessment District by the Council under the proceedings taken pursuant to the Resolution of Intention. "Record Date" means: (a) the 15th calendar day of the month preceding each Interest Payment Date, whether or not such day is a Business Day, and (b) any date established by the Fiscal Agent pursuant to Section 2.02(c) as a Record Date for the payment of defaulted interest on the Bonds, if any. "Redemption Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 5.02. "Redemption Price" means the aggregate amount of principal of and premium (if any) on the Bonds upon the redemption thereof pursuant hereto. "Registration Books" means the records .maintained by the Fiscal Agent for the registration of ownership and registration of transfer of the Bonds pursuant to Section 2.04. "Reserve.Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 5.05. "Reserve Requirement" means, as of the date of any calculation, [the lesser of (a) ten percent (10%) of the original aggregate principal amount of the Bonds, or (b) the maximum amount of principal of and interest on the Bonds coming due and payable in the current or 'any future Bond Year]. "Resolution of Intention" means Resolution No. ,1995. , adopted by the Council on "Resolution of Issuance" means Resolution No. ,1995, authorizing the issuance of the Bonds. , adopted by the Council on "S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., 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 entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, then the term shall be "S&P" deemed to refer to any other nationally recognized securities rating agencY selected by the City. "Securities Depositories" means The Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530, Fax- (516) 227-4039 or 4190'; Midwest Securities Trust Company, Capital Structures - Call Notification, 440 South LaSalle Street, Chicago, Illinois -7- 6(}605, Fax - (312) 663-2343; Philadelphia Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia, Pennsylvania 19103, Attention: Bond Department, Dex - (215) 496-5058; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories as the City may designate in a Written Certificate of the City delivered to the Fiscal Agent. "Supplemental Agreement" means any agreement amendatory of or supplemental to this Agreement, but only if and to the extent that such Supplemental Agreement is specifically authorized h_ereunder. "Treasurer" means the Treasurer of the City, or a designee thereof. "Written Certificate" and ''Written Request" of the City mean, respectively, a written certificate or written request Signed in the name of the City by its Authorized Representative. Any such certificate or request may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. · ,. Section 1.03. Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular shah include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof. (c) All references herein to "Articles," "Sectioris" and other subdiVisions are to the corresponding Articles, Sections or subdivisions of this Agreement; the words "herein," "hereof, .... hereby," "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision h[reof. Section 1.04. Aereement Constitutes Contract... In consideration of the purchase and acceptance of any and ~ of the Bonds issued hereunder by those who shall hold the same from time to time, this Agreement shall be deemed to be and shah constitute a contract among the City, the Fiscal Agent and the Owners of the Bonds. The pledge made in this Agreement and the provisions, covenants and agreements herein set forth to be performed by or on behalf of the City shall be for the equal benefit, protection and security of the Owners of any and all of the Bonds. All of the Bonds, without regard to 'the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided in or permitted by this Agreement. -8- ARTICLE II THE BONDS Section 2.01. Authorization of Bonds. The City hereby authorizes the issuance of the Bonds under and subject to the terms of the Resolution of Issuance and this Agreement, the Act and other applicable laws of the State of California for the purpose of providing a portion of the moneys to refund the Prior Bonds. Section 2.02. Terms of Bonds. (a) The Bonds shall be designated "City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch)", and shall be secured by and payable from the Reassessments and other assets pledged hereunder. The aggregate principal amount of Bonds that may be issued and Outstanding under this Agreement shall not exceed $ , except as may be otherwise provided in Section 2.08. (b) The Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no Bond shall have more than one maturity date. The Bonds shall be dated as of ,1995, shall be issued in the aggregate principal amount of $ , shall mature on September 2, 2013, and shall bear interest (calculated on the basis of a 360-day year comprised of twelve 30-day months) at the nominal rate of ~% per annum; provided, however, that the actual rate of interest to be borne by the Bonds shall be adjusted as of each September 1 to be a rate per annum such that the sum of (i) the product of such rate (expressed as a decimal) times the principal amount of Bonds Outstanding as of the close of business on such September 1, plus (ii) the amount to be deposited on the following September 3 in the Redemption Fund, pursuant to Section 5.02 (a), from amounts transferred by the Authority Trustee from the Surplus Fund established under the Authority Indenture, is equal to the product of the nominal rate (expressed as a decimal) times the principal amount of Bonds Outstanding as of the close of business on such September 1. (c) Interest on the Bonds shall be payable from the Interest Payment Date next preceding the date of authentication thereof unless (i) a Bond is authenticated on or before an Interest Payment Date and after the close of business on the preceding Record Date, in which event it shall bear interest from such Interest Payment Date, (ii) a Bond is authenticated on or before the first Record Date, in which event interest thereon shall be payable from ,1995, or (iii) interest on any Bond is in default as of the date of authentication thereof, in which event interest thereon shall be payable from the date to which interest has been paid in full, payable 'on each Interest Payment Date. Interest shall be paid in lawful money of the United States on each Interest Payment Date to the Persons in whose names the ownership of the Bonds is registered on the Registration Books at the close of business on the immediately preceding Record Date, except as provided below. Interest on any Bond which is not punctually paid or duly provided for on any Interest Payment Date shall be payable to the Person in whose name the ownership of such Bond is registered 'on the Registration Books at the close of business on a special Record Date to be established by the Fiscal Agent for the payment of such defaulted interest 'to be fixed by the Fiscal Agent, notice of which shall be given to such Owner not less than ten days prior to such special Record Date. Interest shall be paid by check of the Fiscal Agent mailed by first class mail, postage prepaid, on each Interest Payment Date to the Bond Owners at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date. .. (d) The principal of the Bonds shall be payable in lawful money of the United States of America upon presentation and surrender thereof upon maturity or earlier redemption at the Office of the Fiscal Agent. Payment of principal of any .Bond shah be made only upon presentation and surrender of such Bond at the Office of the Fiscal Agent. -9- (e) Notwithstanding the foregoing, so long as the ownership of the Bonds is registered in the name of the Authority Trustee, the payment of principal of, premium, if any. and interest on the Bonds .shall be made to the Authority Trustee in immediately available funds on each applicable payment date, in an amount equal to the principal, interest and any premium due on the Bonds on the applicable payment date. (f) The Bonds shill be subject to redemption as provided in Article IV. (g) The Bonds shall be in substantially the form set forth in Exhibit A hereto, with appropriate or necessary insertions, omissions and variations as permitted or required hereby. Section 2.03. Transfer and Exchanee of Bonds. Any Bond may, in accordance with its terms, be transferred upon the Registration l~ooks by the Person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form acceptable to the Fiscal Agent. Whenever any Bond or Bonds shall be surrendered for transfer, the City shall execute and the Fiscal Agent shall authenticate and shall deliver a new Bond or Bonds for a like aggregate principal amount, in any authorized denomination. The Fiscal Agent shall require the Bond Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. The Bonds may be exchanged at the Office of the Fiscal Agent for a like aggregate principal amount of Bonds of other authorized denominations. The Fiscal Agent shall require the payment by the Bond Owner requesting such exchange of any tax or other governmental charge required to.~.e paid with respeCt to such exchange. The Fiscal Agent shall not be obligated to make any transfer or exchange of Bonds pursuant to this. Section 2.03 during the period established by the Fiscal. Agent for the selection of Bonds for redemption, or with respect to any Bonds selected for redemption. Section 2.04. Registration Book~q. The Fiscal Agent will keep or cause to be kept, at the Office of the Fiscal Agent, sufficient records for the registration and transfer of ownership of the Bonds, which shall be open to inspection during regular business hours and upon 24 hours notice by the City; and, upon presentation for such purpose, the Fiscal Ageni shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on suCh records, the ownership of the Bonds as hereinbefore provided. Section 2.05. Execution of Bonds. The Bonds shall be executed in the name and on behalf of the City with the facsimile signature of the Treasurer attested by the manual or facsimile signature of the City Clerk. The City's seal or a facsimile thereof, may be reproduced, 'imprinted or impressed on the Bonds. The Bonds shall then be delivered to the Fiscal Agent for authentication by it. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the City before the Bonds so signed or attested shall have been authenticated or delivered by the Fiscal Agent, or issued by the City, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the City as though those who signed and attested the same ~had continued to be such officers of the City, and also any Bonds may be signed and attested on behalf of the City by such Persons as at the actual date of execution of such Bonds shall be the proper officers of the City although at the nominal date of such Bonds any such Person shall not have been such officer of the City. Section 2.06. Authentication of Bonds. Only such of the Bonds as shall bear thereon a certificate of authentication substantially in-the form set forth in Exhibit A hereto, manually -10- executed by the Fiscal Agent/, shall be valid or obligatory for an3, purpose or entitled to the benefits of this Agreement, and such certificate of or on behalf of the Fiscal Agent shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered hereunder and are entitled to the benefits of this Agreement. Section.2.07. Temoorary Bonds. The Bonds may be issued in temPorary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bonds may be printed, lithographed or typewritten, shall be of such authorized denominations as may be determined by the City, shall be in fully registered form without coupons and may contain '~uch reference to any of the provisions of this Agreement as may be appropriate. Every temporary Bond shall be executed by the City and authenticated by the Fiscal Agent upon the same conditions and in substantially the same manner as the definitive Bonds. If the City issues temporary Bonds it will execute and deliver definitive Bonds as promptly thereafter as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, at the Office of the Fiscal Agent and the Fiscal Agent shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged, the,temporary Bonds shall be entitled to the same benefits under this Agreement as definitive Bonds authenticated and delivered hereunder. Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become mutilated~ the City, at the expense of the Owner of said Bond, shall execute, and the Fiscal Agent shall thereupon authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to 'the Fiscal Agent of.the Bond so mutilated. Every mutilated Bond so surrendered to the Fiscal Agent shall be canceled by it and delivered to, or upon the order of, the City. If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to [he Fiscal Agent and, if such evidence and indemnity satisfactory to the Fiscal Agent shall be given, the City, at the expense of the Owner, shall execute, and the Fiscal Agent shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in replacement for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a. replacement Bond, the FisCal Agent may pay the same without surrender ~hereof). The City may require payment by the Owner of a sum'not exceeding the actual cost of preparing each replacement Bond issued under this Section and of the expenses which may be incurred by the City and the Fiscal Agent. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement with all other Bonds secured by this Agreement.. Section 2.09. Limited Oblieation. All obligations of the City under this Agreement and the Bonds shall not be general obligations of the City, but shall be limited obligations, payable solely from the Reassessments and the assets pledged therefor hereunder~ Neither the faith and credit of the City nor of the State of California or any political subdivision thereof is Pledged to the payment of the Bonds. The Bonds are "Limited Obligation Improvement Bonds" as provided in Section 11.01. Section 2.10. No Acceleration. The principal of the Bonds shall not be subject to acceleration hereunder. Nothing in this Section shall in any way prohibit the prepayment or redemption of Bonds under Article IV hereof, or the defeasance of the Bonds and discharge of this Agreement under Article X hereof. Section 2.11. Refundine 9f Bonds. The Bonds may be refunded by the City under Divisions 11 or 11.5 of the Calif6rnia Streets and Highways Code upon the conditions set forth in proceedings therefor, all as determined by the Council. -11- ARTICLE III ISSUANCE OF BONDS Section 3.01. Issuance of Bonds. Concurrent with the execution of this Agreement, the City shall execute and the Fiscal Agent shall authenticate the Bonds and deliver the Bonds to the Original Purchaser in the aggregate principal amount of $ . Section 3.02. Application of Proceeds of the Bond~. On the ClOsing Date, the proceeds of the sale of the Bonds shall be paid to the Fiscal Agent and said amounts, together with the amounts transferred to the Fiscal Agent from the funds and accounts held under the Indenture (85-1) and the Indenture (86-2), shall be transferred or deposited by the Fiscal Agent as follows: (a) The Fiscal Agent shall deposit the amount of $ Fund, constituting the full amount of the Reserve Requirement. in the Reserve (b) The Fiscal Agent shall deposit the amount of $ Fund. in the Costs of Issuance (c) The Fiscal Agent shall deposit the amount of $ Fund. in the Improvement ~(d) The Fiscal Agent shall transfer to the Escrow Bank for deposit in the Escrow Fund established under the Escrow Agreement the amount of $. ' , constituting the.remainder of said proceeds. Section 3.03. Costs of Issuance Fund. There is hereby established a separate fund to be known as the "CoSts of Issuance Fund", which shall be held by the Fiscal Agent in trust. On the Closing Date there shall be deposited in the Costs of Issuance Fund the amount specified in Section 3.02(c). The moneys in the Costs of Issuance Fund shall be used and withdrawn by the Fiscal Agent from time to time to pay the Costs of Issuance upon submission of a Written Request of the City stating (a) the Person to whom paYment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge against the Costs of Issuance Fund, and (e) that such amounts have not been the subject of a prior disbursement from the Costs.of Issuance Fund; in each case together with a statement or invoice for each amount requested thereunder. On 1, 1996, all amounts remaining in the Costs of Issuance Fund shall be withdrawn therefrom by the Fiscal Agent and transferred to the Redemption Fund and the Costs of Issuance Fund shall be closed. Section 3.04. Improvement Fund. There is hereby established a separate fund to be known as the "Improvement Fund", which shall be held by the Fiscal Agent in trust. On 'the Closing Date there shall be deposited in the Improvement Fund the amount specified in Section 3.02(d). The moneys in the Improvement Fund shall be used and withdrawn by the Fiscal Agent from time to time to pay the costs of the Project upon submission of a Written Request of the City stating (a) the Person 'to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment constitutes a cost of the Project and is a proper charge against the Improvement Fund, and (e) that such amounts have not -12- been the subject of a prior disbursement from the Improvement Fund; in each case together with a statement or invoice.for each amount requested thereunder. Upon the filing of a Written Certificate of the City stating that the Project has been completed and that all costs of the Project have been paid or are not required to be paid from the hnprovement Fund, the Fiscal Agent shall transfer and apply the amount, if any, remaining in the hnprovement Fund as directed in said Written Certificate, which directions shall be prepared in accordance with the provisions of Sections 10427 and 10427.1 of the Act, and the Improvement Fund shall be closed. -13- ARTICLE IV REDEMPTION OF BONDS Section 4.01. Redemption. (a) Optional Redemption. The Bonds shall be subject to optional redemption in whole or in part, on any Interest Payment Date on or after September 2, 2004, at the following respective Redemption Prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption: Redemption Dates Redemption Price September 2, 2004 and March 2, 2005 September 2, 2005 and March 2, 2006 September 2, 2006 and thereafter 102% 101 100 (b) Mandatory Redemption From Reassessment Prepayments. The Bonds shall be subject to mandatory redemption, in whole or in part, on any Interest Payment Date, from and to the extent of any prepayment of Reassessments, at the following respective Redemption Prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption: .Redemption Dates Redemption Price March 2, 1996 through March 2, 2004 September 2, 2004 and March 2, 2005 September 2, 2005 and March 2, 2006 September 2, 2006 and thereafter 103% 102 101 100 The Treasurer shall notify the Fiscal Agent of Bonds to be called for redemption upon prepayment of Reassessments in amounts sufficient therefor, or whenever sufficient surplus funds are available therefor on the Redemption Fund. (c) Mandato~3, Sinking Futut Redemption. The Bonds shall be subject to mandatory sinking fund redemption, in part, on September 2 in each year, commencing September 2, 1996, at a Redemption Price equal to the principal amount of the Bonds to be redeemed, without premium, plus accrued interest thereon to the date of redemption, in the aggregate respective principal amounts in the respective years as follows: -14- 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 Sinking Fund Redemption Date . (September 2) (maturity) Principal Amount to be Redeemed If some but not all of the Bonds are redeemed pursuant to Section 4.01 (a), the principal amount of Bonds to be redeemed pursuant to Section 4.0 l(c) on any subsequent September 2 shall be reduced, by $5,000 or an integral multiple thereof;as designated by the City in a Written Certificate of the City filed with the Fiscal Agent; provided, however, that the aggregate amount of such reductions shall not exceed the aggregate amount of Bonds redeemed pursuant to Section 4.01(a). If some but not all of the Bonds are redeemed pursuantto Section 4.01(b), the principal amount of Bonds to be subsequently redeemed pursuant to Section 4.01 (c) shall be reduced by the aggregate princiPal amount of the Bonds so redeemed pursuant to Section 4.01(b), such reduction to be allocated (i) if the Fiscal Agent has been notified pursuant to Section 6.01 (b) that the Reassessment prepayment out of which such redemption is to be made relates to property that was included in Prior District 85-1, among redemption dates through and including 2011', and (ii) if the Fiscal Agent has been notified pursuant to Section 6.01(b) that the Reassessment prepayment out'of which such redemption is to be made relates to property.that was included in Prior District 86-2, among redemption dates through and including 2013, as nearly as practicable on a pro rata basis in amounts of $5,000 or integral multiples thereof, as determined by the City, notice of Which determination shall be given by the City, to the Fiscal Agent. Section 4.02. Notice of Redemr}tion. The Fiscal Agent on behalf and at the expense of the City shall mail (by first class mail) notice of any redemption to the respective Owners of any Bonds designated for redemption at their respective addresses appearing on the Registration Books, and (if the Authority Trustee is not the Owner of all of the Bonds) to the Securities Depositories and to one or more Information Services, at least 30 but not more than sixty 60 days prior to the date fixed for redemption. Such notice shall state the date of the notice, the redemption date, the redemption place and the Redemption Price and shall designate the CUSIP numbers, the Bond numbers (except in the event of redemption of all of the Bonds of a maturity or maturities in whole) and the maturity or maturities of the Bonds to be redeemed, and shall require that such Bonds be then surrendered at the Office of the Fiscal Agent for redemption at the Redemption Price, giving notice also that further interest on such Bonds will not accrue from and after the date fixed for redemption. Neither the failure to receive any notice so mailed, nor any defect in such notice, shall affect the sufficiency of the proceedings for the redemption of the Bonds or the cessation of accrual of interest thereon from and after the date fixed for redemption. -15- Section 4.03. Selection of Bonds for Redem~otion. Whenever provision is made in this Agreement for the redemption of less than all of the Bonds, the Fiscal Agent shall select the Bonds to be redeemed from all Bonds not previously called for redemption, by lot in any manner which the Fiscal Agent in its sole discretion shall deem appropriate and fair. For purposes of such selection, all Bonds shall be deemed to be comprised of separate $5,000 denominations and such separate denominations shall be treated as separate Bonds which may be separately redeemed-. Section 4.04. Partial Redemntion of Bonds. Upon surrender of any Bonds redeemed in part only, the City shall execute and the Fiscal Agent shall authenticate and deliver to the Owner thereof, at the expense of the City, a new Bond or Bonds of authorized denominations equal in aggregate principal amount representing the unredeemed portion of the Bonds surrendered. Section 4.05. Effect of Notice of Redemption. Notice having been mailed as aforesaid, and moneys for the redemption (including the interest to the applicable date fixed for redemption and including any applicable premium), having been deposited in the Redemption Fund or Prepayment Account, as applicable, the Bonds shall become due and payable on said date, and, upon presentation and surrender thereof at the Office of the Fiscal Agent, said Bonds shall be paid at the Redemption Price thereof, together with interest accrued and unpaid to said date. If, on said date fixed for redemption, moneys for the redemption of all the Bonds to be redeemed, together with interest to said date, shall be held by the Fiscal Agent so as to be available 'therefor on such date, and, if notice of redemption thereof shall have been mailed as aforesaid and not canceled, then, from and after said date, interest on said Bonds shall cease to accrue and become payable. All moneys held by or on behalf of the Fiscal Agent for the redemption of Bonds shall be held in trust for the account of the Owners of the Bonds so to be redeemed. All Bonds paid at maturity or redeemed prior to maturity pursuant to the provisions hereof shall be canceled upon surrender thereof and the Fiscal Agent shall deliver a certificate of destruction to the City. -16- ARTICLE V SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENq'S Section 5.01. Pledge and Assignment. Subject only to the provisions of this Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Reassessments (including prepayments thereof), together with interest and any penalties thereon, and any other amounts (including proceeds of the sale of the Bonds) held in any fund or account established pursuant to this Agreement are hereby pledged by the City to secure the payment of the principal of, premium, if any, and interest on the Bonds in accordance with their terms, the provisions of this Agreement and the Act. Said pledge shall constitute a first lien on and security interest in such assets. Section 5.02. Redemption Fun.cl. (a) The Fiscal Agent shall establish, maintain and hold in trust a special fund designated the "Redemption Fund." The Fiscal Agent shall deposit in the Redemption Fund the amount specified in Section 3.02(a). Additionally, except as otherwise provided herein, the Fiscal Agent shall deposit in the Redemption Fund all Reassessments (including prepayments thereof), together with interest and any penalties thereon,, and any other amounts required to be deposited therein by this Agreement or the Act. Amounts transferred, on September 3 of each year, to the Fiscal Agent by the Authority Trustee from the Surplus Fund established under the Authority Indenture shall be deposited[, fkst, in the Reserve Fund if and to the extent that the amount on deposit therein is less than the Reserve Requirement and, second,] in the Redemption Fund. (b) On or before each .Interest Payment Date, the Fiscal Agent shall withdraw from the Redemption Fund for payment to the Owners of the Bonds the principal, if any, of and interest then due and payable on the Bonds; including principal due and payable by reason of mandatory sinking fund redemption of such Bonds pursuant to Section 4.01(c). Five Business Days prior to each Interest Payment Date, the Fiscal Agent shall determine if the amounts then on deposit in the Redemption Fund are sufficient to pay the principal, if any, of and interest due on the Bonds on such Interest Payment Date. In the event that amounts in the Redemption Fund are insufficiefit for such purpose, the Fiscal Agent, on or before such Interest Payment Date, shall withdraw from the Reserve Fund to the extent of any funds therein the amount of such insufficiency, and shall transfer any amounts so withdrawn to the Redemption .Fund. Amounts so withdrawn from the Reserve Fund and deposited in the Redemption Fund shall be applied to the payment of the Bonds. If, after the foregoing transfer, there are insufficient funds in the Redemption Fund to pay the principal, if any, of and interest on the Bonds, the Fiscal Agent shall apply the available funds tn:st to the payment of .interest on the Bonds, then to the payment of principal of the Bonds. (c) The Fiscal Agent shall deliver to the Authority Trustee, on July 1 of each year, a written notification stating (i) the amount of debt service payable on the Bonds on the following September 2, (ii) the amount on deposit in,the Redemption Fund as of such July .1, and (iii) the amount, if any, by which the amount on deposit in the Reserve Fund on such July 1 is less than the Reserve Requirement. The City shall cause the Authority Trustee to deliver to the Fiscal Agent, no later than July 15 of each year, a written notification stating the amount that the Authority Trustee expects to transfer to the Fiscal Agent on the following September 3 from the Surplus Fund established under the Authority Indenture. The City shall cause the Assessment Consultant to calculate the portion of such amount allocable to parcels within the Assessment District that were included in Prior District 85-1 and the portion of such amount allocable to parcels within the Assessment District that were included in Prior District 86-2. -17- Section 5.03. Pret~avment Accolmt. The Fiscal Agent shall establish and maintain a special account within the Redemption Fund designated the "Prepayment Account". The Fiscal Agent shall deposit in the Prepayment Account the proceeds of the prepayment of any Reassessment. Additionally, the Fiscal Agent shall deposit in the Prepayment Account amounts received from the City in connection with the City's exercise of its rights to optionally redeem Bonds pursuant to Section 4.01 (a). Amounts in the Prepayment AccoUnt shall be disbursed therefrom for the payment of the Redemption Price of Bonds redeemed pursuant to Section 4.01 (a) or Section 4.01 (b). Section 5.04. Continuing Costs Accollnt. The Fiscal Agent shall establish and maintain a special account within the Redemption Fund designated the "Continuing Costs Account". The Fiscal Agent shall deposit in the Continuing Costs Account amounts collected for Continuing Costs of the Bonds.. The moneys in the Continuing Costs Account shall be used and withdrawn by the Fiscal Agent from time to time to pay the Continuing Costs of the Bonds upon submission of a Written Request of the City stating (a) the Person to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment constitutes a Continuing Cost of the Bonds and is a proper charge against the Continuing Costs Account, and (e) that such amounts have not been the subject of a prior disbursement from the Continuing Costs Account; in each case together with a statement or invoice for each amount requested thereunder. Section 5.05. Reserve Fl~n~l. (a) The Fiscal Agent shall establish, maintain and hold in trust a special fund designated the "Reserve Fund". The .Fiscal Agent shall deposit in the Reserve Fund the amount specified in Section 3.02(b). Additional deposits shall be made as provided in the Act. The City shall cause the Reserve Fund to be administered in accordance with Part 16 of the Act; provided that proceeds from redemption or sale of properties, with respect to which payment of delinquent Reassessments and interest thereon was made from the Reserve Fhnd, shall be credited to the Reserve Fund. (b) Except as otherwise provided in this Section, all amounts deposited in the Reserve Fund shall be used and withdrawn by the Fiscal Agent solely for the purpose of making transfers to the Redemption Fund in the event of any deficiency at any time in the Redemption Fund of the amount then required for payment of the principal of, premium, if any and interest on the Bonds or, in accordance with the provisions of this Section, for the purpose of redeeming Bonds from the Redemption Fund. (c) Transfers shall be made from the Reserve Fund to the Redemption Fund in the event of a deficiency in the Redemption Fund, in accordance with Section 5.02(b). (d) Whenever, after the issuance of the Bonds, a Reassessment is prepaid, in whole or in part, as provided in the Act, the Fiscal Agent, pursuant to a Written Request of the City, shall transfer from the Reserve Fund to the PrepaYment Account an amount, specified in such Written Request, equal to the product of the ratio of the original amount of the Reassessment, or portion thereof, so prepaid to the original amount of all unpaid Reassessments, times the initial Reserve Requirement. (e) So long as no Event of Default shall have occurred and be continuing, any amount in the Reserve Fund in excess of the Reserve Requirement on February 15 and August 15 of each -18- 3,ear shall be withdrawn from the Reserve Fund by the Fiscal Agent and shall be deposited in the Redemption Fund. (0 Prior to jUly 15, 2010 the City shall cause the Assessment Consultant to calculate the portion (as a percentage) of the amount on deposit in the Reserve Fund allocable to the properties in the. A. ssessment District that were included in Prior District 85-1 and that, as of such date, have remmmng unpaid Reassessments. On August 20, 2011, the Fiscal Agent shall withdraw from the Reserve Fund and deposit in the Redemption Fund such percentage of the amount on deposit in the Reserve Fund on such date. Said amount shall be applied to the payment of the Bonds on September 2, 2011. (g) Whenever the balance in the Reserve Fund is sufficient to retire all the Outstanding Bonds, whether by advance retirement or otherwise, collection of the principal and interest on the Reassessments shall be discontinued and the Reserve Fund liquidated by the Fiscal Agent in retirement of the Outstanding Bonds, as directed by a Written Request of the City. In the event that the balance in the Reserve Fund at the time of liquidation exceeds the amount required to retire all of the Outstanding Bonds, the excess shall, after payment of amounts due to the Fiscal Agent, be transferred to the City to be used in accordance with the Act. Section 5,06. Investment of Moneys. Except as otherwise provided herein, all moneys in any of .the funds or accounts established pursuant to this Agreement shall be invested by the Fiscal Agent solely in Permitted Investments, as directed in writing by the City two Business Days prior to the making of such investment. All Permitted Investments shall be acquired subject to any restrictive instructions given to the Fiscal Agent pursuant to Section 6.10 and such addi~onal.1..imitations or requirements consistent with the foregoing as may be established by the Written Request of the City. Moneys in all funds and accounts shall be invested in Permitted Investments maturing not later than the date on which it is estimated that such moneys will be required for the purposes specified in this Agreement; provided, however, that Permitted Investments in which moneys in the Reserve Fund are So invested shall mature no later than the earlier of five years from the date of investment Or the final maturity date of the Bonds, and provided, further, that if such Permitted Investments may be redeemed at par so as to be available on each Interest Payment Date, any amount in the Reserve Fund may be invested in such redeemable Permitted Investments maturing on any date on or prior to the final maturity date of the Bonds. Absent timely written direction from the City, the Fiscal Agent shall invest any funds held by it in Permitted Investments described in clause (c) of the definition thereof. Subject to the provisions of Section 6.10, all interest, profits and other income received from the investment of moneys in any fund or account established pursuant to this Agreement shall, prior to the date on which the Improvement Fund is closed pursuant to Section 3.04, be deposited in the Improvement Fund and shall, thereafter, be deposited in the Redemption Fund; provided, however, that all interest or gain from the investment of amounts in the Reserve Fund shall be retained therein and, provided further, that before any such deposit shall be made, such interest, profits and other income shall be available for the payment of any rebate that may be owed under the Code, as speCified in a Written Request of the City delivered to the Fiscal Agent. Permitted Investments acquired as an investment of moneys in any fund established under this Agreement shall be credited to such fund. Except as otherWise provided in the following sentence, all investments of amounts deposited in any fund or account created by or pursuant to this Agreement, or otherwise containing gross proceeds of the Bonds (within the meaning of section 148 of the Code) shall be acquired, disposed of, and valued (as of the date that valuation is required by this Agreement or the Code) at Fair Market Value. Investment in funds or accounts (or portions thereof) that are subject to a yield restriction under apPlicable provisions of the Code shall be valued at their present value (within the meaning of section 148 of the Code). -19- The Fiscal Agent may act as principal or agent in the making or disposing of any investment. Upon the Written Request of the City, the Fiscal Agent shall sell or present for redemption any Permitted Investments so purchased whenever it shall be necessary to provide moneys to meet any required payment., transfer, withdrawal or disbursement from the fund to which such Permitted Investments is credited, and the Fiscal Agent shall not be liable or responsible for any loss resulting from any investment made or sold pursuant to this Section. For purposes of investment, the Fiscal Agent may commingle moneys in any of the funds and accounts established hereunder. -20- ARTICLE VI COLLECTION AND APPLICATION OF REASSESSMENTS; PARTICULAR COVENANTS Section 6.01. Collection and Aoolication of Reassessments. (a) The City shall comply with all requirements of the Act, th~ Resolution of Issuance and this Agreement to assure the timely collectiOn of the Reassessments, and interest thereon, including, without limitation, the enforcement of delinquent Reassessments. Any funds received by the City in and for the Assessment District, including, but not limited to, collections of Reassessments (including prepayments thereof), and interest thereon, upon the secured tax rolls, collections of delinquent Reassessments and interest and penalties thereon, through foreclosure proceedings or otherwise, and collections of amounts for the Continuing Costs of the Bonds, shall be immediately transmitted directly to the Fiscal Agent, without deduction, to be deposited into the funds and accounts herein specified. (b) The Reassessments and interest thereon, shall be payable and be collected in the same manner at the same time and in the same installments as the general taxes on real property are payable, and have the same priority, become delinquent at the same time and in the same proportionate amounts and bear the same proportionate penalties and interest after delinquency as do the general, taxes on real property. The Reassessments, together with the interest thereon, shall be payable in annual series corresponding in number to the number of series of Bonds. An annual proportion of each Reassessment, together with interest thereon, shall be payable in each year preceding the date of maturity of each of the several series of Bonds in an amount sufficient to pay such Bonds, and interest thereon, when due. In addition, the City shall, in accordance with and subject to the limitations contained in Section 8682 and seCtion 8682.1 of the Act, cause to be included in the annual assessment roll, an amount estimated to be sufficient to pay the Continuing Costs of the Bonds for the following annual period. · The Treasurer shall, before the final date on which the Auditor will accept the · transmissibn of the Reassessments for inclusion on the next tax roll, prepare or cause to be prepared, and shall transmit to the Auditor, such data as the Auditor requires to include the installments of such Reassessments, together with interest thereon, and the Continuing Costs of the Bonds on the next secured tax roll of the County. Such data shall take into account the amount expected to be transferred, on the following September 3, to' the Fiscal Agent by the Authority Trustee from the Surplus Fund established under the Authority Indenture and the allocation thereof determined by the Assessment Consultant as provided in Section 5.02(c). The Treasurer is hereby authorized to employ consultants to assist in Computing the installments of the Reassessments hereunder and in reconciling Reassessments billed to amounts received. All sums received fi.om the collection of the Reassessments and of the interest and penalties thereon shall be placed in the Redemption Fund. All amounts collected for the Continuing Costs of the Bonds shall be placed in the Continuing Costs Account. Any prepayments of Reassessments shall be placed in the Prepayment Account; provided, however, that amounts attributable to the administrative costs of the prepayment of Reassessments shall be placed in the Continuing Costs Account. Upon the prepayment of any Reassessment, the City shall cause the Assessment Consultant to determine, and to notify the Fiscal Agent in writing, whether such prepayment relates to property that was included in Prior District 85-1 or property that was included in Prior District 86-2. -21- Upon receipt of any Reassessments, or interest or penalties thereon, or prepayments of Reassessments or amounts collected for the Continuing Costs of the Bonds, the City shall, as soon as practicable, transfer the same to the Fiscal Agent, together with a Written Certificate of the City that identifies which portion, if any, of the amounts so transferred that constitute Reassessments, or interest or penalties thereon, or prepayments of Reassessments or amounts collected for the Continuing Costs of the Bonds. (c) Any Reassessment may be'prepaid at any time by paying, in whole or part, the unpaid amount thereof less, if available, the amount transferred to the Redemption Fund from the Reserve Fund pursuant to Section 5.05(d), if any, together with the redemption premium, if any, set forth in Section 4.02(b) and interest on such prepaid Reassessment (if not collected in a Reassessment installment) to the earliest Redemption Date for which notice of redemption may be given in accordance herewith. Section 6.02. Foreclosure. The City hereby covenants that it will within 150 days of a delinquency in the payment of Reassessments, or interest there°n, or amounts to pay the Continuing Costs of the Bonds, forthwith undertake and diligently prosecute foreclosure proceedings in the manner prescribed in Section 8830 et seq. of the Act to collect such delinquent amounts; provided, however, that if the amount collected is greater than 92.5% of the installment of the Reassessment and interest thereon, and amounts to pay the Continuing Costs of the Bonds, to be collected, the City shall not be required to undertake such foreclosure proceedings, unless it is determined that any single property owner is delinquent in excess of $25,000 in the payment of such amounts in' which case it shall diligently institute, prosecute and pursue such foreclosure proceedings against such property owner as set forth herein. Upon the redemption or sale of the real property responsible for such delinquencies, the City shall apply the net proceeds thereof to: (a) deposit to the Reserve Fund the amount of any delinquency advanced therefrom pursuant to Section 5.05(a), and (b) the balance, if any, shall be disbursed as set forth in the judgment of foreclosure or as required by law. Section 6.03. No Advances from Available Surnlus Funds. The City shall not be obligated to advance available funds of the City to cure an3~ deficiency which may occur in the Redemption Fund; provided, however, that said determination shall not prevent the City, in its sole discretion, from so advancing funds. : Section 6.04. Punctual Payment. The City shall punctually pay or cause to be paid the principal, premium, if any, and interest to become due in respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Agreement, according to the true intent and meaning thereof,' but only out of Reassessments and other assets pledged for such payment as provided in this Agreement and received by the City or the Fiscal Agent. Section 6.05. Extension of Payment of Bonds. The City shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such Claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Agreement, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall not have been so extended. Nothing in this Section shall be deemed to limit the right of the City to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds. Section 6.06. Against Encumbrances. The City shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Reassessments and other' assets pledged or assigned under this Agreement while any of the Bonds are Outstanding. -22- Section 6.07. Power to Issue Bonds and Make Pledge and Assignment. The City is duly authorized pursuant to the Act to issue the Bonds and to-enter into this Agreement and to pledge the Reassessments and other assets purported to be pledged under this Agreement in the manner and to the extent provided in this Agreement. The Bonds and the provisions of this Agreement are and Will be the legal, valid and binding obligations of the City in accordance with their terms, and the City and the Fiscal Agent (subject to the provisions of Articles VII and VIII) shall at all times, to the extent permitted by law, defend, preServe and protect said pledge of Reassessments and other assets and ail the rights of the Bond Owners under this Agreement against all claims and demands of all Persons whomsoever. -' Section 6.08. Accountine Records and Financial Statements. The Fiscal Agent shall at all times keep, or cause to be k~pt, proper books of record and account, prepared in aCcordance with trust industry standards, in which complete and .accurate entries shall be made of all transactions relating to the proceeds of the Bonds, the Reassessments and all funds and accounts established pursuant to this Agreement. Such books of record and account Shall be available for inspection by the City, during regular business hours and, upon 24 hours' notice and under reasonable circumstances as agreed to by the Fiscal Agent. The Fiscal Agent shall deliver to the City a monthly accounting of the funds and accounts it holds under this Fiscal Agent Agreement; provided, however, that the Fiscal Agent shall not be obligated to deliver such accounting for any fund or account that has a balance of zero. Section 6.09. Waiver of Laws. The City' shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Agreement or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the City to the extent permitted by law. Section 6.10. Tax Covenantq. (a) Private Activity Bond Limitation. The City shall assure that the proceeds of the Bonds are not so used as to cause the Authority Bonds to satisfy the private business tests of Section 141(b) of the Code or the private loan financing test of Section 141 (c) of the Code. (b) Rebate Requirement. The City shall take any and all actions necessary to assure compliance With section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government, to the extent that such section is applicable to the Authority Bonds. (c) Federal Guarantee Prohibition. The City shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Authority Bonds to be "Federally guaranteed" within the meaning of Section 149(b) of the Code. (d) Maintenance of Tax-Exemption. The City shall take all actions necessary to assure the exclusion of interest on the Authority Bonds from gross income of the Owners of the .Authority Bonds to the same extent as such interest is permitted to be excluded from gross xncome under the Code as in effect on the date of issuance of the Authority BondS. (e) No Arbitrage. The City shall not take, or permit or suffer to be taken by the Fiscal Agent or otherwise, any action with respect to' the proceeds of the Authority Bonds which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Authority 'Bonds would have caused the Authority Bonds to be "arbitrage bonds" within the meaning of section 148 of the Code. -23- Section 6.11. Report to California Debt Advisory Commission. In accordance with Section 6599. l(c) of the California Government Code, the City. shall notify the California Debt Advisory Commission by mail, postage prepaid, within ten days if either (a) the City fails to pay principal of or interest on the Bonds on any scheduled payment date, or (b) funds representing all or a portion of the Reserve Requirement are withdrawn from the ReserVe Fund to pay principal of or interest on the Bonds. The notice given pursuant to this Section shall consist of a letter to the California Debt Advisory Commission stating (a) the name of the City and the Bonds and the date of sale of the Bonds, (b) the type of non-payment (draw on ReserVe Fund or non-payment of such principal or interest), (c) the date the draw on the Reserve Fund or such non-payment occurred, and (d) the amount of the draw on the Reserve Fund or the amount of such non-payment. Section 6.12. Further Assurances. The City will make, execute and deliver any and all such further agreements, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided in this Agreement. -24- ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Section 7.01. Events of Default. The following events shall be Events of Default: (a) Failure to pay any installment of principal of any Bonds when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption or otherwise. (b) Failure to pay any installment of interest on any Bonds when and as the same shall become due and payable. (c) Failure by the City to observe and perform any of the other covenants, agreements or conditions on its part in this Agreement or in the Bonds contained, if such failure shall have continued for a period of 60 days after written notice thereof, specifying such failure and requiring the same to be remedied, shall have been given to the City by the Fiscal Agent or the Owners of not less than 25% in aggregate principal amount of the Bonds at the time Outstanding; provided, however, if in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 60 day period, such failure shall not constitute an Event of Default if corrective action is instituted by the City within such 60 day period and the City shall thereafter diligently and in good faith cure such failure in a reasonable peri. od of time. (d) The City shall commence a voluntary case under Title 11 of the United States Code or any substitute or successor statute. Section 7.02. Foreclosure. If any Event of Default shall occur under Section 7.01 then, and in each and every such case during the continuance of such Event of Default, the Fiscal Agent may or at the direction of the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding shall, commence foreclosure against any parcels of real property inthe Assessment District with delinquent Reassessments, or delinquent payments of interest thereon, or delinquent payments of amounts for the Continuing Costs 'of the Bonds, as provided in Section 8830 et. seq. of the AcL Section 7.03. Other Remedies of Bond Owners, Subject to the provisions of Section 7.07, any Bond Owner shall have the right, for the equal benefit and protection of all Bond Owners similarly situated: (a) 'by mandamus, suit, action or proceeding, to compel the City and its officers, agents or employees to perform each and every term, provision and covenant contained in this Agreement and in the Bonds, and to require the carrying out of any or all such'covenants and agreements of the City and the fulfillment of all duties imposed upon it by the Act; (b) by suit, action or proceeding in equity, to enjoin any acts or things which are unlawful, or the violation of any of the Bond Owners' rights; or (c) upon the happening of any Event of Default, by suit, action or proceeding in any court of competent jurisdiction, to require the City and its officers and employees to account as if it and they were the trustees of an.express trust. -25- Section 7.04. Application of Reassessments and Other Funds After Defalslt. If an Event of Default shall occur and be continuing, all Reassessments, including any penalties, costs, fees and other charges accruing under the Act, and any other funds then held or thereafter received by the Fiscal Agent under any of the provisions of this Agreement shall be applied by the Fiscal Agent as follows and in the following order: (a) To the payment of any expenses necessary in the opinion of the Fiscal Agent to protect the interests of the Owners of the Bonds. and payment of reasonable fees, charges and expenses of the Fiscal Agent (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Agreement; (b)' To the payment of the principal of and interest then due with respect to the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this Agreement, as follows: .First: To the payment to the Persons entitled thereto of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto, without any discrimination or preference; and Second: To the payment to the Persons entitled' thereto of'the unpaid principal of any Bonds which shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by the respective Bonds on the date of maturity or redemption, and, if the amount available shall not be sufficient to pay in full all the Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal due on such date to 'the Persons entitled thereto, without any discrimination or preference. (c) Any remaining funds shall be transferred by the Fiscal Agent to the Redemption Fund. Section 7.05. Fiscal Agent to Represent Bond Owners. The Fiscal Agent is hereby irrevocably appointed (and the successive respective Owners of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Fiscal Agent) as trustee and tree and lawful attorney-in-fact of the Owners of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to the Owners under the 'provisions of the Bonds, this Agreement, the Act and applicable provisions of any other law~ Upon the occurrence and continuance of an Event of Default or other occasion giving rise to a right in the Fiscal Agent to represent the Bond Owners, the Fiscal Agent in its discretion may, and upon the written request of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, and upon being indemnified to its satisfaction therefor, shaH, proceed to protect or enforce its rights or the rights Of such Owners by such appropriate action, suit, mandamus or other proceedings as it shall deem most effectual to protect and enforce any such right, at law or in equity, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable right or remedy vested in the Fiscal Agent and such Owners under the Bonds, this Agreement, the Act or any other law. All rights of action under this Agreement or the Bonds or otherwise may be prosecuted and enforced by the Fiscal Agent -26- Without the possession of any of the Bonds or the prOduction thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Fiscal Agent shall be brought in the name of the Fiscal Agent for the benefit and protection of the Owners of such Bonds, subject to the provisions of this Agreement. Section 7.06. Bond Owners' Direction of Proceedines. Anything in this Agreement to the contrary notwithstanding, the Owners of a majority in a~ggregate principal amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Fiscal Agent, and upon indemnification of the Fiscal Agent to its reasonable satisfaction, to direct the method of conducting all remedial proceedings taken by the Fiscal Agent hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Agreement, and that the Fiscal Agent shall have the right to decline to follow any such direction which in the opinion of the Fiscal Agent would be unjustly prejudicial .to Bond Owners not parties to such direction. Section 7.07. Limitation on Bond Owners' Rieht to Sue. No Owner of any Bonds shall have the right .to institute any suit, action or proceeding at law or in equity, for 'the protection or enforcement of any right or remedy under this Agreement, the Act or any other applicable law with respect to such Bonds, unless (a) such Owner shall have given to the Fiscal Agent written notice of the occurrence of an Event of Default, (b) the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, shall have made written request upon the Fiscal Agent to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name, (c) such Owner or said Owners shall have tendered to the Fiscal Agent indemnity against the costs, expenses and liabilities to be incurred in compliance with such request, and (d) the Fiscal Agent shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said tender of indemnity shall have been made tO, the Fiscal Agent. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Agreement or the fights of any other Owners of Bonds, or to enforce any fight under the Bonds, this Agreement, the Act or other applicable law with respect to the. Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Owners of the Outstanding Bonds, subject to the provisions of this Agreement. Section 7.08. Absolute Oblieation of City. Nothing in Section 7.07 or in any other provision of this Agreement or in the l~onds contained shall affect or impak the obligation of the City, which is absolute and unconditional, to pay the principal of and interest on the Bonds to the respective Owners of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Reassessments and other assets herein pledged therefor and received by the City or the Fiscal Agent, or affect or impair the right of such Owners, which. is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds. Section 7.09. Termination of Proceedings. In case any proceedings taken by the Fiscal Agent or any one or more Bond Owners on account of any Event of Default shall have. been discontinued or abandoned for any reason or shall have been determined adversely to the Fiscal Agent or the Bond Owners, then in every such case the City, the Fiscal Agent and the Bond Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and -27- duties of the City, the Fiscal Agent and the Bond Owners shall continue as though no such proceedings had been taken. Section 7.10. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Fiscal Agent or to the Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and .each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. Section 7.11. No Waiver of Default. No delay or omission of the Fiscal Agent or of any Owner of the Bonds to exercise any right or power arising upon the occurrence of any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Agreement to the Fiscal Agent or to the Owners of the Bonds may be exercised from time to time and as often as may be deemed expedient. -28- ARTICLE VIII FISCAL AGENT Section 8.01. Duties and Liabilities of Fiscal A~en~. (a) Duties of Fiscal Agent 'Generally. The Fiscal Agent shall, prior to an Event of Default, and after the curing of all Events of Default which may have occurred, perform such duties and only. such duties as are expressly and specifically set forth in this Agreement. The Fiscal Agent shall, during the existence of any Event of Default which has not been cured, exercise such of the rights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Removal of Fiscal Agent. The City may upon 30 days' prior written notice remove the Fiscal Agent at any time unless an Event Of Default shall have occurred and then be continuing, and shall remove the Fiscal Agent if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Owners of not less than a majority in. aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time the Fiscal Agent shall cease to be eligible in accordance with subsection (e) of this Section, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Fiscal Agent or its property shall be appointed, or any public officer shall take control or charge of the Fiscal Agent or of its property or affairs for the pUrPose of rehabilitation, conservation or liquidation, in each case by giving written notice of such removal to the Fiscal Agent and thereupon shall appoint a successor Fiscal Agent by an instrument in writing. (c) Resignation of Fiscal Agent. The Fiscal Agent may at any time resign by giving written notice of such resignation by first class mail, postage prepaid, to the City, and to the Bond Owners notice of such resignation at the respective addresses shown on the Registration Books. Upon receiving such notice of resignation, the City shall promptly appoint a successor Fiscal Agent by an instrument in writing. The Fiscal Agent shall not be relieved of its duties until such successor Fiscal Agent has accepted appointment. (d) Appointment of Successor Fiscal Agent. Any removal or resignation of the Fiscal Agent and appointment of a successor Fiscal Agent shall become effective upon acceptance of appointment by the successor Fiscal Agent; provided, however, that under any circumstances the successor Fiscal Agent shall be qualified as provided in subsection (e) of this Section. If no qualified successor Fiscal Agent shall have been appointed and have accepted appointment within 45 days following giving notice of removal or notice of resignation as aforesaid, the resigning Fiscal Agent or any Bond Owner (on behalf of himself and all other Bond Owners) may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Fiscal Agent. Any successor Fiscal Agent appointed under 'this Agreement shall signify its acceptance of such appointment by executing and delivering to the City and to its predecessor Fiscal Agent a written acceptance thereof, and to the predecessor Fiscal Agent an instrument indemnifying the predecessor Fiscal Agent for any costs or claims arising during the time the successor Fiscal Agent serves as Fiscal Agent hereunder, and after payment by the City of all unpaid fees and expenses of the predecessor Fiscal Agent, the such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Fiscal Agent, with like effect as if originally named Fiscal Agent herein; but, nevertheless at the Written Request of the City or the request of the successor Fiscal Agent, such predecessor Fiscal Agent shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to' such -29- successor Fiscal Agent all the right, title and interest of such predecessor Fiscal Ao~ent'in and to any property held by it under this Agreement and shall pay over, transfer, assign and deliver to the successor Fiscal Agent any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Fiscal Agent, the City shall execute and deliver any and all instruments as may be reasonably required for more fully and certainly vesting in and confirming to such successor Fiscal Agent ali such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Fiscal Agent as provided in this subsection, the City shall mail or cause the successor Fiscal Agent to mail, by first class mail postage prepaid, a notice of the succession of such Fiscal Agent to the trusts hereunder to each rating agency which then maintains a rating on the Bonds and to the Bond Owners at the addresses shown on the Registration Books. If the City fails to mail such notice within 15 days after acceptance of appointment by the successor Fiscal Agent, the successor Fiscal Agent shall cause such notice to be mailed at the expense of the City. (e) Authority Trustee To Act As Fiscal Agent Hereunder. Notwithstanding anything herein to the contrary, so long as the Authority Trustee shall be the owner of the Bonds, no entity shall be qualified to act as the Fiscal Agent (or to act as any successor Fiscal Agent) except the Authority Trustee. Upon any resignation or removal of the Authority Trustee in accordance with the Authority Indenture, such event shall automatically cause the resignation or removal of the Fiscal Agent hereunder; and upon the appointment of a successor Authority' Trustee in accordance with the Authority Indenture, such appointment shall automatically constitute the appointment of a successor Fiscal Agent hereunder. Under no circumstances shall the Fiscal Agent be removed or resign hereunder unless the Authority Trustee shall be removed or resign as such under and pursuant to the Authority Indenture. In the event that the Authority Trustee shall no longer be the owner of the Bonds, the Fiscal Agent appointed under the provisions of this Section 8.01 in succession to the Fiscal Agent shall be a trust company or bank having the powers of a trust company, having (or if such bank or trust company is a member of a bank holding company system, its parent bank holding company has) a combined capital and surplus of at least one hundred million dollars ($100,000,000), and subject t° supervision or examination by federal or state agency. 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 agency above referred to, then for the purpose of this subsection the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Fiscal Agent shall cease to be eligible in accordance with the provisions of this subsection (e), the Fiscal Agent shall resign immediately in the manner and with the effect specified in this Section. Section 8.02. Merger or Consolidation. Any bank or trust company into which the Fiscal Agent may be merged or converted or with which it may be consolidated or anY bank or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank or trust company to which the Fiscal Agent may sell or transfer all or substantially' aH of its corporate trust business, provided such bank or trust company shah be eligible under subsection (e) of Section 8.01 shall be the successor to such Fiscal Agent, without the execution or filing of any paper'or any further act, anything herein to the contrary notwithstanding. Section 8.03. Liability of Fiscal Agent. (a) The recitals of facts herein and in the Bonds contained shall be taken as statements of the City, and the Fiscal Agent shall not assume responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Agreement or of the Bonds or shall incur any responsibility in respect thereof, other than as expressly stated herein in connection with the respective duties or obligations -30- herein or in the Bonds assigned to or imposed upon it. The Fiscal Agent shall, however, be responsible for its representations contained in its certificate of authentication on the Bonds. The Fiscal Agent makes no representations as to the validity or sufficiency of the Agreement or of any Bonds. or in respect of the security afforded by the Agreement and the Fiscal Agent shall ~ncur no responsibility in respect thereof. The Fiscal Agent shall be under no responsibility or duty with respect to: (i) the issuance of the Bonds for value; (ii) the application of the proceeds thereof except to the extent that such proceeds are received by it in its capacity as Fiscal Agent; or (iii) the application of any moneys paid to the City or others in accordance with the Agreement except_as the application of any moneys paid to it in its capacity as Fiscal Agent. The Fiscal Agent shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Fiscal Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by the Agreement. The Fiscal Agent may become the Owner of Bonds with the same rights it would have if it were not Fiscal Agent, and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any-committee formed to protect the rights of Bond Owners, whether or not such committee shall represent the Owners of a majority in aggregate principal amount of the Bonds then Outstanding. (b) The Fiscal Agent shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pertinent facts. (c) The Fiscal Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Fiscal Agent, or exercising any trust or power conferred upon the Fiscal Agent under this Agreement. Section 8.04. Right t9 Rely on D0Cument~. The Fiscal Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bonds or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Fiscal Agent may consult with counsel, who may be counsel of or to the City, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of 'any action taken or suffered by it hereunder in good faith and in accordance therewith; provided, however, the Fiscal Agent shall in no event delay any payment with respect to the Bonds in anticipation of any such opinion. Whenever in the administration of the trusts imposed upon it by this Agreement the Fiscal Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Written Certificate of the City, and such Written Certificate shall be full warrant to the Fiscal Agent for any action taken or suffered in good faith under the provisions of this Agreement in reliance upon such Written Certificate, but in its discretion the Fiscal Agent may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may deem reasonable. Section 8.05. Preservation and Inspection of Documents. All documents received by the Fiscal Agent under the provisions of this Agreement shall be retained in its possession and shall be subject during business hours and upon 24 hours' notice to the inspection of the City, the Owners and their agents and representatives duly authorized in writing. -31- Section 8.06. Compensation and Indemnification. The City shall pa3' to the Fiscal Agent from time to time all reasonable compensation for all services rendered under this Agreement, and also all reasonable expenses, charges, legal and consulting fees and other disbursements 'and those of its attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Agreement. The City further agrees, to the extent permitted by law, to indemnify and Save the Fiscal Agent harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder and under an3' related documents, including the enforcement of any remedies and the defense of any suit, and which are not due to its negligence or its willful misconduct. The duty of the City to indemnify the Fiscal Agent shall survive the termination and discharge of this Agreement. -32- ARTICLE IX MODIFICATION OR AMENDMENT Section 9.01. Amendments Permitted. (a) This Agreement and the rights and obligations of the City, the Owners of the Bonds and the Fiscal Agent may be modified or amended from.time to time and at any time by a Supplemental Agreement, which the City and the Fiscal Agent may enter into with the written consent of the Owners of a majority in aggregate principal amount of all Bonds then Outstanding, which shall have been filed with the Fiscal Agent. No such modification or amendment shall (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof, or reduce the interest rate borne thereby, or extend the time of payment, without the consent of the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent of the Owners of' which is required to effect any such modification or amendment, or (iii) permit the creation of any lien on the Reassessments and other assets pledged under this Agreement prior to or on a parity with the lien created by this Agreement or deprive the Owners of the Bonds of the lien created by this Agreement on such Reassessments and other assets (except as expressly provided in this Agreement), without the consent of the Owners of all of the Bonds then Outstanding. It shall not be necessary for the consent of the Bond. Owners to approve the particular form of any Supplemental Agreement, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by' the City and the Fiscal Agent of any Supplemental Agreement pursuant to this subsection (a), the Fiscal Agent shall mail a notice (the form of which shall be furnished to the Fiscal Agent by the City), by f'LrSt class mail postage prepaid, setting forth in general terms the substance of such Supplemental Agreement, to the Owners of the Bonds at the respective addresses shown on the RegiStration Books. Any failure to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Supplemental Agreement. This Agreement and the rights and obligatiOns of the City, of the Fiscal Agent and the. Owners of the Bonds may also be modified or amended from time to time and at any time by a Supplemental Agreement, which the City and the Fiscal Agent may enter into without the consent of any Bond Owners for any one or more of the following purposes: (i) to add to the covenants and agreements of the City in this Agreement contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the City; . (ii) to make such Provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision contained in this Agreement; (iii) to modify, amend or supplement this Agreement in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute; '" · ,. (iv) to modify, amend or supplement this Agreement in such manner as to cau.se interest on the Bonds to be excludable from gross income for purposes .of federal income taxation by the United States of America; and -33- (v) in any other respect whatsoever as the City may deem necessary or desirable, provided that such modification or amendment does not materially adversely affect the interests of the Bond Owners hereunder, in the opinion of Bond Counsel filed with the City and the Fiscal Agent~ SeCtion 9.02. Effect of Suoolemental Aereement, Upon the execution of any Supplemental Agreement pursuant ~c; this Article~-this Agreement shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Agreement of the City, the Fiscal Agent and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to' such modification and amendment, and aH the terms and conditions of any such Supplemental Agreement shall be deemed to be part of the terms and conditions of this Agreement for any and all purposes. Section 9.03. Endorsement of Bonds: Preparation of New Bonds. Bonds delivered after the execution of any Supplemental Agreement pursuant to this ArtiCle may, and if the City so determines shall, bear a notation by endorsement or otherwise in form approved by the City and the Fiscal Agent as to any modification or amendment provided for in such Supplemental Agreement, and, in that case, upon demand of the Owner of any Bonds Outstanding at the time of such execution and presentation of Ms Bonds for the purpose at the Office of the Fiscal Agent a suitable notation shall be made on such Bonds. If the Supplemental Agreement shall so provide, new Bonds so modified as to conform, in the opinion of the City and the Fiscal Agent, to any modification or amendment contained in such Supplemental Agreement, shall be prepared and executed by the City and authenticated by the Fiscal Agent, and upon demand of the Owners of any Bonds then Outstanding shah be exchanged at the Office of the Fiscal Agent, without cost to any Bond OWner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same interest rate and maturity. Section 9.04. Amendment of Particular Bond~. The provisions of this Article shall not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by such Owner. -34- ARTICLE X DEFEASANCE Section 10.01. Discharge of Agreemenl. The Bonds may be paid by the City in any of the following ways, provided that the City also pays or causes to be paid any other sums payable · hereunder by the City: (a) by paying or causing to be paid the principal of and interest and premium (if any) on the Bonds, as and when the same become due and payable; (b) by depositing with the Fiscal Agent, in trust (pursuam to an escrow agreement), at or before maturity, money or securities in the necessary amount (as provided in Section 10.03) to pay or redeem all Bonds then Outstanding; or (c) by delivering to the Fiscal Agent, for cancellation by it, all of the Bonds then Outstanding.. If the City shall also pay or cause to be paid all other sums payable hereunder by the City including without limitation any compensation due and owing the Fiscal Agent hereunder, then and in that case, at the election of the City (evidenced by a Written Certificate of the City, filed with the Fiscal Agent, signifying the intention of the City to discharge all such indebtedness and this Agreement), and notwithstanding that any Bonds shall not have been surrendered for payment, this Agreement and the pledge of Reassessments and other assets made under this Agreement and all covenants, agreements and other obligations of the City under this Agreement shall cease, terminate, become void and be completely discharged and .satisfied. In such event, upon the Written Request of the City, and upon receipt of a Written Certificate of an AUthorized Representative of the City and an opinion of Bond Counsel acceptable to the Fiscal Agent, each to the effect that all conditions precedent herein provided for relating to the discharge and satisfaction of the obligations of the City have been satisfied, the Fiscal Agent shall cause an accounting for such period or periods as may be requested by ihe City to be prepared and filed with the City and shall execute and deliver to the City all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Fiscal Agent shall pay over, transfer, assign or deliver all moneys or securities or other property held by it pursuant to this Agreement, which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption, to the City. Section 10.02. Discharge of Liability On Bonds. Upon the deposit with the Fiscal Agent, in trust, at or before maturity, of money Or securities in the necessary amount (as provided in Section 10.03) to pay or redeem any or all Outstanding Bonds (whether upon or prior to the maturity Or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to maturity, notice of such redemption shah have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, then all liability of the City in respect of such Bonds shall cease, terminate and be completely discharged, and the Owners thereof shah thereafter be entitled only to payment out of such money or securities deposited with the Fiscal Agent as aforesaid, for their payment, subject, however, to the provisions of Section 10.04. The City may at any time surrender to the Fiscal Agent for cancellation by it any Bonds previously issued and delivered, which the City may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired. -35- Section 10.03. Deposit of Money or Securities with Fiscal Agent. Whenever in this Agreement it is provided or permitted that there be deposited with or h~ld in trust by the Fiscal Agent money or securities in the necessary amount to pa3' or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Fiscal Agent in the funds and accounts established pursuant to this Agreement'and shall be-- (a) Lawful money of the United States of America, in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and ~n respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount of such Bonds, premium, if any, and all unpaid interest thereon to the redemption date; or (b) Non-callable Federal Securities described in clause (a) of the definition thereof, the principal of and interest on which when due, in the opinion or report of an independent accountant selected by the City, will provide money suffic!ent to pay the principal of, premium, if any, and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed, as such principal and interest become due, provided that in the case of Bonds which are' to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of Such notice; provided, in each case, that the Fiscal Agent shall have been irrevocably instructed (by the terms of this Agreement or by Written Request of the City) to apply such funds to the payment of such principal and interest with respect to such Bonds. Section 10.04. Payment of Bonds After Discharee of Aereement~.. NotwithStanding any provisions of this Agreement, any moneys held by the liiscal A-gent in trust for the payment of the principal of, premium, if any, or interest on, any Bonds and remaining unclaimed for two years after the date of deposit of such moneys shall be repaid to the City free from the trusts created by this Agreement, and all liability of the Fiscal Agent with respect to such moneys shall thereupon cease; provided, however, that before the repayment of such moneys to the City as aforesaid, the Fiscal Agent may (at the cost of the City) f'LrSt mail, by first Class mail postage prepaid, to the Owners of Bonds which have not yet been paid, at the resPective addresses shown on the Registration Books, a notice, in such form as may. be deemed appropriate by the Fiscal Agent with respect t° the Bonds so payable and not presented and with respect to the provisions relating to. the repayment to the City of the moneys held for the payment thereof. -36- ARTICLE XI MISCELLANEOUS Section I1.01. Limited Oblieation. All obligations of the'City under this Agreement and the Bonds shall not be general c~bligations of the City, but shall be limited obligations, payable solely from the Reassessments and the other assets pledged therefor hereunder. Neither the faith and credit of the City nor of the State of California or any political subdivision thereof is pledged to the payment of the Bonds. The Bonds are "Limited Obligation Improvement Bonds" and are payable solely from and secured solely by the 'Reassessments and the other assets pledged hereunder. Notwithstanding any other provision-of this Agreement, the City is not obligated to advance available funds from'the City treasury to cure any deficiency in the Redemption Fund. ' Section 11.02. Successor Is Deemed Included in All References to Predeces~or. Whenever in this Agreement either the City or the Fiscal Agent 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 Agreement contained by or On behalf of the City or the Fiscal Agent shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. Section 11.03. Limitation of Riehts to Parties and Bond Owners. Nothing in this Agreement or in the Bonds expressed or i~nplied is intended or shall be construed to give to any Person other than the Fiscal Agent, the City and the Owners of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Fiscal Agent, the City and the Owners of the Bonds. Section 11.04. Waiver of Noticel Requirement of Moiled NOtice. Whenever in .this Agreement the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the Person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver, Whenever in this Agreement any notice shall be required to be given by m.a'.fl, such requirement shall be satisfied by the deposit of such notice in the United States mail, postage prepaid, by first class mail. Section 11.05. Destruction of Bonds. Whenever in this Agreement provision is made for the cancellation by the Fiscal Agent and the delivery to the City of any Bonds, the Fiscal Agent may, upon the Written Request of the City, in lieu of such cancellation and delivery, destroy such Bonds (in the presence of an officer of the City, if the City shall so require) as may be allowed by law, and deliver a certificate of such destruction to the City. Section 11.06. Severability of Invalid Provisions. If any one or more of the provisions contained in this Agreement or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then sUch provision or provisions shall be deemed severable from the remaining pro.visions contained in this Agreement and such invalidity, illegality or unenforceability shah not affect any other provision of this' Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The City hereby deClares that it would have entered into this Agreement and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Agreement may be held illegal, invalid or unenforceable. -37- Section 11.07. Notice$. All notices or communications herein required or permitted to be given to the. City or the Fiscal Agent shall be in -writing and shall be deemed to have been sufficiently given or served for all purposes by being delivered or sent by telecopy or by being deposited, postage prepaid, in a post office letter box, addressed as follows:' If to the City: City of Tustin 300 Centennial Way Tustin, Califomia 92680 Attention: Finance Director If to the Fiscal Agent: State Street Bank and Trust Company of California, N.A. 725 South Figueroa Street, Suite 3100 Los Angeles, California 90017 Attention: Corporate Trust Department Section 11;08. Evidence of Rights of Bond Owners. Any request, consent or other instrument required or permitted by this Agreement to be signed and executed by Bond Owners may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bond Owners in Person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing anY such agent, or of the holding by any Person of Bonds transferable by delivery, shall be sufficient for any purpose of this Agreement and shall be conclusive in favor of the Fiscal' Agent and the City if made in the manner provided in this Section. The fact and date of the execution by any Person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public Or other officer of any jurisdiction, authorized by the laws thereof to take aCknowledgments of deeds, certifying that the Person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer. The oWnership of Bonds shall be proved by the Registration Books. Any request, consent, or other: instrument or writing of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Fiscal Agent or the City in accordance therewith or reliance thereon. Section 11.09. Disqualified Bond~. In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or wmver under this Agreement, Bonds which are known by the Fiscal Agent to be owned or held by or for the account of the City, or by any other obligor on the Bonds, or by any Person (other than the Authority or the Authority Trustee) directly or indirectly controlling or controlled by, or under direct or indirect common control with,, the City or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Fiscal Agent the pledgee's right to vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the City or any other obligor on the Bonds. In case of a dispute as to such right, any -38- decision bY the Fiscal Agent taken upon the advice of counsel shall be full protection to the Fiscal Agent. Section !1.10. Money Held for Particular Bonds. The money held by the Fiscal Agent for the payment of the 'interest, principal or premium due on any date with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Owners of the Bonds entitled thereto, subject, however, to the provisions of Section 10.04 but without any liability for interest thereon. Section 11.11. Funds and Accounts. Any fund or account required by this Agreement to be established and maintained by the Fiscal Agent may be established and maintained in the accounting records of the Fiscal Agent, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and with due regard for the requirements of Section 6.08 and for the protection of the security of the Bonds and the rights of every Owner thereof. The Fiscal Agent may establish suchfunds and accounts as it deems necessary or appropriate to perform its obligations hereunder. Section 11.12. Payment on Non-Business Days. In the event any payment is required to be made hereunder on a day which is not a Business-Day, such payment shall be made on the next succeeding Business Day with the same effect as if made on such non-Business Day. Section 11.13. :Waiver of Personal Liability. No member, officer, agent or employee of the City shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such officer, agent or employee from the performance of any official duty provided by law or by this Agreement. Section 11.14. Conflict with Act or Bond Law. In the event of any conflict between any provision of this Agreement and any provision of the Act or the Bond Law, the provision of the Act or the Bond Law, respectively, shall prevail over the provision of this Agreement. Section 11.15. Conclusive .Evidence of Regularity. Bonds issued pursuant to this Agreement shall constitute evidence of the regularity of ali proceedings under the Act relative to their issuance and the levy of the Reassessments. Section 11.16. Execution in Several CounteriIarts. This Agreement may be executed in any number of counterparts and each of such countei-parts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the City and the Fiscal Agent shall preserve undestroyed, shall together constitute but one and the same instrument. Section 11.17. Governine Laws. This Agreement shall be governed by and construed in accordance with the laws of the-State of California. -39- IN WITNESS WHEREOF, the City has caused this Agreement to be signed in its name by its officer thereunto duly authorized, and the Fiscal Agent, in token of its acceptance of the trusts created hereunder, has caused this Agreement to be signed in its corporate name by its officer thereunto duly authorized, all as of the day and year fin'st above written. CITY OF TUSTIN By: STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, NA., as Fiscal Agent By: -40- EXHIBIT A FORM OF BOND No. CITY OF TUSTIN Limited Obligation Improvement Bond Reassessment District No. 95-1 (Tustin Ranch) NOMINAL INTEREST RATE MATURITY D ATE DATED DATE REGISTERED OWNER: PRINCIPAL AMOUNT: Under and by virtue of the Refunding Act of 1984 for 1915 Improvement Act Bonds, Division 11.5 of the Streets and Highways Code of California (the "Act"), the City of Tustin, County of Orange, State of California (the "City"), will, out of the redemption fund for the payment of the bonds issued upon the unpaid portion of reassessments made for the refunding bonds more fully described, in proceedings taken pursuant to Resolution No. m adopted by the City Council of the City on ,1995, pay to the Registered Owner identified above or registered assigns (the "Registered Owner"), on the Maturity Date identified above or on any earlier redemption date, the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at, except as provided below, the nominal Rate of Interest identified above in like lawful money from the date hereof payable semiannually on March 2 and September 2 in each year, commencing March 2, 1996, (the "Interest Payment Dates") until payment of such Principal Amount in full. This Bond shah bear interest from the Interest Payment Date next preceding the date of authentication of this Bond (unless this Bond is authenticated on or before an Interest Payment Date and after the fifteenth calendar day of the month preceding such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or unless this Bond is authenticated on or prior to February 15, 1996, in which event it shah bear interest from the Dated Date identified above; provided, however, that if, at the time of authentication of this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been paid or made available for payment). The Principal.Amount hereof is payable upon surrender hereof upon maturity or earlier redemption at the principal corporate trust office (the "Trust Office") of State Street Bank and Trust Company Of California, N.A., as fiscal agent (the "Fiscal Agent"), in Los Angeles, California. Interest hereon is payable by check of the Fiscal Agent mailed by first class mail' on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it apPears on the Registration Books of the Fiscal Agent as of the Close of business on the fifteenth calendar day of the month preceding such Interest Payment Date. This Bond shall not be entitled to any benefit under the Act, the Resolution authorizing the issuance of the bonds, adopted by the City Council of the City on ,1995 (the "Resolution of Issuance") or the Fiscal Agent Agreement, dated as of ,1995 (the "Agreement"), by and between the City and the Fiscal Agent, executed pursuant to the Resolution of Issuance, or become valid or obligatory for any purpose, until the certificate of A-1 authentication hereon shall have been dated and signed by the Fiscal Agent. Capitalized undefined terms used in this Bond shall have the meanings ascribed thereto in the Agreement. Notwithstanding anything to the contrary contained herein, or in the Agreement, the actual rate of interest to be borne by the Bonds (including this Bond) shall be adjusted as of each September 1 to the a rate per annum such that the sum of (i) the pr'oduct of such rate (expressed as a decimal) times the principal amount of Bonds Outstanding as of the close of business on such September 1 1 .... , p us (n) the amount to t>e depos~teo, pursuant to the Agreement, on the following September 3 in the Redemption Fund established under the Agreement from amounts transferred by the Authority Trustee from the Surplus Fund established uneler the Authority Indenture, is equal to the product of the nominal rate (express as a decimal) times the principal amount of Bonds Outstanding as of the close of business on such September 1. IN WITNESS WHEREOF, said City has caused this Bond to be signed in its name and on its behalf by the facsimile signatures of its Treasurer and City Clerk, and has caused its corporate seal to be reproduced in facsimile hereon all as of the Dated Date identified above. CITY OF TUSTIN By Treasurer (SEAL) Attest: By City Clerk A-2 (FORM OF REVERSE OF BOND) This Bond is one of several annual series of Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Bonds") of like date, tenor and effect, but differing in amounts, maturities'and interest rates, issued by said City under the Act and the Agreement for the purpose of providing means for paying for the refunding of the Prior Bonds as more particularly described in said proceedings, and is secured by the moneys in the redemption fund (as may be limited by the Agreement) and by the unpaid portion of said reassessments made for the payment of said refunding, and, including principal and interest, is payable exclusively out of said fund. Reference is hereby made to the Agreement and all agreements supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Reassessments (as that term is defined in the Agreement), of the rights, duties and immunities of the Fiscal Agent and of the rights and obligations of the City thereunder; and all of the terms of the Agreement are hereby incorporated herein and constitute a contract between the City and the Registered Owner hereof, and to allof the provisions of which Agreement the Registered Owner hereof, by acceptance hereof, assents and agrees. The Bonds shall be sUbject.to optional redemption, in whole or in part, by lot, on any Interest Payment Date on or after September 2, 2004, at the follOwing respective redemption prices (expressed as percentages of the principal.amount of the Bonds to be redeemed),' plus accrued interest thereon to the date of redemption: Redemption Dates Redemption Price September 2, 2004 and March 2, 2005 102% September 2, 2005 and March 2, 2006 101 September 2, 2006 and thereafter 100 The Bonds shall be subject to. mandatory redemption, in whole or in part, by lot, on any Interest Payment Date, from and to the extent of any prepayments of principal of the Reassessments as more particularly set forth in the Agreement, at the following respective redemption prices (expressed as percentages of the principal amount of the Bonds to be redeemed), plus accrued interest thereon to the date of redemption. Redemption Dates March 2, 1996 through March 2, 2005 September 2, 2004 and March 2, 2005 September 2, 2005 and March 2, 2006 . September 2, 2006 and thereafter Redemption Price 103% 102 101 100 The Bonds shall be subject to mandatory sinking fund redemption, in part, by lot, on September 2 in each year, commencing September 2, 1996, at a redemption price equal to the principal amount of the Bonds to be redeemed, without premium, plus accrued interest thereon to the date of redemption, in the aggregate respective principal amounts specified in the Agreement. The Fiscal Agent on behalf and at the expense of the City shall mail (by first class mail) notice of any redemption to the respective owners of any Bonds designated for redemption, at their respective addresses appearing on the Registration Books maintained by the Fiscal Agent, at A-3 'least 30 but not more than 60 days prior to the redemption date; provided, however, that neither failure to receive any such notice so mailed nor any defect therein shall affect the validity of the proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon. The redemption price of the Bonds to be redeemed 'shall be paid only upon presentation and surrender thereof at the Trust Office of the Fiscal Agent. From and after the date fixed for redemption of any Bonds, interest on such Bonds will cease to accrue. The Bonds are issu'able as fully registered Bonds without coupons in denominations of $5,000 or any integral multiple thereof. Subject to the limitations and upon payment of the charges, if any, provided in the Agreement, fully registered Bonds may be exchanged at the Trust Office of the Fiscal Agent for a like aggregate principal amount and maturity of fully registered Bonds of other authorized denominations. 'This Bond is transferable by the Registered Owner hereof, in person or by his attorney duly authorized in writing, at the Trust Office of the Fiscal Agent, but only in the manner, subject to the limitations and upon payment of the charges provided in the Agreement, and upon surrender and cancellation of this Bond. · Upon such transfer a new fully registered Bond or Bonds, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange herefor. The City and the Fiscal Agent may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the City and the Fiscal Agent shall not be affected by any notice to the contrary. The Agreement and the rights and obligations of the City and of the owners of the Bonds and of the Fiscal Agent may be modified or amended from time to time and at any time in the manner, to the extent, and upon the terms provided in:the Agreement; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or the amount of principal thereof without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) permit the creation of any lien On the Reassessments and other assets pledged under the Agreement, or deprive the Bonds owners of the lien created under the Agreement on the Reassessments and such other assets, without the consent of the owners of all outstanding Bonds. The Bonds are Limited Obligation Bonds because, under the Agreement, the City is not obligated to advance funds from the City treasury to cure any deficiency which may occur in the redemption fund for the Bonds; provided, however, the City is not prevented, in its sole discretion, from so advancing funds. A-4 [FORM OF FISCAL AGENT'S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds described in the within-mentioned Agreement and registered on the Registration Books. Date: State Street Bank and Trust Company of California, N.A., as Fiscal Agent By Authorized Signatory A-5 ASSIGNMENT For value received the undersigned hereby sells, assigns and transfers unto whose address and social security or other tax identifying number is , the within-mentioned Bond and hereby irrevocably constitute(s) and appoint(s) ' attorney, to transfer the same on the registration books of the Fiscal Agent with full power of substitution in the premises. Dated' Signature Guaranteed: Note: Signature(s) must be guaranteed by an eligible guarantor. Note: The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever. A-6 ESCROW AGREEMENT (95-1) by and between the CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY, N.A.,' as Escrow Bank Dated as of ,1995 Reassessment District No. 95-1 (Tustin Ranch) TABLE OF CONTENTS Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 11. Section 12. Section 13.' Section 14. Section 15. Section 16. Page Definitions ........................................................................................... 1 The Escrow Funds ......................... Use and Investment of Moneys .......................................................... 2 Payment of Prior Bonds .................................................... . ................ 3 Irrevocable Instructions to Mail Notices ............................................ 4 Performance of Duties ....................................................................... 4 Escrow Bank's Authority to Make Investments ................................ 4 Indemnity ........................................................................................... 4 Responsibilities of Escrow Bank ....................................................... 5 Amendments ...................................................................................... 5 Term ................................................................................................... 6 Compensation ..................................................................................... 6 Severability .......................................................................... i ............. 6 Counterparts ....................................................................... · ................ 6 Governing Law ....................................................................... ~ .......... 6 Assignment ......................................................................................... 7 EXHIBIT 1- United States Treasury Securities- Fixed 85-1 Bonds ...................1-1 EXHIBIT 2- United States Treasury Securities- Fixed 86-2 Bonds .................. 2-1 ESCROW AGREEMENT (95-1) THIS ESCROW AGREEMENT (95-1) (this "Agreement"), is ~entered into as of , 1995, by and between the City of Tustin (the "City") and State Street Bank and Trust Company, N.A., as escrow bank (the "Escrow Bank"). WITNESSETH: WHEREAS, pursuant to an Indenture of Trust, dated as of August 1, 198~5 (the "85-1 Indenture"), by and between the City and Citibank, N. A., as trustee, the City issued City of Tusfin Assessment District No. 85-1 Improvement Bonds (the "85-1 Bonds") in the original principal amount Of $50,650,000; WHEREAS, pursuant to an Indenture of Trust, dated as of September 1, 1988 (the "86-2 Indenture"), by and between the City and Citibank, N. A., as trustee, the City issued City of Tustin Assessment District No. 86-2 Limited Obligation Improvement Bonds (the "86-2 Bonds") in the original principal amount of $81,400,000; ' WHEREAS, State Street Bank and Trust Company, N.A., is the successor trustee under the 85-1 Indenture and under the 86-2 Indenture; WHEREAS, the City has determined that certain savings and efficiencies may be obtained by refunding the outstanding $ aggregate principal amount of 85-1 Bonds that have been converted to a fixed interest rate pursuant to the 85-1 Indenture (the "Fixed 85-1 Bonds") and the outstanding $, aggregate principal amount of 86-2 Bonds that have been converted to a fixed interest rate pursuant to the 86-2 Indenture (the "Fixed 85-2 Bonds" and, together with the Fixed 85-1 Bonds, the "Prior Bonds"); WHEREAS, in order to provide a portion of the moneys required to refund the Prior Bonds, the City has authorized the issuance of the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Bonds"), in an aggregate principal amount of $ ; · WHEREAS, the City has determined apply a portion of the proceeds of the Bonds, together with other available moneys, to pay, when due, the interest on the outstanding Prior Bonds on March 2, 1996 and to redeem the outstanding Prior Bonds on March 2, 1996 (the "Redemption Date") at a redemption price (the "Redemption Price") equal to 102.5% of the principal amount of such outstanding Prior Bonds; and WHEREAS, the Prior Bonds are subject to redemption on the Redemption Date and the City has determined to provide for the call for redemption on the Redemption Date of the Prior Bonds outstanding on the Redemption Date; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Escrow Bank agree as follows: Section 1. Definitions. The term "Federal SecuritieS" shall mean United States of America Treasury bills, notes, bonds or certificates of indebtedness, or Obligations for which the full faith and credit of the United States of America are pledged for the payment of interest and principal, which are not subject to redemption except by the owners thereof prior to maturity (including any such securities issued or held in book-entry form on the books of the Department of the Treasury of the United States of America). 1 Section 2. The 85-1 Escrow Fund. (a) There is hereby established a fund (the "85-1 Escrow Fund") to be held as an irrevocably pledged escrow by the Escrow Bank, which the Escrow Bank shall keep separate and apart from all other funds of the City and the Escrow Bank and which shall be applied solely as provided in this Agreement. Pending application as provided in this Agreement, mounts on deposit in the 85-1 Escrow Fund are hereby pledged and assigned solely to the payment of (i) the accrued interest on the Fixed 85-1 Bonds coming due on the Redemption Date, and (ii) the Redemption Price of the Fixed 85-1 Bonds on the Redemption Date, which amounts shall be held in trust by the Escrow Bank for the owners of the Fixed 85-1 Bonds. ' - ' (b) Upon the issuance and delivery of the Bonds, there shall be deposited in the 85-1 Escrow Fund the following: (i) $ Indenture; transferred from the Fund established under the 85-1 Indenture; transferred from the Fund established under the 85-1 (rio $,, Indenture; and transferred from the Fund established under the 85-1 (iv) $ received from the proceeds of the sale of the Bonds. (c) The City acknowledges that, upon the deposit of.moneys pursuant to Section 2(b), the moneys on deposit in the 85-1 Escrow Fund will, based upon the certification provided for in Section 4(a) hereof, be at least equal to an amount sufficient to purchase the aggregate principal amount of the Federal Securities set forth in Exhibit 1 hereto (the ".Exhibit 1 Securities"), which principal, together with all interest due or to become due on such Exhibit 1 Securities, and any uninvested cash held by the Escrow Bank in the 85-1 Escrow Fund, will be sufficient to make the payments required by Section 5(a) hereof. Section 3. The 86-2 Escrow Fund. (a) There is hereby established a fund (the "86-2 Escrow Fund" and, together with the 85-1 Escrow Fund, the "Escrow Funds") to be held as an irrevocably pledged escrow by the Escrow Bank, which the Escrow Bank shall keep separate and apart from all other funds of the City and the Escrow Bank and which shall be applied solely as provided in this Agreemenlx Pending application as provided in this Agreement, amounts on deposit in the 86-2 Escrow Fund are hereby pledged and assigned solely to the payment of (i) the accrued interest on the Fixed 86-2 Bonds coming due on the Redemption Date, and (ii) the Redemption Price of the Fixed 86-2 Bonds on the Redemption Date, which amounts shah be held in trust by the Escrow Bank for the owners of the Fixed 86-2 Bonds. (b) Upon the issuance and delivery of the Bonds, there shall be deposited in the 86-2 Escrow Fund the following: (i) $ Indenture; transferred from the Fund established Under the 86-2 (fi) $,, Indenture; transferred from the Fund established under the 86-2 (rio $ Indenture; and transferred from the Fund established under the 86-2 (iv) $ received from the proceeds of the sale of the Bonds. (c) The City acknowledges that, upon the deposit of moneys pursuant to Section 3(b), the moneys on deposit in the 86-2 Escrow Fund will, based upon the certification provided for in Section 4(b) hereof, be at least equal to an amount sufficient to purchase the aggregate principal amount of the Federal Securities set forth in Exhibit 2 hereto (the "Exhibit 2 Securities"), which principal, together with all interest due or to become due on such Exhibit 2 Securities, and any uninvested cash held by the Escrow Bank in the 86-2 Escrow Fund, will be sufficient to make the. payments required by Section 5(b) hereof. Section 4. ,Use' and Investment of Moneys. (a) The Escrow Bank hereby acknowledges receipt of the moneys described in Section 2(b) hereof and agrees to invest $.. of such moneys in the Exhibit 1 Securities upon receipt of certification by a nationally recognized firm of independent certified public accountants that the Exhibit 1 Securities will mature in such principal amounts and earn interest in such amounts and, in each case, at such times, so that sufficient moneys will be available from maturing principal and interest on the Exhibit 1 Securities, together with any uninvested moneys then held by the Escrow Bank in the 85-1 Escrow Fund, to make all payments required by Section 5(a) hereof. Except as provided in Section 4(c) or Section 4(d) hereof, the balance of the moneys described in Section 2(b) hereof shall be held uninvested in the 85-1 Escrow Fund. (b) The Escrow Bank hereby acknowledges receipt of the moneys described in Section 3(b) hereof and agrees to invest $ of such moneys in the Exhibit 2- Securities upon receipt of certification by a nationally recognized £u'm of independent certified public accountants that the Exhibit 2 Securities will mature in such principal amounts and earn . interest in such amounts and, in each case, at such times, so that sufficient moneys will be available from maturing principal and interest on the Exhibit 2 Securities, together with any uninvested moneys then held by the Escrow Bank in the 86-2 Escrow Fund, to make all payments required by Section 5(b) hereof. Except as provided in Section 4(c) or Section 4(d) hereof, the balance of the moneys described in Section 3(b) hereof shall be held uninvested in the 86-2 Escrow Fund. ' (c) Upon the written request of the City, but subject to the conditions and limitations herein set forth, the Escrow Bank shall purchase substitute Federal Securities for the Federal Securities then held in an Escrow Fund with the proceeds derived from the sale, transfer, redemption or other disposition of Federal Securities then on deposit in such Escrow Fund and any uninvested money then held by the Escrow Bank in such Escrow Fund in accordance with the provisions of this Section 4(c). Such sale, transfer, redemption or other disposition of Federal Securities then on deposit in an Escrow Fund and substitution of other Federal Securities shall be effected by the Escrow Bank upon the written request of the City but only by a simultaneous transaction and only upon receipt of: (i) certification by a nationally recognized fn-m of independent certified public accountants that the Federal Securities to be substituted, together with the Federal Securities which will continue to be held in such Escrow Fund, will mature in such principal amounts and earn interest in such amoUnts and, in each case, at such times so that sufficient moneys will 'be available from maturing principal and interest on such Federal Securities held in such Escrow Fund, together with any uninvested moneys, to make all payments required by Section 5(a) or Section 5(b) hereof, as applicable, which have not previously been made, and (ii)receipt by the Escrow Bank of an opinion of counsel of recognized standing in the field of law relating to municipal bonds to the effect that the sale, transfer,, redemption or other disposition and substitution of Federal Securities will not adversely affect the exclusion of interest on any Bonds or Prior Bonds from gross income for purposes of federal income taxation. (d) Upon the written request of the City, but subject to the conditions and limitations herein set forth, the Escrow Bank will apply any moneys received from the maturing principal of or interest or other investment income on any Federal Securities held in an Escrow Fund, or the proceeds from any sale, transfer, redemption or other disposition of Federal Securities held in an Escrow Fund pursuant to Section 4(c) not required for the purposes of said Section, as follows: (i) to the extent such moneys will not be required at any time for the purpose of making a payment required by Section 5 hereof, as certified by a nationally recognized firm of independent certified public accountants delivered to the Escrow Bank, such moneys shall be paid over to the City upon the written request of the City as received by the Escrow Bank, free and clear of any trust, lien, pledge or assignment securing the pri6r Bonds or otherwise existing hereunder, and (ii) to the extent such moneys will be required for such purpose at a later date, shall, to the extent practicable, be invested or reinvested in Federal Securities maturing at times and in amounts sufficient to make such payment required by Section 5 hereof (provided that the amount of the funds to be realized from time to time from such investment or reinvestment shall be certified by a nationally recognized faro of independent certified public accountants delivered to the Escrow Bank by the City and provided that the City shall deliver to the Escrow Bank an opinion of counsel of recognized standing in the field of law relating to municipal bonds to the effect that such investment or reinvestment will not adversely affect the exclusion of interest on any Bonds or Prior Bonds from gross income for purposes of federal income taxation) and interest earned from such investments or reinvestments shall be paid over to the City, upon the written request of' the City, as received by the Escrow Bank, free and clear of any trust, lien, pledge or assignment securing the Prior Bonds or otherwise existing hereunder. (e) All Federal Securities purchased pursuant to this Agreement shall be.deposited in and held for the credit of the appropriate Escrow Fund. Except as provided in this Section 4, no moneys or Federal Securities deposited with the Escrow Bank pursuant to this Agreement nor principal of, or interest payments or other investment income on, any such Federal Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the interest and Redemption Price with respect to the Fixed 85-1 Bonds or the FiXed 86-2 Bonds, as applicable, as provided by Section 5 hereof. (f) The owners of the Fixed 85-1 Bonds shall have a lien on the moneys and Federal Securities in the 85-1 Escrow Fund until such moneys and Federal Securities are used and- applied, as provided in this Agreement. The owners'of the Fixed 86-2 Bonds shall have a lien on the moneys and Federal Securities in the 86-2 Escrow Fund until such moneys and Federal Securities are used and applied as provided in this Agreement. (g) The Escrow Bank shall not be held liable for investment losses resulting from compliance with the provisions of this Agreement. Section 5. Payment of Prior Bonds. (a) From the maturing principal of the Federal Securities held in the 85-1 Escrow Fund and the investment income and other earnings thereon and any uninvested money then held in the 85-1 Escrow Fund, the Escrow Bank shall transfer and apply the amounts at the times as follows: (i) On March 2, 1996, the Escrow Bank shall pay the interest on the Fixed 85-1 Bonds then due in accordance with the terms of the 85-1 Indenture; and (ii) On the Redemption Date, the Escrow Bank shall pay the-Redemption Price of the Fixed 85-1 Bonds in accordance with the terms of the 85-1 Indenture. To the extent that the amount on deposit in the 85-1 EsCrow Fund on the Redemption Date is in excess of the amount necessary to make the required payments with respect to the Fixed 85-1 Bonds, as shown in the then applicable escrow verification of the nationally recognized firm of independent certified public accountants, such excess shall be transferred to the Redemption Fund established under the Fiscal Agent Agreement, dated as of , 1995 (the "Fiscal Agent Agreement"), by and between the City and State Street Bank and Trust Company of California, N.A. as trustee, relating to the Bonds. (b) From the maturing principal of the Federal Securities held in the 86-2 Escrow Fund and the investment income and other earnings thereon and any uninvested money then held in the 86-2 Escrow Fund, the Escrow Bank shall transfer and apply the mounts at the times as follows: (i) On March 2, 1996, the Escrow Bank shall pay the interest on the Fixed 86-2 Bonds then due in accordance with the terms of the 86-2 Indenture; and (ii) On the Redemption Date, the Escrow Bank shall pay the Redemption'Price of the Fixed 86-2 Bonds in accordance with the terms of the 86-2 Indenture. To the extent that the amount on deposit in the 86-2 Escrow Fund on the Redemption Date is in excess of the amount necessary to make the required payments with respect to the Fixed 86-2 Bonds, as shown in the then applicable .escrow verification of the nationally [h e~o..g~zed .f. mu_of independent certified public accountants, such excess shah be transferred to Keaemption Fund established under the Fiscal Agent Agreement. Section 6. Irrevocable Instructions to Mail Notices (a) The City hereby irrevocably designates the Fixe~l 85-1 Bonds for prior redemption on the Redemption Date as indicated in Section 5(a) hereof, and hereby irrevocably instructs the Escrow Bank, as trustee under the 85-1 Indenture, to give the mailed notice of redemption with respect thereto, as provided, in Section 3.06 of the 85-1 Indenture. (b) The City hereby irrevocably designates the Fixed 86-2 Bonds for prior redemption on the Redemption Date ag indicated in Section 5(b) hereof, 'and hereby irrevocably instructs the Escrow Bank, as trustee under the 86-2 Indenture, to give the mailed notice of redemption with respect thereto, as provided in Section 3.07 of the 86-2 Indenture. Section 7. Performance of Duties. The Escrow Bank agrees to perform only the duties set forth herein and agrees that the irrevocable instructions to the Escrow Bank herein provided are in a form satisfactory to it. Section 8. Escrow Bank's Authority to Make Investments. The Escrow Bank shall have no power or ~luty to invest any funds held under this Agreement except as provided in Section 4 hereof. The Escrow Bank shall have no power or duty to transfer or otherwise dispose of the moneys held hereunder except as provided in this Agreement. Section 9. ~ To the extent permitted by law, the City hereby assumes liability for, and hereby agrees (whether or not any of the transactions contemplated hereby are consummated) to indemnify, protect, save and keep harmless the Escrow B'ank and its respective successors, assigns, agents, employees and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees, expenses and disbursements) of whatsoever kind and nature_ which may be imposed On, incurred by, or asserted against, the EsCrow Bank at any time (whether or not also indemnified against the same by the City or any other person under any other agreement or instrument, but without double indemnity) in any way relating to or arising out of the execution, delivery and performance of this Agreement, the establishment hereunder of the Escrow Funds, the acceptance of the funds and securities deposited therein, the purchase of any securities to be purchased pursuant thereto, the retention of such securities or the proceeds thereof and any payment, transfer or other application of moneys or securities by the Escrow Bank in accordance with the .provisions of this Agreement; provided, however, that' the City shall not be required to indemnify the Escrow Bank against the Escrow Bank's own negligence or willful misconduct or the negligence or willful misconduct of the Escrow Bank's respective successors, assigns, agents and employees or the material breach by the Escrow Banlc of the terms of this Agreement. In no event shall the City or the Escrow. Bank be liable to any person by reason of the transactions contemplated hereby other than to each other as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement. Section 10. Responsibilities of Escrow Bank. The Escrow Bank and .its respective successors, assigns, agents and servants shall not be held to any personal liability Whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Funds, the acceptance of the moneys or any securities deposited therein, the purchase of the secUrities to be pUrchased pursuant hereto, the retention of such securities or the proceeds thereof, the sufficiency of the securities or any uninvested moneys held hereunder to accomplish the redemption of the Prior Bonds, or any payment, transfer or other' application of moneys or securities by the Escrow Bank in accOrdance with the provisions of this Agreement or by reason of any non-negligent act, non-negligent omission or non-negligent error of the Escrow Bank made in goOd faith in the conduct of its duties. The recitals of fact contained in the "Whereas" clauses herein shall be taken as the statements of the City, and the Escrow Bank assumes no responsibility for the correctness thereof. The Escrow Bank makes no representation as to the sufficiency of the securities to be purchased pursuant hereto and any uninvested moneys to accomplish the redemption of the Prior Bonds or to the validity of this Agreement as to the City and, except as otherwise provided herein, the Escrow Bank shall incur no liability in respect thereof. The Escrow Bank shall not be liable in connection with the performance of its duties under this Agreement except for its own negligence and willful misconduct, and the duties and obligations of the Escrow Bank shall be determined by the express provisions of this Agreement. The Escrow Bank may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Bank shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Agreement, such matter (except the matters set forth herein as specifically requiring a certificate of a nationally recognized firm of independent certified public accountants or an opinion of counsel of recognized standing in the field of law relating to municipal bonds) may be deemed to be conclusively established by a written certification of the City. Whenever the Escrow Bank shall deem it necessary or desirable that a matter specifically requiring a certificate of a nationally recognized finn of independent certified public accountants or an opinion of counsel of recognized standing in the field of law relating to municipal bonds be proved or established prior to taking, suffering, or omitting any such action, such matter may be established only by a certificate signed by a nationally recognized finn of certified public accountants or such opinion of counsel of recognized standing in the field of law relating to municipal bonds. Section 11. Amendments. The City and the Escrow Bank may, without the consent of, or notice to, the owners of the Prior Bonds, amend this Agreement or enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such owners and as shall not be inconsistent with the terms and provisions of this Agreement or of the 85-1 Indenture or 86-2 Indenture, as applicable, for any one or more of the folldwing purposes: (i) to cure any ambiguity or formal defect or omission in this Agreement, (ii) to grant to, or confer upon, the Escrow Bank for the benefit of the owners of the Prior Bonds any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such owners or the Escrow Bank, and (iii) to include under this Agreement additional funds, securities or properties. The Escrow Bank shall be entitled to rely conclusively upon an opinion of counsel of recognized s~tan.ding.in the field of law relating to municipal bonds with res ect ' · 3ectmn, ~ncludin the extent_ if ' _ .... p to comphance w~th this g , any, to which any change, moamcation, addition or elimination affects the fights of the owners of the Prior Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 12. Ter___~.m. This Agreement shall commenCe upon its execution and delivery and shall terminate on ~ date upon which the Prior Bonds have been paid in accordance with this Agreement and the 85-1 Indenture or 86-2 Indenture, as applicable. Section 13. Compensation, The City shall from time to time, on demand, pay the Escrow Bank the agreed upon compensation for its services fo be rendered hereunder and .reimburse the Escrow Bank for all of its reasonable advances in the exercise and performance of ~ts duties hereunder; provided, however, that under no circumstances shall the Escrow Bank be entitled to any lien whatsoever on any moneys or obligations in either Escrow Fund for the payment of fees and expenses for services rendered or expenses incurred by the Escrow Bank under this Agreement or otherwise. Section 14..Severabili~. If any one or more of the covenants or agreements provided in this Agreement on the part of the City or the Escrow Bank to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenants or agreements shall be null and void and shall be deemed separate from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. Section 15. Counterpartq. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all of which shall constitute and be but one and the same instrument. Section 16. Governine Law. This Agreement shall be construed under the laws of the State of California. - - Section 17. Assienment. This Agreement shall not be assigned by the Escrow Bank or any successor thereto without the prior written consent of the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. STATE STREET BANK AND TRUST COMPANY, N.A., as Escrow Bank By: Authorized Officer CITY OF TUSTIN By: EXHIBIT 1 Type ---Maturity UNITED STATES TREASURY SECURITIES Fixed 85-1 Bonds Principal Interest Accrued Amount Rate Price Interest Purchase Price Exhibit 1-1 EXHIBIT 2 UNITED STATES TREASURY SECURITIES FIXED 86-2 BONDS Type Maturity Principal Interest Accrued Purchase Amount Rate .Price Interest Price Exhibit 2-1 BOND PURCHASE AGREEMENT by and between the CITY OF TUSTIN and the TUSTIN PUBLIC FINANCING AUTHORITY Dated as of ,1995' TABLE OF CONTENTS Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Definitions ............................................................................................................. 2 Purchase and Sale of Assessment Bonds ............................................................... 2 Representations and Warranties of the City .......................................................... 3 Conditions to the Obligations of the Authority ..................................................... 4 Expenses ................................................................................................................ 9 Indemnification ...................................................................................................... 9 Benefits; Survival ................................................................................................... 9 Counterparts ......................................................................................................... 10 · Governing Law .................................................................................................... 10 EXHIBIT A- Maturity Schedule ......................................................................................... A-1 BOND PURCHASE AGREEMENT THIS BOND PURCHASE AGREEMENT, is entered into as of ,1995, by and between the Tustin Public Financing Authority (the "Authority") and the City of Tustin (the "City"). WITNESSETH: WHEREAS, the Authority is a joint exercise Of powers authority duly organized and existing under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title I of the California Government Code (the "Act"), and is authorized pursuant to Article 4 of the Act to borrow money for the purpose of financing the acquisition of bonds, notes and other obligations to provide £mancing or re£mancing for public capital improvements of local agencies within the State of California (the "State"); WHEREAS, pursuant to an Indenture of Trust, dated as of August 1, 1986 (the "85-1 Indenture"), by and between the City and Citibank, N. A., as trustee, the City issued City of Tustin Assessment District No. 85-1 Improvement Bonds (the "85-1 Bonds") in the original principal amount of $50,650,000; WHEREAS, pursuant to an Indenture of Trust, dated as of September 1, 1988 (the "86-2 Indenture"), by and between the City and Citibank, N:-A., as trustee, the City issued City of Tustin Assessment District No. 86-2 Limited Obligation Improvement Bonds (the "86-2 Bonds") in the original principal amount of $81,400,000; WHEREAS, the City has determined that certain savings and efficiencies may. be obtained by refunding the outstanding $ aggregate principal amount of 85-1 Bonds. that have been converted to a fixed interest rate pursuant to the 85-1 Indenture and the outstanding $ aggregate principal amount of 86-2 Bonds that have been converted to a fLxed interest rate pursuant to the 86-2 Indenture (collectively, the "Prior Bonds"); WHEREAS, in order to provide a portion of the moneys required to refund the Prior Bonds, the City has authorized the issuance, pursuant to a Fiscal Agent Agreement, dated as of ,1995 (the "Fiscal Agent Agreement"), by and between the City and State Street Bank and Trust Company of California, N.A., as fiscal agent (the Fiscal Agent"), of the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Assessment Bonds"), in the aggregate principal amount of $. ; WHEREAS, the Authority desires to assist the City in refinancing the public improvements financed with the Prior Bonds by purchasing the Assessment Bonds frOm the City; WHEREAS, in order ~o provide the funds necessary to purchase the Assessment Bonds from the City, the Authority has authorized the issuance, pursuant to an Indenture of Trust, dated as' of ,1995 (the "indenture"), by and between the Authority and State Street Bank and Trust Company of California, N.A., as trustee. (the "Trustee"), of the Tustin Public Financing Authority Revenue Bonds (Tustin Ranch), Series A (the "Authority Bonds"), in the aggregate principal amount of $ ; WHEREAS, the Authority and the City have found and determined that the sale of the Assessment Bonds to the Authority will result in substantial public benefits to the City, namely, the interest savings with respect to the Assessment Bonds to be achieved by reason of the credit rating to be assigned to the Authority Bonds; and WltEREAS, the Authority and the City desire to enter into this Agreement providing for the sale of the Assessment Bonds by the City to the Authority and containing the other agreements herein set forth; NOW, THEREFORE, in consideration of the mutual agreementS herein contained, the Authority and the City agree as follows: Section 1. Definitions. Capitalized undefined terms used herein shall have the meanings ascribed thereto in the Fiscal Agent Agreement. Section 2..Purchase and Sale of Assessment Bonds. (a) Upon the terms and conditions and upon the basis of the representations, warranties and agreements hereinafter set forth, the City hereby agrees to sell to the Authority, and the Authority hereby agrees to purchase from the City, all (but not-less than all) of the $. aggregate principal amount of the Assessment Bonds. The Assessment Bonds will mature on the dates and in the amountS and will bear interest at the rates shown in Exhibit A hereto. (b) The Assessment Bonds and interest thereon will be payable from annual assessmentS levied and collected in accordance with the Fiscal Agent Agreement and the proceedings relating thereto. The Assessment Bonds shall be substantially in the form described in, and shall be executed, delivered and secured under and pursuant to, and.shall be payable and subject to 'redemption as provided in, the Fiscal Agent Agreement. The proceeds of the Assessment Bonds will be used by the City to (i) refund the Prior Bonds pursuant to an Escrow Agreement (95-1), dated as of ,1995 (the "Escrow Agreement"), by and between the City and State Street Bank and Trust Company, N.A., as escrow bank (the "Escrow Bank"), and (ii) fund the Reserve Fund established under the Fiscal Agent Agreement. The Fiscal Agent Agreement, the Escrow Agreement and this Bond Purchase Agreement are collectively referred to as the "Legal DocumentS". (c) The City hereby ratifies, confitras and approves the Preliminary Official Statement of the Authority, dated , 1995, relating to the Bonds, which contains certain information about the City, the City's Reassessment District'No. 95-1 (Tustin Ranch) (the "District"), the Fiscal Agent Agreement and the Assessment Bonds (which, together with the cover page and all appendices thereto,, is referred to herein as the "Preliminary Official Statement"), which Preliminary Official Statement the City deemed f'mal and so certified as of itS date for purposes of Rule 15c2-12 promulgated under the Securities Exchange. Act of 1934, as amended ("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12. The City hereby agrees to assist the Authority in the preparation of a final official · statement (the "Official Statement"), consisting of the Preliminary Official Statement, with such changes as may be made thereto with the approval of the Authority, the City and PaineWebber 'Incorporated, as underwriter of the Authority Bonds (the "Underwriter"), so that the Authority may deliver or cause to be delivered to the Underwfiter,'no later than the earlier of the day prior to the Closing Date (as hereinafter defined) or seven business days after the date the Underwriter agrees to purchase the Authority Bonds, copies of the Official Statement in such reasonable quantity as the Underwriter shall request. The City hereby approves of the use and distribution by the Underwriter of the Official Statement in connection with the offer and sale of the Authority Bonds. (d)' The aggregate purchase price for the Assessment Bonds shall be $ , which shall be payable solely from proceeds of sale of the Authority Bonds. (e) At 8:00 a.m., California time, on ,1995, or at such other time or on such other date as the Authority, the City and the Underwriter may mutually agree upon (the "Closing Date"), at the offices of Jones Hall Hill & White, A Professional Law Corporation, in -2- San Francisco, California, the City will deliver or cause to be delivered to the Authority, the Assessment Bonds in the form of a separate single fully registered certificate (which 'may be typewritten) for each maturity date, registered in the name of the Trustee, as assignee of the Authority, duly executed and authenticated, and the other documents mentioned herein. The Authority will accept such delivery and pay the purchase price of the Assessment Bonds as provided in subparagraph (d) above in immediately available funds (such delivery and payment being herein referred to as the "Closing"). Section 3. Representations and Warranties of the City. The City represents and warrants to the Authority that: (a) The City is a municipal corporation and political subdivision, dulY organized and existing under the laws of the State, and has, and on the ClOsing Date will have, full legal fight, power and authority (i) to enter into the Legal Documents, (ii) to adopt Resolution No.__,. Resolution No.m and Resolution No.. relating to the Assessment Bonds (collectively, the "Resolutions"), (iii) to issue, sell and deliver the Assessment Bonds to the Authority as provided herein, and (iv) to carry out and consummate the transactions contemplated by the Legal Documents, the Resolutions and the Official Statement; (b) The City has complied, and will on the Closing Date be in compliance in all respects, with the Resolutions; (c) By official action of the City, the City has duly adopted the Resolutions, has duly authorized and approved the execution and delivery of, and the performance by the City of the obligations contained in, the Legal Documents and the Assessment Bonds, and has duly authorized and approved the consummation bY it of all other transactions contemplated by the Official Statement; (d) The execution and deliveD, of this the Legal Documents and the Assessment Bonds and the adoption of the Resolutions, and compliance with the provisions of each thereof, and the carrying out and consummation of the transactions contemplated by the Official Statement, will not conflict with or constitute a breach of or a default under any applicable law or administrative regulation of the State or the United States, or any applicable judgment, decree, agreement or other instrument to which the City is a party or is otherwise subject; (e) At the time of the City's execution hereof and at all times subsequent thereto up to and including the Closing Date, with respect to information describing the City, the Legal Documents, the Resolutions, the District and the proceedings conducted by the City relating thereto, the Official Statement does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (f) Except as described in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending or, to the knowledge of the City, threatened, wherein an unfavorable decision, ruling or finding would: (i) affect the creation, organization, existence or powers of the City or the titles of its members and officers to their respective offices, (ii) enjoin or restrain the issuance, sale and 'delivery of the Assessment Bonds, the levy and receipt of the assessments which secure the Assessment Bonds, or the pledge thereof, (iii) in any way question or affect any of the fights, powers, duties or obligations of the City with respect to the moneys pledged or to be pledged to pay the principal of, premium, if any, or interest on the Assessment Bonds, or (iv) in any way question or affect any authority for the issuance of the Assessment Bonds, or the validity or enforceability of the Assessment Bonds, the Legal Documents or the proceedings relating thereto; -3- (g) The City will furnish such information, execute such instruments and take such other action in cooperation with the Authority as the Authority may reasonably request to qualify the Authority Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Authority may designate, and will assist, if necessary therefor, in the continuance of such qualifications in effect as long as required for the distribution of the Authority Bonds; provided, however, that the City shall not be required to qualify as a foreign corporation or to ~e any general consent to service' of process under the laws~of any state; and (h) Any certificate signed by any official of the Ci~uthorized to do so shall be deemed a representation and warranty by the City as to the statements made therein. Section 4..Conditions to the Obligations of the Authori _ty, The Authority has entered into this Bond Purchase Agreement in reliance upon the representations, warranties and agreements of the City contained herein and to be contained in the documents and instruments to be delivered on the Closing Date, and upon the performance by the City of its obligations hereunder, both as of the date hereof and as of the Closing Date. Accordingly, the Authority's obligations under this Agreement to purchase, to accept delivery of and to pay for the Assessment Bonds shall be subject to the performance by the City of its obligations to be performed hereunder and under such documents and instruments at or prior to the Closing Date, and shall also be subject to the following conditions: (a) The representations and warranties of the City contained herein shall be true, complete and correct on the date hereof and on and as of the Closing Date, as if made on the Closing Date; ..... (b) On the Closing Date, the Legal Documents shall be in full force and effect and shall not have been amended, modified or supplemented, and the Official Statement shall not have been amended, modified or supplemented, except in either case as may have been agreed to bY both the Authority and the Underwriter; (c) As of the.Closing Date, all official action of the City relating to the District, the Assessment Bonds and the refunding of the Prior Bonds shall be in full force and effect, and there shall have been taken all such actions as, in the opinion of Jones Hall Hill & White, A Professional Law Corporation, bond counsel ("Bond Counsel"), shall be necessary or appropriate in connection therewith, with the issuance of the Authority Bonds and the Assessment Bonds, and with the transactions contemplated by the Legal Documents, all as described in the Official Statement; (d) Between the date hereof and the Closing Date, the market price or marketability, at the initial offering price or prices set forth in the Official Statement, of the Authority Bonds shall not have been materially adversely affected, in the reasonable judgment of the Underwriter, by reason of any of the following: (i) an amendment to the Constitution of the United States or the constitution of the State shall have been past or legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, the Speaker of the House of Representatives, the President Pro Tempore of the 'Senate, the Chairman or ranking minority member of the Committee of Ways and Means of the House of Representatives or the Chairman or ranking minority member of the Committee on Finance of the Senate, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or press release issued or made (A) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by the owners of the Authority Bonds, 03) by or on behalf of the State or the California Franchise Tax Board, with the purpose or effect, directly or indirectly, of imposing California personal income taxation upon such interest as would be received by the owners of the Authority Bonds, or (C) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or by or on behalf of the State or the California Franchise Tax Board, with the purpose or effect, directly or indirectly, of changing the federal or State income tax rates, respectively; (ii) the declaration of war or engagement in major military hostilities by the United States or the occurrences of any other national emergency or calamity relating to the effective operation of the government of the United States; (iii) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange; (iv) the imposition by the New York Stock Exchange Or other national securities exchange or any governmental authority, of any material restrictions not now in force with respect to the Authority Bonds or obligations of the general character of the Bonds, or the material increase of any such restrictions now in force; (v). an amendment to the Constitution-of the United States or the constitution of the State shall have been past or legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (£mal, temporary or proposed) or press release issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Authority Bonds, or the Authority Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Fiscal Agent Agreement or the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended, or that the execution, offering or sale of obligations of the general character of the Authority Bonds, or of the Authority Bonds, including any or all underiying 'arrangements, as contemplated hereby or by the Official Statement, otherwise is or would be in violation of the federal securities laws as amended and then in effect; (vi) the withdrawal or downgrading of any rating of the Authority Bonds by a national rating agency; (vii) any event oCcurring, or information becoming known which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material-fact or omits to state a material fact required to be stated therein Or necessary in order to 'make the statements therein, in the light of the circumstances under which they were made, not misleading; and (e) On the' Closing Date, the Authority Bonds shall have been issued and delivered to the Underwriter and all of the conditions to closing contained in the [Purchase Contract], dated ,1995 (the "Purchase Contract"), by and between the Authority and the Underwriter shall have either been satisfied or waived. -5- (f) At or prior to the Closing Date, the Authority and the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Authority and the Underwriter: (i) Two copies of the Legal Documents, each duly executed and delivered by the respective parties thereto, with only such amendments, modifications or supplements as may have been agreed to in writing by the Authority and the Underwriter; (ii) The approving opinion, dated the Clo~ing Date and addressed to the City._of Bond Counsel approving, without qualification, the validity of the Assessment Bonds, and a letter of such counsel, dated the Closing Date and addressed to the Authority and the Underwriter to the effect that such opinion may be 'relied upon by the Authority and the Underwriter to the same extent as if such opinion were addressed to it; (iii) Copies of the Resolutions, certified by the City Clerk; (iv) The opinion of the City Attorney, dated the Closing Date and addressed to the Authority and the Underwriter, to the effect that (A) the City is a municipal corporation and political subdivision, duly organized' and existing under the laws of the State, (B) the Resolutions were duly adopted at meetings of the City Council which were called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout, (C) to the best knowledge of such counsel after reasonable investigation, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, pending or threatened against or affecting the City, to restrain or enjoin the collection of assessments under the Resolutions and the Fiscal Agent Agreement or in any way contesting or affecting the validity of the Assessment Bonds or the Legal'Documents, (D) the execution and delivery of the Legal Documents[ and the Official Statement], the adoption of the Resolutions, and compliance by the City with the Provisions of the foregoing, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the City a breach or default under any agreement or other instrument to which the City is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the City is subject, (E) [the Official Statement has been duly authorized, executed and delivered, and ]the Legal Documents have been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements. Of the City enforceable in accordance with their respective terms, subject to laws relating to bankruptcy, insolvency or other laws affecting the enforcement of 'creditors' fights generally and the application of equitable principles if equitable remedies are sought, (F) except as described in the Official Statement, no authorization, approval, consent, or other order of the State or any other governmental authority or agency within the State having jurisdiction over the City is required for the valid authorization, execution, delivery and performance' by the City of the Legal Documents or the Official Statement or for the adoption of the Resolutions which has not been obtained, and (G) the information contained in the Official Statement describing the City, the Legal Documents, the Resolutions, the District and the proceedings conducted by the City relating thereto (except for any fmancial or statistical data'or forecasts, estimates, projections, assumptions or expressions of opinion, as to which no opinion need be expressed), as of the date hereof and the Closing Date, does not contain any untrue statement of a material fact or omit to state a material fact required to be stated, therein or necessary to make the statements therein, in light of the circumstance under which they were made, not misleading; (v) The opinion, dated the Closing Date and addressed to the City, the Underwriter and the Authority of counsel to the Fiscal Agent, to the effect that (A) the Fiscal Agent has been duly organized and is in good standing as a [national banking association] under the laws of the [United States], having full power and authority to enter into and to perform its .duties as Fiscal Agent under the Fiscal Agent Agreement, (B) the Fiscal Agent has duly authorized, executed and delivered the Fiscal Agent Agreement, (C) the Fiscal Agent Agreement constitutes the legally valid and binding agreement of the Fiscal Agent, enforceable against the Fiscal Agent in accordance with its terms, (D) the Assessment Bonds have been validly authenticated and delivered by the Fiscal Agent, (E) no authorization, approval, consent, or other t~rder of any other governmental authority or agency having jurisdiction over the Fiscal Agent is required for the valid authorization, execution, delivery and performance by the Fiscal Agent of the Fiscal Agent Agreement, and (F) the execution and delivery of the Fiscal Agent Agreement and compliance by the Fiscal Agent with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict With or constitute on the part of the Fiscal Agent a breach or default under any agreement or other instrument to which the Fiscal Agent' is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Fiscal Agent is subject; (vi) A certificate, dated the Closing Date, signed by a duly authorized official of the City, in form and substance satisfactory to the Authority and the Underwriter, to the effect that the representations and warranties of the City contained in this Bond Purchase Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as ff made on the Closing Date; (vii) A certificate, dated the date of Closing, signed by a duly authorized official of the Fiscal Agent, satisfactory in form and substance to the Authority and the Underwriter, to the effect that (A) the Fiscal Agent is a [national banking association] duly organized and validly existing and in good standing under and by virtue of the laws of the [United States], having the full power and being qualified to enter into and perform its duties under the Fiscal Agent Agreement, (B) the Fiscal Agent is duly authorized to enter into the Fiscal Agent Agreement and to authenticate the Assessment Bonds, (C) the Assessment Bonds have been duly authenticated by the Fiscal Agent, (D) the execution and delivery of the Fiscal Agent Agreement and compliance with the provisions on the Fiscal Agent's part contained therein, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the 'Fiscal Agent is a party or is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets · held by the Fiscal Agent pursuant to the lien created by the Fiscal Agent Agreement under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as pr.ovided by the Fiscal Agent Agreement, and (E) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body pending against the Fiscal Agent, nor, to the best of its knowledge, ~s any such action or other proceeding threatened against the Fiscal Agent, affecting the existence of the Fiscal Agent, or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Assessment Bonds or the collection of the assessments securing the Assessment Bonds, or the pledge thereof, or in any way contesting or affectirig the validity or enforceability' of the Fiscal Agent Agreement, or contesting the powers of the Fiscal Agent or its authority to enter into, adopt or perform its obligations under the Fiscal Agent Agreement; -7- (viii) A certificate, dated the date of Closing, signed by a duly authorized official of the Escrow Bank, satisfactory in form and substance to the Authority and the Underwriter, to the effect that (A) the Escrow Bank is a national banking association organized and existing under and by virtue of the laws of the United States, having the full power and being qualified to enter into and perform its duties under the Escrow Agreement, (B) the Escrow Bank is duly authorized to enter into the Escrow Agreement, (C) the execution and delivery of the Escrow Agreement and compliance with the provisions on the Escrow Bank,s part contained therein, will not conflict with or constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Escrow Bank is a party or is otherwise subject, nor will any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrange of any nature whatsoever upon any of the properties or asSets held by the Escrow Bank pursuant to the lien created by the Escrow Agreement under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the Escrow Agreement, and (D) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body pending against the Escrow Bank, nor, to the best of its knowledge, ~s any such action or other proceeding threatened against the Escrow Bank, affecting the existence of the Escrow Bank, or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Escrow Agreement, or in any way contesting or affecting the validity or enforceability of the Escrow Agreement, or contesting the powers of the Escrow Bank or its authority to enter into, adopt or perform its obligations under the Escrow Agreement; (ix) Two certified copies of the general resolution of the Fiscal Agent authorizing the execution and delivery of the Fiscal Agent Agreement by the Fiscal Agent; (x) Two certified copies of the general resolution of the Escrow Bank authorizing the execution and delivery of the Escrow Agreement by the Escrow Bank; (xi) A letter addressed to the City, the Underwriter and the Authority, dated the date of the Closing, from , Certified Public Accountants, verifying the accuracy of the mathematical computations concerning the adequacy of the maturing principal amounts of and interest earned on the government obligations, together with other escrowed moneys, to be deposited with the Escrow Bank under the Escrow Agreement to pay when due at the stated maturity or call for redemption the principal of and interest and premium, ff any, on the Prior Bonds; and (xii) Such additional legal opinions, certificates, proceedings, instruments or evidences thereof and other documents as the Authority, the Underwriter or Bond Counsel may reasonably request to evidence the troth and accuracy, as of the date hereof and as of the Closing Date, of the representations of the City herein and of the statements and information contained in the Official Statement, and the due performance or satisfaction by the Fiscal Agent and the City at or prior to the Closing of all agreements then to be performed and all conditions then to be satisfied by any of them in connection with the transactions contemplated hereby and by the Legal Documents. All of the opinions, letters, certificates, instruments and other documents mentioned above or elsewhere in this Bond Purchase Agreement shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Authority,. but the approval of the Authority shah not be unreasonably withheld. Receipt of, and payment -8- for, the Assessment Bonds shall constitute evidence of the satisfactory nature of such as to the Authority. The performance of any and all obligations of the City hereunder and the performance of any and all conditions contained herein for the benefit of the Authority may be waived by the Authority in its sole discretion. If the City shall be unable to satisfy the conditions to the obligations of the Authority to purchase, accept delivery of and pay for the Assessment Bonds contained in this Bond Purchase Agreement, or if the obligations of the Authority to purchase, accept delivery of and pay for the Assessment Bonds shall be terminated for any reason permitted by this Bond Purchase Agreement,-this Bond Purchase Agreement shall terminate, and neither the Authority nor the City shall be under further obligation hereunder, except that the respective obligations of the City and the Authority set forth in Section 5 and Section 6 hereof shall continue in full force and effect. Section 5. Expenses. The Authority shall be under no obligation to pay, and the City shall pay (a) the cost of the preparation of the Authority Bonds, Co) the fees and disbursements of Bond Counsel, (c) the fees and disbursements of accountants, advisers and of any other experts or consultants retained by the City, and (d) any other expenses incident to the performance of the City's obligations hereunder. Section 6. Indemnification, To the extent permitted by law, the City shall indemnify and hold harmless the Authority, and its officers, directors, emPloyees and agents, against any and all losses, claims, damages, liabilities, costs and expenses (including without limitation fees and disbursements of counsel and other expenses) incurred by them or any of them in connection with investigating or defending anY loss, claim, damages, liability or any suit, action or proceeding, joint or several, to which they or any of them may become subject, insofar as such losses, claims, damages, liabilities, costs and expenses (or any suit, action or proceeding in respect thereof) arise out of or are based upon the issuance and sale of the Assessment Bonds by the. City or any untrue statement or alleged untrue statement of a material fact contained in the Official Statement or in any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact relating to the City, the Legal Documents, the Resolutions, the District or the proceedings conducted by the City relating thereto, which is required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. This. indemnity shall be in addition to any liability which the City may otherwise have. Additionally, to the extent permitted by law, the .City shall indemnify and hold harmless the Authority against any and all losses, claims, damages, liabilities, costs and expenses (including without limitation fees and disbursements of counsel and other expenses) incurred by it in connection with its indemnification of the Trustee in accordance with the Indenture. Section 7. BenefitS; Survival, This Bond Purchase Agreement is made solely for the benefit of the City, the Authority and the Underwriter, and no other person shall acquire or have any right hereunder or by virtue hereof. All of the City's representations, warranties and agreements contained in this Bond Purchase Agreement shall remain operative and in full force and effect regardless of (a) any investigations made by or on behalf of the Authority, or (b) delivery of and payment for the Assessment. Bonds pursuant to this. Agreement. The agreements contained in this Section and in Section 6 shall survive any termination of this Bond Purchase Agreement. Section 8. Counterparts. This Bond Purchase Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. -9- Section 9. _Governing Law. The'validity, interpretation and performance of this Bond Purchase Agreement shall be governed by the laws of the State. -10- IN WITNESS WHEREOF, the Authority and the City have each caused this Bond Purchase Agreement to be executed by their duly authorized officers all as of the date first above written. TUSTIN PUBLIC FINANCING AUTHORITY By. CITY OF TUSTIN By. -11- EXHIBIT A Maturity Date (September 2) Principal Amount Interest Rate Maturity Date (September 2) Principal Amount Interest Rate CONTINUING DISCLOSURE AGREEMENT by and between CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee Dated as of ,1995 TUSTIN PUBLIC FINANCING AUTHORITY. REVENUE BONDS (TUSTIN RANCH) SERIF~S A CONTINUING DISCLOSURE AGREEMENT THIS CONTINUING DISCLOSURE AGREEMENT (the "Disclosure Agreement") is made and entered into as of ,1995, by and between STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking association organized and existing under the laws of the United. States, as Trustee (the "Trustee"), and the CITY OF TUSTIN, a general law city and municipal Corporation organized and existing under and by virtue of the laws of the State of California (the "City"); WITNESSETH: WHEREAS, pursuant to the Fiscal Agent Agreement, dated as of ,1995 (the "Fiscal Agent Agreement"), by and between the City and State Street Bank and Trust Company of California, N.A., as Fiscal Agent (the "Fiscal Agent"), the City has issued its Limited Obligation Improvement Bonds, Reassessment District No. 95-1 (Tustin Ranch) (the "Assessment Bonds") in the aggregate principal amount of $ ; WHEREAS, pursuant to the Indenture of Trust, dated as of , 1995 (the "Indenture"), by and between the Tustin Public Financing Authority (the "Authority") and the Trustee, the Authority has issued its Revenue Bonds (Tustin Ranch), Series A (the '~Bonds") in the.aggregate principal amount of $ ; WHEREAS, a portion of the proceeds of the Bonds have been used to purchase the Assessment Bonds; WHEREAS, the Bonds are payable solely from the payments of the principal of, premium, if any, and interest on the Assessment Bonds; and WHEREAS, this Disclosure Agreement is being executed and delivered by the City and 'the Trustee for the benefit of the holders and beneficial owners of the Bonds and in °rder to assist the underwriters of the Bonds in complying with Securities and Exchange Commission Rule 15c2-12(b)(5); NOW, THEREFORE, for and in consideration of the mutual premises and covenants herein contained, the parties hereto agree as follows: Section 1. Definitions. Capitalized under-meal terms used herein shall have the meanings ascribed thereto in the Indenture or, if not de£med therein, in the Fiscal Agent Agreement. In addition, the following capitalized terms shall have the following meanings: "Annual Report" means any Annual Repo~ provided by the City pursuant to, and as described in, Sections 2 and 3 of this Disclosure Agreement. "Disclosure Representative" means the [Finance Director] of the City or his or her designee, or such other officer or employee as the City shall designate in writing to the Trustee from time to time. "Dissemination Agent" means the Trustee, acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the City and which has fled with the Trustee a written acceptance of such designation. "Listed Events" means any of the events listed in Section 4(a) of this Disclosure Agreement. "National Repository" means any Nationally Recognized Municipal Securities Information Repository for purposes of the Rule. "Official Statement" means the Official Statement, dated Bonds. ,1995, relating to the "Participating Underwriter" means any of the original underwriters of the Bonds required to comply with the Rule in connection with offering of the Bonds. "Repository" means each National Repository and each State Repository. "Rule" means Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may be amended from time to time. "State Repository" means any public or private repository or entity designated by the State of California as a state repository for the purpose of the Rule and recognized as such by the Securities and Exchange Commission. As of the date of this Disclosure Agreement, there is no State Repository. , Section 2. Provi$i0n of Annual Reoorts. (a) The City-shaH, or shall cause the Dissemination Agent to, provide to each RepoSitory an Annual Report which is consistent with the requirements of Section 3 of this Disclosure Agreement, not later than eight (8) months after the end of the City's fiscal year (which currently would be March 1), commencing with the report-for the 1995/96 fiscal year. The Annual Report may be submitted as a single document or as separate documents comprising a package, and may include by reference other information as provided in Section 3 of this Disclosure Agreement; provided, however, that the audited' f'mancial statements of the City may be submitted separately from the balance of the Annual Report, and later than the date required above for the £fling of the Annual Report'ff not available by that date. If the City's fiscal year changes, it shall give notice of such change in the same manner as for a Listed Event under Section 4(f). (b) Not later than fifteen (15) business days prior to the date specified in subsection (a) for providing the Annual Report to Repositories, the City shall provide the Annual Report to the Dissemination Agent and the Trustee (ff the Trustee is not the Dissemination Agent). If by such date, the Trustee has not received a copy of the Annual Report, the Tmstee shall contact the City and the Dissemination Agent to determine if the City is in compliance with the first sentence of this subsection (b). (c) If the Trustee is unable to verify that an Annual Report has been provided to Repositories by the date required in subsection (a), the Trustee 'shall send a notice to the Municipal Securities Rulemaking Board and the appropriate State Repository, if any, in substantially the form attached as Exhibit A. (d) The Dissemination Agent shall: (i) determine each. year prior to the date for providing the Annual Report the · name and address of each National Repository and each State Repository, if any; and (ii) file a report with the City and (if the Dissemination Agent is not the Trustee) the Trustee certifying that the Annual Report has been provided pursuant to this Disclosure Agreement, stating the date it was provided and listing all the Repositories to which it was provided. - -2- Section 3. Content of Annual Reports. The City's Annual Report shall contain or incorporate by reference the following: (a) The City's audited financial statements prepared in accordance with generally accepted accounting principles as promulgated to apply to governmental entities from time to time by the Governmental Accounting Standards Board. If the City's audited financial statements are not available by the time the Annual Report is required to be fried pursuant to Section 2(a), the Annual Report shall contain unaudited financial statements in a format similar to that used for the City's audited financial Statements, and the audited financial statements shall be filed in the same manner as the Annual Report when they become available. (b) The following information: (i) The principal amount of Bonds Outstanding as of September 30 of the prior calendar year. (ii) The balance in the Reserve Account, and a statement of .the Reserve Requirement (as such term is defined in the Indenture) as of September 30 of the prior calendar year. (iii) The principal amount of Assessment Bonds outstanding as of September 30 of the prior calendar year. (iv) The balance in the Improvement Fund established under the Fiscal Agent Agreement as of September 30 of the prior calendar year, and a statement as to whether or not such amount will be sufficient to pay the costs of the improvements intended to be paid therefrom. (v) The balance in the Reserve Fund established under the Fiscal Agent Agreement, and a statement of the Reserve Requirement (as such term is defined in the Fiscal Agent Agreement) as of September 30 of the prior'calendar year. (vi) The total assessed value of all parcels within the Assessment District on which the Re, assessments are levied, as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year, and a statement of assessed value-to-lien ratios therefor, either by individual parcel or by Categories (e.g. "below 3:1", "3:1 to 4:1" etc.). (vii) The Reassessment delinquency rate for the Assessment District, as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year, the number of parcels within the Assessment District delinquent in payment of Reassessments, as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year, the amount of each delinquency, the length of time delinquent and the date on which foreclosure was commenced, or similar information pertaining to delinquencies deemed appropriate by the City; provided, however, that parcels with delinquencies of [$2,000] or less may be grouped together and such information may be provided by category. (viii) The status of foreclosure proceedings and a summary of the results of any foreclosure sales as of September 30 of the prior calendar year. (ix) The identity of any property owner representing more than 5% of the Reassessment levy delinquent in payment of Reassessments, as shown on the assessment -3- roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year. (x) A land ownership summary listing property owners responsible for more than 5% of the Reassessment levy, as shown on the assessment roll of the Orange County Assessor last equalized prior to September 30 of the prior calendar year. (xi) The number of building permits issued by the City for new construction within the Assessment District during the one year period ending onSeptember 30 of the prior calendar year. (c) In addition to any. of the information expressly required to be provided under paragraphs (a) and (b) of this Section, the City shall provide such further information, ff any, as may be necessary 'to make the specifically required statements, in the light of the circumstances under which they are made, not misleading. Any or al/ of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the City or related public entities, which have been submitted to each of the Repositories or th~ Securities and Exchange Commission. If the document included by reference is a final official statement, it must be available from the MUnicipal Securities Rulemaking Board. The City shall clearly identify each such other document so included by reference. Section 4. Reporting of Significant Events. (a) Pursuant to the provisions of this Section 4, the City shall give, or cause to be giVen, notice of the occurrence of any of the following events with respect to the'Bonds, if material: (i) Principal and interest payment delinquencies. (ii) Non-payment related defaults, (iii) Unscheduled draws on debt service reserves reflecting financial difficulties. (iv) Unscheduled draws on credit enhancements reflecting financial difficulties. (v) Substitution of credit or liquidity providers, or their failure to perform. (vi) Adverse tax opinions or events affecting the tax-exempt status of the security. (vii) (viii) Modifications to rights of security holders. Contingent or unscheduled bond calls. (ix) Defeasances. (x) Release, substitution, or sale of property securing repayment of the securities. (xi) Rating changes. -4- (b) The Trustee shall, within one (1) business day of obtaining actual knowledge of the occurrence of any oi' the Listed Events, contact the Disclosure Representative, inform such person of the event, and request that the City promptly notify the Trustee in writing whether or not to report the event pursuant to subsection (f). (c) Whenever the City obtains knowledge of the occurrence of a Listed Event, whether because of a notice from the Trustee pursuant to subsection (b) or otherwise, the City shall 'as soon as possible determine if such event would be material under applicable Federal securities law. __ (d) ff the City determines that knowledge of the occurrence of a Listed Event would be material under applicable Federal securities law, the City shall promptly notify the Trustee in writing. Such notice shall instruct the Trustee to report the occurrence pursuant to subsection (f). (e) If in response to a request under subsection (b), the City determines that the Listed Event would not be material under applicable Federal securities law, the City shall so notify the Trustee in writing and instruct the Trustee not to report the occurrence pursuant to subsection (f). (f) If the Trustee has been instructed by the City to report the occurrence of a Listed Event, the Trustee shall, file a notice of such occurrence with the Municipal Securities Rulemaking Board and each State Repository. -Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(viii) and (ix) need not be given under this subsection any earlier than the notice (if any) of the underlying-event is given to holders of affected Bonds pursuant to the Indenture. Section 5. Termination of Reporting Oblieation, The City's obligations under this Disclosure Agreement shall terminate upon the legal defeasance, prior redemption or payment in full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the City shall give notice of such termination in the same manner as for a Listed Event under Section 4(0. Section 6. Dissemination Aeent. The City may, from time to time, appoint or engage a Dissemination Agent to assist it in c~rrying out its obligations under this Disclosure Agreement, and may discharge any suCh Dissemination Agent, with or without appointing a successor Dissemination Agent. If at any time there is not any other designated Dissemination Agent, the Trustee shall be the Dissemination Agent. ... Section 7. Amendment; Waiver. Notwithstanding any other provision of this Disclosure Agreement, the City and the Trustee may amend this DisClosure Agreement (and the Trustee shall agree to any amendment so requested by the City), and any provision of this Disclosure Agreement may. be waived, provided that the following conditions are satisfied: (a) if the amendment or waiver relates to Sections 2(a), 3 or 4(a) it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of an obligated person with respect to' the Bonds, Or type of business conducted; (b) the undertakings herein, as proposed to be amended or waived, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of the Rule at the time of the primary offering of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (c) the proposed amendment or waiver (i) is approved by holders of the Bonds in the manner provided in. the Indenture for amendments to the Indenture with the consent of holders, -5- or (ii) does nOt, in the opinion of the Trustee or nationally recognized bond counsel, materially impair the interests of holders. If the annual financial information or operating data to be provided in the Annual Report is amended pursuant to the provisions hereof, the first annual financial information containing the amended operating data or financial information shall explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided. If an amendment is made to the undertaking specifying the accounting principles to be followed in preparing financial statements, the annual £mancial information for the year in which the change is made shall present a comparison between the financial statements or information prepared on.the basis of the new accounting principles and those prepared on the basis of the former accounting principles. The cOmparison shall include a qualitative discussion of the differences in the accounting principles and the impact of the change in the accounting principles on the presentation of. the financial statements or information, in order to provide information to investors to enable them to evaluate the ability of the City to meet its obligations. To the extent reasonably feasible, the comparison shall be .quantitative. A notice of the change in the accounting principles shall be sent to the Repositories in the same manner as for a Listed Event under Section 4(f). Section 8. Additional Information. Nothing in this Disclosure Agreement shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or .including any other information in any Annual RePoi~ or notice of occurrence of a Listed Event, m addition to that which is required by this Disclosure Agreement~ If the City chooses to include any information in any Annual Report or notice of occurrence of a Listed Event in addition to that which is specifically required by this Disclosure Agreement, the City shall have no obligation under this Disclosure Agreement to update such information or include it in any future Annual Report or notice of occurrence of a Listed Event. Section 9. Default. In the event of a failure of the City or the Trustee to comply With any provision of this Disclosure Agreement, the Trustee may (and, at the written direction of any Participating Underwriter or the holders of at least 25% aggregate principal amount of Outstanding Bonds, shall), or any holder or beneficial owner of the Bonds may, take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City or Trustee, as the case may be, to comply with its obligations under this Disclosure Agreement. A default under this Disclosure Agreement shah not be deemed an Event of Default under the Indenture, and the sole remedy under this Disclosure Agreement in the event of any failure of the City or the Trustee to comply with this Disclosure Agreement shall be an action to compel performance. Section 10. Duties, Immunities and Liabilities of Trustee and Dissemination Affent. Article VIII of the Indenture is hereby made applicable to this Disclosure Agreement as i~ this Disclosure Agreement were (solely for this purpose) contained in the Indenture. The Dissemination Agent (if other than the Trustee or the Trustee in its capacity ~ Dissemination Agent) shall have only such duties as are specifically set forth in this Disclosure Agreement. Section 11. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the City, the Trustee, the Dissemination Agent, the Participating Underwriters and holders and beneficial owners from time to time of the Bonds, and shall create no rights in any other person or entity. -6- Section 12. Counterpart~. This Disclosure Agreement may be executed in several counterparts, each of which shall b6 an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Disclosure Agreement as of the date first above written. CITY OF TUSTIN By: ATTEST: City Clerk STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N~., as Trustee By: Authorized Officer -7- EXHIBIT A NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD OF FAILURE TO FILE ANNUAL REPORT Name of Issuer: Name of Bond Issue: Date of Issuance: NOTICE IS HEREBY GIVEN that the City of Tustin (the "City") has not provided an Annual Report with respect to the above-named Bonds as required by Section of the Indenture of Trust, dated as of 1, 1995, by and between State Street Bank and Trust Company of California, N.A. (the "Trustee") and the City. [The City anticipates that the Annual Report will be fried by .] Dated: STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., on behalf of the City of Tustin cc: City of Tustin A-1 RESOLUTION NO. 96-10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN ADOPTING THE REASSESSMENT REPORT FOR REASSESSMENT DISTRICT NO. 95-2 (TUSTIN RANCH), CONFIRMING AND ORDERING THE REASSESSMENT PURSUANT TO SUMMARY PROCEEDINGS THEREFOR AND DIRECTING ACTIONS WITH RESPECT THERETO AND RESCINDING RESOLUTION NO. 95-119 Reassessment District No. 95-2 (Tustin Ranch) WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City"), by a Resolution, entitled "A Resolution of the City Council of the City of Tustin of Intention to Levy Reassessments and to Issue Refunding Bonds Upon the Security Thereof', adopted on November 20, 1995 (the "Resolution of Intention"), resolved its intention to form Reassessment District No. 95-2 (Tustin Ranch) (the "District") as security for the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch) (the "Bonds") and therein directed the making and £fling of a reassessment report (the "Report") in writing in accordance with and pursuant to the Refunding Act of 1984 for 1915 Improvement.Act Bonds, Division 11.5 of the California Streets and Highways Code (the "Act"); and · .. C ,,WH,E~REA. S, the Report was duly made and filed, and duly considered by the City ounci~ ana ~ouna to be sufficient in every particular, and the Report shall stand for all subsequent proceedings under and pursuant to the aforesaid Resolution of Intention. - NO.W, THEREFORE, BE IT RESOLVED by the City Council of the City of Tustin as follows: Section 1. Pursuant to Section 9525 of the Act, and based upon the Report, the City Council £mds that all of the following conditions are satisfied: (a) Each of the estimated annual installments of principal and interest on the reassessment as set forth in the Report is less than the corresponding annual installment of principal and interest on the original assessment as also set forth in the Report, by the same percentage for all subdivisions of land with the District; (b) The number of years to maturity of all Bonds proposed to be issued is" no more than the number of years to the last maturity of the bonds being refunded (the "Prior Bonds"); and (c) The principal amount of the reassessment on each subdivision of land within the District is less than the unpaid principal amount of the original assessment by the same percentage for each subdivision of land in the District. Section 2. The public interest, convenience and necessity require that said reassessment bemade. Section 3. The district benefited by said reassessment and to be reassessed to pay the costs and expenses thereof, and the exterior boundaries thereof, are as shown by a map thereof heretofore filed in the office of the City Clerk, which map is made a part hereof by reference thereto. Section 4. Pursuant to the £mdings hereinabove expressed with respect to Section 9525 of the Act, said conditions, and all of them, are deemed satisfied and the following elements of the Report are hereby finally approved and confirmed without further proceedings, including the conduct of a public heating under the Act: (a) a schedule setting forth the unpaid principal and interest on the Prior Bonflgto be refunded and the total mounts thereof; (b) an estimate of the total principal amount of the reassessment and of the Bonds and the maximum interest thereon, together with an estimate of the cost of the reassessment and of issuing the Bonds, including expenses incidental thereto; (c) the auditor's record kept pursuant to Section 8682 of the California Streets and Highways Code showing the schedule of principal installments and interest on all unpaid original assessments and the total amounts thereof; (d) the estimated amount of each reassessment, identified by reassessment number corresponding to the reassessment number of the reassessment diagram, together with a proposed auditor's record for the reassessment prepared in the manner described in said Section 8682; and (e) a reassessment diagram showing the District and the boundaries and dimensions of the subdivisions of land therein. Section 5. Final,adoption and approval of the Report as a whole, the estimate of the costs and expenses, the reassessment diagram and the reassessment, as contained in the Report, as hereinabove determined and ordered, is intended to and shall refer and apply to the Report, or any portion thereof, as amended, modified, revised or corrected by, or pursuant to and in accordance with, any resolution or order, if any, heretofore duly adopted or made by the City Council. Section 6. Said reassessment, including all costs' and expenses thereof, is hereby levied. 'Pursuant to the provisions of the Act, reference is hereby made to the Resolution of Intention for further particulars. Section 7. Based on the oral and documentary evidence, including the Report, offered and received by the City Council, the City Council expressly lrmds and determines: (a) that each of said several subdivisions of land will be specially benefited by said reassessment at least in the amount, if not more than the amount, of the reassessment apportioned against such subdivision of land; and (b) that there is substantial evidence to support, and the weight of said evidence preponderates in favor of, the aforesaid finding and determination as to special benefits. Section 8. That the City Clerk shall forthwith cause: (a) the reassessment to be delivered to the official of the City who is the Superintendent of Streets of the City, together with said reassessment diagram, as approved and confirmed by the City Council, with a certificate of such confirmation and of the date thereof, executed by the City Clerk, attached thereto. Said Superintendent of Streets shall record said reassessment and reassessment diagram in a suitable book to be kept for that purpose, and append thereto a certificate of the date of such recording, and such recordation shall be and constitute the reassessment roll herein; (b) a copy of said reassessment diagram and a notice of reassessment, executed by the City Clerk, to be fried and recorded, reSpectively, in the office of the CoUnty Recorder of the County of Orange, such notice to be in substantially the form provided in Section 3114 of the California Streets and Highways Code; and (c) a copy of this Resolution to be provided to the Auditor of the County of Orange. From the date of recording of said notice of reassessment, all persons shall be deemed to have notice of the contents of such reassessment, and each of such reasseSsments shall thereupon be a lien upon the property against which it is made and, unleSs sooner discharged such liens shall so continue for the period of 19 years from the date of said recordation, or in the event bonds are issued to represent said reassessments, then such liens shall continue until the expiration of four years after the due date of the last installment upon said bonds or of the last installment of principal of said bonds. The appropriate officer or officers are hereby authorized to pay any and all fees required by law in connection with the above. Section 9. The disproportionate allocation of the excess Construction funds relating to the Prior Bonds among asseSsments on properties owned by The Irvine Company, as described in the Consent of The Irvine Company with respect thereto and as reflected in the Report, is hereby approved. Section 10. Resolution No. 95-119, adopted by the City Council on November 20, 1995, is hereby rescinded, repealed and annulled and shall be of no further force and effect Section 11. The officers and employees of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof. Section 12. This Resolution shall take effect immediately upon its adoption. 1996. APPROVED and ADOPTED by the City Council of the City of Tustin on January 15, ATTEST: Jim Ports, Mayor Pamela Stoker, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of a Resolution duly adopted at a regular meeting of the City Council of said City duly and regularly held at the regular meeting place thereof on January 15, 1996, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present; and that at said meeting said Resolution was adopted by the following vote: AYES: COUNCIL MEMBERS' NOES: ABSENT: COUNCIL MEMBERS': COUNCIL MEMBERS: An agenda of said meeting was posted at least .72 hours before said meeting at 300 Centennial Way, Tustin, California, a location freely accessible to members of the public, and a brief general description of said Resolution appeared on said agenda. I further certify that I have carefully compared the same with the original minutes of said meeting on f'fie and of record in my office; that the foregoing Resolution is a full, true and correct copy of the original Resolution adopted at said meeting and entered in said minutes; and that said Resolution has not been amended, modified or rescinded since the date of its adoption, and the same is now in full force and effect. Dated: ,1996 Pamela Stoker, City Clerk RESOLUTION NO. 96-11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN AUTHORIZ~G THE ISSUANCE OF NOT TO EXCEED $51,000,000 AGGREGATE PRINCIPAL AMOUNT OF CITY OF TUSTIN LIMITED OBLIGATION IMPROVEMENT BONDS, REASSESSMENT DISTRICT NO.. 95-2 (TUSTIN RANCH), APPROVING THE EXECUTION AND DELIVERY OF A FISCAL AGENT AGREEMENT, A REIMBURSEMENT AGREEMENT, AN ESCROW AGREEMENT, A PURCHASE CONTRACT AND A REMARKETING AGREEMENT AND THE PREPARATION OF AN OFFICIAL STATEMENT AND OTHER MATTERS RELATED THERETO AND RESCINDING RESOLUTION NO. 95-120 Reassessment District No. 95-2 (Tustin Ranch) WHEREAS, the City Council (the "City Council") of the City of Tustin (the "City"), by Resolution No. 86-81, adopted on June 16, 1986, resolved its intention to form City of Tustin Assessment District No. 85-1 ("District 85-1") and to issue bonds to represent unpaid assessments therein; WHEREAS, the City Council, by Resolution No. 86-81, adopted on June 16, 1986, confmUed said assessments; WHE~AS, pursuant to Resolution No. 86-102 of the City Council, adopted on August 18, 1986, an Indenture of Trust, dated as of August 1, 1986 (the "85-1 Indenture"), by and between the City and Citibank, N. A., as trustee, and the Improvement Bond Act of 1915, being Division 10 of the California Streets and Highways Code (the "Bond Law"), the City issued City of Tustin Assessment District No. 85-1 Improvement Bonds (the "85-1 Bonds") in the original principal amount of $50,650,000; WHE~S, the City Council, by Resolution No. 88-61, adopted on June 13, 1988, resolved its intention to form City' of Tustin Assessment District No. 86-2 ("District 86-2") and. to issue bonds to represent unpaid assessments therein; WHEREAS, the City Council, by Resolution No. 88-81, adopted on July 18, 1988, confmued said assessments; WHEREAS, pursuant to Resolution No. 88-97 of the City Council, adopted on September 6, 1988, an Indenture of Trust, dated as of September 1, 1988 (the "86-2 Indenture"), by and between the City and Citibank, N. A., as trustee, and the Bond Law, the City issued City of Tustin Assessment District No. 86-2 Limited Obligation Improvement Bonds (the "86-2 Bonds") in the original principal amount of $81,400,000; WHEREAS, certain savings and efficiencies may be obtained by refunding the $23,969,000 aggregate principal amount of 85-1 Bonds that have not been converted to fixed interest rates pursuant to the 85-1 Indenture and the $41,362,000 aggregate principal amount of 86-2 Bonds that have not been converted to fLxed interest rates pursuant to the 86-2 Indenture (said portion of the 85-1 Bonds and said portion of the 86-2 Bonds being collectively referred to as the "Prior Bonds"); WHEREAS, the City Council, by a Resolution entitled "A Resolution of the City Council of the City of Tustin of Intention to Levy Reassessments and to Issue Refunding Bonds Upon Security Thereof", adopted on November 20, 1995 (the "Resolution of Intention"), has conducted reassessment and refunding proceedings under the Refunding Act of 1984 for 1915 Improvement Act Bonds, Division 11.5 (commencing with Section 9500) of the California Streets and Highways Code for the City's Reassessment District 95-2 (Tustin Ranch) (the "District") to which proceedings reference is hereby made for further particulars; WHEREAS, there is on file with the Treasurer of the City a list of all reassessments within the District which remain, unpaid (the "List of Unpaid Reassessments"), to which list reference is made for further particulars; WHEREAS, the City desires to refund the Prior Bonds; WHEREAS, in order to provide the moneys required to refund the Prior Bonds, the City desires to authorize the issuance of the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series. A (the "Bonds"), in an aggregate principal amount of not to exceed $51,000,000; WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and secured and to secure the payment of the principal thereof, premium, if any, and interest thereon, the City proposes to enter into a Fiscal Agent Agreement with State Street Bank and Trust Company of California, N.A., as fiscal agent (sUch Fiscal Agent Agreement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Fiscal Agent Agreement"); WHEREAS, in order to provide a letter of credit to secure the payment of the principal of and interest on the Bonds, the City proposes to enter into a Reimbursement, Credit and Security Agreement with Kredietbank N.V. (such' Reimbursement, Credit and Security Agreement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Reimbursement Agreement"); WHEREAS, in order to provide for the defeasance and redemption of the Prior Bonds, the City proposes to enter into an Escrow Agreement (95-2) with State Street Bank and Trust Company, N.A., as escrow bank (such Escrow Agreement in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution being referred to herein as the "Escrow Agreement"); and WHEREAS, PaineWebber Incorporated (the "Underwriter") has presented the City with a proposal, in the form of a Bond Purchase Agreement to purchase the Bonds from the City (such Purch~e Contract, in the form presented to this meeting, with such changes, insertions' and omissions as are made pursuant to this Resolution, being referred to herein as the "Bond Purchase Agreement"); WHEREAS, in order to provide for the remarketing of Bonds tendered pursuant to the terms of the Fiscal Agent Agreement, the City proposes to enter into a Remarketing Agreement with PaineWebber Incorporated (such Remarketing Agreement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Remarketing Agreement"); WHEREAS, there have been prepared and submitted to this meeting forms of: (a) the Fiscal Agent Agreement; (b) the Reimbursement Agreement; (c) the Escrow Agreement; (d) the Bond Purchase Agreement; (e) the Remarketing Agreement; (f) the Preliminary Official Statement to be used in connection with the offering and sale of the Bonds (such Preliminary Official Statement in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the "Preliminary Official Statement"); and (g) the Protocol Agreement between the City and The Irvine Company, which provides for certain rights and obligations of the City and The Irvine Company with respect to the District and the Bonds (such Protocol Agreement in the form presented to this meeting, with such changes, insertions and omissions as-are made pursuant to this Resolution being referred to herein as the "Protocol Agreement"); and WHEREAS, the City desires to proceed to issue and sell the Bonds and to authorize the execution of such documents and the performance of such acts as may be necessary or desirable to effect the offering, sale and issuance of the Bonds; NOW, THEREFORE, BE IT RESOLVED by the City Council the City of Tustin as follows: Section 1. The reassessments now remaining unpaid are as shown on the List of Unpaid Reassessments, which list is hereby approved and incorporated herein by this reference. The total amount of the unpaid reassessments is not to exceed $58,000,000. For a particular description of the lots, pieces and parcels of land bearing the respective reassessment numbers set forth in the List of Unpaid Reassessments, reference is hereby made to the re-assessment and to the reassessment diagram, and any amendments thereto approved by the City Council, all as recorded in the office of the Director of Public Works of the City as the Superintendent of Streets of the City, after conf'umation thereof by the City Council. Section 2. Subject to the provisions of Section 3 hereof, the issuance of the Bonds, in the aggregate principal amount of not to exceed $51,000,000, on the terms and conditions set forth in, and subject to the limitations specified in, the Fiscal Agent Agreement, is hereby authorized and approved. The Bonds shall be dated, shall bear interest at the rates, shall mature on the .dates, shall be issued in the form, and 'shall be as otherwise 'provided in the Fiscal Agent Agreement, as the same shall be completed as provided in this Resolution. Section 3. The Fiscal Agent Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth herein, be and the same is hereby approved. The Mayor of the City, or such other member of the City Council as the Mayor may designate, the City Manager of the City and the Director of Finance/Treasurer of the City (the "Authorized Officers") are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Fiscal Agent Agreement in the form submitted to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Fiscal Agent Agreement by such Authorized Officer; provided, however, that such changes, insertions and omissions shall not authorize an aggregate principal amount of Bonds in excess of $51,000,000, shall not result in a final maturity date of the Bonds later than September 2, 2013 and shall not result in a true interest cost on the Bonds for the initial interest period Or periods in excess of 7.0%. Section 4: The Reimbursement Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Reimbursement Agreement in the form presented to this meeting, with such chang&s, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Reimbursement Agreement by such Authorized Officer. Section 5. The Escrow Agreement, in substantially the form submitted to this meeting -and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Escrow Agreement in the form presented to this meeting, with such'changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Escrow Agreement by such Authorized Officer. Section 6. The Bond Purchase Agreement, in substantially the form submitted'to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Bond Purchase Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Bond Purchase Agreement by such Authorized Officer; provided, however, that such changes, insertions and omissions shall not result in an aggregate underwriter's discount (not including any original issue discount) from the principal amOunt, of the Bonds in excess of .07% of the aggregate principal amount of the Bonds, plus expenses of not to exceed $40,000. Section 7. The Remarketing Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and. the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute' and deliver the Remarketing Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Remarketing Agreement by such Authorized Officer. Section 8. The Preliminary Official Statement, in substantially the form presented to this meeting and made a part hereof as though set forth in full herein, with such changes therein as may be approved by an Authorized Officer, be and the same is hereby approved, and the use of the Preliminary Official Statement in connection with the offering and sale of the Bonds is hereby authorized and approved. The Authorized Officers are,. and each of them is, hereby authorized and directed, for and in the name of the City, to certify to the Underwriter that the Preliminary Official Statement has been "deemed final" for purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission. Section 9. The preparation and delivery of a final Official Statement .(the "Official Statement"), and its use in connection with the offering and sale of the Bonds, be and the same is hereby authorized and approved. The Official Statement shall be in substantially the form of the Preliminary Official Statement with such changes, insertions and omissions as may be approved by an Authorized Officer, such approval to be conclusively evidenced by the execution and delivery thereof. The Authorized Officers are, and each of them is, hereby authorized and directed to execute the final Official Statement and any amendment or supplement thereto, for and in the name of the City. Section 10. The Protocol Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Protocol Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Protocol Agreement by such Authorized Officer. Section 11. The Authorized Officers are, and each of them hereby is, 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 and things necessary or proper for carrying out the issuance of the Bonds and the transactions contemplated by the Fiscal Agent Agreement, the Reimbursement Agreement, the Escrow Agreement, the Bond Purchase Agreement, the Remarketing Agreement, the Official Statement, the Protocol Agreement and this Resolution. Section 12. All actions heretofore taken by the officers and employees of the City with respect to the District, the reassessments, the refunding of the Prior Bonds or the issuance and sale of the Bonds, or in connection With or related to any of the agreements or documents referenced herein, are hereby approved, confumed and ratified. Section 13. Resolution No. 95-120, adopted by the City Council on November 20, 1995, is hereby rescinded, repealed and annulled and shall be of no further force and' effect 1996. Section 114. This Resolution shall take effect immediately upon its adoption. APPROVED and ADOPTED by the City Council of the CiTM of Tustin on January 15, Jim Potts, Mayor ATrEST: Pamela Stoker, City Clerk STATE OF C .ALIFORNIA ) COUNTY OF ORANGE ) ss I, Pamela Stoker, City Clerk of the City of Tustin, California hereby certify that the foregoing is a full, true and correct copy of a Resolution duly adopted at a regular meeting of the City Council of said City duly and regularly held at the regular meeting place thereof on January 15, 1996, of which meeting all of the members of said City Council had due notice and at which a majority thereof were present; and that at said meeting said Resolutior~-was adopted by the following vote: AYES: COUNCIL MEMBERS: NOES: couNcIL MEMBERs: ABSENT: COUNCIL MEMBERS: An agenda of said meeting was posted at least 72 hours before said meeting at 300 Centennial Way, Tustin, California, a location freely accessible to members of the public, and a brief general description of said Resolution appeared on said agenda. I further certify that I have carefully cOmpared the same with the original minUtes of said meeting on f'fie and of record in my office; that the foregoing Resolution is a full, true and correct copy of the original Resolution adopted at said meeting and entered in said minutes; and that said Resolution has nOt been amended, modified or rescinded since the date of its adoption, and the same is now in full force and effect. Dated: ,1996 Pamela Stoker, City Clerk FISCAL AGENT AGREEMENT by and between the CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Fiscal Agent Dated as of 1, 1995 RELATING TO $ CITY OF TUSTIN LIMITED'OBLIGATION IMPROVEMENT BONDS REASSESSMENT DISTRICT NO. 95-2 (TUSTIN RANCH), SERIES A TABLE OF CONTENTS Page ARTICLE I STATUTORY AUTHORITY AND DEFINITIONS Section 1.01. Section 1.02. Section 1.03. Section 1.04. Authority for this Agreement .......... : ............................................................. 2 Definitions ..................................................................................................... 2 Interpretation ............................................................................................... 14 Agreement Constitutes Contract ................................................................. 14 ARTICLE H THE BONDS Section 2.01. Section 2.02. Section 2.03. Section 2.04. Section 2.05. Section 2.06. Section 2.07. Section 2.08. Section 2,09. Section 2.10. Section 2.11. Section 2.12. Section 2.13. Section 2.14. Section 2.15. Section 2.16.. Section 2.17. Section 2.18. Authorization of Bonds ............................................................................... 16 Terms of Series A Bonds ............................................................................ 16 Determination of Adjusted Interest Rates and Adjustment Periods for VIP Bonds ................................................................................................ 17 Determination of Adjusted Interest Rate During Daily, Weekly, Monthly, Semi-Annual, Extended Rate or Fixed Rate Mode .................. 18 Altemate Rate for Interest Calculation ............................ .. .......................... 19 Interest on Bank Bonds ............................................................... : ............... 19 Changes in Mode ........................................................................................ 19 Change In Mode to a Fixed Rate Mode ...................................................... 20 Transfer and Exchange of Bonds ................................................................ 22 Registration Books ...................................................................................... 23 Execution of Bonds ..................................................................................... 23 Authentication of Bonds ............................................................................. 23 Temporary Bonds ....................................................................................... 23 Bonds Mutilated, Lost, Destroyed or Stolen .............................................. 23 Book-Entry System ..................................................................................... 24 Limited Obligation ....................................................................................... 26 No Acceleration ............................................... : .......................................... 26 Refunding of Bonds ................................................ , ................................... 26 ARTICLE Ill ISSUANCE OF BONDS; APPLICATION OF PROCEEDS; ADDITIONAL BONDS Section 3.01. Section 3.02. Section 3.03. Section 3.04. Section 3.05. Section 3.06. Issuance of Series A Bonds ........................................................................ 27 Application of Proceeds of the Series A Bonds .......................................... 27 Costs of Issuance Fund ............................................................................... 27 Issuance of Additional Series of Bonds ...................................................... 27 Proceedings for the Issuance of Additional Series of Bonds ...................... 28 Limitations on Additional Bonds ................................................................ 29 -i- ARTICLE IV Section 4.01. Section 4.02. Section 4.04. Section 4.05. Section 4.06. Section 4.07. Section 5.01. Section 5.02. Section 5.03. Section 5.04. Section 5.05. Section 5.06. Section 6.01. Section 6.02. Section 6.03. Section 6.04. Section 6.05. Section 6.06. Section 6.07. · Section 6.08. Section 7.01. Section 7.02. Section 7.03. Section 7.04. Section 7.05. Section 7.06.. Section 7.07. Section 7.08. Section 7.09. Section 7.10. Section 7. 11. Section 7.12. REDEMPTION OF BONDS Optional Redemption .................................................................................. 30 Mandatory Redemption from Reassessment Prepayments ......................... 30 Notice of Redemption ................................................................................. 32 Selection of Bonds for Redemption ............................................................ 32 Partial Redemption of Bonds ...................................................................... 32 Effect of Notice of Redemption .................................................................. 32 ARTICLE V PURCHASE OF ADJUSTABLE RATE BONDS Tender for Purchase upon E~ection of Owner ............................................ 34 Mandatory Purchase on Mandatory Purchase Dates .................................. 34 Tender and Purchase of Adjustable Rate Bonds ..................... 35 Letter of Credit . 36 37 Purchase Fund ....... ....................................................................................... 37 ARTICLE VI SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENTS Pledge and Assignment ............................................................................... 39 Redemption Fund ............................................................................... : ........ 39 Prepayment Account ........................................................................... : ....... 40 Letter of Credit Account ............................................................................. 41 Interest Reserve Fund ............... : ................................................................. 41 Reserve Fund ........... ~ .................................................................................. 42 Continuing Costs Account .......................................................................... 43 Investment of Moneys ................................................................................ 43 ARTICLE VII COLLECTION AND APPLICATION OF REASSESSMENTS; PARTICULAR COVENANTS Collection and Application of Reassessments ............................................ 45 Foreclosure ................................................................................................ ,47 No Advances from Available Surplus Funds ............... : ............................. 47 Punctual Payment., .............. , ................................................................. .... 47 Extension of Payment of Bonds ................................................................. 47 Against Encumbrances ............................................................................... 47 Power to Issue Bonds. and Make Pledge ..................................................... 48 Accounting Records and Financial Statements .......................................... 48 Waiver of Laws ....... Tax Covenants ............................. 49 Further Assurances ... ................................................................................. 49 Section 8.01. Section 8.02. Section 8.03. Section 8.04. Section 8.05. Section 8.06. Section 8.07. Section 8.08. Section 8.09. Section 8.10. Section 8.11. Section 9.01. Section 9.02. Section 9.03. Section 9.04. Section 9.05: Section 9.06. Section 9.07. Section 9.08. Section 10.01. Section 10.02. Section 10.03. Section 10.04. Section 11.01. Section 11.02. Section 11.03. Section 11.04. Section 12.01. Section 12.02. ARTICLE Vm EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Events of Default ........................................................................................ 50 Foreclosure ................................................................................................. 50 Other Remedies .......................................................................................... 50 Bank's Right Regarding Remedies ............................................................. 51 Application of Reassessments and Other Funds After Default .................. 51 Bond Owners' Direction of Proceedings .................................................... 52 Limitation on Bond Owners' Right to Sue ................................................. 52 Absolute Obligation of City ........................................................................ 52 Termination of Proceedings ........................................................................ 52 Remedies Not Exclusive ............................................................................. 53 No Waiver of Default ................................................................................. 53 ARTICLE IX FISCAL AGENT; PAYING AGENT; REMARKETING AGENT Duties and Liabilities of Fiscal Agent ........................................................ 54 Merger or'Consolidation ............................................................................. 55 Liability of Fiscal Agent ............................................................................. 56 Right to Rely on Documents ....................................................................... 56 Preservation and Inspection of Documents ................................................ 57 Compensation and Indemnification ............................................................ 57 Appointment of Paying Agent .................................................................... 57 Appointment of Remarketing Agent .......................................................... 57 ARTICLE X MODIFICATION OR AMENDMENT Amendments Permitted .............................................................................. 59 Effect of Supplemental Agreement 60 Endorsement of Bonds .............................................. , ................................. 60 Amendment of Particular Bonds ................................................................ 60 ARTICLE XI DEFEASANCE Discharge of Agreement ............................................................................. 61 Discharge of Liability on Bonds ................................................................. 61 Deposit of Money or Securities with Fiscal Agent ..................................... 62 · Payment of Bonds After Discharge of Agreement ..................................... 62 .. ARTICLE XH MISCELLANEOUS Limited Obligation.. 63 Successor Is Deemed Included in All References to Predecessor .............. 63 Section 12.03. Section 12.04. Section 12.05. Section 12.06. Section 12.07. Section 12.08. Section 12.09. Section 12.10. Section 12.11. Section 12.12. Section. 12.13. Section 12.14. Section 12.15. Section 12.16. Section 12.17. Section 12.18. Section 12.19. Section 12.20. Limitation of Rights to Parties and Bond Owners ...................................... 63 Waiver of Notice ......................................................................................... 63 Destruction of Bonds .......................................................................... ~ ....... 63 Severability of Invalid Provisions .............................................................. 63 Bank Deemed Owner .................................................................................. 64 ' 'Notices .......................................................................... : ........... ~ ................. 64 Additional Notices to Moody's and S&P ............................... ~ ................... 65 Evidence of Rights of Bond Owners .......................................................... 65 Dis_qualified Bonds ............................................................................. . ........ 65 Money Held for Particular Bonds ............................................................... 66 Funds and Accounts .................................................................................... 66 Payment on Non-Business Days ................................................................. 66 Waiver of Personal Liability ......................................................... ; ............. 66 Conflict with Act or Bond Law ...................................... ~ ........................... 66 Conclusive Evidence of Regularity ........................ ~ ................................... 66 Execution in Several Counterparts ............................................................. 66 New York Time ....................................................... , .................................. 66 Governing Law ................................. ' .......................................................... 66 EXZ-II~IT A - Form of Series A Bond .................................................................................. A-1 FISCAL AGENT AGREEMENT THIS FISCAL AGENT AGREEMENT (this "Agreement") is made and entered into as of 1, 1995 by and between the CITY OF TUSTIN, a general law city and municipal corporation organized and existing under and by virtue of the laws of the State of California (the "City"), and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national banking association organized and existing under and by virtue of the laws of the United States of America, as fiscal agent (the "Fiscal Agent"). WITNES SE TH: WHEREAS, on , 1995, the City Council of the city passed and adopted Resolution No. (the "Resolution of Intention") relating to the levy of reassessments, and issuance of refunding bonds pursuant to the Refunding Act of 1984 for 1915 Improvement Bonds, Division 11.5 (commencing with Section 9500) of the Streets and Highways Code of California (the "Refunding Law") in and for a portion of the City's Assessment District No. 85-1 and a portion of the City's Assessment District No. 86-2 and, by the Resolution of Intention, the City Council of the City provided that serial and/or term bonds would be issued thereunder pursuant to the provisions of the Improvement Bond Act of 1915, Division 10 of the Streets and Highways Code of California (the "Bond Law" and, together with the Refunding Law, the "Act") and reference to Re Resolution of Intention is hereby expressly made for further particulars; WHEREAS, under the provisions of the Act, on ,1995, the City Council of the City adopted Resolution No. (the "Resolution of Issuance"), which, among other matters, author/zed the issuance of ~:efunding improvement bonds of the City designated "City of Tustin Limited ObligatiOn Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch) (the "Bonds"), upon the security of the unpaid reassessments and provided that said issuance would be in accordance with the Act and this Agreement, and authorized the execution hereof; WHEREAS, it is in the public interest and for the benefit of the City and the owners of 'the Bonds that the City enter into this Agreement to provide for the issuance of the Bonds, the disbursement of proceeds of the Bonds, the disposition of the reassessments securing the Bonds and the administration and payment of the Bonds; and WHEREAS, the City has determined that all things necessary to cause the Bonds, when authenticated by the. Fiscal Agent and issued as provided in the Act, the Resolution of Issuance and this Agreement, to be legal, valid and binding and limited obligations in accordance with their terms, and all things necessary to cause the creation, authorization, execution and delivery. of this Agreement and the creation, authorization, execution and issuance of the Bonds, subject to the terms hereof, have in all respects been duly authorized; NOW, THEREFORE, in consideration of the covenants and provisions herein set forth and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I STATUTORY AUTHORITY AND DEFINITIONS Section 1.01. Authority for this Agreement. This Agreement is' entered into pursuant to the provisions of the Act and the Resolution of Issuance. Section 1.02. Definitions. Unless the context otherwise requires, the terms defined in this Section shall for all purposes of this Agr~.ment, of any Supplemental Agreement and of any certificate, opinion or other document herein or therein mentioned, have the meanings herein specified. "Act" means, collectively, the Improvement Bond Act of 1915, as amended, being Division 10 of the California Streets and Highways Code, and the Refunding Act of 1984 for 1915 Improvement Act Bonds, as amended being Division 11.5 of the'California Streets and Highways Code. "Additional Bonds'" means Bonds other than Series A Bonds issued hereunder in accordance with the provisions of Section 3.04 and 3.05. "Adjustable Rate Bonds" means Series A Bonds in any Mode other than the Fixed Rate Mode. "Adjustable Rate Mode" means the Daily Mode, the Weekly Mode, the Monthly Mode, the Semi-Annual Mode, the Extended Rate Mode and the VIP Mode. "Adjusted Interest Rate" means, with respect to the interest rate to be borne by a Series A Bond during any Adjustment Period, the interest rate per annum determined on the applicable Rate Determination Date in accordance with Section 2.03 or 2.04. "Adjustment Period" means the period of time that any Adjusted Interest Rate remains in effect, which period: (a) with respect to a Series A Bond in the Daily Mode, shall be the period consisting of one day; (b) with respect to a VIP Bond, shah be the period from and including the Rate Determination Date for such Bond with respect to such Adjustment Period to and including the day preceding the following Rate Determination'Date for such Series A Bond as established by the City pursuant to Section 2.03; provided, however, that the day after the last day of any such Adjustment Period shall be a Business Day and each such Adjustment Period shall be at least one day; (c) with respect to a Series A Bond in a Weekly Mode, initially shall be the period from and including the first day that such Series A Bond becomes subject to the Weekly Mode to and including the following Tuesday and thereafter commencing on each Wednesday to and including Tuesday of the following week; (d) with respect to a Series A Bond in the Monthly Mode, initially shall be the period from and including the first day that such Series A Bond becomes subject to the Monthly Mode to but not including the first day of the following calendar month and thereafter shall be the period from and including the first day of each calendar month to but not including the first day of the following calendar month; -2- (e) with respect to a Series A Bond in the Semi-Annual Mode, initially shall be the period from and including the first day that such Series A Bond becomes subject to the Semi- Annual Mode to but not including the next March 2 or September 2, whichever fin:st occurs, and thereafter shall be the period from and including such March 2 or September 2, as applicable, to but not including the next succeeding March 2 or September 2, whichever first occurs; (f) with respect to a Series A Bond in the Extended Rate Mode, initially shall be a period (which shall be at least one year in duration or integral multiples of six months in excess of one year) from and including the first day that suCh Series A Bond becomes subject to the Extended Rate Mode to but not including a subsequent March 2 or September 2 and thereafter may be the period from and including such March 2 or September 2, as applicable, to but not including a future March 2 or September 2, whichever last occurs and which is at least one year in duration; (g) with respect to a series A Bond in the Fixed Rate Mode, shall be the period from and including the Conversion Date for such Series A Bond to but not including the Maturity Date. No Adjustment Period shall extend beyond the day preceding the Maturity Date. "Agreement" means this Fiscal Agent Agreement, as originallY executed or as it may from time to time be amended or supplemented by any Supplemental Agreement. "Alternate Letter of Credit" means a letter of credit or other security or liquidity device issued in accordance with Section 5.04 which shall have a term of not less than one year and shall have the same material terms as the Letter of Credit. "Alternate Rate" means, on any Rate Determination Date, the rate per annum specified in the Index and in effect on such Rate Determination Date. If no Indexing Agent any longer publishes .an Index satisfying the requirements set forth in the definition thereof, the Alternate Rate for an Adjustment Period shall be the rate per annum specified in the most recently published Index for a comparable Adjustment Period. "Assessment Consultant" means Muni Financial Services, Inc. or any other consultant or rum of financial consultants appointed by the City and who or each of whom: (a) is judged by the City to have experience with respect to the administration of assessment districts, (b) is in fact independent and not under the domination of the City, (c) does not have any substantial interest, direct or indirect, with the City, and (d) is not connected with the City as an officer or employee of the City, but who may be regularly retained to make reports to the City. "Auditor" means the auditor/controller of the County, or such other official of the County who is responsible for preparing property tax bills. "Authority" means the Tustin Public Financing Authority, a joint exercise of powers authority organized and existing under Sections 6500 et seq. of the California Government Code. "Authority Indenture" means the Indenture of Trust, dated as of ,1995, by and between the Authority and State Street Bank and Trust Company of California, N.A., as trustee, as originally executed or as it may from time to time be amended or supplemented in accordance with its terms. "Authority Trustee" means State Street Bank and Trust Company of California, N.A., as trustee under the Authority Indenture, or any successor thereto as trustee thereunder. -3- "Authorized Denominations" means (a) with respect to the VIP Mode, $100,000 and' any integral multiple of $5,000 in excess thereof, (b)with respect to the Fixed Rate Mode, $5,000 and any integral multiple thereof, (c) with respect to the Daily Mode, the Weekly Mode, the Monthly Mode, the Semi-Annual Mode and the Extended Rate Mode, $100,000 and any integral multiple thereof, and (d) with respect to Additional Bonds, $5,000 and any integral multiple thereof. "Authorized Representative" means, with respect to the City, its City Manager, Assistant City Manger or Treasurer, or any other Person designated as an Authorized Representative of the City in a Written Certificate of City t-fled with the Fisdai Agent. .. "Bank" means Kredietbank N.V., acting by and through its New York Branch, and its successors and assigns, or the issuer of an Alternate Letter of Credit. "Bank Bonds" means any Series A Bonds registered in the name of the Bank pursuant to Section 5.03(c). "Bank Rate" means 0%. "Beneficial Owners" means those individuals, partnerships, corporations or other entities for whom the Participants have caused the Depository to hold Book-Entry Bonds. "Bond Counsel" means a firm of nationally recognized bond counsel selected by the City and acceptable to the Fiscal Agent. "Bond Year" means each twelve-month period beginning on'September 3 in each year and extending to the next succeeding September 2, both dates inclusive; except that the first Bond Year shall begin on the Closing Date and end on September 2, 1996. "Bonds" means the City of Tustin Limited Obligation Improvement Bonds, Reassessment DislXict No. 95-2 (Tustin Ranch) issued hereunder, and includes the Series A Bonds and any Additional Bonds. · "Bonds (85-1)" means the City of Tustin Assessment District No. 85-1 Improvement Bonds issued pursuant to the Indenture (85-1). "Bonds (86-2)" means the City of Tustin Assessment District No. 86-2 Limited Obligation Improvement' Bonds issued pursuant to the Indenture (86-2). "Book-Entry Bonds" means the Bonds registered in the name of the nominee of DTC, or any successor securities depository for the Bonds, as the registered owner thereof pursuant to the terms and provisions of Section 2.15. "Business Day" means any day other than (a) a Saturday, Sunday or legal holiday, (b) a day on which banking institutions in Los Angeles, California or New York, New York or in anY other city where either the principal corporate trust office of the Fiscal Agent, the corporate trust office of the Paying Agent designated for payment and tender of the Bonds or the office of the Bank at which drafts are required to be presented under the Letter of Credit, is located, are required or authorized by law (including executive order) to close, or (c) a day on which the New York Stock Exchange is closed. "Cede & Co." means Cede & Co., the nominee of DTC, and any successor nominee of DTC with respect to the Bonds. "Change in Mode" means any change pursuant to Section 2.07 or 2.08 from one MOde to another Mode. "City" means the City of Tustin, and any successor thereto. "Clerk" means the Clerk or Deputy Clerk of the City. "Closing Date" means the date upon which the Series A Bonds are delivered to the Original Purchaser, being ,1995. "Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance of the Series A Bonds or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the date of issuance of the Series A Bonds, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code. "Continuing Costs Account" means the account within the Redemption Fund by that name established and held by the Fiscal Agent pursuant to Section 6.07. "Continuing Costs of the Fixed Rate Bonds" means the continuing costs of the Fixed Rate Bonds and Related Additional Bonds, ff any, including the fees, costs and indemnifications due' the Fiscal Agent; the Paying Agent or the City and allocable to the Fixed Rate Bonds and Related Additional Bonds, if any. "Continuing Costs of the Adjustable Rate Bonds" means the continuing costs of the Adjustable Rate Bonds and the Reimbursement Agreement, including the fees, costs and indemnifications due the Bank or the Remarketing Agent, and the fees, costs and indemnifications due the Fiscal Agent, the Paying Agent or the City and allocable to the Adjustable Rate Bonds. "Conversion Date" means, with respect to an Adjustable Bond, the date on which such Adjustable Bond begins to bear interest at a Fixed Interest Rate. "Conversion Request" means a written notice delivered to the City pursuant to the Protocol Agreement requesting the conversion of a specified principal amount of Adjustable Rate Bonds to Fixed Rate Bonds. "Cost of Issuance" means, with 'respect to a Series of Bonds, all items of expense directly or indirectly payable by or reimbursable to the City relating to the authorzafion, issuance, sale and delivery of such Bonds, including but not limited to printing expenses, rating agency fees, f'fling and recording fees, initial fees, expenses and charges of the Fiscal Agent and its counsel, including the Fiscal Agent's first annual administrative fee, fees, expenses and charges of the Escrow Bank and its counsel, fees, charges and disbursements of attorneys, £mancial advisors, accounting fh'ms, consultants, and other professionals, fees and charges for preparation, execution and safekeeping of such Bonds and any other cost, charge or fee in connection with the original issuance of such Bonds. "Cost of Issuance Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 3.03. "Council" means the. City Council, as the legislative body of the City. "County" means the County of Orange, State of California. -5- · "Daily Mode" means the Mode in which the duration of each Adjustment Period is determined in accordance with clause (a) of the definition of Adjustment Period. "DePository" means the securities depository acting as Depository pursuant to Section 2.15. "DTC" means The Depository Trust Company, New York, New York and its successors. "Escrow Agreement" means the Escrow Agreement (95-2), dated as of ,1995, by and between the City and State Street Bank and Trust Company, N.A., as escrow bank, as originally executed or as it may from time to time be amended or supplemented in accordance with its terms. "Escrow Bank" means State Street Bank and Trust Company, N.A., as escrow b~mk under the Escrow Agreement,' or any successor thereto as Escrow Bank thereunder. "Expiration Date" means the stated expiration date of the Letter of Credit, as it may be extended from time to time as provided in the Letter of Credit, or any earlier date on which the Letter of Credit shall terminate, expire or be canceled. "Extended Rate Mode" means the Mode in which the duration of the Adjustment Period is determined in accordance with clause (f) of the clef'tuition of Adjustment Period. "Fair Market Value" means the price at which a willing buyer would 'purchase the investment from a willing seller in a bona fide, arm's length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of section 1273 of the Code) and, otherwise, the term "fair market value" means the acquisitions price in a bona fide arm's length transaction (as referenced above) if (a) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (c) the investment is a United States Treasury Security--State and Local Government Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (d) the investment is the LOcal Agency Investment Fund of the State of California but only if at all times during which the investment is held its yield is reasonably expected to be equal to or greater than the yield on a reasonably comparable direct obligation of the United States. "Favorable 'Opinion of Bond Counsel" means, with respect to any action the occurrence of which requires such an opinion, an unqualified'opinion of Bond Counsel to the effect that such action is permitted under the Act and this Agreement and will not impair the exclusiOn of interest on the Bonds from gross income for purposes of Federal income taxation or the exemption of interest on the Bonds from personal income taxation under the laws of. the State of California (subject to the inclusion of any exceptions contained in the opinion delivered upon original issuance of the Series A Bonds). -"Federal Securities" means any of the following which at the time of investment are legal investments under the laws of the State of California for the funds purported to be invested therein: (a) direct general obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), and (b) obligations of any agency,' department or instrumentality of the United States of America the timely payment of principal of and interest on which are fully guaranteed by the United States of America. -6- "Fiscal Agent" means State Street Bank and Trust Company of California, N.A., a national banking association organized and existing under the laws of the United States of America, acting through the Office of the Fiscal Agent, or any successor thereto as Fiscal Agent hereunder, appointed as provided herein. "Fiscal Year" means the period beginning on July 1 of each year and ending on the next succeeding June 30, or any other twelve-month period hereafter selected and designated as the official fiscal year period of the City designated in a Written Certificate of the City delivered to the Fiscal Agent. "Fixed Interest Rate" means, with respect to a Series A Bond, the rate to be borne by such Series A Bond on and after the Conversion Date therefor, which rate shall be determined in accordance with Section 2.08. "Fixed Rate Bond" means a Series A Bond which bears interest at a Fixed Interest Rate. "Fixed Rate Mode" means the Mode in which the duration of the Adjustment Period is determined in accordance with clause (g) of the definition of Adjustment Period. "Indenture (85-1)" means the Indenture of Trust, dated as of August 1, 1986, by and between the City and Citibank, N.A., as trustee, as supplemented and amended, pursuant to which the Bonds (85-1) were issued. ~-"Indenture (86-2)" means the Indenture of Trust, dated as of September 1, 1988, by and between 'the City and Citibank, N.A., as supplemented and amended, pursuant to which the Bonds (86-2) were issued. "Index" means the index, published by the Indexing Agent, based upon yield evaluations at par of bonds, the interest on which is excluded from gross income for purposes of federal income taxation, of not less than five "high grade" component issuers selected by the Indexing Agent which shall include, without limitation, issuers of general obligation bonds. The specific issuers included among the component issuers may be changed from time to time by the Indexing Agent in its discretion. The bonds on which the Index is based shall not include any bonds the interest on which is subject to a "minimum tax" or similar tax under the Code, unless all tax-exempt bonds are subject to such tax. With respect to Series A Bonds in the Daily Mode, the Weekly Mode, the Monthly Mode or the VIP Mode with an Adjustment Period of 30 days or less, the yield evaluation period for the Index shall be 30-day yield evaluations. With respect to Series A Bonds in the Semi-Annual Mode or the VIP Mode with an Adjustment Period of greater than 30 days but less than or equal to~180 days, the yield evaluation period for the Index shall be 180-day yield eValuations. With respect to Series A Bonds in the Extended Rate Mode or the VIP Mode with an Adjustment Period greater than 180 days, the yield evaluation period for the Index shall be one-year yield evaluations. "Indexing Agent" means Kenny Information Systems, 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 publish the indices referred to in the definition of Index, then the term "Indexing Agent" shall be deemed to refer to any other entity publishing similar indices selected by the City and approved by the Bank and the Remarketing Agent (neither of whom shall be under any liability by reason of such approval). "Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor, -7- Kenny Information Services' Called Bond Service, 55 Broad Street, 28th Floor, New York, New York 10004; Mood's Investors Se ' · · ,, . _ Y rvlce Mumc~pal and Government, 99 Ch~_c,h Street, New xork, New York 10007, Attention: Munici al New : · "r-ou,~a ~.....-, ~ .... ~, ,, .,~. ,. _ p s Reports. Standard & Poor s Corporation ,~.,,,~,~ ovnu r, ecuru, z~ tsroaaway, 3rd Floor, New York, New York 10004; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such services providing information with respect to called bonds as the City may designate in a Written Certificate of the City delivered to the Fiscal Agent. "Interest Payment Date" means (a) with respect to each Series A Bond in the VIP Mode, the fkst day of the next succeeding Adjustment Period for such Series A Bond, (b) with respect to each Series A Bond in the Daily Mode, the Weekly Mode and the Monthly Mode, the fifth Business Day of each calendar month, (c) with respect to each series A Bond in the Semi- Annual Mode, the Extended Rate Mode and the Fixed Rate Mode, each March 2 and September 2, and (d) with respect to each Additional Bond, each March 2 and September 2, commencing on the March 2 or September 2 specified in the Supplemental Agreement pursuant to which such Additional Bond is issued. "Interest Payment Date" shall also mean any Mandatory Purchase Date. "Interest Reserve Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 6.05. "Interest Reserve Fund Requirement" means, on any date, an amount equal to the interest that would have accrued at the Maximum Rate during a period of 35 days ending on such date on the aggregate principal amount of Series A Bonds then in the VIP Mode. "Letter of Credit" means the irrevocable, direct pay letter of Credit issued by the Bank contemporaneously with the original delivery of the Series A Bonds, except that upon the issuance of an Alternate Letter of Credit in accordance with Section 5.04 such term shall mean such Alternate Letter of Credit. "Letter of Credit Account" means the account within the Redemption Fund by that name established and held by the Fiscal Agent pursuant to Section 6.04. "Letter of Credit Interest Amount" means the amount of the Letter of Credit which may be drawn upon to pay interest on the Series A Bonds, which (a) during the VIP Mode, the Daffy Mode, the Weekly Mode and the Monthly Mode shall be an amount equal to the interest to accrue on the Outstanding Series A Bonds in such respective Modes over a 50-day period calculated at. the Maximum Rate on the basis of a 365-day year for the actual number of days~ elapsed, and (b) during the Semi-Annual Mode and the Extended Rate Mode shall be an amount equal to the interest on the Outstanding Series A Bonds in such respective Modes over a 196-day period in such Modes calculated atthe Maximum Rate on the basis of a 360- day year composed of twelve 30-day months. "Letter of Representations" means the letter of the Fiscal Agent and the City delivered to and accepted by the Depository on or prior to the delivery of the Bonds as Book-Entry Bonds setting forth the basis on which the Depository serves as depository for such Book-Entry Bonds, as originally executed or as it maybe supplemented or revised or replaced by a letter to a substitute Depository. · "Mandatory Purchase Date" means (a) with respect to VIP Bonds, the next succeeding Rate Determination Date for such VIP Bonds, (b) the date of any Change in Mode, (c) the fifth Business Day prior to any Substitution Date, (d)the fifth Business Day prior to the Expiration Date, and (e) the fifth Business Day following the Fiscal Agent's receipt of a written notice from the Bank that either (i) an event of default (as defined in the Reimbursement Agreement) has -8- occurred and directing the Fiscal Agent to give notice of the mandatory purchase of Adjustable Bonds in accordance with Section 5.02 or, (ii) when the amount of the Letter of Credit has been reduced by a drawing thereunder to pay interest on the Bonds, that the Bank will not reinstate the amount of the Letter of Credit by an amount equal to the amount so drawn. "Maturity Date" means September 2, 2013. "Maximum Interest Rate" means 12% per annum. "Mode" means the VIP Mode, the Daily Mode, the Weekly Mode, ~he Monthly Mode, the Semi-Annual Mode, the Extended Rate Mode or the Fixed Rate Mode. "Monthly Mode" means the Mode in which the duration of the Adjustment Period is determined in accordance with clause (d) of the definition of Adjustment Period. "Nominee" means the nominee of the Depository, which may be the Depository, as determined from time to time pursuant to Section 2.15. "Notice Parties" means the City, the Fiscal Agent, the Remarketing Agent, the Paying Agent and the Bank. "Notice of Change in Mode" means the notice required to be delivered by the City to the other Notice Parties prior to any Change in Mode pursuant to Section 2.07. "Office" means, (a) with respect to the Fiscal Agent, the principal corporate trust office of the Fiscal Agent in Los Angeles, California, or such other office as may be specified to the other Notice Parties by the Fiscal Agent in writing, and (b) with respect to the Paying Agent, the principal corporate trust office of the Paying Agent in New York, New York, or such other office as may be specified to other Notice Parties by the Paying Agent in writing. "Original Purchaser" means PaineWebber Incorporated, as the original purchaser of the Series A Bonds. "Outstanding," when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 12.11) all Bonds theretofore, or thereu, pon being, authenticated and delivered by the Paying Agent under this Agreement except: (a) Bonds theretofore canceled by the Paying Agent or surrendered to the Paying Agent for cancellation; (b) Bonds with respect to which, all liability of the City shall have been discharged in accordance with Section 11.02, including Bonds (or portions of Bonds) disqualified under Section 12.11; and (c) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Paying Agent pursuant to this Agreement. Notwithstanding the foregoing, Bank Bonds shall remain Outstanding until the Bank is paid all amounts due on such Bonds. "Owner" means, with respect to a Bond, the Person in whose name such Bond is registered on the Registration Books. -9- "Participants" means those broker-dealers, banks and other f'mancial institutions from time to time for which the Depository holds Book-Entry Bonds as securities depository. _"Paying Agent" means (a) with respect to Series A Bonds in an Adjustable Rate Mode, State :street Bank and Trust Company of California, N.A., a national banking association organized and existing under the laws of the United States, acting through the Office of the Paying Agent, or any successor thereto as Paying Agent, appointed as provided herein, and (b) with respect to all other Bonds, the Fiscal Agent. "Permitted Investments" means the following, but only to the extent that the same are acquired at Fair Market Value: (a) Federal securities; (b) any of the following direct or indirect obligations of the following agencies of the United' States of America: (i) direct obligations of the Export-Import Bank; (ii) certificates of beneficial ownership issued by the Farmers Home Administration; (iii)participation certificates issued by the General Services Administration; (iv) mortgage-backed bonds or pass-through obligations issued and guaranteed .by the Government National Mortgage Association, the Federal. National Mortgage Association, the Federal Home Loan Mortgage Corporation or the Federal Housing Administration; (v) project notes issued by the United States Department of Housing and Urban Development; and (vi) public housing notes and bonds guaranteed by the United States of America; (c) interest-bearing demand-or time deposits (including certificates of deposit) or deposit accounts in federal or state chartered savings and loan associations or in federal or State of California banks (including the Fiscal Agent), provided that (i) the unsecured short-term obligations of such commercial bank or savings and loan association shall be rated A1 or better by S&P, or (ii) such demand or time deposits shall be fully insured by the Federal Deposit Insurance Corporation; (d) commercial paper rated in the highest short-term rating category by S&P, issued by corporations which are organized and operating within the United States of America, and which matures not more than 180 days following the date of investment therein; (e) bankers acceptances, consisting of bills of exchange or time drafts drawn on and accepted by a commercial bank whose short-term obligations are rated in the highest short-term rating category by S&P, which mature not more than 270 days following the date of investment therein; (f) obligations the interest on which is excludable from grOss income pursuant to section 103 of the Code and which are rated A or better by S&P; ' (g) obligations .issued by any corporation organized and operating within the United States of America having assets in excess of $500,000;000, which obligations are rated A or better by S&P; (h) money market funds which are rated Am Or better by S&P; (i)' any investment agreement which is approved in writing by S&P and, with respect to any investment agreement in which amounts held in a fund or account securing Adjustable Rate Bonds are invested, the Bank, prior to the time of initial investment; and (j) the Local Agency InVestment Fund established pursuant to Section 16429.1 of the Government Code of the State of California to the extent the Fiscal Agent may deposit and withdraw funds directly, provided that the Fiscal Agent may restrict such investment if required to keep moneys available for the purposes of this Agreement. "Person" means an individual, corporation, firm, association, partnership, trust, or other legal entity or group of entities, including a governmental entity or any agency or political subdivision thereof. "Prepayment Account" means the account within the Redemption Fund by that name established and held by the Fiscal Agent pursuant to Section 6.03. "Principal Payment Date" means, with respect to a Bond, the date on Which the principal thereof becomes due and payable in accordance with the terms thereof and hereof, whether as a result of the maturity thereof or as a result of mandatory sinking fund redemption. "Prior Bonds" means, collectively, the $23,969,000 aggregate principal amount of Bonds (85-1) that have not been converted to a fixed interest rate pursuant to the Indenture (85-1) and the $41,362,000 aggregate principal amount of Bonds (86-2) that have not been converted to a fixed interest rate pursuant to the Indenture (86-2). "Prior District 85-1" means City of Tustin Assessment District No. 85-1, the assessments in which were confu-med by Resolution No. 86-81, adopted by the City Council of the City on June 16, 1986. "Prior District 86-2" means City of Tustin Assessment District No. 86-2, the .assessments in which were confu-med by Resolution No. 88-81, adopted by the City Council of the City on July 18, 1988. "Protocol Agreement" means the Protocol Agreement, dated as of ,1995, by and between the City and The Irvine Company, as originally executed or as it may from time to time be amended. "Purchase Date" means (a) during the Daily Mode and the Weekly Mode, any Business Day, and (b) during the Monthly Mode, the Semi-Annual Mode and the Extended Rate Mode, the ftrst day of the next succeeding Adjustment Period. "Purchase Price"' means (a) with respect to any Series A Bonds to be purchased on any Purchase Date, an amount equal to 100% of the principal amount of such Series A Bonds, plus, in the case of any purchase of Series A Bonds in the Daily Mode or the Weekly Mode, accrued interest, if any, to such Purchase Date, and Co) with respect to any Series A Bonds purchased on a Mandatory Purchase Date, an amount equal to 100% of the' principal amount of such Series A Bonds, plus, in the case of any VIP Bonds and any Series A Bonds purchased on a Mandatory Purchase Date described in clause (c), (d) or (e) of the definition thereof, accrued interest, if any, to such Mandatory Purchase Date. "Rate Determination Date" means, with respect to any Adjusted Interest Rate for any Adjustment Period, the date on which such Adjusted Interest Rate shall be determined, which, (a) in the case of the VIP Mode, shall be the first day of such Adjustment Period, (b) in the case of the Daily MOde shah be each Business Day, (c) in the case of the Weekly Mode, shah be each Tuesday. or, if Tuesday is not a Business Day, the next succeeding day, or if such day is not a Business Day, then the Business Day next preceding such Tuesday, (d)in the case of the Monthly Mode, the Semi-Annual Mode or the Extended Rate Mode, shall be the Business Day -11- prior to the fin:st day of such Adjustment Period and (e) in the case of the Fixed Rate Mode, shall be a date determined by the Remarketing Agent which shall be at least one Business Day but no more than ten Business Days prior to the first day of such Adjustment Period. "Reassessment District" means the area designated "Reassessment District No. 95-2 (Tustin 'Ranch)", formed by the City. under the Act. "Reassessments" means the reassessments levied within the Reassessment District by the Council under the proceedings taken pursuant to the Resolution of Intention. · "Record Date" means (a) with respect to VIP Bonds ff the Interest Payment Date is a Mandatory Purchase Date, at the close of business on the day prior to such Interest Payment Date, (b) with respect to VIP Bonds if the Interest Payment Date is a March 2 or September 2 whiCh is not a Mandatory Purchase Date, at the close of'business on the 15th day of the calendar month preceding such Interest Payment Date, (c) with respect to Series A Bonds in the Daffy Mode, the Weekly Mode or the Monthly Mode, at the close of business on the last day of the calendar month preceding each Interest Payment Date, (d) with respect to Series A Bonds in the Semi-Annual Mode, the Extended Rate Mode or the Fixed Rate Mode, at the close of business on the 15th day of the calendar month preceding each Interest Payment Date, (e) with respect to Additional Bonds, at the close of business on the 15th day of the calendar month preceding each Interest Payment Date, and (f) any date established by the Fiscal Agent pursuant to Section 2.02(c) as a Record Date for the payment of defaulted interest on the Bonds, if any. "Redemption Date" means the date fixed for redemption of Bonds subject to redemption in any notice of redemption given in accordance with the terms hereof. "Redemption Price" means the aggregate amount of principal of and premium; if any, on the Bonds upon the redemption thereof pursuant hereto. "Reimbursement Agreement" means the Reimbursement, Credit and Security Agreement, dated as of ., 1995, by and between the Bank and the City or, if an Alternate Letter of Credit has been issued, the reimbursement agreement, or corresponding agreement, ff any, pursuant to which such Alternate Letter of Credit is issued. "Registration Books" means the records maintained by the Fiscal Agent for the registration of ownership and registration of transfer of the Bonds pursuant to Section 2.10. "Related Additional Bonds" means, with respect to a group of Fixed Rate Bonds, the additional Series of Bonds which is being issued in connecti0n.with the conversion of such group. of Fixed Rate Bonds and which is designated by the City pursuant to Section 7.01 (e) to represent the same parcels as such additional Series of Bonds. "Related Fixed Rate Bonds" means, with respect to any additional Series of Bonds, the group of Fixed Rate Bonds in connection with the conversion of which such additional Series of Bonds is being issued and which is designated by the City pursuant to Section 7.01(e) to represent the same parcels as such group of Fixed Rate Bonds. "Remarketing .Agent" means PaineWebber Incorporated, or any other investment banking f'u-m which may at any time be substituted in its place as provided in Section 9.08 or Section 9.09. "Remarketing Agreement" means the Remarketing Agreement, dated as of ., 1995, by and between the City and the Remarketing Agent, or any similar agreement between the City and any successor Remarketing Agent. -12- "Reserve Fund" means the fund by that name established and held by the Fiscal Agent pursuant to Section 6.06. "Reserve Requirement" means· as of the date of any calculation· "Resolution of Intention" means Resolution No. ,. 1995. , adopted by the Council on "Resolution of Issuance" means Resolution No. , adopted by the Council on · 1995, authorizing the issuance of the Series A Bonds~ ,'Seasoned Funds" means (a) moneys derived from drawings under the Letter of Credit· (b) moneys received by the Fiscal Agent and held in funds and accounts created under this Agreement for a ~period of at least 124 days and not commingled with any moneys so held for less than said period and during and prior to which period no petition in bankruptcy was filed by or against the City under the United States Bankruptcy Code· (c) moneys with respect to which the Fiscal Agent shall have received an opinion of counsel experienced in matters pertaining to the United States Bankruptcy Code acceptable to Moody's and S&P to the extent each such rating agency is then rating the Series A Bonds· that the contemplated use of such moneys would not constitute a transfer of property voidable under section 544 or 547 of the United States Bankruptcy Code· should the City become a debtor under such Code· or (d) investment income derived from the investment of moneys described in clause (a), (b) or (c). "Securities Depositories" means The Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530, Fax - (516) 227-4039 or 4190; Midwest Securities Trust Company· Capital Structures - Call Notification, 440 South LaSalle Street, Chicago, Illinois 60605, Fax - (31'2) 663-2343; Philadelphia Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia, Pennsylvania 19103· Attention: Bond Department, Dex- (215) 496-5058; and, in accordance with then current guidelines of the Securities and Exchange Commission· such other addresses and/or such other securities depositories as the City may designate in a Written Certificate of the City delivered to the Fiscal Agent. "Semi-Annual Mode" means the Mode in which the duration of each Adjustment Period is determined in accordance with clause (e) of the defim'tion of Adjustment Period. "Series" means the initial series of Bonds executed, authenticated and delivered on the date of initial issuance of the Bonds and identified pursuant to this Agreement as the Series A Bonds, and any Additional Bonds issued pursuant to a Supplemental Agreement and identified as a separate Series .of Bonds. "Series' A Bonds" means the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A, issued hereunder. "Substitution Date" means the date upon which an Alternate Letter of Credit is substituted for the Letter of Credit then in effect. "Supplemental Agreement" means any agreement amendatory of or supplemental to this Agreement, but only if and to the extent that such Supplemental Agreement is specifically authorized hereunder. -13- "Tender Deadline" means (a) during the Daily Mode, 10:30 A.M. on any Business Day, (b) during the Weekly Mode, at the close of business on the Business Day seven days prior to the Purchase Date stated in the Tender Notice, (c)during the Monthly Mode, , at the close of business on the fifth Business Day preceding the applicable Purchase Date, and (d) during the Semi-Annual Mode and the Extended Rate Mode, at the close of business on the Business Day at least 15 calendar days preceding the applicable Purchase Date. "Tender Notice" means a written notice or, with respect to Series A Bonds in the Daily Mode, telephonic notice, immediately confirmed in writing; (a) that states the bond number, the principal amount of~;uch Series A Bond and the principal amount of such Series A Bond to be purchased pursuant to Section 5.01, (b) that states the Purchase Date on which such Series A Bond is to be purchased, and (c) that irrevocably demands such purchase. "Treasurer" means the Treasurer of the City, or a designee thereof. "VIP Bond" means any Series A Bond while in the VIP Mode. "VIP Mode" means the Mode in which the duration-of each Adjustment Period is determined in accordance with clause (b) of the def'mition of Adjustment Period and each such Adjustment Period is equal to or less than 270 days. "VIp Rate" means the Adjusted Interest Rate for a VIP Bond for the applicable Adjustment Period determined pursuant to Section 2.03. "Weekly Mode" means the Mode in which the duration of each Adjustment Period is determined in accordance with clause (c) of the definition of Adjustment Period. "Written Certificate" and "Written Request" of the City mean, respectively, a written certificate or written request signed in the name of the City by its Authorized Representative. Any such certificate or request may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. Section 1.03, _Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof. (c) All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Agreement; the words "herein," "hereof," "hereby," "hereunder" and other words of 'similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision hereof. Section 1.04. Agreement Constitutes Contract. In consideration of the purchase and acceptance of any and all of the Bonds issued hereunder by those who shah hold the same from time to time, this Agreement shall be deemed to be and shah constitute a contract among the City, the Fiscal Agent and the Owners of the Bonds. Except as expressly provided in this Agreement, the pledge made in this Agreement and the provisions, covenants and agreements -14- herein set forth to be performed by or on behalf of the City shall be for the equal benefit, protection and security of the Owners of any and all of the Bonds. All of the Bonds, without regard to the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided in or permitted by this Agreement. -15- ARTICLE H THE BONDS Section 2.01. Authorization of Bond~. The City hereby authorizes the issuance of the Bonds under and subject to the terms of this Agreement, the Act and other applicable laws of the State of California for the purpose of providing a 'portion of the moneys to refund the Prior Bonds. The Bonds may consist of one or more Series of varying denominations, dates maturities, interest rates and other provisions~ ~ubject to the provisions and conditions contained herein. The Bonds shah be designated generally as the "City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 Crustin Ranch)", each Series thereof to bear such additional designation as may be necessary or appropriate to distinguish such Series from every other Series of Bonds. The aggregate principal amount of Bonds that may be issued and Outstanding under this Agreement shall not exceed $. except as may be otherwise provided in Section 2.14. Section 2.02. Terms of Series A Bonds. (a) The Series A Bonds shall be designated "City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A", and shall be secured by and payable from the Reassessments and other assets pledged hereunder, as provided herein. The aggregate principal amount of Series A Bonds that may be issued and Outstanding under this Agreement shall not exceed $_ _, except as may be otherwise provided in Section 2.14. ' (b) The Series A Bonds shall be issued in the form of fully registered Bonds in Authorized Denominations. The pi'lncipal of, premium, if any, and interest on the Series A Bonds shall be payable in lawful money of the United States of AmeriCa. Except as otherwise provided in the Representation Letter, the interest on the Series A Bonds shall be payable on the Interest Payment Dates by check mailed by the PaYing Agent to the respective Owners thereof at their addresses as they appear on the applicable Record Date in the Registration Books, except that in the case of an Owner of $1,000,000 or more in aggregate principal amount of Series A Bonds, Upon the written request of such Owner to the Paying Agent, received at least ten days prior to a Record Date, specifying the account or accounts to which such payment shall be made, payment of interest shall be 'made by wire transfer of immediately available funds on the following Interest Payment Date. Any such request shah remain in effect until revoked or revised by such Owner by an instrument in writing delivered to the Paying Agent. Notwithstanding the foregoing, except as otherwise provided in a Representation Letter, with respect to Series A Bonds in the VIP Mode, interest on the Series A Bonds shall be payable only upon surrender thereof at the Office of the Paying Agent. The principal of and premium, ff any, on each Series A Bond shall be payable on each Principal Payment Date, or on redemption prior thereto, upon. surrender thereof at the Office of the Paying Agent. (c) Each Series A Bond shah bear interest from the Interest Payment Date immediately preceding the date of authentication thereof, unless such date of authentication is, with respect to Fixed Rate Bonds, after a Record Date and on 'or before the next succeeding Interest Payment Date, 'in which event any such Fixed Rate Bond shall bear interest from and including such Interest Payment Date, or unless such date of authentication is prior to the initial Record Date for the Series A Bonds, in which event any such Series A Bond shall bear interest from the date of original authentication and delivery of the Series A Bonds, until the entire principal amount of such Series A Bond is paid. Interest on any Series A Bond which is not punctually paid or duly provided for on any Interest Payment Date shah be payable to the Person in whose name the ownership of such Bond is registered on the Registration Books at the close of business on a special Record Date to be established by the Paying Agent for the payment of such defaulted interest to be fixed by the Paying Agent, notice of which shall be given to such Owner not less than ten days prior to such special Record Date. (d) The interest on the Series A Bonds shall become due and payable on the Interest Payment Dates in each year to and including the Maturity Date, or on redemption prior thereto. The principal of the Series A Bonds shall become due and payable on the Maturity Date, or on redemption prior thereto. (e) Notwithstanding the foregoing, so long as the ownership of a Series A Bond is registered in the name of the Authority Trustee, payment of the principal of, premium, ff any, and interest on such Series A Bond shall be made to the Authority Trustee in immediately available funds on each applicable payment date, in an amount equal to the principal, interest and any premium due on such Series A Bond on the applicable payment date. '(f)~ Interest on Series A Bonds in the Daily Mode, the Weekly Mode, the Monthly Mode or the VIP Modeshall be calculated on the basis of a 365/366,day year for the actual number of days elapsed. Interest on Series A Bonds in the Semi-Annual Mode, the Extended Rate Mode or the Fixed Rate Mode shall be calculated on the basis of a 360-day year. composed of twelve 30- day months. For Series A Bonds in the Daily Mode, the Weekly Mode, or the Monthly Mode, payment shall be made on each Interest Payment Date for unpaid interest accrued from and including the first day of the preceding calendar month, through and including the last day of'the preceding calendar month, except that payment shall be made on the initial Interest Payment Date for the Series A Bonds for unpaid interest accrued from and including the date of initial delivery of the Series A Bonds. For Series A Bonds in the VIP Mode, the Semi-Annual Mode, the Extended Rate Mode or the Fixed Rate Mode, payment will be made on each Interest Payment Date for unpaid interest accrued to but not including such Interest Payment Date. Notwithstanding any provision of this Agreement to the contrary, at no time may the rate of interest on any Series A Bond exceed the Maximum Rate. (g) All Series A Bonds shall initially be in the Daily Mode. Any of the Adjustable Rate Bonds may be changed to any other Mode at the times and in the manner hereinafter provided. Upon such Change in Mode, such Series A Bonds shall cease to bear interest at the rate then in effect and shall bear interest at the rate as provided in the Notice of Change in Mode. Subsequent to such Change in Mode (unless such Change in Mode was to a Fixed Rate Mode), such Series A Bonds may again be changed to a different Mode at the times and in the manner hereinafter provided. A Fixed Rate Mode shall be in effect until the Maturity Date, or redemption prior to the Maturity Date, and Series A Bonds in a Fixed Rate Mode may not be changed to any other Mode. Prior to a Change in Mode, the City must deliver to the Fiscal Agent a Favorable Opinion of Bond Counsel with respect to such Change in Mode. Notwithstanding the foregoing, Bank Bonds shall bear interest at the Bank Rate. The determination by the Remarketing Agent of each Adjusted Interest Rate, if in accordance with the provisions hereof, shall be conclusive and binding upon the City, the Remarketing Agent, the Paying Agent, the Fiscal Agent, the Bank and the Owners. (h) The Series A Bonds shall be subject to redemption as provided in Article IV. (i) The Series A Bonds shall initially be in substantially the form set forth in Exhibit A hereto, with appropriate or necessary insertions, omissions and variations as permitted or required hereby. Upon any change in Mode, a new form of Series A Bonds shall be prepared which contains the terms of the Series A Bonds applicable in the new Mode. Section 2.03. Determination of Adjusted Interest Rates and Adjustment Periods for VIP Bonds. The VIP Rate for the VIP Bonds shall be determined in accordance with the following procedure. -17- (a) The City, in consultation with the Remarketing Agent, shall, prior to the effective date of a Change in Mode to the VIP Mode, specify the Adjustment Period or Periods and the principal amount of Series A Bonds to become subject to each'such Adjustment Period. The City may, subject to clause (b) of the clef'tuition of Adjustment Period and subject to subsection (b) of this Section at or about 9:00 A.M. on the Rate Determination Date for each Adjustment Period for a VIP Bond specify a different Adjustment Period or a different principal amount of VIP Bonds for such Adjustment Period than that in existence on the date preceding such Rate Determination Date. The City, prior to the effective date of a Change in Mode to the VIP Mode, and on each Rate Determination Date for a VIP Bond, shall notify the--Fiscal Agent, the Remarketing Agent, the Paying Agent and the Bank of the Adjustment Periods and principal amount of VIP Bonds for each Adjustment Period by telephone, telecopier, telex, telegram or other telecommunications device and shah conf'u-m such notice in writing as soon as practicable thereafter. The VIP Rate for each Adjustment Period for VIP Bonds shall be the rate of interest per annum determined by the Remarketing Agent on and as of the Rate Determination Date for such Adjustment Period as the minimum rate of interest which, in the opinion of the Remarketing Agent, would, under then existing market conditions, result in the sale of the VIP Bonds on the applicable Rate Determination Date at a price equal to the principal amount thereof, plus accrued interest, if any. During any VIP Mode, the Remarketing Agent shall establish the VIP Rate for each Adjustment Period by 9:00 A.M. on the Rate Determination Date for such Adjustment Period. The Remarketing Agent shall make the VIP. Rate for any Adjustment Period available by telephone to any Owner, Notice Party or prospective purchaser requesting such information. (b) In the case of each VIP Bond which has been remarketed by the Remarketing Agent pursuant to Section 5.03, such VIP Bond shall, commencing with the applicable Rate Determination Date, have the Adjustment Period established by the City and bear interest at the VIP Rate established for such Adjustment Period by the Remarketing Agent. (c) Upon notice of a Mandatory Purchase Date, no Adjustment Period shall be established by the City which would, with'respect to VIP Bonds subject to purchase in connection therewith, extend beyond the Mandatory Purchase Date so established. (d) The determination of each VIP Rate and Adjustment Period for VIP Bonds in accordance with this Section shall be conclusive and binding upon the Remarketing Agent,'the Fiscal Agent, the Paying Agent, the Bank, the City and .the Owners. Section 2.04. Determination of Adjusted Interest Rate Durin~ Daily. W¢ckly~ Monthly, Semi-Annual, Extended Rate or Fixed Rate Mode. The Adjustdd IntereSt Rate for any Series A Bond in the Daily Mode, the Weekly Mode, the Monthly Mode, the Semi-Annual Mode, the Extended Rate Mode or the Fixed Rate Mode shall be the rate of interest per annum determined by the Remarketing Agent on and as of the Rate Determination Date for such Adjustment Period as the minimum rate of interest which, in the opinion of the Remarketing Agent, would, under then existing market conditions, result in the sale of such Series A Bond on the applicable Rate Determination Date at a price equal to' the principal amount thereof, plus accrued interest, ff any. On each Rate Determination Date, the Remarketing Agent shall notify the Fiscal Agent, the Paying Agent and the City of the Adjusted Interest Rate by telephone, telecopier, telex, telegram or other telecommunications device and shall confirm such notice in writing to the Fiscal Agent, the Paying Agent and the City as soon as practicable thereafter. -18- During the Daily Mode, the Remarketing Agent shall establish the Adjusted Interest Rate by 9:45 A.M. on each Rate Determination Date. The Adjusted Interest Rate for any day during the Daily Mode which is not a Business Day shall be the Adjusted Interest Rate established on the immediately preceding Rate Determination Date. The Remarkefing Agent shall make the Adjusted Interest Rate for any Daily Mode Adjustment Period available by telephone to any Owner, Notice Party or prospective purchaser requesting such information. DUring the Weekly Mode, the Remarketing Agent shall establish the Adjusted Interest Rate by 5:00 P.M. on each Rate Determination Date. The Remarketing Agent shall make the Adjusted Interest Rate for' any Weekly Mode Adjustment Period available by telephone to any Owner, Notice Party or prospective purchaser requesting such information. No later than 5:00 P.M. on each Rate Determination Date for the Monthly Mode, Semi- Annual Mode, Extended Rate Mode or Fixed Rate Mode, the Remarketing Agent shall establish the Adjusted Interest Rate for the Series A Bonds, if any, in each such Mode. The Remarketing Agent shall maker-.the Adjusted Interest Rate available by telephone to any Owner, Notice Party or prospective purchaser requesting such information. Section 2.05. Alternate Rate for Interest Calculation. In the event (a)the Remarketing Agent fails to determine the Adjusted Interest Rate for a Mode, or (b) the method of determining the Adjusted Interest Rate for such' Mode shall be held to be unenforceable by a court of law of competent jurisdiction, the Series A Bonds subject to such Mode shall thereupon, until such time as the Remarketing Agent again makes such determination or until there is delivered a written opinion of Bond Counsel. to the effect that the method of determining such rate is enforceable, bear interest from the last date on which interest was legally paid, at the Alternate Rate for the Mode in effect. ~ .- Section 2.06. Interest on Bank Bonds. Notwithstanding anything to the contrary contained herein, each Bank Bond shall bear interest on the outstanding principal amount thereof at the Bank Rate for each day from and including the date such Bond becomes a Bank Bond to, but not including, the date such Bond is paid in full or is remarketed. Bank Bonds shall not bear interest at the Bank Rate after such Bonds have been remarketed unless such Bonds shall again become Bank Bonds. No Bonds other than Bank Bonds shall bear interest at the Bank Rate. Section 2.07. Chanees in Mode. Subject to the provisions of this Section, the City may .effect a Change in Mode (other than a Change in Mode to a Fixed Rate Mode, which Change in Mode is governed by the provisions of Section 2.08) with respect to all or a portion of the Adjustable Bonds by delivering to the Fiscal Agent, with copies to the other Notice Parties, not less than 40 days prior to the proposed Change in Mode, a Notice of Change in Mode stating (a) the election to change the Mode to which such Adjustable Rate Bonds are then subject (for purposes of this Section, the "Current Mode") to a different Mode (for purposes of this Section, the "New Mode"), the type of which shall be specified, (b) the date as of which the New Mode ghall take effect which, in any case where the Current Mode is the VIP Mode, the Daily Mode or the Weekly Mode, shall be the first day of a calendar month and, in any case where the Current Mode is the Monthly Mode., Semi-Annual Mode or Extended Rate Mode, Shall be the day following the current Adjustment Period, (c) the date on which such Adjustable Rate Bonds are required to be purchased pursuant to Section 5.02, which shall be the date as of which the New Mode shall take effect, and (d)a form.of notice of mandatory purchase satisfying the requirements of Section 5.02. Such notice shall be accompanied by a letter of Bond Counsel that it expects to be able to deliver a Favorable Opinion of Bond Counsel with respect to the Change in Mode on the date the New Mode shall take effect. Not less than 15 days prior to a proposed Change in Mode, and in reliance upon a Notice of Change in Mode, the Fiscal Agent shall give written notice, the form of which shall be -19- prepared by the City and approved by the FisCal Agent, to the Owners of the Adjustable Bonds proposed to be subject to such Change in Mode and the Bank of the Change in Mode and the mandatory purchase of all such Adjustable Rate Bonds as provided in Section 5.02. In addition to the information required to be included therein pursuant to Section 5.02(b), such notice shall state (a) the New Mode to which such Adjustable Rate Bonds are to be subject, (b) the effective date of the New Mode, (c) the rights of the Owners to tender such Adjustable Rate Bonds for purchase prior to the effectiveness of the New Mode, and (d) the procedures for such a tender. The New Mode shall take effect only if the following conditions are satisfied by 9:00 A.M. on the date of the proposed Change in Mode: (a) the Fiscal Agent has received a Favorable' Opinion of Bond Counsel, dated the date the New Mode is to take effect, with respect to the Change in Mode, (b) the interest portion of the Letter of Credit is in an mount equal to or greater than the Letter of Credit Interest Amount for the applicable Mode, and (c) if the New Mode is the VIP Mode, the Interest Reserve Fund has been funded with Seasoned Funds in an amount equal to or greater than the Interest Reserve Fund Requirement. if such conditions are satisfied, then the New Mode shall take effect-on the' date of'the proposed Change in Mode. If such conditions are not satisfied, then~(a) all Adjustable 'Rate Bonds proposed to be subject to such Change in Mode shall be purchased on such date in accordance with Section 5.02, (b) all Adjustable Rate Bonds propOsed to be subject to such Change in Mode shall continue to be subject to the Current Mode for such ~Ju,s. table. R.a~. Bgn..ds ~d, if_the Onrent Mode is the VIP Mode, the initial Adjustment Period or au SUCh Aajustame Rate Bonds shall extend from' and including the date on which the New Mode was to have taken effect to but not including the next succeeding Business Day and, if the Current Mode is the Extended Rate Mode, the initial Adjustment Period for such Adjustable Rate Bonds shall extend from and including the date on which the New Mode was to take effect to but not inclUding the March 2 or September 2 immediately following the second anniversary of such date, and (c) the Fiscal Agent shall, within five Business Days after the date of the proposed Change in Mode, send notice to the Notice Parties stating that the conditions to such Change in Mode have not all been satisfied and informing them of the consequences thereof, as described in this paragraph. ' Notwithstanding any other provision hereof, no Change in Mode shall be permitted at any time if the Adjustment Period then.applicable to the Adjustable Rate Bonds proposed to be subject to such Change in Mode extends through the day preceding the Maturity Date. Section 2.08. Chance In Mode to a Fixed Rate. Mod;~_. (a) Subject to the provisions of this Section (unless the Ci~ shall have given the notice accompanied by the items specified in subsection (b) of this Section), a portion of the Adjustable R~te Bonds shall become Fixed Rate Bonds. in accordance with, and if and to the extent required by, the following procedure. Upon receipt by the City of a Conversion Request, the City shall immediately notify the Remarketing Agent, the Fiscal Agent and the Bank of the aggregate principal amount of Adjustable Rate Bonds to be converted to Fixed Rate Bonds. The City, in consultation with the Remarketing Agent, shall thereupon select the Conversion Date, provided that the date so selected shall be a Business Day and, in the case of a conversion of any VIP Bonds, a day which is a Mandatory Purchase Date for such VIP Bonds, taking into account the process necessary to remarket such Adjustable Rate Bonds as Fixed Rate Bonds. The Remarketing Agent shall prompfly give written notice of the date so selected to the Fiscal Agent and the Bank. On the Conversion Date so selected, such Adjustable Rate Bonds shall be remarketed by the Remarketing Agent as Fixed Rate Bonds. The Remarketing Agent, in consultation with the City, shall establish the types (serial or term) and a schedule of mandatory redemptions for such serial and term Fixed Rate Bonds designated by the City, pursuant to Section 7.01(e), to constitute a group, and for the Related Additional Bonds, if any, so as to achieve, as nearly as practicable, equal annual debt service for such group of Fixed Rate Bonds, and for the Related Additional Bonds, if any; provided, however, that (i) each Principal Payment Date shah be a -20- September 2 and the first occurring Principal Payment Date shall be no earlier than the first September 2 following the Fiscal Year in which the Reassessments for such group of Fixed Rate Bonds are first included in the County assessment roll, (ii) if the parcels of real property represented by such group of Fixed Rate Bonds were included in Prior District 85-1, the final Principal Payment Date therefor shall be September 2, 2011 and, if the parcels of real property represented by such group of Fixed Rate Bonds were included in Prior District 86-2, the final Principal Payment Date therefor shall be September 2, 2013, and (iii) if such Fixed Rate Bonds are to be purchased by the Authority Trustee, such Fixed Rate Bonds shall include no serial ' Bonds and shall consist of a single term Bond with a maturity date of September 2, 2011 or September 2, 2013, as applicable. The Fixed Interest Rates for such Fixed Rate Bonds shall be determined in accordance with Section 2.04, taking into account the mandatory redemption dates or f'mal maturity date therefor; provided, however, that, if such Fixed Rate Bonds are to be purchased by the Authority Trustee, the Fixed Interest Rate therefor shall be a nominal rate and the actual rate of interest to be borne by such Fixed Rate Bonds shall be adjusted as of each September I to be a rate per annum such that the sum of (A) the product of such rate (expressed as a decimal) times..the principal amount of such Fixed Rate Bonds and the Related Additional Bonds, if any, as ~of the close of business on such September 1, plus CB) the amount to be 'deposited on the following September 3 in the Redemption Account for such group of Fixed Rate Bonds and Related Additional Bonds, if any, pursuant to Section 6.02(a), from amounts transferred by the Authority Trustee from the Surplus Fund established under the Authority Indenture, is equal to the product of such nominal rate (expressed as a decimal) times the principal amount of such Fixed Rate Bonds and the Related Additional Bonds, if any, Outstanding as of the close of business on such September 1. (b) On the Conversion Date selected by the City pursuant to subsection (a) of this 'Section, the interest rate on the Adjustable Rate Bonds to become Fixed Rate Bonds will, without any further action by the City, the Fiscal Agent, the Paying Agent or any other Person, be fixed to maturity so long as each of the following conditions is satisfied: (i) either (1) the Remarketing Agent shall have received binding commitments (other than as may be funded by draws under the Letter of Credi0 on or before the Business Day preceding such Conversion Date to purchase all such Fixed Rate Bonds on such Conversion Date at a price at least equal to the purchase price required to be paid in respect of such Fixed Rate Bonds, or (2) on or before the Business Day preceding such Conversion Date, the Remarketing Agent and the City shall have entered into a written agreement acceptable to them for a f'u-m commitment to purchase such Fixed Rate Bonds on such Conversion Date, (ii) the City shall have followed the procedures required to be followed by the City in connection with the fixing of the interest rates on the Adjustable Rate Bonds, as described in this Section, (iii) the credit enhancement, ff any, for such Fixed Rate Bonds shall have been obtained on or prior to the Conversion Date, (iv) provision shall have been made on or prior to the Business Day preceding such Conversion Date for the timely payment in full of all amounts due or to become due under the Reimbursement Agreement with respect to the Adjustable Rate Bonds being converted, (v) the City shall have designated the parcels of real property which are to be represented by such Fixed Rate Bonds pursuant to Section 7.01 (e), (vi) the Fiscal Agent shall be in possession of sufficient moneys to pay the expenses of remarketing the Fixed Rate Bonds and to deposit an amount equal to the Reserve Reqmrement for such Fixed Rate Bonds 'into the Reserve Account established for such Fixed Rate Bonds pursuant to Section 6.06, and (vii) a Favorable Opinion of Bond Counsel, dated the Conversion Date, addressed to the Fiscal Agent and the Remarketing Agent shall be delivered to the Fiscal Agent. Said expenses shall be paid from the following sources in the following order of priority: first, from moneys, if any, transferred from the Interest Reserve Fund pursuant to Section 6.05, second, from proceeds of the sale of Additional Bonds, and, third, from moneys paid to the City pursuant to the Protocol Agreement. -21- The Remarketing Agent shah give written notice to the City not later than one Business Day prior to the Conversion Date of the interest rates to be borne by the Fixed Rate Bonds proposed to be remarketed on said date. Notwithstanding satisfaction of the foregoing conditions, if the City shall have given notice to the Fiscal Agent, the Remarketing Agent, and the Bank on or before the Business Day preceding such Conversion Date, that the City is dissatisfied with the Fixed Interest Rate Or the creditworthiness or value of the parcels of real property to be represented by such Fixed Rate Bonds, accompanied by an written opinion of Bond Counsel addressed to said parties that the failure of such Adjustable Rate Bonds to become Fixed Rate Bonds will not adversely affect the exclusion from gross income of interest on the Bonds for purposes of Federal income taxation, then such Adjustable Rate Bonds will not become Fixed Rate Bonds. In such event, or ff any of the foregoing conditions are not met, the Remarketing Agent shall continue its efforts to convert such Adjustable Rate Bonds to Fixed Rate Bonds in accordance herewith until such Adjustable Rate Bonds are successfully converted. Pending su~ful completion of the conversion, all such Adjustable Rate Bonds shall be changed'to a VIP Mode with Adjustment Period(s) to be determined by the Remarketing Agent on the Conversion Date and such VIP Bonds shall be remarketed by the Remarketing Agent; provided, that the Remarketing Agent may not set Adjustment Periods greater than 30 days in length. (c) From and after the date on which Adjustable Rate Bonds become Fixed Rate Bonds, the following events shall occur:. (i) the stated amount of the Letter of Credit shall be reduced in. accordance with the Reimbursement Agreement and shall no longer constitute a source of payment of the principal of and interest on such Fixed Rate Bonds, (ii) payment of the Fixed Rate Bonds shall only be secured by the Reassessments on the parcels of real property designated by the City, pursuant to Section 7.01 (e), to be represented by such Fixed Rate Bonds and by any credit enhancement obtained with respect to such Fixed Rate Bonds, (iii) the payment of Adjustable Rate Bonds shall no longer be' secured' by the Reassessments on the parcels of real property so designated, (iv) the Fiscal Agent shall establish a Redemption Account, a Prepayment Subaccount and a Reserve Account for each group of Fixed Rate Bonds as required by Article VI, (v) the Interest Reserve Fund Requirement shall be reduced in accordance with Section 6.05, if applicable, (vi) the Fixed Rate Bonds of each group shall be of the types (serial or term) and subject to mandatory redemption as established by the Remarketing Agent pursuant to subsection (a) of this Section, (vii) the Fixed Rate Bonds shall not be convertible to any other Mode, and (viii) a pro rata amount of the remaining capitalized interest for the Variable Bonds, if any, shall be allocated and deposited in the Redemption Account established for such group of Fixed Rate'Bonds. Section 2.09. Tran, fer and Exchanee of Bondso AnY Bond may, in accordance with its terms, be transferred upon the Registration goo]rs by the Person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form acceptable to the Paying Agent. Whenever any Bond or Bonds shall be surrendered for transfer, the City shall execute and the Paying Agent shall authenticate and shall deliver a new Bond or Bonds for a like aggregate principal amount, in any Authorized Denomination. The Paying Agent shall require the Bond Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. The Bonds may be exchanged at the Office of the Paying Agent for a like aggregate principal amount of Bonds of the same maturity, Series and, if applicable, Mode, of other Authorized Denominations. The Paying Agent shall require the payment by the Bond Owner requesting such exchange of any tax or other governmental charge required to be paid with respect to such exchange. The Paying Agent shall not be obligated to make any transfer 'or exchange of Bonds pursuant to this Section during the period established by the Paying Agent for the selection of Bonds of the same Series and, ff applicable, Mode for redemption, or with respect to any Bonds selected for redemption. Section 2.10. Registration Book,5. The Paying Agent will keep .or cause to be kept, at the Office of the Paying Agent, sufficient records for the registration and transfer of ownership of the Bonds, which shah be open to inspection during regular business hours and upon 24 hours notice by the City; and, upon presentation for such purpose, the Paying Agent shaH, under such reasonable regulations as it may prescribe, register or transfer or 'cause to be registered or transferred, on such records, the ownership of the Bonds as hereinbefore provided. Section 2.11. Execution of Bonds. The Bonds shall be executed in the name and on behalf of the City with the facsimile signature of the Treasurer attested by the manual or facsimile signature of the City Clerk. The City's seal or a facsimile thereof, may be reproduced, imprinted or impressed on the Bonds. The Bonds shall then be delivered to the Paying Agent for authentcafion byAt; provided, however, that only the Fiscal' Agent shall authenticate Bonds upon original issuance and pursuant to Section 2.13 and Section 2.14. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the City before the Bonds so signed or attested shah have been authenticated Or delivered by the Paying Agent, or issued by the City, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the City as though those who signed and attested the same had continued to be such officers of the City, and also any Bonds may be signed and attested on behalf of the City by such Persons as at the actual date of execution of such Bonds shall be the proper officers of the City although at the nominal date of such Bonds any SUch Person shah not have been such officer of the City. Section 2.12. Authentication of Bond.5. Only such of the Bonds as shall bear thereon a certificate of authentication substantially in the form set forth in Exhibit A hereto, manually executed by the Paying Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this Agreement, and such certificate of or on behalf of the Paying Agent shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered hereunder and are entitled to the benefits of this Agreement. Section 2.13. Temporary Bonds. The Bonds may be issUed in temporary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bonds may be printed, lithographer or typewritten, shall be of such authorized denominations as may be determined by the City, shall be in fully registered form without coupons and may contain such reference to any.of the provisions of this Agreement as may be appropriate. Every temporary Bond shall be executed by the City and authenticated by the Fiscal Agent upon. the same conditions and in substantially the same manner as the definitive Bonds. If the City issues temporary Bonds it will execute and deliver definitive Bonds as promptly thereafter as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, at the Office of the Fiscal Agent and the Fiscal Agent shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Agreement as definitive Bonds authenticated and delivered'hereunder. Section 2.14. B0nd$ Mutilated, Lost. Destroyed or Stolen. If any Bond shall become mutilated, the City, at the expense of the Owner of said Bond, shall execute, and the Paying Agent shall thereupon authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to the Paying Agent of the Bond so mutilated. Every mutilated Bond so surrendered to the Paying Agent shall be canceled by it and delivered to, or upon the order of, the City. If any Bond shall be lost, destroyed or stolen, -23- evidence of such loss, destruction or theft may be submitted to the Paying Agent and, if such evidence and indemnity satisfactory to the Paying Agent shah be given, the City, at the expense of the Owner, shall execute, and the Paying Agent shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in replacement for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a replacement Bond, the Paying Agent may pay the same without surrender thereof). The City may require payment by the Owner of a sum not exceeding the actual cost of preparing each replacement Bond issued under this Section and of the expenses which may be incurred by the City and the Paying Agent. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the beneftts of this Agreement with all other Bonds secured by this Agreement.. Section 2.15. Book-Entry System. (a) Prior to the execution and delivery of the Bonds, the City may provide that such Bonds shall be initially executed and delivered as Book-Entry Bonds, and in such event, the Bonds for each maturity shall be in the form of a separate single fully registered Bond (which may be typewritten). UPon initial execution and delivery, the ownership of each such Bond shall be registered in the bond register in the name of the Nominee, as nominee of the Depository. Payment of principal of, .premium, if any, or interest on any Book-Entry Bonds registered in the name of the Nominee shall be made on the payment date by 'wire transfer of New York clearing house or equivalent next day funds or by wire transfer of same day funds to the account of the Nominee. Such payments shall be made to the Nominee at the address which is, on the regular Record Date or special' record date, as the case may be, shown for the Nominee in the Registration Books. (b) .With respect to Book-Entry Bonds, the City, the Fiscal Agent and the Paying Agent shall have no responsibility or obligation to any Participant or to any person on behalf of which such a Participant holds an interest in such Book-Entry Bonds. Without limiting the immediately preceding sentence, the City, the Fiscal Agent and the Paying Agent shall have no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee, or 'any Participant with respect to any ownership interest in Book-Entry Bonds, (ii) the delivery to any Participant or any other person, other than an Owner as shown in the Registration Books, of any notice with respect to Book-Entry Bonds, including any notice of prepayment, (iii)the selection by the Depository and its Participants of the beneficial interests in Book-Entry Bonds to be redeemed in the event Bonds are redeemed in part, (iv) the payment to any Participant or any other person, other than an Owner as shown in the Registration Books, of any amount with respect to principal of, premium, ff any, or interest on Book-Entry Bonds, or (v) any consent given or other action taken by the Depository as Owner. (c) The City, the Fiscal Agent and the Paying Agent may treat and consider the person in' whose name each Book-Entry Bond is registered in the Registration Books as the absolute Owner of such Book-Entry Bond for the purpose of payment of principal of, premium, if any, and interest on such Bond, for the purpose of selecting any Bonds, or portions thereof to be redeemed, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, for the purpose of obtaining any consent or other action to be taken by Owners and for all other purposes whatsoever and the City, the Fiscal Agent and the Paying Agent shall not be affected by any notice to the contrary. (d) In the event of a redemption necessitating a reduction in aggregate principal amount of Bonds Outstanding, or a redemption of part of the Bonds Outstanding, the Depository, in its discretion, (i) may request the Paying Agent to execute and deliver a new Bond, or (ii) if DTC is the sole owner of the Bonds, shall make an appropriate notation on the Bond indicating the date and amounts of such reduction in principal except in the case of final maturity, in which case the Bond must be presented to the Paying Agent prior to payment. (e) The Paying .Agent shall pay aH principal of, premium, if any, and interest on the Bonds only to or "upon the order' of' (as that term is used in the Uniform Commercial'Code as adopted in the State) the respective Owner, as shown in the Registration Books, or his respective attorney duly authorized in writing, and aH such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to Payment of principal of, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the Registration Books, shah receive a Bond evidencing the obligation to make payments of principal of, premium, if any, and interest on the Bonds. Upon delivery by the Depository to the Owners, the City, the Fiscal Agent and the Paying Agent of written notice to the effect that the Depository has determined to substitute a new nominee in Place of the Nominee, and subject to the provisions herein with respect to record dates, the word Nominee in this Indenture shall refer to such nominee of the Depository. (f) In order to 'qualify the Book-Entry Bonds for the Depository's book-entry system, the Fiscal Agent shall execute and deliver to the Depository a Letter of Representations. The execution and delivery of a Letter of Representations shall not in any way impose upon the City, the Fiscal Agent or the Paying Agent any obligation whatsoever with respect to persons having interests in such Book-Entry Bonds other than the Owners, as shown on the Registration Books. Such Letter of Representations may provide the time, form, content, and manner of transmission, of notices to the Depository. In addition to the execution and delivery of a Letter of Representations by the Fiscal Agent, the City, the Fiscal Agent and the Paying Agent shall take such other actions, not inconsistent with this Agreement, as are reasonably necessary to qualify Book-Entry Bonds for the Depository's book-entry program. (g) In the event the City determines that it is in the best interest of the Beneficial Owners that they be able to. obtain certificated Bonds and that such Bonds should therefore be made available and notifies the Depository, the Fiscal Agent and the Paying Agent of such determination, the Depository will notify the Participants of the availability through the Depository of certificated Bonds. In such event, the Paying Agent shall transfer and exchange certificated Bonds as requested by the Depository and any other Owners in appropriate amounts. In the event 0) the Depository determines not to continue to act as Securities Depository for Book-Entry Bonds, or (ii) the Depository shall no longer so act and gives notice to the Fiscal Agent and the Paying Agent of such determination, then the City will discontinue the Book-Entry system with the Depository. If the City determines to replace the Depository with another qualified Securities Depository, the City shall prepare or direct the preparation of a new single, separate, fully registered Bond for each maturity date of such' Book-Entry Bonds, registered in the name of such successor or substitute qualified Securities Depository or its nominee. If the City fails to identify another qualified Securities'Depository to replace the Depository, then the Bonds shall no longer be restricted to being registered in such bond register. in the name of the Nominee, but shall be registered in whatever name or names the Owners transferring or exchanging such bonds shah designate, in accordance with the provisions of Sections 2.09 and 2.14. Whenever the DepositorY requests the City to do so, the City will cooperate with the Depository in taking appropriate action after reasonable notice (i) to make available one or more separate Bonds evidencing the Book-Entry Bonds to any Participant having Book-Entry Bonds credited to its account with the Depository, and (ii) to arrange for another Securities Depository to maintain custody of bonds evidencing the Book-Entry Bonds. (h) Notwithstanding any other provision of this Agreement to the contrary and if DTC is the sole Owner of the Bonds, so long as any Book-Entry Bond is registered in the name of the Nominee, all payments with respect to principal of, premium, if any, and interest on such Bond -25- and all notices with respect to such Bond shall be made and given, respectively, as provided in the Letter of Representations or as otherwise instructed in writing by.the Depository. (i) In connection with any notice or other communication to be provided to Owners pursuant to this Agreement by the City, the Fiscal Agent or the Paying Agent, at the direction of the City, with respect to any consent or other action to be taken by Owners, the City, the Fiscal Agent or the Paying Agent, as the case may be, shall establish a record date for such consent or other action and give the Depository notice of such record date not less than 15 calendar days in advance of such record date to the extent possible. Notice to the Depository shall be given only when DTC is the sole Owner of the Bonds. (j) Notwithstanding the foregoing, in the event any Bond is tendered but not remarketed, with the result that such Bond becomes a Bank Bond, the City, the Fiscal Agent and the Paying Agent shall take all such actions as shall be necessary to remove the Bonds from the book-entry system of DTC and to register such tendered but not remarketed Bond in the name of the Bank. At such time as all Bank Bonds have been remarketed such that no Bank Bonds remain outstanding and the Letter of Credit has been reinstated, the City, the Fiscal Agent and the Paying Agent shall take all such actiOns as shall be necessary to return the Bonds to the full book-entry system of DTC. Section 2.16. Limited Obligation, All obligations of the City under this Agreement and the Bonds shall not be general obligations of the City, 'but shall be limited obligations, payable solely from the Reassessments and the assets pledged therefor hereunder. Neither the faith and credit of the City nor of the State of California or any political subdivision thereof is pledged to the payment of the Bonds. The Bonds are "Limited Obligation Improvement Bonds" as provided in Section 12.01. Section 2.17. No Acceleratio~ The principal of the Bonds shall not be subject to acceleration hereunder. Nothing in this Section shall in any way prohibit the prepayment or redemption of Bonds under Article IV, or the defeasance of the Bonds and discharge of this Agreement under Article XI. section 2.18. Refundine of Bonds. The Bonds may be refunded by the City under Divisions 11 or 11.5 of the California Streets and Highways Code upon the conditions set forth in proceedings therefor, all as determined by the Council. -26- ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS; ADDITIONAL BONDS Section 3.01. Issuance of Serie~ A Bonds. Concurrent with the execution of this Agreement, the City shall execute and the Fiscal Agent shall authenticate the Series A Bonds and deliver the Series A Bonds to the Original Purchaser in the aggregate principal 'amount of $. Section 3.02. Aoplicati0n of Pr0ceed~ of the Series A Bonds. On the' Closing Date, the proceeds of the sale ({f-the Series A Bonds shall be paid to the Fiscal Agent and transferred or deposited by the Fiscal Agent as follows:' (a) .The Fiscal Agent shall deposit the amount of $ in the Redemption Fund; constituting capitalized interest with respect to the. Series A Bonds through (b) The Fiscal Agent shall deposit the amOunt of $ Issuance Fund. in the Cost of (c) The Fiscal Agent shall transfer to the Escrow Bank for deposit in the Escrow Fund established under the Escrow Agreement the amount, of $ , constituting the remainder of said proceeds. Section 3.03. Costs of Issuance Fund. There is hereby established a separate fund to be known as the "Costs of Issuance Fund", which shall be held by the Fiscal Agent in trust. On the Closing Date there shall be deposited in the Costs of Issuance Fund the amount specified in Section 3.02(b). Additionally, in connection with the issuance of a Series of Additional Bonds, there shall be deposited in the Costs of Issuance Fund the amount,, if .any, specified in the Supplemental Agreement pursuant to which such Additional Bonds are issued. The moneys in the Costs of Issuance Fund shall be used and withdrawn by the Fiscal Agent from time to time to pay the Costs of Issuance upon submissiOn of a Written Request of the City stating (a) the Person to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge against the Costs of Issuance Fund, and (e) that such amounts have not been the subject of a prior disbursement from the Costs of Issuance Fund; in each case together with a statement or invoice for each amount requested thereunder. On 1996, and on such other date or dates as may be specified in any Supplemental Agreement, all amounts remaining in the Costs of Issuance Fund shall be withdrawn therefrom by the Fiscal Agent and transferred to the Redemption Fund or to such other fund or account as is specified in such Supplemental Agreement. Section 3.04. Issuance of Additional Series of Bonds. In connection with the conversion of each grouP of Series A Bonds to Fixed Rate Bonds pursuit to Section 2.08, the City may, subject to the requirements of the Act, by Supplemental Agreement establish one or more Series of Bonds, and the City may issue and the Fiscal Agent may authenticate and deliver Bonds of any Series so established, in such principal amount as shall be determined by the City in said Supplemental Agreement, but only upon compliance by the City with the provisions of Section 3.05, and subject to the following specific conditions, which are hereby made conditions precedent to the issuance of any such additional Series of Bonds: (a) The City shall not be in default under this Agreement. -27- (b) The Bonds of such additional Series shall have the same Interest Payment Dates and Principal Payment Dates as the Related Fixed Rate Bonds. (c) The Bonds of'such additional Series of each maturity date shall bear interest at the same rate as the Related Fixed Rate. Bonds maturing on such date. · (d) The parcels of real property designated by the City, pursuant to Section 7.01(e), to be represented by such additional Series of Bonds shah be the same parcels of real property designated by the City to be represented by the Related Fixed Rate Bonds. (e) The sum of the aggregate principal amount of the Bonds of such Additional Series, plus the aggregate principal amount of the Related Fixed Rate Bonds, shall not exceed the unpaid principal amount of the Reassessments on the parcels of real property designated-by the City, pursuant to Section 7.01(e), to be represented by such additional Series of Bonds and the Related Fixed Rate Bonds. (f) The proceeds of the Bonds of such additional Series shall be applied only to one or more of the following: (i) funding all or a portion of the Reserve Account established, pursuant to Section 6.06, for the Related Fixed Rate Bonds and such additional Series of Bonds, (ii) paying all Or a portion of the'Cost of Issuance of such additional Series of Bonds, (iii) paying all or a portion of the cOsts of the conversion and remarketing of the Related Fixed Rate Bonds, and (iv) funding interest payable on such additional Series of Bonds and the Related Fixed Rate Bonds through the date on which it is anticipated that collections of Reassessments on the parcels of real property designated by the City, pursuant to Section 7.01(e), to be represented by such Bonds will be available for payment of such interest. (g) The Bonds of such additional Series shall be subject to redemption at the same times, under the same circumstances and in the same manner as the Related Fixed Rate Bonds. (h) Such additional Series of Bonds and the Related Fixed Rate Bonds shall have, as nearly as practicable, equal combined annual debt service. (i) The aggregate principal amount of Bonds issued hereunder shall not exceed any limitation imposed by law or by this Agreement, Section 3.05. Proceedings for the I~uance of Additional Series of B0ntt~. Whenever the City shall determine to issue an additional Series of Bonds, the City shall execute a Supplemental Agreement providing for the issuance of such additional Series of Bonds, specifying the maximum principal amount of Bonds of such Series and prescribing the terms and conditions of such additional Series of Bonds. Such Supplemental Agreement shall prescribe the form or forms of Bonds of such additional Series and, subject to the provisions of Section 3.04, shah provide for the distinctive designation, dating, maturity dates, interest rates, interest payment dates, principal payment dates, mandatory sinking fund redemption dates and methods and places of payment of principal and interest. The City may by such Supplemental Agreement Prescribe any other provisions respecting the Bonds of such Series not inconsistent with the terms of this Agreement. Before such additional Series of BOnds shall be issued and delivered, the City shall file the following documents with the Fiscal Agent: (a) A written opinion of Bond Counsel setting forth (i) that such Bond Counsel has examined the Supplemental Agreement and found it to be in compliance with the requirements of this Agreement, (ii) that the execution and delivery of the additional Series of Bonds has been duly authorized by the City, and (iii) that said additional Series of Bonds, when duly executed by the City and authenticated and delivered by the Fiscal Agent, will be valid and binding limited obligations of the City, payable from Reassessments as provided herein. (b) A Certificate of the City that the requirement of Section 3.05(a) has been met. (c) A certification of the City that the requirement of Section 3.05(e) has been met~ (d) Said Supplemental Agreement, duly executed. Upon the delivery to the Fiscal Agent of the foregoing instruments, the Fiscal Agent shall authenticate and deliver said additional Series of Bonds, in-the aggregate principal amount specified in such Supplemental Agreement, to, or upon the Written Request of, the City, when such additional Series of Bonds shall have been presentext to it for that purpose. Section 3.06. Limitati0n, on Additional Bonds. So long as any of the Bonds remain Outstanding, the City will not' issue any Additional Bonds or obligations payable from Reassessments, except pursuant tO Sections 3.04 and 3.05. -29- ARTICLE IV REDEMPTION OF BONDS Section 4.01. Optignal Redemption. (a) Bonds in the VIP Mode are not subject to optional redemption. (b) The Adjustable Rate Bonds, other than VIP Bonds, are subject to optional redemption by the City, in Whole, or in part in Authorized Denominations, (i) with respect to Bonds in the Daily Mode, the Weekly Mode, or the Monthly Mode, on the first day of any calendar month, and (ii) with respect to Bonds in the Semi-Annual Mode or the Extended Rate Mode, on any Interest Payment Date, at a Redemption Price equal to 100% of the principal amount thereof to be redeemed plus accrued and unpaid interest to such Redemption Date, if any, without premium, ff such redemption is in part, Bank Bonds shall be redeemed first, and all other Adjustable Rate Bonds shall be redeemed by lot in such manner as shall-be determined by the Fiscal Agent. (c) The Fixed Rate Bonds are subject to optional redemption by the City, in whole, or in part in Authorized Denominations, on any Business Day, upon expiration of the applicable call protection period described below, at the Redemption Prices (expressed as percentages of the principal amount of the Fixed Rate Bonds to be redeemed) set forth below, declining by 1/2% on every second Interest Payment Date after the initial redemption date until the redemption price equals 100%, plus accrued interest to the Redemption Date: Years Remaining to Maturity as of Conversion Date Equal to or greater than 17 Equal to or greater than~ 14 but less than 17 Equal to or greater than 11 but less than 14 Equal to or greater than 7 but less than 11 Less than 7 years Initial Redemption Dates Initial (anniversary of Redemption Conversion Date) Prices 8th anniversary 102% iSth anniversary 101.5% 4th anniversary 101% 2nd anniversary 100.5% 1st anniversary 100% Section 4.02. Mandatory Redemption from Reassessment Prepaymente. (a) Bonds in the VIP Mode are subject to mandatory redemption from prepaid Reassessments in whole, or in part in Authorized Denominations, on any Mandatory Purchase Date, at a Redemption Price equal to 100% of the principal amount thereof to be redeemed plus accrued and unpaid interest to such Redemption Date, ff any, without premium. If such redemption is in part, Bank Bonds shall be selected for redemption by the Fiscal Agent prior to selecting any other Bonds, and thereafter Bonds in the VIP Mode shall be selected for redemption based on the termination dates of the then current Adjustment Periods for such VIP Bonds, with the VIP Bonds with the earliest such termination dates being called £ntst and by lot among VIP Bonds with' the same Adjustment Period termination date; provided that the VIP Bonds with an Adjustment Period terminating less than 30 days after the date the Fiscal Agent is to mail notiCe of such redemption shall not be called for redemption. -30- (b) The Adjustable Rate Bonds, other than VIP Bonds, are subject to mandatory' redemption from prepaid Reassessments in whole, or in part in Authorized Denominations, (i) when such Bonds are in the Daily Mode, the Weekly Mode or the Monthly Mode, on the first day of any calendar month, and (ii) when such Bonds are in the Semi-Annual Mode or the Extended Rate Mode, on any Interest Payment date, at a Redemption Price equal to 100% of the principal amount thereof to be redeemed plus accrued and unpaid interest to such Redemption Date, if any, without premium. If such redemption is in part, Bank Bonds shall be redeemed first, ~and other Adjustable Rate Bonds shall be redeemed by lot in such manner as shall be determined by the Fiscal Agent. (c) Each group of Fixed Rate Bonds is subject to mandatory redemption from prepaid Reassessments attributable to the parcels of real property designated by the City, pursuant to Section 7.01(e), to be represented by such group of Fixed Rate Bonds, in whole, or in part in Authorized Denominations, on any Interest Payment Date, at a Redemption Price equal to [static premium? declining premium?] plus accrued and unpaid interest to such Redemption Date. (d) In the event that Adjustable Rate Bonds are to be redeemed pursuant to this Section 4.02, the prepaid Reassessments or proceeds derived from foreclosure, as applicable, shall be applied to Bonds in the following Modes in the following order of priority until such prepayments or proceeds are depleted: first, Bonds in the Daily Mode, second, Bonds in the Weekly Mode, third, Bonds in the Monthly Mode, fourth, Bonds in the Semi-Annual Mode, fifth, Bonds in the Extended Rate Mode, and sixth, Bonds in the VIP Mode. Section 4.03 Mandatory Sinking Fund Redemption. The Adjustable Rate Bonds (other than Bank Bonds) are not subject to mandatory sinking fund redemption. Except as otherwise provided in the Reimbursement Agreement, if any Bank Bonds are purchased and held by the Bank more than 60 days, then the Outstanding Bank Bonds shah be subject to mandatory sinking fund redemption over a term of approximately seven years in 82 approximately equal monthly mandatory sinking fund redemptions commencing on the f'u'st Business Day of the third calendar month after the calendar month in which the Bank purchased such Bank Bonds, and on the first Business Day of each calendar month thereafter until the principal of such Bank Bonds has been paid in full, and on the 82nd such monthly mandatory sinking fund redemption date, the entire Outstanding principal amount of such Bank Bonds shall be due and payable in full; provided, however, that (a) each mandatory shaking fund redemption of Bank Bonds shah be adjusted to an integral multiple of $5,000, (b) the final mandatory sinking fund redemption shall be in the principal amount of $100,000 or an integral multiple of $5,000 in excess of $100,000, and (c)Such mandatory sinking fund redemptions shall otherwise be scheduled in the Bank's discretion to provide approximately level aggregate monthly principal payments during the course of such seven-year term. Each group of Fixed Rate Bonds shall be subject to mandatory sinking fund redemption in accordance with the schedule of mandatory redemptions established pursuant to Section 2.08 (a) in connection with the conversion of such Series A Bonds to Fixed Interest Rates. If some but not all of the Fixed Rate Bonds of a group are redeemed pursuant to Section 4.01(c), the principal amount of such Fixed Rate Bonds to be redeemed pursuant to this Section on any subsequent September 2 shall be reduced by $5,000 or an integral multiple thereof, as designated by the City in a Written Certificate of the City fried with the Fiscal Agent; provided, however, that the aggregate amount of such reductions shall not exceed the aggregate amount of such Fixed Rate Bonds redeemed pursuant to Section 4.01(c). ff some but not all of the Fixed Rate Bonds of a group are redeemed pursuant to Section 4.02(c), the principal amount of Bonds to be subsequently redeemed pursuant to this Section shall be reduced by the aggregate principal amount of such Fixed Rate Bonds so redeemed pursuant to Section 4.02(c), among redemption dates as nearly as practicable on a pro rata basis in amounts of.$5,000 or integral multiples thereof. -31- Section 4.04. Notice of Redemption. The Fiscal Agent on behalf and at the expense of the City shall mail (by first class mail) notice of any redemption to the respective Owners of any Bonds designated for redemption at their respective addresses appearing on the Registration Books, and (if the Authority Trustee is not the Owner of all of the Bonds) to the Securities Depositories and to one or more Information Services, at least 30 but not more than sixty 60 days prior to the date fixed for redemption. Additionally, if Adjustable Rate Bonds are to be redeemed, the Fiscal Agent on behalf and at the expense of the City shall mail (by first class mail) notice of such redemption to the Remarketing Agent, the Paying Agent and the Bank at least 30 but.not more than 60 days prior to the date f'txed for redemption. Such notice shall state the date of the notice, the redemption date,-the redemption place and the Redemption Price and shall designate the CUSIP numbers, the Bond numbers (except in the event of redemption of all of the Bonds of a maturity or maturities in whole) and the maturity or maturities of the Bonds to be redeemed, and shall require that such Bonds be then surrendered at the Office of the Paying Agent for redemption at the RedemPtion Price; giving notice also'that further interest on such Bonds will not accrue from and after the date fixed for redemption. Neither the failure to receive any notice so mailed, nor any defect in such notice, shah affect the sufficiency of the proceedings for the redemption of the Bonds or the cessation of accrual of interest thereon from and after the date fixed for redemption. · The Fiscal Agent shall give notice of redemption of any Bonds to be redeemed as provided herein, upon receipt of notice from the City, which notice shall be given to the Fiscal Agent at least 45 days prior to the Redemption Date (unless the Fiscal Agent shall agree to a shorter period) ..... Section 4.05. Selection of B0nd~ for Redemption, Whenever provision is made in this Agreement for. the redemption of less than aH of the Bonds, the Fiscal Agent shall select the Bonds to be redeemed from all Bonds not previously called for redemption (a) with respect to any redemption pursuant to Section 4.01(c), among maturities as directed in a Written Request of the City, (b) with respect to any redemption pursuant to Section 4.02(c), 'among maturities on a pro rata basis as nearly as practicable, (c) with respect to any redemption of Additional Bonds, among maturities as provided in the Supplemental Agreement pursuant to which such Additional Bonds are issued, and by lot among Bonds with the same maturity in any manner which the Fiscal Agent in its sole discretion shall deem appropriate and fair. For purposes of such selection each Bond shall be deemed to be comprised of separate denominations equal to the minimum Authorized Denomination for such Bond and such separate denominations shall be treated as separate Bonds which may be separately redeemed. Section 4.06. Partial Redemption of Bonds. Upon surrender of any Bonds redeemed in part only, the City shall execute and ~e Paying Agent shall authenticate and deliver to the Owner thereof, at the expense of the City, a new Bond or Bonds of Authorized Denominations equal in aggregate principal amount representing the unredeemed portion of the Bonds surrendered. Section 4.07. Effect of Notice of Redemption. Notice having been mailed as aforesaid, and moneys for the redemption (including the interest to the applicable date fLxed for redemption and including any applicable premium), having been deposited in the Prepayment Account, the Bonds shall ~become due and payable on said date, and, upon presentation and surrender thereof at the Office of the Paying Agent, said Bonds shah be paid at the Redemption Price thereof, together with interest accrued and unpaid tO said date. If, on said date fixed for redemption, moneys for the redemption of all the Bonds to be redeemed, together with interest to said date, shall be held by the Paying Agent so as to be available therefor on such date, and, if notice of redemption thereof shall have been mailed as aforesaid and not canceled, then, from and after said date, interest on said Bonds shall cease to -32- accrue and become payable. All moneys held by or on behalf of the Paying Agent for the redemption of Bonds shall be held in trust for the account of the Owners of the Bonds so to be' redeemed. All Bonds paid at maturity or redeemed prior to maturity pursuant to the provisions hereof shall be canceled upon surrender thereof and the Fiscal Agent shall deliver a certificate of destruction to the City. -33- - ARTICLE V PURCHASE OF ADJUSTABLE RATE BONDS Section 5.01. Tender for Purchase uoon Election of Owner. (a) Any Owner of an Adjustable Bond in the Daily Mode, the Weel~y Mode, the Monthly Mode, the Semi-Annual Mode or the Extended Rate Mode may demand that such Adjustable Bond, or any portion thereof (so long as the principal amount purchased, and the principal amount not purchased, are each in an Authorized Denomination), be purchased on any Purchase Date at a price equal to the principal amount thereof plus accrued but unpaid interest, ff any, to the Purchase Date. Unless otherwise provided in a Representation Letter, such demand for purChase shall be made as follows: (i) delivery to the Remarketing Agent at its principal office in New York, New York, and to the Paying Agent at its Office, no later than the applicable Tender Deadline of an applicable Tender Notice, and (ii) subject to the provisions of subsection (c) of this Section, delivery of such Adjustable Bond duly endorsed in blank for transfer at the Office of the Paying Agent at or prior to 12:00 P.M. (Noon) on the Purchase Date specified in the Tender Notice. Notwithstanding the foregoing paragraph, the Owners shall have no right to demand purchase of Adjustable Rate Bonds pursuant to this'Section from the third Business Day prior to ' any Mandatory Purchase Date until after such Mandatory Purchase Date. If for any reason a vacancy exists in the office of Remarketing Agent,-a Tender Notice delivered to the Paying Agent only shall be sufficient for purposes of this Section and the Paying Agent shall give the notice required by subsection Co) of this Section. (b) Immediately upon receipt by the Remarketing Agent of a Tender Notice delivered pursuant to paragraph (a) of this Section or such notice of demand for purchase as is required by a-Representation Letter, the Remarketing Agent shall notify the other Notice Parties of such receipt and the contents thereof by telephone, immediately confirmed in writing. Upon delivery pursuant to. the terms of subsection (a) of this Section of the Adjustable Bond which is the subject of such purchase, the Paying Agent shall hold such Adjustable Bond pending delivery in accordance with the terms of this Agreement. (c) Any Tender Notice by any Owner shall be irrevocable. If such Owner is required but fails to deliver the Adjustable Bond referred to in such notice to the Paying Agent, such AdjUstable Bond shall nonetheless be deemed to have been tendered and, upon Provision for payment of the Purchase Price therefor from the funds specified in Section 5.03, no interest shall accrue on such Adjustable Bond for the benefit of such OWner from and after the Purchase Date and such Owner shall have no fights hereunder as the Owner of such Adjustable Bond except the 'right to receive the Purchase Price of such Adjustable Bond. · Section 5.02. Mandatory Purchase on Mandatory Purchase Dates, (a) Each Adjustable Bond shall be subject to mandatory purchase on each Mandatory Purcha~e Date at the applicable Purchase Price. Subject to the provisions of subsection (c) of this Section and unless otherwise provided in a Representation Letter, all Adjustable Rate Bonds required to be purchased in accordance with this Section shall be tendered for purchase by delivery to the Paying Agent at its Office on or prior to the Mandatory Purchase Date and shall be purchased with the funds described in Section 5.03. (b) Notice of each mandatory purchase required by subsection (a) of this Section, other than a purchase of a VIP Bond pursuant to clause (i) of the definition of Mandatory Purchase Date (as to which no notice is required), shall be given by the Paying Agent by In:st-class mail, postage prepaid to the Owners not less than 15 days prior to the Mandatory Purchase Date (with copies thereof to be given to the other Notice Parties). Each such notice shall state (i)the -34- Mandatory Purchase Date, (ii) if such Adjustable Bond is required to be tendered pursuant to this Section, that each Adjustable Bond shall be tendered for purchase by delivery of such Adjustable Bond to the Paying Agent at its Office on or prior to the Mandatory Purchase Date and that any Adjustable Bond not so tendered for purchase as required shall be deemed to have been so tendered and, upon provision for payment of the Purchase Price therefor from the funds specified in Section' 5.03, shall be deemed to have been purchased on the Mandatory Purchase Date after which no interest.shall accrue thereon for the benefit of the Owner required to so tender such Adjustable Bond and such Owner shall have no rights under this Agreement as the 'Owner of such Adjustable Bond except the fight to receive the Purchase Price thereof, and (iii) that all Adjustable Rate Bonds subject to such mandatory purchase shall be purchased on the applicable Mandatory Purchase Date at the applicable Purchase Price. (c) i Any Adjustable Bond subject to mandatory purchase in accordance with this Section which is not tendered for purchase as required by subsection (a) of this Section shall nonetheless be deemed to have been so tendered and, upon provision for payment of the Purchase Price therefor from the:funds specified in Section 5.03, shall be deemed to have been purchased on the Mandatory Purchase Date 'after which no interest shall accrue on such Adjustable Bond for the benefit of the Owner required to tender such Adjustable Bond from and after such Mandatory Purchase Date and such Owner shall have no rights hereunder as the Owner of such Adjustable Bond except the right to receive the Purchase Price thereof. Section 5.03. Tender and Purchase of Adjustable Rate B0nd~. (a) The Remarketing Agent shall use its best efforts to remarket Adjustable Rate Bonds to be purchased pursuant to Section 5.01 or Section 5.02 at a price of par plus accrued and unpaid interest, if any. The City. shall not directly or indirectly purchase.any Adjustable Rate Bonds from the Remarketing Agent pursuant to a remarketing so long as the Letter of Credit is in effect and the Bank is not in default on the Letter of Credit. Adjustable Rate Bonds subject to purchase pursuant to Section 5.01 or Section 5.02 shall be purchased from the Owners thereof at the. Purchase Price which shall be payable solely from the following sources in the following order: (i) immediately available funds on deposit in the Remarketing Proceeds Account, and (ii) immediately available funds on deposit in the Letter of Credit Purchase Account. (b) On each Purchase Date and each Mandatory Purchase Date, the Remarketing Agent (i) unless otherwise provided in a Representation Letter, at or prior to 11:30 A.M., will deliver to the Paying Agent instructions for registration of the Adjustable Rate Bonds remarketed in accordance with suction (c) of this Section, (ii) at or prior to 1.1:30 A.M., will give telephonic notice, immediately confu'med in writing, to the Paying Agent, the Fiscal Agent and the Bank, specifying the aggregate principal amount of Adjustable Rate Bonds not remarketed which must be purchased by.the Bank on such date, if any, and the amount of proceeds from the remarketing that will be delivered by the Remarketing Agent to the Paying Agent on such date, ff any, and (iii) at or prior to 1:00 P.M., will cause to be delivered to the Paying Agent in immediately available funds the proceeds of the remarketing, if any; provided, however, that ff the Adjustable Rate Bonds are registered in the name of the Depository or its nominee, the Remarketing Agent may apply such remarketing proceeds to the appropriate accounts of the Depository to effect payment of the Purchase Price of Adjustable Rate Bonds in accordance with the procedures established by the Depository. If such notice from the Remarketing Agent indicates that Adjustable Rate Bonds are required to be purchased from the proceeds of a drawing under the Letter of Credit, the Paying Agent shall give telephonic notice to the City at or prior to 12:30 P.M. on such date specifying the information set forth in the preceding sentence. The aggregate amount of Adjustable Rate Bonds specified in such direction to be purchased from the proceeds of a drawing under the Leuer of Credit shall not be reduced. -35- (c) Unless otherwise provided in a Representation Letter, on each Purchase Date and Mandatory Purchase Date, all Adjustable Rate Bonds which (i) have been remarketed shall be registered as directed by the Remarketing Agent, or (ii) are required to be purchased by the Bank shall be immediately registered in the name of the Bank. The Paying Agent shall make such Adjustable Rate Bonds available at its Office. In the absence of any instructions from the Bank, Bank Bonds will be held by the Paying Agent. The Paying Agent shall not release remarketed Bank Bonds held by it until the Letter of Credit has been reinstated as a result of such remarketing and the Paying Agent receives, and holds for the Bank, the remarketing proceeds thereof. (d) The PaYing Agent ~hall pay from the funds specified in subsection (a) of this Section, the Purchase Price for each Adjustable Bond at or prior to 4:30 P.M. on the Purchase Date or Mandatory Purchase Date, as the case may be, and, ff such Adjustable Bond is not registered in the name of the Depository or its nominee, only after receipt of such Adjustable Bond, properly endorsed either in blank or to the paying Agent. Payment of the Purchase Price of any Adjustable Bond tendered for purchase or otherwise purchased pursuant to a Representation Letter shall be made in immediately available funds or in such manner as such Owner and the Paying Agent shall agree. (e) Notwithstanding any. provision contained in this Article, all Bank Bonds, except Adjustable Rate Bonds being registered on such date in the name of, or on behalf of, the Bank pursuant to Section 5.03(c), shall be deemed tendered to the Remarketing Agent on each Business Day without the need for any Tender Notice or delivery of such Adjustable Rate Bonds. The Remarketing Agent shall remarket such Bank Bonds on each Business Day in accordance with this Agreement and the Remarketing Agreement. The Remarketing Agent shall immediately notify the Bank by telephone when Bank Bonds have been remarketed in accordance with this Agreement and the Remarketing Agreement. Section 5.04. ~Letter 0_f Credit: Alternate Letter of Credi'. (a) During the Daily Mode, the Weekly Mode, the Monthly Mode, the Semi-Annual Mod~ and the Extended Rate Mode, the Fiscal Agent shaH, by 4:00 P.M. on the Business Day preceding each Interest Payment Date, Redemption Date and the Maturity Date, by telex, telecopy or telegraphic demand, draw on the Letter of Credit in accordance with the terms thereof so as to receive thereunder by 4:00 P.M. on said Interest Payment Date, Redemption Date and the Maturity Date, as the case may be, an amount, in immediately available funds, equal to the-amount of interest payable on the Adjustable Rate .Bonds in such Modes on such Interest Payment Date, Redemption Date or the Maturity Date. The proceeds of such draws under this.subsection (a) shall be deposited in the Letter of Credit Account. (b) While the Letter of Credit is in effect, during the VIP Mode, the Fiscal Agent shall, by 4:00 P.M. on the last Business Day of each calendar month and on the Business Day preceding each Redemption Date and the Maturity Date, by telex, telecopy or telegraphic demand, draw on the Letter of Credit in accordance with the terms thereof so as to receive thereunder by 4:00 P.M. on the first Business Day of the next calendar month or on said Redemption Date, or the Maturity Date, as the case may be, an amount equal to the amount of interest accrued on such VIP Bonds during the previous calendar month, whether or not paid or due and payable, or the amount of interest payable on such VIP Bonds on such Redemption Date or the Maturity Date. The proceeds of such draw shall be deposited in the Interest Reserve Fund. (c) While the Letter of Credit is in effect, by 4:00 P.M. on the Business Day preceding each Redemption Date and the Maturity Date, the Fiscal Agent shall by telex, telecopy or telegraphic demand, draw on the Letter of Credit in accordance with the terms thereof so as to receive thereunder by 4:00 P.M. on such Redemption Date and the Maturity Date, an amount, in immediately available funds, sufficient to enable the Fiscal Agent to pay principal then payable -36- on the Adjustable Rate Bonds, whether at maturity, redemption or purchase thereof, in connection therewith. The proceeds of such draw shah be deposited in the Letter of Credit Account. (d) While the Letter of Credit is in effect, on each Purchase Date and Mandatory Purchase Date the Fiscal Agent shall by telex, telecopy or telegraphic demand given before 12:30 P.M., draw on the Letter of Credit in accordance with the terms thereof so as to receive thereunder by 4:00 P.M. on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of Adjustable Rate Bonds on such date and amounts withdrawn from the Interest Reserve Fund pursuant to Section-6.05, to enable the Paying Agent to pay the Purchase Price in connection therewith. The proceeds of such draw shah immediately be transferred to the Paying Agent, who shall deposit said proceeds in the. Letter of Credit Purchase Account. (e) Notwithstanding the foregoing, the Fiscal Agent shah not draw on the Letter of Credit with respect to any payments due or made in connection with Bank Bonds. (f) If at any time there shall have been delivered to the Fiscal Agent (i) an Alternate Letter of Credit in substitution for the Letter of Credit then in effect, (ii) a Favorable Opinion of Bond Counsel, and (iii) written evidence satisfactory to the Bank of the provision for purchase from the Bank of all Bank Bonds, at a price equal to the principal amount thereof plus accrued and unpaid interest, and payment of all amounts due it under the Reimbursement Agreement on or before the effective date of such Alternate Letter of Credit, then 'the Fiscal Agent shall accept such Alternate Letter of. Credit on the Substitution Date and shall surrender the Letter of Credit then in effect to the Bank. The City shall give the Fiscal Agent and the Bank written notice of the proposed substitution of an Alternate Letter of Credit for the Letter of Credit then in effect no less than 40 days prior to the proposed Substitution Date. (g) The Fiscal Agent shall not sell, assign or otherwise transfer the Letter of Credit, except to a successor Fiscal Agent hereunder and in accordance with the terms of the Letter of Credit and this Agreement. Section 5.05. NO Sale~ After Certain Defaults. The Remarketing Agent shall not remarker Adjustable Rate Bonds pursuant to Sections 5.01, 5.02 or 5.03 if there shah have occurred and be continuing an Event of Default. Section 5.06. Purchase Fund. (a) The Pa3ing Agent, as agent of the Fiscal Agent, shall establish and maintain a special fund' designated the "Purchase Fund". The Paying Agent shall further establish a separate account within the Purchase Fund designated the "Letter of Credit Purchase Account" and a separate account within the Purchase Fund designated the "Remarketing Proceeds Account". (b) Upon receipt of the proceeds of a remarketing of Adjustable Rate Bonds on a Purchase Date or Mandatory Purchase Date, the Paying Agent shall deposit such proceeds in the Remarketing Proceeds Account for application to the Purchase Price of the Bonds in accordance with Section 5.03. Notwithstanding the foregoing, upon the receipt of the proceeds of a remarketing of Bank Bonds, the Paying Agent shall immediately pay such proceeds to the Bank to the extent of any amount owing to the Bank. (c) Upon receipt from the Fiscal Agent of the immediately available funds transferred to the Paying Agent pUrsuant to subsection (d) of Section 5.04, the Paying Agent shall deposit such money in the Letter of Credit Purchase Account for application to the Purchase Price of the Bonds to the extent that the monies on deposit in the Remarketing Proceeds Account shall not be sufficient. Any amounts deposited in the Letter of Credit Purchase Account and not needed with -37- re.spect to any Purchase Date or Mandatory Purchase Date for the payment of the Purchase Price for any Bonds shall be immediately returned to the Bank. (d) Amounts held in the Letter of Credit Purchase Account and the Remarketing Proceeds Account by the Paying Agent shall be held uninvested. -38- ARTICLE VI SECURITY FOR BONDS; FLOW OF FUNDS; INVESTMENTS Section 6.01. Pledge and Assignment. Subject only to the provisions of this Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Reassessments (including prepayments thereof), together with interest and any penalties thereon, all amounts for the Continuing Costs of the Adjustable Rate Bonds and any and all other amounts (including proceeds of the sale of the Bonds) held in any fund or account established pursuant to this Agreement are hereby pledged by the City to secure the payment of the principal of, premium, if any, and interest on the Bonds and the City's obligations to the Bank under the Reimbursement Agreement, in accordance with the terms of the Bonds and the provisions of this Agreement, the Reimbursement Agreement and the Act. Said pledge shah constitute a first lien on and security interest in such assets. Notwithstanding the foregoing, each group of Fixed Rate Bonds and the Related Additional Bonds, ff any, shall be payable solely from and secured solely by the Reassessments (including prepayments thereof) on the parcels of real property designated by the City, pursuant to Section 7.01(e), to be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any, together with interest and any penalties on such Reassessments, and any other amounts (including proceeds of the sale of the Bonds) held in any account established pursuant to this Agreement for such Fixed Rate Bonds and Related Additional Bonds, if any. Adjustable Rate Bonds and the City's obligations to the Bank under the Reimbursement Agreement shall be payable solely from and secured solely by the Reassessments (including prepayments thereof) on the parcels of property not so designated, together with interest and any penalties on such Reassessments, amounts for the Continuing Costs of the Adjustable Rate Bonds and the amounts (including proceeds of the sale of the Bonds) held in any fund or account not established pursuant to this Agreement for Fixed Rate Bonds. Section 6.02. Redemption Fund. (a) The Fiscal Agent shall establish, maintain and hold in trust a special fund designated the "Redemption Fund". Within the Redemption Fund, the Fiscal Agent shall establish and maintain a special account designated the "Redemption Account" for each group of Fixed Rate Bonds and the Related Additional Bonds, if any. The Fiscal Agent shall deposit in the Redemption Fund the amount specified in Section 3.02(a). Additionally; except as otherwise provided herein, the Fiscal Agent shall deposit in the Redemption Fund all Reassessments (including prepayments thereof), together with interest and' any penalties on,such Reassessments, and any other amounts required to be deposited therein by this Agreement or the Act; provided, however, that the Fiscal Agent shall deposit in the Redemption Account established for each group of Fixed Rate Bonds and the Related Additional Bonds, if any, all Reassessments (including prepayments thereof) on the parcels of real property designated by the City, pursuant to Section 7.01(e), to be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any, together with interest and any penalties on such Reassessments, and any other amounts required to be deposited therein by this Agreement or the Act. Amounts transferred, on or about September 3 of each year, to the Fiscal Agent by the Authority Trustee from the Surplus Fund established under the Authority Indenture shall be allocated among the groups of Fixed Rate Bonds and the Related Additional Bonds, if any, in accordance with the respective percentage allocations therefor specified in the written notification from the Authority Trustee described in Section 6.02(d). Amounts allocated to each group of Fixed Rate Bonds and the Related Additional Bonds, if any, shall be deposited[, first in the Reserve Account established for such group of Fixed Rate Bonds and the Related Additional Bonds, if any, if and to the extent that the amount on deposit therein is less than the Reserve -39- Requirement therefor and, second,] in' the Redemption Account established for such group of Fixed Rate Bonds and the Related Additional Bonds, ff any. (b) When a Letter of Credit is in effect, the Fiscal Agent, on each Interest Payment Date (except during the VIP Mode), each Principal Payment Date and each Redemption Date for Adjustable Rate Bonds, shall withdraw and apply amounts in the Redemption Fund (not including any amounts in any Redemption Account established therein), ff any, to reimburse the Bank for draws on the Letter of Credit pursuant to Section 5.04. (c) On or before each Interest Payment Date, the Fiscal Agent shah withdraw from the Redemption Account established for each group of Fixed Rate Bonds and the Related Additional Bonds, ff any, for payment to the Owners of such Fixed Rate Bonds and Related Additional Bonds, if any, the principal of and interest then due and payable on such Fixed 'Rate Bonds and Related Additional Bonds, ff any. Five Business Days prior to each Interest Payment Date, the Fiscal Agent shall determine if the amounts then on deposit in such Redemption Account are sufficient to pay the principal, ff any, of and interest due.on such Fixed Rate Bonds and Related Additional Bonds, if any, on such Interest Payment Date. In the event that amounts in the Redemption Account established for a group of Fixed Rate Bonds and the Related Additional Bonds, if any, are insufficient for'such purpose, the Fiscal Agent, on or before such Interest Payment Date, shall withdraw from the Reserve Account established for such Fixed Rate Bonds and Related Additional Bonds, ff any, to the extent of any funds therein the amount of such insufficiency, and shall transfer any amounts so withdrawn to such Redemption Account. Amounts so withdrawn from the Reserve Account established for a group of Fixed Rate Bonds and Related Additional Bonds, if any, and deposited in the Redemption Account established for such Fixed Rate Bonds and Related Additional Bonds, if any, shall be applied to the payment of such Fixed Rate Bonds and Related Additional Bonds, if any. If, after the foregoing transfer, · there are insufficient funds in such Redemption Account to pay principal, ff any, and interest on such Fixed Rate Bonds and Related Additional Bonds, ff any, the Fiscal Agent shall apply the available funds first to the payment of interest onsuch Fixed Rate Bonds and Related Additional Bonds, if any, then to the payment of principal of such Fixed Rate Bonds and Related Additional Bonds, if any. (d) The Fiscal Agent shall deliver to the Authority Trustee, on July 1 of each year, a written notification stating, with respect to each group of Fixed Rate Bonds and the Related Additional Bonds,.ff any, registered in the name of the Authority Trustee, (i) the amount of debt service payable on such group of Fixed Rate. Bonds and the Related Additional Bonds, if any, on the following September 2, (ii) the amount on deposit in the Redemption Account established for such group of Fixed Rate Bonds and the Related Additional Bonds, if any, as of such July 1, and (iii) the amount, ff any, by which the amount on deposit in the Reserve Account established for such group of Fixed Rate Bonds and.the Related Additional Bonds, if any, on such July 1 is less than the Reserve Requirement therefor. The City shall cause the Authority Trustee to deliver to the Fiscal Agent, no later than July 15 of each year, a written notification stating the amount that the Authority Trustee expects to transfer to the Fiscal Agent on the following September 3 from the Surplus Fund established under the Authority Indenture and the portion (as a percentage) thereof allocable to each group of Fixed Rate Bonds and the Related Additional Bonds, if any, registered in the name of the Authority. Trustee. The City shall cause the Assessment Consultant to calculate the portion of such amount allocable to parcels designated by the City to be represented by each group of Fixed Rate Bonds and the Related Additional Bonds, if any, that were included in Prior District 85-1 and the portion of such amount allocable to parcels designated by the City to be represented by each group of Fixed Rate Bonds and the Related additional Bonds, if any, that were included in Prior District 86-2. Section 6.03. Prenayment Account. The Fiscal Agent shall establish and maintain a special account within-the-Redemption Fund designated the "Prepayment Account". Within the -40- Prepayment Account, the Fiscal Agent shall establiSh and maintain a special account designated the "Prepayment SubaCcount" for each group of Fixed Rate Bonds and the Related Additional Bonds, if any. The Fiscal Agent shall deposit in the Prepayment Account the proceeds of the prepayment of any Reassessment; provided, however, that the Fiscal Agent shall deposit in the Prepayment Subaccount established for each group of Fixed Rate Bonds and the Related Additional Bonds, if any, the proceeds of the prepayment of any Reassessment on the parcels of real property designated by the City, pursuant to Section 7.01 (e), to be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any. Additionally, the Fiscal Agent shall deposit in the Prepayment Account amounts received from the City in connection with the City's exercise of. its rights to optionally redeem Bonds pursuant to Section 4.01; provided, however, that the Fiscal Agent shall deposit in the Prepayment Subaccount established for each group of Fixed Rate Bonds and the Related Additional Bonds, if any, amounts received from the City in connection with the City's exercise of its rights to optionally redeem such Fixed Rate Bonds pursuant to Section 4.01(c) and to optionally redeem such Related Additional Bonds pursuant to the corresponding provisions in the Supplemental Agreement pursuant to which such Related Additional Bonds are issued. While a Letter of Credit is in effect, amounts in the Prepayment Account (other than amounts in any Prepayment Subaccount established therein) shall be disbursed therefrom to reimburse the Bank for draws in the Letter of Credit used to pay the principal of Adjustable Rate Bonds redeemed pursuant to Section 4.01(b), 4.02(a) or 4.02(b). Amounts in the Prepayment Subaccount established for a group of Fixed Rate Bonds, and the Related Additional Bonds, if any, shall be disbursed therefrom for the payment of the Redemption Price of such Fixed Rate Bonds and Related Additional Bonds, if any, redeemed pursuant to Section 4.01(c) or Section 4.02(c) and the corresponding provisions of the Supplemental Agreement pursuant to which Related Additional Bonds are issued. Section 6.04. Letter of Credit Account. The Fiscal Agent shall establish and maintain a special 'account within the Redemption Fund designated the Letter of Credit Account. The Fiscal Agent shall deposit the proceeds of draws on the Letter of Credit made pursuant to 5.04 (a) and (c) in the Letter of Credit Account. When the Letter of Credit is in effect, money in the Letter of Credit Account shall be withdrawn by the Fiscal Agent on each Interest Payment Date (except during the'VIP Mode), each Principal Payment Date and each Redemption Date and used to pay the interest on and principal of the Adjustable Rate Bonds, whether at maturity, redemption or purchase. Section 6.05. Interest Reserve Fund. The Fiscal Agent shall establish, maintain and hold in trust a special fund designated the "Interest Reserve Fund". The Fiscal Agent shall deposit in the Interest Reserve Fund amounts received from the City which, on the date of a Change in Mode to the VIP Mode, will constitute Seasoned' Funds in an amount equal to the Interest Reserve Fund Requirement. Additionally, the Fiscal Agent shall deposit in the Interest Reserve Fund the proceeds of all draws made on the Letter of Credit pursuant to subsection (b) of Section 5.04Co). When Bonds are in the VIP Mode, the Fiscal Agent shall apply amounts on deposit in the Interest Reserve Fund on each Interest Payment Date to the payment of interest due and payable on such VIP Bonds. Amounts on deposit in the Interest Reserve Fund shall be reduced on the first Business Day of each calendar month following the redemption of Bonds in the VIP Mode, so that the amount on deposit in the Interest Reserve Fund shall always be equal to the Interest Reserve Fund Requirement; provided, however, that such calculation shall not take into account monies on deposit in the Interest Reserve Fund which represent interest actually accrued but not yet payable to Owners of Bonds in the VIP Mode and such moneys shall not be transferred out upon such redemptions. When there are no longer any Bonds in the VIP Mode, monies on deposit in the Interest Reserve Fund shall be transferred from the Interest Reserve Fund to the Redemption Fund; provided, however, that there shall not be transferred monies on deposit in the Interest Reserve Fund which represent interest actually accrued but not yet payable. Section 6.06. Reserve Fund. (a) The Fiscal Agent shall establish, maintain and hold in trust a special fund designated the "Reserve Fund". Within the Reserve Fund, the Fiscal Agent shall establish and maintain a special account designated the "Reserve Account" for each group of Fixed Rate Bonds-and the Related Additional Bonds, if any. Upon the conversion of Adjustable Rate Bonds to Fixed Rate Bonds, and the issuance of any Related Additional Bonds, there shah be deposited in the Reserve Account established for the group of Fixed Rate Bonds so converted and the Related Additional Bonds, if any, an amount equal to the Reserve Requirement for such group of Fixed Rate Bonds and Related Additional Bonds, if any. Additional deposits shall be made as provided in the Act. The City shall cause each Reserve Account to be administered in accordance with Part 16 of the Act; provided that proceeds from redemption or sale of parcels of real property designated 'by the City, pursuant to Section 7.01(e), to represent the group of Fixed Rate Bonds and the Related Additional Bonds, if any, for which such Reserve Account was established, with respect to which payment of delinquent Reassessments and interest thereon was made from such Reserve Account, shall be credited to such Reserve Account. (b) Except as otherwise provided in this Section, aH amounts deposited in the Reserve Account established for a group of Fixed Rate Bonds and the Related Additional Bonds, if any, shah be used and withdrawn by the Fiscal Agent solely for the purpose of making transfers to the Redemption Account established for such group of Fixed Rate Bonds and Related Additional Bonds, if any, in the event of any deficiency at any time in such Redemption Account of the amount then required for payment of the principal of, premium, if any, and interest on such Fixed Rate Bonds and Related Additional Bonds, if any, or, in accordance with the provisions of this Section, for the purpose of redeeming such Fixed Rate Bonds and Related Additional Bonds, if any, from such Redemption Account. (c) Transfers shah be made from the Reserve Account established for a group of Fixed Rate Bonds and the Related Additional Bonds, if any, to the Redemption Account established for such group of Fixed Rate Bonds and Related Additional Bonds, if any, in the event of a deficiency in such Redemption Account established for a group of Fixed Rate Bonds and the Related Additional Bonds, if any, in accordance with Section 6.02(c). (d) Whenever, after the conversion of a group of Fixed Rate Bonds and the issuance of the Related Additional Bonds, if any, a Reassessment on any parcel of real property designated by the City, pursuant to Section 7.01 (e) to be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any, is prepaid, in Whole or in part, as provided in the Act, the Fiscal Agent, pursuant to a Written Request of the City, shall transfer from the Reserve Account established for such group of Fixed Rate Bonds and Related Additional Bonds, if any, to the Prepayment Subaccount established for such group of Fixed Rate Bonds and Related Additional Bonds, if any, an amount, specified in such Written Request, equal to the product of the ratio of the amount, at the time of such conversion, of the Reassessment, or portion thereof, so prepaid to the amount, at the time of such conversion, of all such unpaid Reassessments, times the initial Reserve Requirement for such group of Fixed Rate Bonds and Related Additional Bonds, if any. (e) So long as no Event of Default shall have occurred and be continuing, any amount in the Reserve Account established for a group of Fixed Rate Bonds and the Related Additional Bonds, ff any, in excess of the Reserve Requirement for such group of Fixed Rate Bonds and Related Additional Bonds, if any, on February 15 and March 15 of each year shall be withdrawn from such Reserve Account by the Fiscal Agent and deposited in the Redemption Account established for such group of Fixed Rate Bonds and Related Additional Bonds, if any.. (f) Whenever the balance in the Reserve Account established for a group of Fixed Rate Fixed Rate Bonds and the Related Additional Bonds, if any, is sufficient to retire' all the Outstanding Fixed Rate Bonds and Related Additional Bonds, if any, for which such Reserve Account was established, whether by advance retirement or otherwise, collection of the principal and interest on the Reassessments on the parcels of real property designated by the City, pursuant to Section 7.0 l(e), to be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any, shall be discontinued and such Reserve Account liquidated by the Fiscal Agent in retirement'of such Outstanding Bonds, as directed by a Written Request of the City. In the event that the balance in such Reserve Account at the time of liquidation exceeds the amount required to retire all such Outstanding Bonds, the excess shall, after payment of amounts due to the Fiscal Agent, be transferred to the City to be used in accordance with the Act. Section 6.07. Continuine Costs Accoun~_~ The Fiscal Agent shah establish and maintain a special account withih the Redemption Fund designated the "Continuing Costs Account". Within the Continuing Costs Account, the Fiscal Agent shall establish and maintain a special account designated the "Adjustable Rate Bonds Continuing Costs Subaccount" and a special account designated the "Fixed Rate Bonds Continuing Costs Subaccount". The Fiscal Agent shah deposit in the Adjustable Rate Bonds Continuing Costs Subaccount amounts collected for payment of Continhing Costs of the Adjustable Rate Bonds. The Fiscal Agent shall deposit in the Fixed Rate Bonds Continuing Costs Subaccount 'amounts Collected for payment of Continuing Costs of the Fixed Rate Bonds. The moneys in the Continuing Costs Account shall be used and withdrawn by the Fiscal Agent from time to time to pay the Continuing Costs .of the Adjustable Rate Bonds and the Continuing Costs of the Fixed Rate Bonds upon submission of a Written Request of the City stating (a) the Person to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment constitutes a Continuing Cost of the Adjustable Rate Bonds or a Continuing Cost of the Fixed Rate Bonds, or both, as appropriate, and is a proPer charge against the Continuing Costs Account, (e) the portion if any, of such amount to be paid from the Adjustable Rate Bonds Continuing Costs Subaccount and the portion, if any, of such amount to be paid from the Fixed Rate Bonds Continuing Costs Subaccount, and (f)'that such amounts have not been the subject of a prior disbursement from the Continuing Costs Account; in each case together with a statement or invoice for each amount requested thereunder. Section 6.08. Investment of Moneys. Except as otherwise provided herein, all moneys in any of the funds or accounts (other thafi the Letter of Credit Account, the Letter of Credit Purchase Account, the Remarketing Proceeds Account and the Interest Reserve Fund) established pursuant to this Agreement shall be invested by the Fiscal Agent solely in Permitted Investments, as directed in writing by the City two Business Days prior to the making of such investment; provided, however, that any Seasoned Funds which are required to pay the Redemption Price of any Bonds for which notice of redemption has been given hereof may be invested only in Federal Securities described in clause (a) of the def'mition thereof which mature not later than 30 days from the date of purchase or on the applicable Redemption Date, whichever fkst occurs. Moneys in the Letter of Credit Account, the Letter of Credit Purchase Account, the Remarketing Proceeds Account the shall be held uninvested. Moneys in the Interest Reserve Fund shall be held uninvested unless directed in writing by the City to be invested in Federal Securities with maturity periods not exceeding one day. All Permiued Investments shall be acquired subject to any restrictive instructions given to the FiScal Agent pursuant to Section 7.10 and such additional limitations or requirements consistent with the foregoing as may be -43- established by the Written Request of the City. Moneys in all funds and accounts (other than the Letter of Credit Account, the Letter of Credit Purchase Account, the Remarketing Proceeds Account and the Interest Reserve Fund) shall be invested in Permitted Investments maturing not later than the date on which it is estimated that such moneys will be required for the purposes specified in this Agreement. Absent timely written direction from the City, the Fiscal Agent shall invest such moneys in Permitted Investments described in clause (h) of the def'mifion thereof. Subject to the provisions of Section 7.10, all interest, profits and other income received from the investment of moneys in any fund or a-~eount established pursuant to this Agreement shall be retained therein; provided however, that any such interest, profits and other income shall be available for the payment of any rebate that may be owed under the Code, as specified in a Written Request of the City delivered to the Fiscal Agent. --- Permitted Investments acquired as an investment of moneys in any fund established under this Agreement shall be credited to such fund. Except as otherwise provided in the following sentence, all investments of amounts deposited in any fund or account created by or pursuant to this Agreement, or otherwise containing gross proceeds of the Bonds (within the meaning of section 148 of the Code) shall be acquired, disposed of, and valued (as of the date that valuation is required by this Agreement or the Code) at Fair Market Value. Investment in funds or accounts (or portions thereof) that are subject to a yield restriction under applicable provisions of the Code shall be valued at their present value (within the meaning of section 148 of the Code). The Fiscal Agent may act as principal or agent in the making or disposing of any · investment. Upon the Written Request of the City, the Fiscal Agent shall sell or present for redemption any Permitted Investments so purchased whenever it shall be necessary to provide moneys to meet.any required payment, transfer, withdrawal or disbursement from the fund or account to which such Permiued Investments is credited, and the Fiscal Agent shall not be liable or responsible for any loss resulting from any investment made or sold pursuant to this Section. For purposes of investment, the Fiscal Agent may commingle any of the moneys held by it hereunder, except money derived from draws under the Letter of Credit or Seasoned Funds, which shall not be commingled with any other funds under any circumstances. ARTICLE VII COLLECTION AND APPLICATION OF REASSESSMENTS; PARTICULAR COVENANTS Section 7.01. Collection and Application of Reassessments. (a) The City shall comply with all requirements of the Act, the Resolution of Issuance and this Agreement to assure the timely collection of the Reassessments, and interest thereon, including, without limitation, the enforcement of delinquent Reassessments. Any funds received by the City in and for the Reassessment District, including, but not limited to, collections of Reassessments (including prepayments thereof), and interest thereon, collections of delinquent Reassessments, and interest and penalties thereon, through foreclosure proceedings or otherwise, and collections of amounts for the Continuing Costs of the Adjustable Rate Bonds and the Continuing Costs of the Fixed Rate Bonds, shall be immediately transmitted directly to the Fiscal Agent, without deduction, to be deposited into the funds and accounts herein specified. (b) The Fiscal Agent, as agent of the City, shall collect Reassessments on all parcels of real property represented by Adjustable Rate Bonds, together with interest thereon, through direct billing of the owners of such parcels, and such Reassessments, and interest thereon, shall be payable at the end of the pay period and are delinquent thereafter. Any such delinquent Reassessments shall have the same priority and shall bear the same proportionate penalties after delinquency as do general taxes on real property .and shall bear interest at the rate or rates provided in the Reimbursement Agreement. Interest on Reassessments on parcels of real property represented by Adjustable Rate Bonds shall' be in an amount sufficient to pay interest on Series A Bonds, other than Fixed Rate Bonds, or to pay interest at the rate or rates provided in the Reimbursement Agreement, as and when due. In addition, the Fiscal Agent, as agent of the City and subject to limitations contained in Section 8663 of the Act, shall collect amounts sufficient to pay the Continuing Costs of the Adjustable Rate Bonds through direct billing of the owners of the real property represented by Adjustable Rate Bonds. Not later than one Business Day prior to each date on which Reassessments on parcels of real property represented by Adjustable Rate Bonds, or interest thereon, or Continuing Costs of the Adjustable Rate Bonds are due, the Fiscal Agent shall notify the owners of such parcels of the amounts becoming due and receive the same from such owners on or before such due date. SeCtion(C) The Reassessments on parcels of real property designated by the 'City, pursuant to 7.01(e), to represent Fixed Rate Bonds and Related Additional Bonds, if any, and interest thereon, shall be payable and be collected in the same manner at the same time and in the same installments as the general taxes on real property are payable, and have the same priority, become delinquent at the same time and in the same proportionate amounts and bear the same proportionate penalties and interest after delinquency as do the general taxes on real property. The Reassessments on parCels of real property designated by the City, pursuant to Section 7.01(e), to represent a group of Fixed Rate Bonds and the Related Additional Bonds, if any, together with the interest thereon, shah be payable in annual series corresponding in number to the number of series of such Fixed Rate Bonds and Related Additional Bonds, if any. An annual proportion of each Reassessment on parcels of real property designated by the City, pursuant to Section 7.01(e), to represent a group of Fixed Rate Bonds and the Related Additional Bonds, if any, together with interest thereon, shah be payable in each year preceding the date of maturity of each of the several series of Fixed Rate Bonds and Related Additional Bonds, if any, representing such parcels in an amount sufficient to pay such Fixed Rate Bonds and Related Additional Bonds, if any, and interest thereon, when due. In addition, the City shall, in accordance with and subject to the limitations contained in Section 8682 and Section 8682.1 of the Act, cause to be included in the annual assessment roll of the parcels of real property designated by the City, pursuant to Section 7.01(e), t° represent Fixed Rate Bonds and Related Additional Bonds, if any, an amount estimated to be sufficient to pay the Continuing Costs of the Fixed Rate Bonds for the following annual period. The Treasurer shall, before the final date on which the Auditor will accept the' transmission of the Reassessments for the parcels of real property designed by the City, pursuant to Section 7.01(e), to represent Fixed Rate Bonds and Related Additional Bonds, ff any, for inclusion on the next tax roll, prepare or cause tobe prepared, and shall transmit to the Auditor, such data as the Auditor requires to include the installments of such Reassessments, together with interest thereon, and the Continuing Costs of the Fixed Rate Bonds on tht'hext secured tax, roll of the County. Such data shall take into account the amount expected to be transferred, on 'the following September 3, to'the Fiscal Agent by the Authority Trustee from the Surplus Fund established under the Authority Indenture and the allocation thereof determined by the Assessment Consultant as provided in Section 6.02(d). The Treasurer is hereby authorized to employ consultants to assist in computing the installments of the Reassessments hereunder and in reconciling Reassessments biffed to amounts received. Upon receipt of any Reassessments for the parcels of real property'designated by the City, pursUant to Section 7.01(e), to represent a group of Fixed .Rate Bonds and Related Additional Bonds, if any, or interest or penalties thereon, or prepayments of such Reassessments or amounts collected with respect to such parcels for the Continuing Costs of the Fixed Rate . Bonds, the City shall, as soon as practicable, transfer the same to the Fiscal Agent, together with a Written Certificate of the City that identifies the group of Fixed Rate Bonds and Related Additional Bonds, if any, to which such amounts relate and identifies which portion, if any, of the amounts so transferred constitute ReassessmentS, or interest or penalties thereon, or prepayments of Reassessments or amounts collected of the COntinuing Costs of the Fixed Rate Bonds. (d) .Any Reassessment on any parcel of property may be prepaid at any time by paying, in whole or part, the unpaid amount thereof less, ff available, the amount transferred to the Redemption Account established for the Fixed Rate Bonds and the Related Additional Bonds, ff any, representing such parcel, from the Reserve ACCount established for such Fixed Rate Bonds and the Related Additional Bonds, if any, pursuant to Section 6.02(c), ff any, together with the redemption premium, ff any, set forth in Section 4.02(a) or 4,02(c), as: applicable, and interest on such prepaid Reassessment (ff not collected in a Reassessment installment) to the earliest Redemption Date for which notice of redempfi, on may be given in accOrdance herewith. (e) UpOn the conversion of Adjustable Rate Bonds to Fixed Rate Bonds, and the issuance of any Additional Bonds in connection therewith, the City shall in a Written Certificate of the City delivered to the Fiscal Agent, designate (i) by CUSIP numbers, what portion (which may be all) of such Fixed Rate Bonds constitutes a group for purposes hereof, (ii) by Series identification, what portion (which may be all) of such Additional Bonds constitutes Related Additional Bonds for such group of Fixed Rate Bonds, and (iii) by assessor's parcel numbers the parcels of real property within the Reassessment District which shall be represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any. From and after such designation, said group of Fixed Rate Bonds and said Related Additional Bonds, if any, shall be payable solely from and secured solely by the Reassessments (including prepayments thereof) on said designated parcels, together with interest and any penalties thereon, and any other amounts held in any fund or account established for such group of Fixed Rate Bonds and Related Additional Bonds, as provided herein. The Adjustable Rate Bonds shall represent the parcels of real property within the Reassessment District that have not been designated pursuant to this subsection to be represented by any group of Fixed Rate Bonds and the Related Additional Bonds, if any. The Adjustable Rate Bonds shall be payable solely from and secured solely by the Reassessments (including prepayments thereof) on such parcels that have not been so designated, together with interest and any penalties thereon, amounts collected for the Continuing Costs of the Adjustable Bonds and any other amounts held in any fund or account established hereunder and available for payment of the Adjustable Rate Bonds, as provided herein. Section 7.02. Foreclosure. The City hereby covenants that it will within 60 days of a delinquency in the payment of Reassessments on parcels represented by Adjustable Rate Bonds, or interest thereon, or amounts to pay the Continuing Costs of the Adjustable Rate Bonds, or within 150 days of a delinquency in the payment of Reassessments on parcels represented by Fixed Rate Bonds or Additional Bonds, or interest thereon, or amounts to pay the Continuing Costs of the Fixed Rate Bonds, forthwith undertake and diligently prosecute foreclosure proceedings in the manner prescribed in Section. 8'8~30 et seq. of the Act to collect such delinquent amounts; provided, however, with respect to parcels represented by a group of Fixed Rate Bonds and the Related Additional Bonds, if any, ff the amount collected is greater than 92.5% of the installment of the Reassessment on parcels represented by such group of Fixed Rate Bonds and Related Additional Bonds, if any, and interest thereon, and amounts to pay the Continuing Costs of the Fixed Rate Bonds, to be collected, the City shall not be required to undertake such foreclosure proceedings, unless it is determined that any single property owner is delinquent in excess of $25,000 in the payment of such amounts, in which case it shall diligently institute, prosecute and pursue such'foreclosure proceedings against such property owner as set forth herein. Upon the redemption or sale of the real property responsible for such delinquencies, the City shall apply the net proceeds thereof to: (a) deposit to the appropriate Reserve Account the amount of any delinquency advanced therefrom pursuant to Section 6.02(c), (b) with respect to parcels represented by Adjustable Rate Bonds, forthwith remit to the Bank any moneys received on account thereof, up to the amount due to the Bank as an Owner of Bank Bonds or pursuant to the Reimbursement Agreement, and (c) the balance, if any, shall be disbursed as set forth in the judgment of foreclosure or as required by law. Section 7.03. No Advance~ from Available Surplus Funds. The City shall not be obligated to advance available surplus funds of the City to cure any def:ciency which may occur in the Redemption Fund or any Redemption Account; provided, however, that said determination shall not prevent the City, in its sole discretion, from so advancing funds. Section 7.04. Punctual Payment. The City shall punctually pay or cause to be paid the principal, premium, if any, and interest tO' become due in respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Agreement, according to the true intent and meaning thereof, but only out of Reassessments and other assets pledged for such payment as provided in this Agreement and received by the City or the Fiscal Agent. Section 7.05. Extension 0f Payment of Bonds. The City shall not directly or in'directly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Agreement, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall not have been so extended. Nothing in this Section shall be deemed to limit the right of the City to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds. Section 7.06. Against Encumbronces. Except as provided in the Reimbursement Agreement, the City shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Reassessments and other assets pledged or assigned under this Agreement while any of the Bonds are Outstanding. Section 7.07, Power to Issue Bonds and Make Pledge. -The City is duly authorized pursuant to the Act to issue the Bonds and to enter into this Agreement and to pledge the Reassessments and other assets purported to be pledged under this Agreement in the manner and to the extent provided in this Agreement. The Bonds and the provisions of this Agreement are and will be the legal, valid and binding obligations of the City in accordance with their terms, and the City and the Fiscal Agent (subject to the provisions of Articles VIII and IX) shall at all times, to the extent permitted by law, defend, preserve and protect said pledge of Reassessments and other assets and all the rights of the Bond Owners and the Bank under this Agreement against all claims and demands of all Persons whomsoever. Section 7.08. Accounting Re~0rds and Financial' Statement~. The Fiscal Agent shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with trust industry standards, in which complete and accurate entries shall be made of all transactions relating to the proceeds of the Bonds, the Reassessments and all funds and accounts established pursuant to this Agreement. Such books of record and account shall be available for inspection by the City and the Bank, during regular business hours and upon 24 hours' notice and under reasonable circumstances as agreed to by the Fiscal Agent. The Fiscal Agent shall deliver to the City a monthly accounting of the funds and accounts it holds under this Fiscal Agent Agreement; provided, however, that the Fiscal. Agent shall not be obligated to deliver such accounting for any fund or account that has a balance of zero. Section 7.09. Waiver of Law~. The City shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Agreement or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the City to the extent permitted by law. Section 7.10. Tax Covenants. (a) Private Activity Bond Limitation. The City shall assure that the proceeds of the Series A Bonds are not so used as to cause the Series A Bonds to satisfy the private business tests of Section 141 (b) of the Code or the private loan f'mancing test of Section 141(c) of the Code. (b) Rebate Requirement. The City shall take any and all actions necessary to aSsure compliance with section 148(0 of the Code, relating to the rebate of excess investment earnings,. ff any, to the federal government, to the extent that such section is applicable to the Series A Bonds. (c) Federal Guarantee Prohibitiott The City shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Series A Bonds to be "Federally guaranteed" within the meaning of Section 149(b) of the Code. (d) Maintenance of Tax-Exemption. The City shall take all actions necessary to assure the exclusion of interest on the Series A Bonds from gross income of the Owners of the Series A Bonds to the same extent as such interest is permitted to be excluded from gross income under the Code as in effect on the date of issuance of the Series A Bonds. (e) No Arbitrage. The City shall not take, or permit or suffer to be taken by the Fiscal Agent or otherwise, any action with respect to the proceeds of the Series A Bonds which, if such action had been reasonably expected to. have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Series A Bonds would have caused the Series A Bonds to be "arbitrage bonds" within the meaning of section 148 of the Code. -48- Section 7. 11. Authority_ for Continuing C0st~, The City represents that, pursuant to the Act, it has authority to levy an additional assessment to pay the Continuing Costs of the Adjustable Rate Bonds and that, if any such additional assessment is not paid when due, the Council may order that the same be collected by an action brought in the superior court to foreclose the lien thereof as provided in the Act. Section 7.12. Further Assuronce~. The City will make, execute and deliver any and all such further agreements, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the perfOrhiance of this Agreement and for the better assuring and confmning unto the Owners of the Bonds and the Bank of the rights and benefits provided in this Agreement. ARTICLE VHI EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Section 8.01. Events of Default. The following events shall be Events of Default: (a) Failure to pay any installment of principal of any Bonds when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption or otherwise. (b) Failure to pay any installment of interest on any Bonds when and as the same shall become due and payable. (c) Failure by the City to observe and perform any of the other covenants, agreements or conditions on its part in this Agreement or in the Bonds contained, if such failure shall have continued for a period of 60 days after written notice thereof, specifying such failure and requiring the same to be remedied, shall have been given to the City by the Fiscal Agent or the Owners of not less than 25% in aggregate principal amount of the Bonds at the time Outstanding; pr°vided, however, ff in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 60 day period, such failure shall not constitute an Event of Default ff corrective action is instituted by the City within such 60 day period and the City shall thereafter diligently and in good faith cure such failure in a reasonable period of time. (d) With respect only to Adjustable Rate Bonds, receipt by the Fiscal Agent of notice from the Bank that an event of default under the Reimbursement Agreement shall have occurred and be continuing. (e) The City shall commence a voluntary case under Title 11 of the United States Code or any substitute or successor statute. Section 8.02. For~cl0sure. If any Event of Default shall occur under Section 8.01, then, and in each and every such case during the continuance of such Event of. Default, the Fiscal Agent may or, at the direction of the Owners of not less than a majority in aggregate principal- amount of the Bonds at the time Outstanding shall, commence foreclosure against any parcels of real property in the Reassessment District with delinquent Reassessments, or delinquent payments of interest thereon, or delinquent payments of amounts for the Continuing Costs of the Adjustable Rate Bonds or the Continuing Costs of the Fixed Rate Bonds, as provided in Section 8830 et. seq. of the Act. Section 8.03..Other Remedies. 'The Fiscal Agent shall have the following fights: (a) by mandamus, suit, action or proceeding, to compel the City and its members, officers, agents or employees to perform each and every term, provision and covenant contained in this Agreement and in the Bonds, and to require the carrying out of any or all such covenants and agreements of the City and the fulfillment of all duties imposed upon it by the Act; (b) by suit, actiOn or proceeding in equity, to enjoin any acts or things which are unlawful, or the violation of any rights of the Bond Owners or the Fiscal Agent; or -50- (c) upon the happening of any Event of Default, by suit, action or prOceeding in any court of competent jurisdiction, to require the City and its members and employees to account as if it and they were the trustees of an express trust. Section 8.04. Bank's Rieht Reeardine Remedi~. Anything to the contrary contained herein notwithstanding, so long a~ the B~mk is not in default under the Letter of Credit, the Fiscal Agent shall not exercise any of the foregoing remedies with respect to A,djustable Rate Bonds without the prior written consent of the Bank, and shall, upon the. Bank s offer to the Fiscal Agent of reasonable security and indemnity against costs, expenses and liabilities to be incurred by it, exercise such rights in accordance with and at the direction of the Bank. Section 8.05. Application of Rea~sessments and Other Fund~ After Default. If an Event of Default shall occur and be continuing, all Reassessments, including any penalties, costs, fees and other charges accruing under the Act, and any moneys in the funds and accounts established hereunder for the Bonds representing the parcels on which such Reassessments are levied shall be applied by the Fiscal Agent as follows and in the following order: (a) To the payment of any expenses necessary in the opinion of the Fiscal Agent to protect the interests of the Owners of the Bonds representing the parcels on which such Reassessments are levied and payment of reasonable fees, charges and expenses of the Fiscal Agent (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Agreement, .' (b) To the payment of the principal of and interest then due with respect to the Bonds 'representing the parcels on which such Reassessments are levied (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the Provisions of this Agreement, as follows: Fir~[: To the payment to the Persons entitled thereto of all installments of interest then due in the order of the maturity Of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto, without any discrimination or preference; and Second: To the payment to the Persons entitled thereto of the unpaid principal of any Bonds representing the parcels on which such Reassessments are levied which shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by the respective Bonds representing the parcels on which such Reassessments are levied on the date of maturity or redemption, and, if the amount available shall not be. sufficient to pay in full all the Bonds representing the parcels on which such Reassessments are levied, together with such interest, then to the payment thereof ratably, according to the amounts Of principal due on such date to the Persons entitled thereto, without any discrimination or preference. (c) If such Reassessments are levied on parcels represented by Adjustable Rate Bonds, to the Bank to the extent that amounts are owed to the Bank on account of draws under the Letter of Credit or otherwise under the Reimbursement Agreement. -51- (d) Any remaining funds shall be transferred by the Fiscal Agent to the Redemption Fund or the Redemption Account, as applicable, established for the Bonds representing the parcels on which such Reassessments are levied. Section 8.06. Bond Owners' Direction of Proceedinec, Anything in this Agreement to the contrary notwithstanding, but subject to the provisions ~f Section 8.04, the Owners of a majority in aggregate principal amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Fiscal Agent; and upon indemnification of the Fiscal Agent to its reasOnable satisfaction, to direct the method of conducting all remedial proceedings taken by 'the Fiscal Agent hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this 'Agreement, and that the Fiscal Agent shall have the right to decline to follow any such direction which in the opinion of the Fiscal Agent would be unjustly prejudicial to Bond Owners not parties to such direction. Section 8.07. Limitation on Bond Owners' Rieht to Suc. No Owner of any Bonds. shall have the right tO institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under 'this Agreement, the Bond Law or any other applicable law with respect to such Bonds, unless (a) such Owner shall have given to the Fiscal Agent written notice of the occurrence of an Event of Default, (b) the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, shall have made written request upon the Fiscal Agent to exercise the powers hereinbefore granted or to institUte such suit, action or proceeding in its own name, (c) such Owner or said Owners shall have tendered to the Fiscal .Agent indemnity against the costs, expenses and liabilities to be incurred in compliance with such request, and (d) the Fiscal Agent shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Fiscal Agent. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice.the security of this Agreement or the rights of any other Owners of Bonds, or to respect to the Bonds, except in the manner herein provided, and that all proceedings at law with enforce any right under the Bonds, this Agreement, the Bond Law or other app,licable law or in eqmty to enforce any such right shall be institUted, had and maintained in the manner herein provided and for the benefit and protection of all Owners of the Outstanding Bonds, subject to the provisions of this Agreement. Section 8~08. Absolute Oblieation of City. Nothing in Section 8.07 or in any other provision of this Agreement or in the t]onds contained shall affect or impair the obligation of the City, which is absolute and unconditional, to pay the principal of and interest on the Bonds to the respective Owners of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Reassessments and other assets herein pledged therefor and received by the City or the Fiscal Agent, or affect or impair the right of such Owners, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds. Section 8.09. Termination of Proceedings. In case any proceedings taken by the Fiscal Agent or any one or more Bond Owners on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Fiscal Agent or the Bond Owners, then in every such case the .City, the Fiscal Agent and the Bond Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and -52- duties of the City, the Fiscal Agent and the Bond Owners shall continue as though no such proceedings had been taken. Section 8.10. Remedie~ Not Exclusive. No remedy herein conferred upon or reserved' to the Fiscal Agent or to the Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise. Section 8.11. No Waiver of Defalllt. No delay or omission of the Fiscal Agent or of any Owner of the Bonds to exercise any fight or power arising upon the occurrence of any default shall impair any such fight or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Agreement to the Fiscal Agent or to the Owners of the Bonds may be exercised from 'time to time and as often as may be deemed expedient.' -53- ARTICLE IX FISCAL AGENT; PAyING AGENT; REMARKETING AGENT Section 9.01. Duties. and Liabilities of Fiscal A~ent. (a) Duties of Fiscal Agent Generally. The Fiscal Agent shall, prior to'an Event of Defauit, and after the curing of all Events of Default which may have occurred, perform such duties and only such duties as are expressly and specifically set forth in this Agreement. The Fiscal Agent shall, during the existence of any Event of Default which has not been cured, exercise such of the fights and powers vested in it by this Agreement, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under'the circumstances in the conduct of his own affairs. (b) Removal of Fiscal Agent. The City may upon 30 days' Prior written notice remove the Fiscal Agent at any time unless an Event of Default shall have occurred and then be continuing, and shall remove the' Fiscal Agent if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Owners of not less than a majority in -aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or ff at any time the Fiscal Agent shall cease to be eligible in accordance with subsection (e) of this Section, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Fiscal Agent or its property shall be appointed, or any public officer shall take control or charge of the Fiscal Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in each case by giving written notice or-'such removal to the Fiscal Agent and thereUpon shall, with-the written consent of the Bank (when the Letter of Credit is in effect and so long as the Bank is not in default of its obligation to honor a draw on the Letter of Credit), appoint a successor Fiscal Agent by an instrument in writing. (c) 'Resignation of Fiscal Agent. The traseal Agent may at any time resign by giving written notice of such resignation by first class mail, postage prepaid, to the City, to the Bank, to the Remarketing Agent and to the Bond Owners notice of such resignation at the respective addresses Shown on the Registration Books. Upon receiving such notice of resignation, the City shall, with the written consent of the Bank (when the Letter of Credit is in effect and so long as the Bank is not in default of its obligation to honor a draw on the Letter of Credit)., promptly appoint a successor Fiscal Agent by an instrument in writing. The Fiscal Agent shall not be relieved of its duties until such successor Fiscal Agent has accepted appointment. (d) Appointment of Successor Fiscal Agent. Any removal or resignation of the Fiscal Agent and appointment of a successor Fiscal Agent shall become effective upon acceptance of appointment by the sucCeSsor Fiscal Agent; provided, however, that under any circumstances the successor Fiscal Agent shah be qualified as provided in subsection (e) of this Section, If no qualified successor Fiscal Agent shall have been appointed and have accepted appointment within 45 days following giving notice of removal or notice of resignation as aforesaid, the resigning Fiscal .Agent, the Bank or any Bond Owner (on behalf of himself and all other Bond Owners) may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Fiscal Agent, Any successor Fiscal Agent appointed under this Agreement shah signify its acceptance of such appointment by executing and delivering to the City and to its predecessor Fiscal Agent a written acceptance thereof, and t° the predecessor Fiscal Agent an instrument indemnifying the predecessor Fiscal Agent for any costs or claims arising during the time the successor .Fiscal Agent serves as Fiscal Agent hereunder, and after payment by the City of all unpaid fees and expenses of the predeCessor Fiscal Agent, the such successor Fiscal Agent, Without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, fights, powers, trusts, duties and obligations of such -54- predecessor Fiscal Agent, with like effect as if originally named Fiscal Agent herein; but, nevertheless at the Written Request of the City or the request of the successor Fiscal Agent or the Bank, such predecessor Fiscal Agent shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Fiscal Agent all the right, title and interest of such predecessor Fiscal Agent in 'and to any property held by it under this Agreement and shall pay over, transfer, assign and deliver to the successor .Fiscal Agent any money or other property subject to the trusts and conditions herein set forth. -Upon request of the successor Fiscal Agent, the City shall execute and deliver any and all instruments as may be reasonably required for more fully and certainly vesting in and confirming to such successor Fiscal Agent all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Fiscal Agent as provided in. this subsection, the City shall mail or cause the successor Fiscal Agent to mail, by first class mail postage prepaid, a notice of the succession of such Fiscal Agent to the trusts hereunder to each rating agency which then maintains a rating on the Bonds, to the Bond Owners at the addresses shown on the Registration Books, to the Bank and to the Remarketing Agent. If the City fails to mail such notice within 15 days after acceptance of appointment by the successor Fiscal Agent, the successor Fiscal Agent shall cause such notice to be mailed at the expense of the City. (e) Authority Trustee To Act As Fiscal Agent Hereunder. Notwithstanding anything herein to the contrary, so long as the Authority Trustee shall be .the owner of any Bonds, no entity shall be qualified to act as the Fiscal Agent (or to act as any successor Fiscal Agent) except the Authority Trustee. Upon any resignation Or removal of the Authority Trustee in accordance with the Authority Indenture, such event shall automatically cause the resignation or removal of the Fiscal Agent hereunder; and upon the appointment of a successor Authority Trustee in accordance with the Authority Indenture, such appointment shall, unless objected to in writing by the Bank (when the Letter of Credit is in effect and so long as the Bank is not in default of its obligation to honor a draw on the Letter of Credit), automatically constitute the appointment of a successor Fiscal Agent hereunder. Under no circumstances shall the Fiscal Agent be'removed or resign hereunder unless the Authority Trustee shall be removed or resign as such under and pursuant to the Authority Indenture. In the event that the Authority Trustee shall not be the owner of any Bonds, the Fiscal Agent appointed under the provisions of this Section 9.01 in succession to the Fiscal Agent shall be a trust company or bank having the powers of a trust company, having (or if such bank or trust company is a member of a bank holding company system, its parent bank holding company has) a combined capital and surplus of at least one hundred million dollars ($100,000,000), and subject to supervision or examination by federal or state agency. 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 agency above referred to, then for the purpose of this subsection the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in .its most recent report of condition so published. In case at any time the Fiscal Agent shall cease to be eligible in accordance with the provisions of this subsection (e), the Fiscal Agent shall resign immediately in the manner and with the effect specified in this Section. Section 9.02. Merger or {~0n~olidation. Any bank or trust company into which the Fiscal Agent may be merged or converted or with which it may be consolidated or any bank or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank or trust company to which the Fiscal Agent may sell or transfer all or substantially all of its corporate trust business, provided such bank or trust company shall be eligible under subsection (e) of Section 9.01 shall be the successor to such Fiscal Agent, without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding. -55- Section 9.03. Liability of Fiscal Agent. (a) The recitals of facts herein and in the Bonds contained shall be taken as statements of the City, and the Fiscal Agent shall not assume responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Agreement or of the Bonds or shall incur any responsibility in respect thereof, other than as expressly stated herein in connection with the respective duties or obligations herein or in the Bonds assigned to or imposed upon it. The Fiscal Agent shall, however, be responsible for its representations contained in its certificate of authentication on the Bonds. The Fiscal Agent makes no representations as to the validity or sufficiency of the Agreement or of any Bonds, or in respee~t of the security afforded by the Agreement and the Fiscal Agent shall incur no responsibility in respect thereof. The Fiscal Agent shall be under no responsibility or duty with respect to: (i) the issuance of the Bonds for value; (ii) the application of the proceeds thereof except to the extent that such proceeds are received by it in its capacity as Fiscal Agent; or (iii) the application of any moneys paid to the City or others in accordance with the Agreement except as the application of any moneys paid to it in its capacity as Fiscal Agent. The Fiscal Agent shall not be liable in connection with the performance of its duties hereunder, except for its Own negligence or will~l misconduct. The Fiscal Agent shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon' it by the Agreement. The Fiscal Agent may become the Owner of Bonds with the same rights it would have if it were not Fiscal Agent, and, to the extent permitted by law, may act as depository for and Permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bond Owners, whether or not such committee shall represent the Owners of a majority in aggregate principal amount of the Bonds then Outstanding. (b) The Fiscal Agent shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pert~n,' ent facts. (c) The Fiscal Agent shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Fiscal Agent, or exercising any trust or power conferred upon the Fiscal Agent under this Agreement. Section 9.04. Rieht tO Rely on D0¢ument~. The Fiscal Agent~shall be protected in acting upon any notice, r~solution, request, consent, Order, certificate, report, opinion, bonds or other paper or document believed bY it to be genuine and to have been signed or presented by the proper party or parties. The Fiscal Agent may consult with counsel,, who may be counsel of or to the City, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith; provided, however, the Fiscal Agent shall in no event delay any payment with respect to the Bonds in anticipation of any such opinion. Whenever in the administration of the trusts imposed upon it by this Agreement the Fiscal Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Written Certificate of the City, and such Written Certificate shall be full warrant to the Fiscal Agent for any action taken or suffered in good faith under the provisions of this Agreement in reliance upon such Written Certificate, but in its discretion the l:rzscal Agent may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may deem reasonable. -56- Section 9.05. Preservation and Inspection of Documents. All documents received by the Fiscal Agent under the provisions of this Agreement shall be retained in its possession and shall be subject during business hours and upon 24 hours' notice to the inspection of the City, the Owners, the Bank and their agents and representatives duly authorized in writing. Section 9.06. Com_oens~tion and Indemnific~ttion. The City shall pay to the Fiscal Agent from time to time all reasonable compensation for all services rendered under this Agreement, and also all reasonable expenses, charges, legal and consulting fees and other disbursements and those of its attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Agreement. The City further agrees, to the extent permitted by law, to indemnify and save the Fiscal Agent harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder and under any related documents, including the enforcement of any 'remedies and the defense of any suit, and which are not due to its negligence or its willful misconduct. The duty of the City to indemnify the Fiscal Agent shall survive the termination and discharge of this Agreement. Section 9.07. Aooointment of Paying Agent. The City herebY appoints the Paying Agent to authenticate an~l-deliver the Adjustable Rate Bonds as provided herein and to hold all Adjustable Rate Bonds delivered to it pursuant to this Agreement in trust for the benefit of the respective Owners who shall have so delivered such Adjustable Rate Bonds until monies representing the purchase price of such Adjustable Rate 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 Adjustable Rate Bonds in trust for the benefit of the person or entity which shall have so delivered such money until the Adjustable Rate Bonds purchased with such money shall have been delivered to or for the accoUnt-of such person or entity. The Paying Agent may at any time resign and be discharged of the duties and obligations set forth in this Agreement by giving at least 60 days' notice to the Bank,-the City, the Remarketing Agent and the Fiscal Agent. The Paying Agent may be removed at any time, at the direction of the City, by .an instrument fried with the Paying Agent and the Fiscal Agent. The resignation or removal of the Paying Agent shall become effective only upon the acceptance of the appointment by the successor Paying Agent or the assumption of all duties and responsibilities of the Paying Agent by the Fiscal Agent. Any successor Paying Agent shall be a commercial bank, national banking association 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 Fiscal Agent and, when a Letter of Credit is in effect and so long as the Bank is not in default of its obligation to honor a draw on the Letter of Credit, the consent of the Bank, in the same manner provided in Section 9.01 for appointment of a successor Fiscal Agent. Section 9.08. Appointment of Remarketing Agent The City hereby appoints the Remarketing Agent to remarket Bonds pursuant to this Agreement, 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 City, the Fiscal agent and the Paying Agent at all reasonable times, and to give telegraphic or telephonic notice, promptly confirmed by a written notice, to the Fiscal Agent (who shall then promptly notify the Bank and the Paying Agent), specifying (a) the principal amount of such Bonds, if any, remarketed by it as provided in this Agreement, and (b) 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 Agreement by giving at least 60 days' notice to the Bank, the City, the Fiscal Agent and the Paying Agent. The Remarketing Agent may be removed at any time, at the direction of the City, by an instrument filed with the Remarketing Agent, the Fiscal Agent and the Paying Agent. Any successor Remarketing Agent shall be selected by the City and shall be a -57- member of the National Association of Securities Dealers, Inc., shall have a capitalization of at least $15,000,000, and shall be authorized by law to perform all the duties set forth in this Agreement. When a Letter of Credit is in effect and so long as the Bank is not in default of its obligation t6 honor a draw on the Letter of Credit, the City shall obtain the Bank's consent to the appointment of such successor Remarketing Agent, which consent shall not be unreasonably withheld. The City's delivery to the Fiscal Agent of a certificate setting forth the effective date of the appointment of a successor Remarketing Agent and the name of such successor shall be conclusive evidence that (a) if applicable, the predecessor Remarketing Agent has been removed in accordance with the provisions of this Agreement and (b) such successor has been appointed and is qualified to act as Remarketing Agent unde~-hhe terms of this. Agreement Section 9.09. Succe~$0r Remarketine Aeent by Mereer. If the Remarketing Agent consolidates with, merges or converts into, or-tran-sfers all or s~bstantially all of its assets to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Remarketing Agent, but only if such successor meets the eligibility requirements of Section 9.08. -58- ARTICLE X MODIFICATION OR AMENDMENT Section 10.01. Amendments Permitted, (a) This Agreement and the fights and obligations of the City, the Owners of the Bonds and the Fiscal Agent may be modified or amended from time to ,time and at any time by a Supplemental Agreement, which the City and the Fiscal Agent may enter into With the written consent of the Owners of a majority in aggregate -'principal amount of all Bonds then Outstanding and, when a Letter of Credit is in effect and so long as the Bank has not is not in default of its obligation to honor a draw on the Letter of Credit, the written consent of the Bank which shall have been filed with the FisCal Agent. No such modification or amendment shall (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof, or reduced the' interest rate borne thereby, or extend the time of payment, without the consent of the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent of the Owners of which is required to effect any such modification or amendment, or (iii) permit the creation ofany lien on the Reassessments and other assets pledged under this Agreement prior to or on a parity with the lien created by this Agreement or deprive the Owners of the Bonds of the lien created by this Agreement on such Reassessments and other assets (except as expressly proVided in this. Agreemen0, without the consent of the Owners of.all of the Bonds then Outstanding. It shall not be necessary for the consent of the Bond Owners to approve the particular form of any Supplemental Agreement, but it shall be sufficient if such consent shall approve the substance thereoL Promptly after the execution by the City and the Fiscal Agent of any Supplemental Agreement pursuant to this subsection (a), .the Fiscal Agent shall mail a notice (the form of which shall be furnished to the Fiscal Agent by the City), by first class mail postage prepaid, setting forth in general terms the substance of such Supplemental Agreement, to the Owners of the Bonds at the respective addresses shown on the Registration Books. Any failure to give such notice, or any defect therein, shah not, however, in any way impair or affect the validity of any such Supplemental Agreement. ' (b) This Agreement and the rights and obligations of the City, of the Fiscal Agent and the Owners of the Bonds may also be modified or amended from time to time and at any time by a Supplemental Agreement, which the City and the Fiscal Agent may enter into without the consent of any Bond Owners but, when a Letter of Credit is in effect and so long as. the Bank has not is not in default of its obligation to honor a draw on the Letter of Credit, only with the written consent of the Bank, for any one or more of the following purposes: (i) to add to the covenants and agreements of the City in this Agreement contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or anY portion thereof), or to surrender any right or power herein reserved to or conferred upon the City; (ii) to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision contained in this Agreement; (iii) to provide for the issuance of'additional Series of Bonds, and to provide the terms and conditions under which such additional Series of Bonds may be issued, subject to and in accordance with the provisions of Article ffl; (iv) to modify, amend or supplement this Agreement in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other -59- terms, conditions and provisions as may be permitted by said act or similar federal statute; (iv) to modify, amend or supplement this Agreement in such manner as to cause interest on the Bonds to be excludable from gross income for purposes of federal income taxation by the United States of America; and (v) in any other respect whatsoever as the City may deem necessary or desirable, provided that such modification or amendment does not materially adversely affect the interests of the Bond Owners hereunder, in the opini0n-6f Bond Counsel fried with the City and the Fiscal Agent. Section 10.02. Effect of SuPplemental Aereement. Upon the execution of any Supplemental Agreement pursuant to this Article, tlxis Agreement shall be deemed to be modified and amended in accordance therewith, and the respective rights, ~ duties and obligations under this Agreement of the City, the Fiscal Agent and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Agreement shall be deemed to be part of the terms and conditions of this Agreement for any and all purposes. Section 10.03. End rsement f B n ' Pre arati n f ew Bonds. Bonds delivered after the execution of any Supplemental Agreement pursuant to this Article may, and if the City so determines shall, bear a notation by endorsement or otherwise in form approved by the City. and the Fiscal Agent as to any modification or amendment provided for in such Supplemental Agreement, and, in that case, upon demand of the Owner of any Bonds Outstanding at the time of such execution and Presentation of his Bonds for the purpose at the Office of the Fiscal Agent a suitable notation shall be made on such Bonds. If the Supplemental Agreement shall so provide, new Bonds so modified as to conform, in the opinion of the City and the Fiscal Agent, to any modification or amendment contained in such Supplemental Agreement, shall be prepared and executed by the City and authenticated by the Fiscal Agent, and upon demand of the Owners of any Bonds then Outstanding shall be exchanged at the Office of the Fiscal Agent, without cost to any Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same interest rate and maturity. Section 10.04. Amendment of PartiCular B0nd~, The provisions of this Article shall not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by such Owner. ARTICLE XI DEFEASANCE Section 11.01. Discharge of Agreement. The Bonds may be paid by the City in any of the following ways, provided that the City also pays or causes to be paid any other sums payable hereunder by the City: (a) by paYiiig or causing to be paid the principal of and interest and premium (ff any) on the Bonds, as and when the same become due and payable; (b) by depositing with the Fiscal Agent, in trust (pursuant to an escrow agreemen0, at or before matufi'ty, money or securities in the necessary amount (as provided in Section 11.03) to pay or redeem all Bonds then Outstanding; or (c) by delivering to the Fiscal Agent, for cancellation by it, all of the Bonds then Outstanding. If the City shall also pay or cause to be paid or provide for the payment of all other sums payable hereunder by the City including without limitation any compensation due and owing the Fiscal Agent hereunder and all sums payable or which may become payable under the Reimbursement Agreement, as verified by the Bank to the Fiscal Agent in writing, then and in that case, at the election of the City (evidenced by a Written Certificate of the City, fried with the Fiscal Agent, signifying the intention of the City to discharge all such indebtedness and this Agreement), and notwithstanding that any Bonds shall not have been surrendered for payment, this Agreement and the pledge of Reassessments and other assets made under this. Agreement and all covenants, agreements and other obligations of the City under this Agreement shall cease, terminate, become void and be completely discharged and satisfied. In such event, upon the Written Request of the City, and upon receipt of a Written Certificate of an' Authorized Representative of the City and an opinion of Bond Counsel acceptable to the Fiscal Agent, each to the effect that all conditions precedent herein provided for relating to the discharge and satisfaction of the obligations of the City have been satisfied, the Fiscal Agent shall cause an accounting for such period or periods as may be requested by the City to be prepared and fried with the City and shall execute and deliver to the City all such instruments as .may be necessary or desirable to evidence such discharge and satisfaction, and the Fiscal Agent shall pay over, transfer, assign or deliver all moneys or securities or other property lield by it pursuant to this Agreement, which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption, to the City. Section 11.02. Discharge of Liability on Bonds. Upon the deposit with the Fiscal Agent, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 11.03) to pay or redeem any or all Outstanding Bonds (whether upon or prior to the maturity or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, then all liability of the City in respect of such Bonds shah cease, terminate and be completely discharged, and the Owners thereof shaH' thereafter be entitled only to payment out of such money or securities deposited with the Fiscal Agent as aforesaid for their payment, subject, however, to the provisions of Section 11.04. Notwithstanding the foregoing, the liability of the City in respect of Adjustable Rate Bonds shall not cease, terminate and be discharged as provided above unless and until the Fiscal Agent shall have received an opinion of counsel that the prior and future payments of the terms, conditions and provisions as may be permitted by said act or similar federal statute; (iv) to modify, amend or supplement this Agreement in such manner as to cause interest on the Bonds to be excludable from gross income for purposes of federal income taxation by the United States of America; and (v) in any other respect whatsoever as the City may deem necessary or. desirable, provided that such modification or amendment does not materially adversely affect the interests of the Bond Owners hereunder, in the opini0n-6f Bond Counsel fried with the City and the Fiscal Agent Section 10.02. Effect of SuOolemental Aereement. 'Upon the execution of any Supplemental Agreement pursuant to-~is Article, t]xis Agreement shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Agreement of the City, the Fiscal Agent and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions'of any such Supplemental Agreement shall be deemed to be part of the terms and conditions of this Agreement for any and all purposes. Section 10.03. Endorsement of B0nds~ Preparation of New B0nd~. Bonds delivered after the execution of any Supplemental Agreement pursuant to this Article may, and if the City so determines shall, bear a notation by endorsement or otherwise in form approved by the City and the Fiscal Agent as to any modification or amendment provided for in such Supplemental Agreement, and, in that case, upon demand of the Owner of any Bonds Outstanding at the time of such execution and presentation of his Bonds for the purpose at the Office of the Fiscal Agent a suitable notation shall be made on such Bonds. If the Supplemental Agreement shall so provide, new Bonds so modified as to conform, in the opinion of the City and the Fiscal Agent, to any modification or amendment contained in such Supplemental Agreement, shall be prepared and executed by the City and authenticated by the Fiscal Agent, and upon demand of.the Owners of any Bonds then Outstanding shall be exchanged at the Office of the Fiscal Agent, without cost to any Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same interest rate and maturity.- Section 10.04. Amendment of Particular B0nd~. The provisions of this Article shall not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by such Owner. ARTICLE XI DEFEASANCE Section 11.01. Discharge of Agreement. The Bonds may be paid by the City in any of the following ways, provided that the City also pays or causes to be paid any other sums payable hereunder by the City: (a) by payifig or causing to be paid the principal of and interest and premium (if any) on the Bonds, as and when the same become due and payable; (b) by depositing with the Fiscal Agent, in trust (pursuant to an escrow agreement), at or before maturity, money or securities in the necessary amount (as provided in Section 11.03) to pay or redeem all Bonds then Outstanding; or (c) by delivering to the Fiscal Agem, for cancellation by it, all of the Bonds then Outstanding. If the City shall also pay or cause to be paid or provide for the payment of all other sums payable hereunder by the City including without limitation any compensation due and owing the Fiscal Agent hereunder and all sums payable or which may become payable under the Reimbursement Agreement, as verified by the Bank to the Fiscal Agent in writing, then and in that case, at the election of the City (evidenced by a Written Certificate of the City, fzled with the Fiscal Agent, signifying the intention of the City to discharge all such indebtedness and this Agreement), and notwithstanding that any Bonds shall not have been surrendered for payment, this Agreement and the pledge of Re, assessments and other assets made under this Agreement' and all covenants, agreements and other obligations of the City under this Agreement shall cease, terminate, become void and be completely discharged and satisfied. In such event, upon the Written Request of the City, and upon receipt of a Written Certificate of an' Authorized Representative of the City and an opinion of Bond Counsel acceptable to the Fiscal Agent, each to the effect that all conditions precedent herein provided for relating to the discharge and satisfaction of the obligations of the City have been satisfied, the Fiscal Agent shall cause an accounting for such period or. periods as may be requested by the City to be prepared and ftled with the City and shall execute and deliver to the City'all such instruments as .may be necessary or desirable to evidence such discharge and satisfaction, and the Fiscal Agent shall pay over, transfer, assign or deliver all moneys or securities or other property lield by it pursuant to this Agreement, which are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption, to the City. Section 11.02. Discharge of Liability on Bonds. Upon the deposit with the Fiscal Agent, in trust, at or before maturity, of money or securities in the neCessary amount (as provided in Section 11.03) to pay or redeem any or all Outstanding Bonds (whether upon or prior to the maturity or the redemption date of such Bonds), provided that, if such .Bonds are to be redeemed prior to maturity, notice of such redemption shah have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, then aH liability of the City in respect of such Bonds shah cease, terminate and be completely discharged, and the Owners thereof shall' thereafter be entitled only to payment out of such money or securities deposited with the Fiscal Agent as aforesaid for their payment, subject, however, . to the provisions of Section 11.04. Notwithstanding the foregoing, the liability of the City in respect of Adjustable Rate Bonds shall not cease, terminate and be discharged as provided above unless and Until the Fiscal Agent shall have received an opinion of counsel that the prior and future payments of the principal of and interest and premium, f any, on such Adjustable Rate Bonds do not constitute a voidable preference under then applicable bankruptcy laws. The City may at any time surrender to the Fiscal Agent for cancellation by it any Bonds previously issued and delivered, which the City may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired. Section 11.03. Deno$it of Money or Securities with Fiscal Aeenl, Whenever in this Agreement it is provided dr permitted th~it there be deposited with or h~ld in trust by the Fiscal Agent money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or 'securities held 'by the Fiscal Agent in the funds and accoUnts established pursuant to this Agreement and shall be-- (a) Lawful money of the United States of America, in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in .Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, the amount to be deposited, or held shall be the principal mount of such Bonds, premium, f any, and all unpaid interest thereon to the redemption date; or (b) Non-callable Federal Securities described in clause (a) of the de£mition thereof, the principal of and interest on which when due, in the opinion or report of an independent accountant selected by the City, will provide money sufficient to pay the principal of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed, as such principal and interest become due, provided that in the case of Bonds which are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice; provided, in each case, that the Fiscal Agent shall have been irrevocably instructed (by the terms of this Agreement or by Written Request of the City) to aPply such funds to the payment of such principal and interest with respect to such Bonds. Section 11.04. Payment of Bond~ After Discharee 0f Agr~menL Notwithstanding any provisions of this Agreement, any moneys held by the l~iscal Agent in uust for the payment of the principal of, premium, if any, or interest on, any Bonds and remaining unclaimed for two years after the date of deposit of such moneys shall be repaid to the City free from the trusts created by this Agreement and all liability of the Fiscal Agent with respect to such moneys shall thereupon cease; provided, however, that before the repayment of such moneys to the City as aforesaid, the Fiscal Agent may (at the cost of the City) first mail, by fa-st class mail postage prepaid, to the Owners of Bonds which have not yet been paid, at the respective addresses shown on the. Registration Books, a notice, in such form as may be deemed appropriate by the Fiscal Agent with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the City of the moneys held for the payment thereof. ARTICLE XII · MISCELLANEOUS Section 12.01. Limited Oblieati0n. 'All obligations of the City under this Agreement and the Bonds shah not be general 6bligations of the City, but shall be limited obligations, payable solely from the Reassessments and the other assets pledged therefor hereunder. Neither the faith and credit of the City nor of the State of California or any political subdivision thereof is pledged to the payment of the Bonds. The BOnds are "Limited Obligation Improvement Bonds" and are payable solely from and secured solely by the Reassessments and the other assets pledged hereunder. Notwithstanding any other provision of this Agreement,. the City is not obligated to advance available surplus funds from the City treasury to cure any deficiency in the Redemption Fund. Section 12.02. SucceSSor'Is Deemed Included in All References to-Predecessor. Whenever in this Agreement the City, the Fiscal Agent, the Paying Agent, the Bank or the Remarketing Agent 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 Agreement contained by or on behalf of the City or the Fiscal Agent shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. ..... Section 12.03. Limitation of Rights to Parties and Bond Owners. Nothing in this Agreement.or in the Bonds expressed or implied is intended or shall be construed to give to any Person other than the Fiscal Agent, the City, the Paying Agent, the Bank, the Remarketing Agent and the Owners of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Fiscal Agent, the City, the Paying Agent, the Bank, the.Remarketing Agent and the Owners of the Bonds. Section 12.04. Waiver of Notice: Reauirement of Mailed Noti~, Whenever in this Agreement the giving of notice by mail or othdrwise is required, the giving of such notice may be waived in writing by the Person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any. action taken in reliance upon such waiver. Whenever in this Agreement any notice shall be required to be given by mail, such requirement shall be satisfied by the deposit of such notice in the United States mail, postage prepaid, by first class mail. Section 12.05. Destruction of Bonds. Whenever in this Agreement provision is made for the cancellation by the Fiscal Agent and the delivery to the City of any Bonds, the Fiscal Agent may, upon the Written Request of the City, in lieu of such cancellation and delivery, destroy such Bonds (in the presence of an officer of the City, ff the City shall so require) as may be allowed by law, and deliver a certificate of such destruction to the City. Section 12.06. Severability of Invalid Provisions. If any one or more of the provisions contained in this Agreement or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be. deemed severable from the remaining provisions contained in this Agreement and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The City hereby declares that it would have entered into this Agreement and each and every other Secti6n, paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Agreement may be held illegal, invalid or unenforceable. Section 12.07. Bank Deemed Owner: References_ to B~nk. Notwithstanding anything contained herein to the contrary, so long as the Bank is not in default of its obligation to honor draws under the Letter of Credit, the Bank shall at all times be deemed to be the sole and exclusive Owner of the Outstanding Adjustable, for the purpose of all approvals, consents, waivers, institution of any action and the direction of all remedies. Notwithstanding any provisions contained herein to the contrary, after the expiration or termination of the Letter of Credit and after all obligations owed to the Bank pursuant to the Reimbursement Agreement have been paid in full or discharged, all references to the Bank contained herein shall be null and void and of no further force and effect. Section 12.08. Notice~. All notices or communications herein required or permitted to be given to any Notice Party shall be in writing and shall be deemed to have been sufficiently given or served for all p,urposes by being delivered or sent by telecopy or by being deposited, postage prepaid, in a post office letter box, to the addresses set forth below, or to such other address as may be provided to the other parties hereinafter listed in writing from time to time, namely: If to the City: City of Tus~ 300 Centennial Way Tustin, California 92680 Attention: Finance Directoi' If to the Fiscal Agent: If to the Paying Agent: State Street Bank and Trust Company of California, N.A. 725 South Figueroa Street, Suite 3100 Los Angeles, California 90017 Attention: Corporate Trust Department State Street Bank and Trust Company of California, N.A. If to the Remarketing Agent: If to the Bank: With a copy to: PaineWebber Incorporated 1285 Avenue of the Americas, 10th Floor New York, New York 10019 Attention: Short-Term Desk Kredietbank N.V. 550 South Hope Street, Suite 775 Los Angeles, California 90071 Attention: Roxanne Cheng' Kredietbank N.V., New York Branch 125 W. 55 Street New York, New York 10019 Attention: Linda Resuma, Loan Administrator A copy of each notice given pursuant to this Section shall be given to Moody's and S&P and shall be mailed to Moody's Investors Service, Inc., Attention: Public Finance Department- Structured Financing Group, 99 Church Street, New York, New York 10007 and to Standard & Poor's Corporation, Attention: Municipal Finance Department, 25 Broadway, New York, New York 10004. Section 12.09. Additional Notices to Moody's and S&P. For so long as any of the Bonds shall be rated by Moody's and S&P and without limitation on any other notice 'requirement contained in this Agreement (including 'any notice requirement applicable to Moody's and S&P), the Fiscal Agent shall mail to Moody's and S&P a notice of each of the following events, promptly upOn becoming aware, thereof: (a) The removal, resignation or replacement of the Fiscal Agent, or the'Remarketing Agent or any of their respective successors; (b) Any change in this Agreement, the Letter of Credit, the Reimbursement Agreement or the Remarketing Agreement; (c) Conversion of any or all of the Bonds to another Mode; or (d) Redemption, defeasance or mandatory purchases of all or a portion of the Adjustable Rate Bonds. Section 12.10. Evidence of Right~ of BOnd Owners. Any request, consent or other instrument required or permitted by this Agreement to be signed and executed by Bond Owners · may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bond Owners in Person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the' holding by any Person of Bonds transferable by delivery, shall be sufficient for any purpose of this Agreement and shall be conclusive in favor of the Fiscal Agent and the City if made in the manner provided in this Section. The fact and date of the execution by any Person of any such request, consent or other instrument or writing may be proved by the certificate Of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of dee~, certifying that the Person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a wimess of such execution duly sworn to before such notary public or other officer. The ownership of Bonds shall be proved by the Registration Books. Any request, consent, or other instrument or writing of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Fiscal Agent or the City in accordance therewith or reliance thereon. Section 12.11. Disqualified Bonds. In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiVer under this Agreement, Bonds which are known by the Fiscal Agent to be owned or held by or for the account of the City, or by any other obligor on the Bonds, or by any Person (other than the Authority) directly or indirectly controlling or controlled by, or under direct or indirect common control with, the City or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Fiscal Agent the pledgee's right to vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the City or any other obligor on the Bonds. In case of a dispute as to such right, any decision by the Fiscal Agent taken upon the advice of counsel shall be full protection to the Fiscal Agent. Section 12.12. Money Held for Particular Bondq. The money held by the Fiscal Agent for the payment of the interest, principal or premium due on any date with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Owners of the Bonds entitled thereto, subject, however, to the provisions of Section 11.04 but without any liability for interest thereon. Section 12.13. Funds and Accounts. Any fund or account required by this Agreement to be established and maintained by. the Fiscal Agent may be established and maintained in the accounting records of the Fiscal Agent, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and with due regard for the requirements of Section 6.08 and for the protection of the security of the Bonds and the fights of every Owner thereof and the Bank. The Fiscal Agent may establish such funds and accounts as it deems necessary or appropriate to perform its obligations hereunder. Section 12.14. Payment on N0n-B!!siness Days, In the event any payment is required to be made hereunder on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day with the same effect as if made on such non-Business Day. Section 12.15. Waiver of Person01 Liability. No member, officer, agent or employee of the City shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law or by this Agreement. Section 12.16. Conflict with Act or Bond Law. In the event of any conflict between any provision of this Agreement and any provision of the Act or the Bond Law, the provision of the Act or the Bond Law, respei:fively, shall prevail over the provision of this Agreement. Section 12.17. Conclll$iVe Evidence of Re_eularity. Bonds issued pursuant to this Agreement shall constitute evidence of the regularity of all proce~ings under the Act relative to their issuance and the levy of the Reassessments. Section 12.18. Execution in Several Counteroart~. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the City and the Fiscal Agent shah preserve undestroyed, shall together constitute but one and the same instrument. Section 12.19. New York Time. Unless otherwise expressly stated, all times referred to in this Agreement shall be New York time Section 12.20. Governine Law. This Agreement shall be governed by and construed in accordance with the laws of the S~ate of California. IN WITNESS WHEREOF, - the City has caused this Agreemem to be signed in its name by its officer thereunto duly authorized, and the Fiscal Agent, in token of its acceptance of the trusts created hereunder, has caused this Agreement to be signed in its corporate name by its officer thereunto duly authorized, all as of the day and year first above written. CITY OF TUSTIN By: STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N~., as Fiscal Agent By: No. EXHIBIT A FORM OF SERIES A BOND CITY OF TUSTIN Limited Obligation Improvement Bond Reassessment District No. 95-2 (Tusfin Ranch), Series A INTEREST RATE As described herein DATED DATE REGISTERED OWNER: PRINCIPAL AMOUNT: Under and by virtue of the Refunding Act of 1984 for 1915 Improvement Act Bonds, Division 11.5 of the Streets and Highways Code of California (the "Act"), the City of Tustin, County of Orange, State of California (the "Citf'), will, out of the redemption fund for the payment of the bonds issued upon the unpaid portion of reassessments made for the refunding bonds more fully described in proceedings taken pursuant to Resolution No. __ adopted by the City Council of the City on ,1994, pay to the Registered Owner identified above, on the Maturity Date identified above or on any earlier redemption date, the Principal Amount identified above and to pay interest thereon at the Rate of Interest as provided in this Bond. This Bond shall not be entitled to any benefit under the Act, the Resolution authorizing the issuance of the bonds, adopted by the City Council of the City on ,1995 (the "Resolution of Issuance") or the Fiscal Agent Agreement, dated as of ,1995 (the "Agreement"), by and between the City and 'State Street Bank and Trust Company of California, N.A., as Fiscal Agent (the "Fiscal Agent"), executed pursuant to the Resolution of Issuance, or become valid or. obligatory for' any purpose, until the certificate of authentication hereon shall have been dated and signed by the State Street Bank and Trust Company of California, N.A., as Paying Agent (the "Paying Agent"), acting through its office in New York, New York (the "Office of the Paying Agent"). Capitalized undefined terms used herein shall have the meanings ascribed thereto in the Agreement This Bond is one of several annual series of Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A (the "Bonds") of like date, maturity, interest rate, tenor and effect, but differing in amounts, issued by the City under the Act and the Agreement for the purpose of providing means for paying for the refunding of the bonds as more particularly described in said proceedings, and is secured by the moneys in the redemption fund (as may be limited by the Agreement) and by the unpaid portion of the Reassessments made for the payment of said refunding and, including principal and interest, is payable exclusively out of said fund. Reference is hereby made to the Agreement and all agreements supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Reassessments, of the rights, duties and immunities of the Fiscal Agent and the Paying Agent and of the rights and obligations of the City thereunder;, and all of the terms of the Agreement are A-1 hereby incorporated herein and constitute a contract between the City and the Registered Owner hereof, and to all of the provisions of which Agreement the Registered Owner hereof, by acceptance hereof, assents and agrees. The Bonds shall initially bear interest in the Daily Mode. The interest rate on the Bonds, when in the Daily Mode, will be the rate of interest per annum determined by PaineWebber Incorporated (together with any successor thereto, the "Remarketing Agent") on and as of each Business Day, for such day, as the minimum rate of interest which, in the opinion of the Remarketing Agent would, under then existing marketing conditions, result in the sale of the . Bonds on such day at a price equal to the principal amount thereof plus accrued interest, if any; provided, however, that. Bank Bonds shall bear interest at a rate of 0%, as provided in the Agreement. The rate of interest on the Bonds shall on no day exceed 12% per annUm. During the Daily Mode, the Remarketing Agent shall establish the interest rate on the Bonds by 9:45 A.M. (New York City time) on each Business Day. The interest rate for any day during the Daily Mode which is not a Business Day shall be the rate established on the immediately preceding Business Day. "Business Day" means any day other than (a) a Saturday, Sunday or legal holiday, (b) a day on which banking institutions in Los Angeles, California or New York, New York or in any other city where either the principal corporate trust office of the Fiscal Agent, the corporate trust office of the Paying Agent designated for payment and tender of the Bonds or the office of the Bank at which drafts are required to be presented under the letter of Credit, is located are required or authorized by law (including executive order) to close, or (c) a day on whibh the New York Stock Exchange is closed. The Remarketing Agent will make the interest rate for any day available by telephone to the registered owner of any B'ond (an "Owner") requesting such information. When the Bonds are in the Daily Mode, interest will be calculated on the basis of a 365/366-day year for the actual nUmber of days elapsed. Interest will accrue on the unpaid portion of the principal of this Bond from the Interest Payment Date immediately preceding the date of authentication of this Bond, unless this Bond is authenticated prior to the initial Record Date, in which case this Bond shall bear interest from the date of the original authentication and delivery of this Bond, until the entire principal amount of this Bond is paid. The principal of, premiUm, if any, and interest on the Bonds shall be payable in lawful money of the United States of America. Except as otherwise provided in' the Representation Letter, the interest on the Bonds shall be payable, during the Daily Mode, on the fifth Business Day of each month (the "Interest Payment Dates"), for unpaid interest accrued from and including the first day of the preceding calendar month,, through and including the last day of the preceding calendar month, except that payment shall be made on the initial Interest Payment Date for unpaid.interest accrued from and including the date of initial delivery of the Bonds, by check marled by the Paying Agent to the respective Owners thereof at their addresses as they appear on the last day of the preceding calendar month (the "Record Date") in the registration books for the Bonds required to. be kept by the Paying Agent. In the case of an Owner of $1,000,000 or more in aggregate principal amount of Bonds, upon the written request of such Owner to the Paying Agent, received at least ten days prior to a Record Date, specifying the account or accounts to which such payment shall be made, payment of interest shall be made by wire transfer of immediately available funds on the following Interest Payment Date. Any such request shall remain in effect until revoked or revised by such Owner by an instrument in writing delivered to the Paying Agent. The~principal of each Bond shall be payable on the maturity date, or earlier redemption, upon surrender thereof at the Office of the Paying Agent. If any payment on the Bonds is due on a non-Business Day, it will be made on the next succeeding Business Day with the same effect as if made on such non-Business Day. A-2 During the Daily Mode, the Bonds shall be issued in registered form without coupons in denominations of $100,000 or any integral multiple thereof (said denominations being "Authorized Denominations" for Bonds in the Daily Mode).' The interest rate determination method may be changed (a "Change in Mode"), at the election of the City, from the Daily Mode to the VIP Mode, the Weekly Mode, the Monthly Mode, the Semi-Annual Mode, the Extended Rate Mode 0r the Fixed Rate Mode, all as described in the Agreement. A Change in Mode from the Daily Mode to any other Mode shall take effect only on the first day of a calendar month. All Bonds shall be purchased, at a purchase price equal to 100% of the-Principal amount thereof, on the effective date of a Change in Mode (a "Mandatory Purchase Date"). Not less than 40 days prior to the date of a proposed Change in' Mode, the Fiscal' Agent shall give written notice to the Owners, which notice shall describe the Change in Mode and the mandatory purchase of the Bonds in connection therewith. Bonds which are subject to mandatory purchase must be tendered to the Paying Agent for purchase on the Mandatory Purchase Date. Any Bond subject to mandatory purchase which is not tendered for purchase as required, shall nonetheless be deemed to have been so tendered and, upon provision for payment of the purchase price therefor, shall be deemed to have been purchased on the Mandatory Purchase Date after which no interest shall accrue on such Bond for the benefit of the Owner required to tender such Bond from and after such Mandatory Purchase Date and such Owner shall have no fights under the Agreement as the Owner of such Bond except the fight to receive the purchase price thereof. The Bonds initially have the benefit of a Letter of Credit issued by Kredietbank N.V. Such Letter of Credit entitles the Fiscal Agent to draw an mount sufficient to pay the' principal amount of the Bonds and not less than days' interest accrued on the Bonds at a rate of 12% per annum. The Fiscal Agent will draw on the Letter of Credit to pay the principal of and 'interest on the Bonds, when due, whether at maturity Or upon earlier redemption, and to pay the purchase price thereof. The Letter of Credit expires by its terms on 1, 199._, and may be terminated prior thereto upon the occurrence of certain events. An alternate letter of credit or other credit facility may be substituted for the Letter of Credit, as provided in the Agreement. The date five Business Days prior to the date on which the Letter of Credit expires or .is terminated or on which an alternate letter of credit is substituted for the Letter of Credit is a Mandatory Purchase Date. A letter of credit or other credit facility meeting the requirements of the. Agreement and in effect at the relevant time is referred to as a "Letter of Credit" and the issuer of the Letter of Credit is referred to as the "Bank." The Bonds in the Daily Mode are subject to optional redemption by the City, in whole, or in part in Authorized Denominations, on the first day of any calendar month, at a redemption price equal to 100% of the principal mount thereof to be redeemed plus accrued and Unpaid interest to such redemption date, ff any, without premium. If such redemption is in part, Bank Bonds shall be redeemed first, and all other Bonds in the Daily Mode shall be redeemed by lot in such manner as shall be determined by the Fiscal Agent. The Bonds in the Daily Mode are subject to mandatory redemption from prepaid Reassessments, in'whole, or in part in Authorized Denominations, on the first day of any calendar month, at a redemption price equal to 100% of the principal amount thereof to be redeemed plus accrued and unpaid interest to such redemption date, ff any, without premium. If such redemption is in part, Bank Bonds shall be redeemed first, and other Bonds in the Daily Mode shall be redeemed by lot in such manner as shall be determined by the Fiscal Agent. The Fiscal Agent on behalf and at the expense of the City shall mail (by first class mail) notice of any redemption to the respective owners of any Bonds designated for redemption, at their respective addresses appearing on the registration books maintained by the Fiscal Agent, at least 30 but not more than 60 days prior to the redemption date. Neither failure to receive any A-3 such notice .so mailed nor any defect therein shall affect the validity of the proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon from and after the date fixed for redemption. If, on the date fixed for redemption, moneys for the redemption of all the Bonds to be redeemed, together with interest to said date, shall be held by the Paying Agent so as to be available therefor on such date, and, ff notice of redemption thereof shall have been mailed as provided in the Agreement and not canceled, then, from and after said date, interest on said Bonds shall cease to accrue and become payable. During the Daily Mode, any Owner of a Bond may demand that such BOnd, or any portion thereof (so long as the principal amount purchased, and the principal amount not purchased, are each in Authorized Denominations), be purchased on any Business Day at a price equal to the principal amount thereof plus accrued interest, if any, to the purchase date. Unless otherwise provided in a Representation Letter, such demand 'for purchase shall be made as follows: (i) delivery to the Remarketing Agent at its principal office in New York, New York, no later than 10:30 A.M. (New York City time), and to the Paying Agent at the Oflr~ce of the Paying Agent, of a Tender Notice, and (ii) delivery of such Bond duly endorsed in blank for transfer at the Office of the Paying Agent at or prior to 12:00 Noon (New York~ City time) on such date. '°Tender Notice" means a written notice or telephonic notice, immediately confumed in writing, (i) that states the Bond number, the principal amount of such Bond and the principal amount of such Bond to be purchased, (ii) that states the date on which such Bond is to be purchased, and (iii) that irrevocably demands such purchase. Any Tender Notice by any Owner shall be irrevocable. If such Owner is required to but fails to deliver the Bond referred to in such notice to the Paying Agent, such Bond shall nonetheless be deemed to have been tendered and, upon provision for payment of the purchase price therefor, no interest shall accrue on such Bond for the benefit of such Owner from and 'after the purchase date and such Owner shall have no rights under the Agreement as the Owner of such Bond except the right to receive the purchase price of such Bond. Notwithstanding the foregoing, the Owners shall have no right to demand purchase of Bonds from the third Business Day prior to any Mandatory Purchase Date until after such Mandatory Purchase Date. Any Bond may, in accordance with its terms, be transferred upon the registration books by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied, by deii~very of a written instrument of transfer, duly executed in a form acceptable to the Paying Agent. Whenever any Bond or Bonds shall be surrendered for transfer, the City shall execute and the Paying Agent shall authenticate and shall deliver a new Bond or Bonds for a like aggregate principal amount, in any Authorized' Denomination. The Paying Agent shall require the Bond Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. The Bonds may be exchanged at the Office of the Paying Agent for a like aggregate principal amount of Bonds of the same maturity of other Authorized Denominations. The Paying Agent shall require the payment by the Bond Owner requesting such exchange of any tax or other governmental charge required to be paid with respect to such exchange. The Paying Agent shall not be obligated to make any transfer or exchange of Bonds during the period established by the Paying Agent for the selection of Bonds for redemption, or with respect to any Bonds selected for redemption. The Agreement and the rights and obligations of the City and of the owners of the Bonds and of the Fiscal Agent may be modified or amended from time to time and at any time in the manner, to the extent, and upon the terms provided in the Agreement; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any A-4 Bond or the amount of principal thereof without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such 'amendment or modification, or (c) permit the creation of any lien on the Reassessments and other assets pledged under the Agreement, or deprive the Bonds owners of the lien created under the Agreement on the Reassessments and such other assets, without the consent of the owners of all outstanding Bonds. The Bonds are Limited Obligation Bonds because, under the Agreement, the City is not obligated to advance funds from the City treasury' to cure any deficiency which may occur in the redemption fund for the Bonds; provided, however' the City is not prevented, in its sole discretion, from so advancing funds. Unless this Bond is presented by an authorized representative of The Depository Trust Company to the Fiscal Agent for registration of transfer, exchange or payment, and any Bond issued is registered in the name of Cede & Co. or such other name. as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ~ TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. IN WlTNF~S WltEREOF, said City has caused the Bond to be signed in its name and on its behalf by the facsimile signatures of its Treasurer and City Clerk, and has caused its corporate seal to be reproduced in facsimile hereon all as of the Dated Date identified above. CITY OF TUSTIN By: Treasurer (SEAL) Attest: By: City Clerk A-5 [FORM OF PAYING AGENT' S CERTIFICATE OF AUTHENTICATION] This is one of the Bonds described in the within-mentioned Agreement and registered on the Registration Books. Date: STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Paying Agent By: Authorized Signatory A-6 ASSIGNMENT _ For value received the undersigned hereby sells, assigns and transfers Unto whose address and social security or other tax identifying number is , the within-mentioned Bond and hereby irrevocably constitute(s) and appoint(s) attorney, to transfer the same on the registration books of the Paying Agent with full power of substitution in the premises. · Dated: Signature Guaranteed: Note: Signature(s) must be guaranteed by an eligible guarantor. Note: The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever. ESCROW AGREEMENT (95'2) by and between the CITY OF TUSTIN and STATE STREET BANK AND TRUST COMPANY, N.A., as Escrow Bank Dated as of ,1995 Reassessment District No. 95-2 (Tustin Ranch) TABLE OF CONTENTS Page Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 11. Section 12. Section 13. Section 14. Section 15. Section 16. Definitions. The 85-1 Escrow Fund ......................................................................................... 2 The 86-2 Escrow Fund ..... :.. Use and Investment of Moneys ....................................... : .................................... 3 Payment of Prior Bonds ...... Irrevocable Instructions to'Mail Notices .............................................................. 5 Performance of Duties .................. ~ ............................................. : ........................ 5 Escrow Bank's Authority to Make Investments .................................................. 5 Indemnity ......................... -.. .................................................................................. 5 Responsibilities of Escrow Bank -----------------------.----------....................................... 6 Amendments .......... :. ............................................................................................ 6 Term Compensation ................................................................. , ..................................... 7 Sevembility .......................................................................................................... 7 Counterparts ......................................................................................................... 7 Governing Law .................................................................................................... 7 Section 17. Assignment ........................................................................................................... 8 EXHIBIT 1 -United States Treasury Secufi'fies; V. ariable 85-1 Bonds .......................... ~ ..... 1-i EXHIBIT 2 - United States TreaSury Securities; Variable 86-2 Bonds ................................ 2-1 ESCROW AGREEMENT (95-2) THIS ESCROW AGREEMENT (95-2) (this "Agreement"), is entered into as of , 1995, by and between the City of Tustin (the "City") and State Street Bank and Trust Company, N.A., as escrow bank (the "Escrow Bank"). WITNESSETH: WHEREAS, pursuant to an Indenture of Trust, dated as of August 1, 1986 (the "'85-1 Indenture"), by and between the City and Citibank, N. A., as trustee, the City issued City of Tustin Assessment District No. 85-1 Improvement Bonds (the "85-1 Bonds") in the original principal amount of $50,650,000; WHEREAS, pursuant to an Indenture of Trust, dated as of September 1, 1988 (the "86-2 Indenture"), by and between the City and Citibank, N. A., as trustee, the City issued City of Tustin Assessment District No. 86-2 Limited Obligation Improvement Bonds (the "86-2 Bonds") in the original principal amount of $81,400,000; WHEREAS, State Street Bank and Trust Company, N.A., is the successor trustee under the 85-1 Indenture and under the 86-2 Indenture; WHEREAS, the City has'determined that certain savings and efficiencies may be obtained by refunding the outstanding $ aggregate principal amount of 85-1 Bonds that have not been converted to a fixed interest rate pursuant to the 85-1 Indenture (the "Variable 85-1 Bonds") and the outstanding $. aggregate principal amount of 86-2 Bonds that have not been converted to a fixed interest rate pursuant to the 86-2 Indenture (the "Variable 85- 2 Bonds" and, together with the Variable 85-1 Bonds, the "Prior Bonds"); WHEREAS, in order to provide a portion of the moneys required to refund the Prior Bonds, the City has authorized the issuance of the City of Tustin Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch) (the "Bonds"), in an aggregate principal amount of $ ; WHEREAS, the. City has determined apply a pOrtion of the proceeds of the Bonds, together with other available moneys, to pay, when due, the interest on the outstanding Prior Bonds on March 2, 1996 and to redeem the outstanding Prior Bonds on March 2, 1996 (the "Redemption Date") at a redemption price (the "Redemption Price") equa! to 100% of the principal, amount of such outstanding Prior Bonds; and WHEREAS, the Prior Bonds are subject to redemption on the Redemption Date and the City has determined to provide for the call for redemption on the Redemption Date of the Prior Bonds outstanding on the Redemption Date; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Escrow Bank agree as follows: Section 1. Definitions. The term "Federal Securities" shall mean United States of America Treasury bills, notes, bonds or certificates of indebtedness, or obligations for which the full faith and credit of the United States of America are pledged for the payment of interest and principal, which are not subject to redemption except by the owners thereof prior to maturity (including any such securities issued or held in book-entry form on the books of the Department of the Treasury of the United States of America). Section 2. The 85-1 Escrow Fltnd. (a) There is hereby established a fund (the "85-1 Escrow Fund") to be held as an irrevocably pledged escrow by the Escrow Bank, which the Escrow Bank shall keep separate and apart from all other funds of the City and the Escrow Bank and which shall be applied solely as provided in this Agreement. Pending application as provided in this Agreement, amounts on deposit in the 85-1 Escrow Fund are hereby pledged and assigned solely to the payment of (i) the accrued interest on the Variable 85-1 Bonds coming due on the Redemption Date, and (ii) the Redemption .Price of the Variable 85-1 Bonds on the Rveadnd. ea~lPeti~ 1D~~shiCh amounts shall be held in trust by the Escrow Bank for the owners of the- (b) Upon the issuance and delivery of the BOnds, there shall be deposited in the 85-1 Escrow Fund the following: (i) $ 85-1 Indenture; transferred from the Fund established under the (a) $ 85-1 Indenture; transferred from the Fund established under the (iii) $ 85-1 Indenture; and transferred froTM the Fund established under the (iv) received from the 'proceeds of the sale of the Bonds. (c) The City acknowledges that, upon the deposit of moneys pursuant to Section 2(1>), the moneys on deposit in the 85-1 Escrow Fund will, based u_pon the certification provided for in Section 4(a) hereof, be at least equal to an amount sufficient to purchase the aggregate principal amount of the Federal Securities set forth in Exhibit 1 hereto (the "Exhibit 1 Securities'D, which principal, together with all interest due or to become due on such Exhibit 1 Securities, and any uninvested cash held by the Escrow Bank in the 85-1 Escrow Fund, will be sufficient to make the payments required by Section 5(a) hereof. Section 3. _.The 86-2 Escrow Fund. (a) There is hereby established a fund (the "86-2 EscroW Fund" and, together with the 85-1 Escrow Fund, the "Escrow Funds") to be held as an irrevocably pledged escrow by the Escrow Bank, which the Escrow Bank shall keep separate and apart from all other funds of the City and the Escrow Bank and which shall be applied solely'as provided in this Agreement. Pending application as provided in this Agreement, amounts on deposit in the 86-2 Escrow Fund are hereby pledged and assigned solely to the payment of (i) the accrued interest on the Variable 86-2 Bonds coming due on the Redemption Date, and (ii) the Redemption Price Of the Variable 86-2 Bonds on the Redemption Date, which amounts shall be held in trust by the Escrow Bank for the owners of the Variable 86-2 Bonds. (b) Upon the issuance and delivery of the Bonds, there shall be deposited in the 86-2 Escrow Fund the following: (i) $ 86-2 Indenture; transferred from the Fund established under the 86-2 Indenture; transferred from the Fund established under the (ii~) $ 86-2 Indenture; and transferred from the Fund established under the (iv) $ received from the proceeds of the sale of the Bonds. (c) The City acknowledges that, upon the deposit of moneys pursuant to Section 3(b), the moneys on deposit in the 86-2 Escrow Fund will, based upon the certification provided for in Section 4(b) hereof, be at least equal to an amount sufficient to purchase the aggregate principal amount of the Federal Securities set forth in Exhibit 2 hereto (the "Exhibit 2 Securities"), which principal, together with all interest due or to become due on such Exhibit 2 Securities, and any uninvested cash held by the Escrow Bank in the 86-2 Escrow Fund, will be sufficient to make the payments required by Section 5(b) hereof. Section 4. Use and Investment of Moneys. (a) The Escrow Bank hereby acknowledges receipt of the moneys described in Section 2(b) hereof and agrees to invest $ of such moneys in the Exhibit 1 Securities upon receipt of certification by a nationally recognized rum of independent certified public accountants that the Exhibit 1 Securities .w~ mature in such principal amounts and earn interest in such amounts and, in each case, at such times, so that sufficient moneys will be available from maturing principal and interest on' the Exhibit 1 Securities, together with anY uninvested .moneys then held by the Escrow Bank in the 85-1 Escrow Fund, to make all payments required by Section 5(a) hereof. Except as provided in Section 4(c) or Section 4(d) hereof, the balance of the moneys described in Section 2(b) hereof shall be held uninvested in the 85-1 Escrow Fund. (b) The Escrow Bank hereby acknowledges receipt of the moneys described in Section 3(b) hereof and agrees to invest $ :.- of such moneys in the Exhibit 2 Securities upon receipt of certification by a nationally recognized fu-m of independent certified public accountants that the Exhibit 2 Securities will mature in such principal amounts and earn interest in such amounts and, in each case, at such times, so that sufficient moneys will be available from maturing principal and interest on the Exhibit 2 Securities, together with any uninvested moneys then held by the Escrow Bank in the 86-2 Escrow Fund, to make all payments required .by Section 5(b) hereof. Except as provided in Section 4(c) or Section 4(d) hereof, the balance of the moneys described in Section 3(b) hereof shall be held uninvested in the 86-2 Escrow Fund. (c) Upon the written request of the City, but subject to the conditions and'limitations herein set forth, the Escrow Bank shall purchase substitute Federal Securities for the Federal Securities then held in an Escrow Fund with the proceeds derived from the sale, transfer,. redemption or other disposition of Federal Securities then on deposit in such Escrow Fund and any uninvested money then held by the Escrow Bank in such Escrow Fund in accordance with the provisions of this Section 4(c). Such sale, transfer, redemption or other disposition of Federal Securities then on deposit in an Escrow Fund and substitution of other Federal Securities shall be effected by the Escrow Bank upon the written request of the City but only by a simultaneous transaction and only upon receipt of: (i) certification by a nationally recognized firm of independent certified public accountants that the Federal Securities to be substituted, together with the Federal Securities which will continue to be held in such Escrow Fund, will mature in such principal amounts and earn interest in such amounts and, in each case, 'at such times so that sufficient moneys will be available from maturing principal and interest on such Federal Securities held in such Escrow Fund, together with any uninvested moneys, to make all payments required by Section 5(a) or Section 5(b) hereof, as applicable, which have not previously been made, and (ii)receipt by the Escrow Bank of an opinion of counsel of recognized standing in the field of law relating to municipal bonds to the effect that the sale, transfer, redemption or other disposition and substitution of Federal Securities will not adversely affect the exclusion of interest on any Bonds or Prior Bonds from gross income for purposes of federal income taxation. (d) UpOn the written request of the City, but subject to the conditions and limitations herein set forth, the Escrow Bank will apply any moneys received from the maturing principal of or interest or other investment income on any Federal Securities held in an Escrow Fund, or the proceeds from any sale, transfer, redemption or other disposition of Federal Securities held in an Escrow Fund pursuant to Section 4(c) not required for the purposes of said Section, as follows: (i) to the extent such moneys will not be required at any time for the purpose of making a payment required by Section 5 hereof, as certified by a nationally recognized firm of independent certified public accountants delivered to the Escrow Bank, such moneys shall be paid over to the City upon the written request of the City ~ received by the Escrow Bank, free and clear of any trust, lien, pledge or assignment securing the Prior Bonds or otherwise existing hereunder, and (ii) to the extent such moneys will be required for such purpose at alater date, shall, to the extent practicable, be invested or reinvested in Federal Securities maturing at times and in amounts sufficient to make such payment required by Section 5 hereof (provided that the amount of the funds to be realized from time to time from such investment or reinvestment shall be certified by a nationally recognized firm of independent certified public accountants delivered to the Escrow Bank by the City and provided that the City shall deliver to the Escrow Bank an opinion of counsel of recognized standing in the field of law relating to municipal bonds to the effect that such investment or reinvestment will not adversely affect the exclusion of interest on any Bonds or Prior Bonds from gross income for purposes of federal income taxation) and interest earned from such investments or reinvestments shall be paid over to the City, upon the wriuen request of the City, as received by the EscrOw Bank, free and clear of any .trust, lien, pledge or assignment securing the Prior Bonds or otherwise existing hereunder. (e) All Federal Securities purchased pursuant to this Agreement shall be deposited in and held for the credit of the appropriate EscroTM Fund. Except as provided in this Section 4, no moneys or Federal Securities deposited with the Escrow Bank pursuant to this Agreement nor principal of, or interest payments or other investment income on, any such Federal Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the interest and Redemption Price with respect to the Variable 85-1 Bonds or the Variable 86- 2 Bonds, as applicable, as provided by Section 5 hereof. (f) The owners of the Variable 85-1 Bonds shall have a lien on the moneys and Federal .Securities in the 85-1 Escrow Fund until such moneys and Federal Securities are used and applied as provided in this Agreement- The owners of the Variable 86-2 Bonds shall have a lien On the moneys and Federal Securities in the 86-2 Escrow Fund until such moneys and Federal Securities are used and applied as provided in this Agreement. (g) The Escrow Bank shall not be held liable for investment losses resulting from compliance with the provisions of this Agreement. Section 5. Paylnent of Prior Bonds. (a) From the maturing principal of the Federal Securities held in the 85-1 Escrow Fund and the investment income and other earnings thereon and any uninvested money then held in the 85-1 Escrow Fund, the Escrow Bank shall transfer and apply the amounts at the times as follows: (i) On March 2, 1996, the Escrow Bank shall pay the interest on the Variable 85- 1 Bonds then due in accordance with the terms of the 85-1 Indenture; and (ii) On the Redemption Date, the Escrow Bank shall pay the Redemption Price of the Variable 85-1 Bonds in accordance with the terms of the 85-1 Indenture. To. the extent that the amount on deposit in .the 85-1 Escrow Fund on the Redemption Date is in excess of the amount necessary to make the required payments with respect to the Variable 85-1 Bonds, as shown in the then applicable escrow verification of the nationally recognized firm of independent certified public accountants, such excess shall be transferred to the Redemption Fund established under the Fiscal Agent Agreement, dated as of , 1995 (the "Fiscal Agent Agreement"), by and between the City and State Street Bank and Trust Company of California, N.A., as fiscal agent, relating to the Bonds. (b) From the maturing principal of the Federal Securities held in the 86-2 Escrow Fund and the investment income and other earnings thereon and any uninvested money then held in the 86-2 Escrow Fund, the Escrow Bank shall transfer and apply the amounts at the times as follows: (i) On March 2, 1996, the Escrow Bank shall pay the interest on the Variable 86- 2 Bonds then due in accordance with the terms of the 86-2 Indenture; and (ii) On the 'Redemption Date, the Escrow Bank shall pay the Redemption Price of the Variable 86-2 Bonds in accordance with the terms of the 86-2 Indenture. To the extent that the amount on deposit in the 86-2 Escrow Fund on the Redemption Date is in excess of the amount necessary to make the required payments with respect to the Variable 86-2 Bonds, as shown in the then applicable escrow ver~mation of the nationally recognized f'u'm of independent certified public accountants, such excess shall be transferred to the Redemption Fund established under .the Fiscal Agent Agreement. Section 6. Irrevocable Instructions tO Mail Notices. (a) The City hereby irrevocably designates the Variable 85-1 Bonds for prior redemption on the Redemption Date as indicated in Section 5(a) hereof, and hereby irrevocably instructs the Escrow Bank, as trustee under the 85-1 Indenture, to give the mailed notice of redemption"with respect thereto, as provided in Section 3.06 of the 85-1 Indenture. (b) The City hereby irrevocably designates the Variable 86-2 Bonds for prior redemption' on the Redemption Date as indicated in Section 5Co) hereof, and hereby irrevocably instructs the Escrow Bank, as trustee under the 8.6-2'Indenture, to give the mailed notice of redemption'with respect thereto, as provided in Section 3.07 of the 86-2 Indenture. Section 7. Performance of Dufie~, The Escrow Bank agrees to perform only the duties set forth herein and agrees that the irrevocable instructions to the Escrow Bank herein provided are in a form satisfactory to it. ' · Section 8. Escrow Bank's Authority to Make InveStments. The Escrow Bank shall have no power of duty. to invest any funds field under this Agreement except as provided in Section 4 hereof. The Escrow Bank shall have no power or duty to transfer or otherwise dispose of the moneys held hereunder except as provided in this Agreement. Section 9. Indemnity, To the extent permitted by law, the City hereby assumes liability for, and hereby' agrees (whether or not any of the transactions contemplated hereby are consummated) to indemnify, protect, save and keep harmless the Escrow Bank and its respective successors, assigns, agents, employees and servants, from and against' any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees, expenses and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against, the Escrow Bank at any time (whether or not also indemnified against the same by the City or any other person under any other agreement or instrument, but without double indemnity) in any way relating to or arising out of the execution, delivery and performance of this Agreement, .the establishment hereunder of the Escrow Funds, the acceptance of the funds and securities deposited therein, the purchase of any securities to be purchased pursuant thereto, the retention of such securities or the proceeds thereof and any payment, transfer or other application of moneys or securities by the Escrow Bank in accordance with the provisions of this Agreement; provided, however, that the City shall not be required to indemnify the Escrow Bank against the Escrow Bank's own negligence or willful misconduct or the negligence or willful miscOnduct of the Escrow Bank's respective successors, assigns, agents and employees or the material breach by the Escrow Bank of the terms of this Agreement. In no event shall the City or the Escrow Bank be liable to any person by reason of the transactions contemplated hereby other than to each other as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement. · Section 10. Responsibilities of Escrow Bank, The Escrow Bank and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Funds, the acceptance of the moneys or any securities deposited therein, the purchase of the securities to be purchased pursuant hereto, the retention of such securities or the proceeds thereof, the sUfficiency of the securities or any uninvested moneys held hereunder to accomplish the redemption of the Prior Bonds, or any payment,~ transfer or other application of moneys or securities by the Escrow Bank in accordance with the provisions of this Agreement or by reason of any non-negligent act, non-negligent omission or non-negligent error of the Escrow Bank made in good faith in the conduct of its duties. The recitals of fact contained in the "Whereas" clauses herein shall be taken as the statements of the City, and the Escrow Bank assumes no responsibility for the correctness thereof. The Escrow Bank makes no representation as to the sufficiency of ~the securities to be purchased pursuant hereto and any uninvested moneys to accomplish the redemption of the Prior Bonds or to the validity of this Agreement as to the City and, except as otherwise provided herein, the Escrow Bank shall incur no 1.iability in respect thereof. The Escrow Bank shall nOt be liable in connection with the performance of its duties under this Agreement except for. its own negligence and willful misconduct, and the duties and obligations of the Escrow Bank shall be determined by the express provisions of this Agreement. The Escrow Bank may consult with counsel, who may or may not be counsel to the City, and in reliance upon the written opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Bank shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Agreement, such matter (except the matters set forth herein as specifically requiring a certificate Of a nationally recognized £um of independent certified public accountants or an opinion of counsel of recognized standing in the field of law relating to municipal bonds) may be deemed to be conclusively established by a written certification of the City. Whenever the Escrow Bank shall deem it necessary or desirable that a matter specifically requiring a certificate of a nationally recognized firm of independent certified public accountants or an opinion of counsel of recognized standing in the field of law relating to municipal bonds be proved or established prior to taking, suffering, or omiUing any such action, such matter may be established only by a certificate signed by a nationally recognized f'u'm of certified public accountants or such opinion of counsel of recognized standing in the field of law relating to municipal bonds.' Section 11. Amendments. The City and the Escrow Bank may, without the consent of, or notice to, the owners of the Prior Bonds, amend this Agreement or enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such owners and as shall not be inconsistent with the terms and provisions of this Agreement or of the 85-1 Indenture or 86-2 Indenture, as applicable, for any one or more of the following purposes: (i) to Cure any ambiguity or formal defect or omission in this Agreement, (ii) to grant to, or confer upon, the Escrow Bank for the benefit of the owners of the Prior Bonds any additional rights, remedies, powers or authority that may.lawfully be granted to, or conferred upon, such owners or the Escrow'Bank, and (iii) to include under this Agreement additional funds, securities or properties. The Escrow Bank shall be entitled to rely conclusively upon an opinion of counsel of recognized standing in the field of law relating to municipal bonds with respect to compliance with this Section, including the extent, if any, to which any change~ modification, addition or elimination affects the rights of the owners of the Prior Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section. Section 12...Term. This Agreement shall commence upon its execution and delivery and shall terminate on the date upon which the Prior Bonds have been paid in accordance with this Agreement and the 85-1 Indenture or 86-2 Indenture, as applicable. Section 13. Compensation. The City shall from time to time, on demand, pay the Escrow Bank the agreed upon compensation for its services to be rendered hereunder and reimburse the Escrow Bank for all of its reasonable advances in the exercise and performance of its duties hereunder; provided, however, that under no circumstances shall the Escrow Bank be entitled to any lien whatsoever on any moneys or obligations in either Escrow Fund for the payment of fees and expenses for services rendered or expenses incurred by the Escrow Bank under this Agreement or otherwise. Section 14. Severability. If any one or more of the covenants or agreements provided in this Agreement on the part of the City or the Escrow Bank to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenants or agreements shall be null and void and shall be deemed separate from the remaining covenants and agreements herein contained and shall'in n_o way affect the validity of the remaining provisions of this Agreement. Section 15. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as an original but all of which shall constitute and be but one and the same instrument. Section 16. Governine Law. This Agreement shall be construed under the laws of the State of California. - Section 17. Assignment. This Agreement shah not be assigned by the Escrow Bank or any successor thereto without the prior written consent 6f the City. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. STATE STREET BANK AND TRUST COMPANy, N.A., as Escrow Bank By: Authorized Officer CITY OF TUSTIN By: EXHIBIT 1 UNITED STATES TREASURY SECURITIES VARIABLE 85-1 BONDS Type Maturity_ Principal Interest Accrued Amount .Rate .Price Interest Purchase Price Exhibit 1-1 EXHIBIT 2 UNITED STATES TREASURY SECURITIES VARIABLE 86-2 BONDS Type Mamrity Principal Interest Accrued Amount Ra,~ Price Interest Purchase Price Exhibit 2-1 PROTOCOL AGREEMENT THIS PROTOCOL AGREEMENT (the ~Agreement') is made as of , 1996, by and between the City of Tustin, a municipal corporation organized and existing under the laws of the State of California (the ~City'), and The Irvine Company, a Michigan corporation ("TIC"). RECITALS A. Pursuant to proceedings under the Municipal Improvement Act of 1913, the City has formed its Reassessment District bio. 95-2 (Tustin'Ranch) (the 'Reassessment District') and. expects to issue its Limited Obligation Improvement Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A (the ~Bonds~) pursuant to a Fiscal Agent Agreement (the ~Fiscal Agent Agreement~) dated as of ,1996 by and between the City and State Street Bank and Trust Company of California, N. A. (the 'Fiscal Agenff) for the purpose of refinancing certain debt. B. The Bonds and certain related obligations are to be paid from Re. assessments and amounts for Continuihg Costs of the Adjustable Rate Bonds (as such terms are defined in the Fiscal Agent Agreement) imposed on designated benefited parcels, which are either owned by TIC or by Irvine Apartment Communities, L. P., a Delaware limited partnership in which TIC owns a majority economic interest ('IACLP' and, together with TIC, the "Company"), or the Re. assessments and amounts for Continuing Costs of the Adjustable Rate Bonds applicable to which are payable by TIC. In light of these facts, the parties recognize that TIC is materially affected by the manner in which the City exercises its rights and obligations under the Fiscal Agent Agreement. C. The parties have heretofore cooperated in efforts to provide for the administration of the assessment districts which were the predecessors of the Reassessment District, and they wish to continue to cooperate with respect to the Re. assessment District by entering into this Agreement to provide a cooperative means of dealing with certain on-going aspects of monitoring and administering the aforesaid f'mancing. NOW, THEREFORE, IN CONSIDERATION of the above recitals and the covenants and conditions contained herein, the parties agree as follows: 1. Definitions. All capitalized terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed to them in the Fiscal Agent Agreement. 2. Alternate Letter of Credit. Section 5.04 of the Fiscal Agent Agreement provides that the Fiscal Agent shall accept an Alternate Letter of Credit upon satisfaction of certain conditions stated therein. In the event that TIC delivers a written request to the City that an PUBL:31835_4 I0161 B2495.00038 1 01/05/96 Alternate Letter of Credit be presented to the Fiscal Agent, the City and TIC will enter into an agreement whereby TIC agrees to pay all reasonable costs and expenses incurred by the City and the Fiscal Agent in connection with the substitution of said Alternate Letter of Credit for the Letter of Credit then in effect. Upon execution of such agreement, the City and TIC shall take such action as may be reasonably required to obtain such Alternate Letter of Credit, to present the same to the Fiscal Agent, and to satisfy the conditions set forth in said Section 5.04; provided, however, that the-City shall not be required to enter into any agreement with the issuer of the Alternate Letter of Credit which differs from the Reimbursement Agreement in any respect which would be materially adverse to the City, nor shall the City be required to cause an Alternate Letter of Credit to be substituted for the Letter of Credit then in effect if such substitution would have a material adverse effect on the City. 3. Information and Notices. Under various provisions of the Fiscal Agent Agreement and the Reimbursement Agreement the City may receive or give notice for various purposes specified therein. The City agrees to provide TIC, at TIC's expense, with copies of all such notices promptly upon its receipt or transmittal thereof, as the case may be. Various provisions of the Fiscal Agent Agreement permit the City to request and obtain specified information from various parties described therein. The City hereby agrees to provide TIC, at TIC's expense, with copies of such information promptly upon its receipt by the City. In addition, the City shall request and furnish to TIC, at TIC's expense, such information available to the City pursuant to the Fiscal Agent Agreement as TIC may from time to time reasonably request. 4. Remarketing Agent. Pursuant to the provisions of the Remarketing Agreement, the City has reserved the right to remove the Remarketing Agent and to appoint a successor thereto'.. Inasmuch as the effectiveness of the Remarketing Agent in performing its duties directly affects the interest payments required to made by the Company, the City agrees that (i) it will not remove the Remarketing Agent without the prior written consent of TIC, (ii) if requested to do so by written notice from TIC setting forth TIC's reasons for so requesting, it will remove the Remarketing Agent (subject to the consent of the Bank), and (iii) it will meet and consult with TIC concerning the appointment of any successor to the Remarketing Agen~ (which appointment shall be subject to the consent of the Bank). 5. Changes in Fiscal Agent Agreement or Reimbursement Agreement. Except to the extent required, in the opinion of Bond Counsel, in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the Bonds, the City will not, without the prior written consent of the Company, enter into any amendment of or supplement to the Fiscal Agent Agreement or the Reimbursement Agreement which would materially adversely affect the Company's obligations with respect thereto or with respect to the 'Reassessments and the Continuing Costs of the Adjustable Rate Bonds applicable to the Company's properties or to properties the Reassessments and the Continuing Cost~ of the Adjustable Rate Bonds applicable to which are payable by the Company; provided that if such consent is withheld, and if the failure to enter into such amendment or supplement would have a material adverse effect on the City's obligation with respect thereto, then the City shall not be prohibited from entering into said amendment or supplement. PUBL:3 ! 835_41016[ B2495.00038 2 01/05/96 6. Conversions to Fixed Rate Bonds. The Bonds are to be initially issued in the Daily Mode, but they are to be converted to Fixed Rate Bonds as hereinafter described. At least 90 days prior to a Qualified Conveyance (as hereinafter defined), TIC shall file with the City and the Bank a written notice (a "Conversion Requesff) identifying the property which is the subject of such Qualified Conveyance and the amount of the Reassessment applicable thereto, provided that if, on the date which is 90 days prior to the date on which a Qualified Conveyance occurs, TIC_did not reasonably expect the Qualified Conveyance .would occur within 90 days, it shall file the Conversion Request promptly upon becoming aware that the Qualified Conveyance is expected to occur. As used herein, the term ~Qualified Conveyance" means a ground lease, sale, transfer or conveyance by TIC or IACLP of any parcel within the Reassessment District to an entity other than TIC, IACLP or an entity which the Bank approves in a written instrument filed with the City and the Fiscal Agent, as another affiliate of TIC to which a parcel can be leased or conveyed without a corresponding conversion of Bonds to Fixed Rate Bonds. In addition to the foregoing, TIC may from time to time request that Bonds be converted to Fixed Rate Bonds even in the absence of a Qualified Conveyance by filing with the City and the Bank a Conversion Request specifying the properties the Reassessments applicable to which are to be converted to fixed interest rates and the amount of such Reassessments. Upon receipt of a Conversion Request from TIC, the City shall immediately notify the Remarketing Agent, the Fiscal Agent and the Bank of the aggregate principal amount of Adjustable Rate Bonds to be converted to Fixed Rate Bonds and shall take such other steps as are reasonably necessary pursuant to the Fiscal Agent Agreement in order to cause the Remarketing Agent to promptly complete such conversion, provided that the 'City shall not be 'required to advance any funds required to complete such conversion under any circumstances, and provided further that the City may terminate a proposed conversion under the circumstances set fOrth in Section 2.08(b)' of the Fiscal Agent Agreement. A conversion shall be cancelled, or one or more of the properties whose Reassessments were to be the subject of such conversion shall be deleted from the conversion, as specified by TIC, if prior to the Conversion Date selected pursuant to Section 2.08(a) of the Fiscal Agent Agreement for the remarketing of Bonds as Fixed Rate Bonds, TIC files a written instrument with the City so requesting and agrees that it may be assessed for any expenses theretofore incurred by the City in connection with the originally proposed conversion for which the City is not otherwise reimbursed. On or prior to the Conversion Date selected pursuant to Section 2.08(a) of the Fiscal Agent Agreement for the remarketing of Bonds as Fixed Rate Bonds, TIC will pay to the Fiscal Agent, but only if and to the extent that the amounts available to the Fiscal Agent pursuant to the Fiscal Agent Agreement. are insufficient for such purposes, the sum of (i) an amount estimated by the Remarketing Agent to be necessary to pay the fees, costs and expenses of such conversion and remarketing, including any premium payable by reason of any mandatory purchase of Bonds, (ii) the interest which will become payable on the Bonds to be so remarketed from the Conversion Date until the first date subsequent to the Conversion Date on which the City will receive payments of the applicable Reassessment installments and (iii) the Reserve Requirement (as hereinafter defined) applicable to such group of Fixed Rate Bonds. As used herein, the term PUBL:31835_41016 t B2495.00038 3 0 i/05/96 "Reserve Requirement" means an amount equal to one-half the average annual 'debt service on the Fixed Rate Bonds for which the Reserve Requirement is being determined, provided that if the Remarketing Agent certifies to the City and TIC that the Bonds in question cannot be successfully remarketed at reasonable rates without a larger reserve the term 'Reserve Requirement" shall mean the amount specified by the Remarketing Agent. The Bank is hereby expressly recognized as a third-party beneficiary of this Section 6. 7. Other Changes in Interest Rate Determination. In addition to the foregoing, various provisions of the Fiscal Agent Agreement permit changes 'in the method by which the interest rate apPliCable to such Bonds is to be determined if such Change is requested or consented to by the City, subject in some instances to certain conditions (each such change an "Optional Change"). The parties agree that Optional Changes shall be limited as follows. Either TIC or the City may initiate an Optional' Change by giving to the other written notice that it desires to effect the same. Upon receipt of such notice from TIC, the City shall promptly direct the Fiscal Agent or the Remarketing Agent, as appropriate, to effect the Optional Change and shall take all other action reasonably required to accomplish it. The City agrees that it shall not refuse to give such direction provided that (i) the Company is not then in default in the payment of any Reassessment or fimount for Continuing Costs of the Adjustable Rate Bonds on any parcel owned by it or for which it is responsible~ (ii) the Company owns the parcel or parcels (or is responsible for the payment of the Reassessment thereon) the interest rate applicable to which would be affected by the Optional Change; and (iii) the Company agrees to pay any costs incurred in connection with the Optional Change to the extent the funds available under the Fiscal Agent Agreement to pay the same are insufficient. If the City wishes to initiate an optional Change, TIC shall have 15 days after receipt of written notice from the City in which to consider the Optional Change and to indicate TIC 's ' agreement therewith or objection thereto. Pending TIC's response to such notice, the City shall not take any action during such 15-day period to effect the Optional Change. If TIC objects to the City's proposed Optional Change the City shall refrain from taking any action under the Fiscal Agent Agreement to effect the same provided that (i) TIC is not 'then in default in the payment of any Reassessment or amount for Continuing Costs of the Adjustable Rate Bonds on any parcel owned by it or for which it is responsible, and (ii) the Company owns the parcel or. parcels (or is responsible for the payment of the Reassessment thereon) the interest rate applicable to which would be affected by the Optional Change. 8. Prohibition Against Certain Transfers. At the time of their issuance the Bonds and the Reassessments will bear interest at a Daily Rate. Such an arrangement Would not be desirable for any property within the Reassessment District from and after the date on which such property is first occupied as a single family residence. Accordingly, the Company will not ground-lease, sell, transfer or otherwise convey any parcel within the Reassessment District for residential occupancy (other than for use as an apartment, hotel or other similar use) unless and until either (i) the interest rate applicable to the Reassessment upon such parcel has been converted so as to correspond to Fixed Interest Rates, or (ii) the Reassessment on such parcel has been paid. The foregoing provision is not intended, and shall' not be construed, to prevent the Company from (i) entering into a contract for the sale, transfer or other conveyance of a parcel for such purpose if such sale, transfer or conveyance is contingent upon either the conversion of the interest rate applicable to the Reassessment upon such parcel so as to correspond to Fixed PUBL:31835_4 [ 0161 B2495.00038 4 0 !/05/96 Interest Rates or the payment of such Reassessment, or (ii) selling, transferring or otherwise conveying any property within the Reassessment District to one or more developers or merchant builders (each, a ~Developer~) for the development thereof for owner-occupied residential purposes, so long as any such conveyance shall be by written contract which imposes an obligation on the purchaser to be bound by the terms of this Agreement insofar as such terms are applicable to the property transferred. Except as hereinafter provided, the City at its option may include as a condition of its approval of all tract maps covering land within the Reassessment District a requirement that no building permit will be issued for construction of a structure for residential occupancy (other than as an apartment, hotel or similar use) upon any lot upon which there is an unpaid Reassessment unless and until the interest rate applicable to Such Reassessment has been converted so as to correspond to Fixed Interest Rates and satisfactory proof thereof has been furnished to the City. The City will not enforce such a requirement in any case in which the City determines that as a result of unusual or unexpected circumstances the withholding of building permits would impose an undue hardship (as, for example, in the case of property with respect to which the Company has notified the City that a Qualified Conveyance has occurred but the interest rate applicable to the Reassessment upon such property has not yet been converted so as to correspond to Fixed Interest Rates), provided that the City need not issue a certificate of occupancy with respect thereto unless and until the interest rate applicable to the Reassessment upon the property in question has been fixed so as to correspond to Fixed Interest Rates or such Reassessment has been paid. The Bank is hereby expressly recognized as a third-party beneficiary of this Section 8. · .. 9. Company Advances. In the event a Qualified Conveyance occurs prior to the earlier of the prepayment in full of the Reassessment applicable to the subject property or the conversion of the interest rate thereon so as to correspond to Fixed Interest Rates, the Company will advance to the Fiscal Agent (i) the Reassessment installments and Continuing Costs of Adjustable Rate Bonds applicable to the subject property and (ii)the funds necessary to prepay the Reassessment applicable thereto if the same has not been converted to correspond to one or more Fixed Interest Rates within nine months after the date of such conveyance (or such longer period as may be approved in writing, by the Bank). The Bank is hereby expressly recognized as a third-party beneficiary of this Section 9. 10. Notices. Any and all notices, demands or other communications required or desired to be given hereunder by either party shall be in writing and shall be validly given or made to another party if given by personal delivery, telex, facsimile, telegram, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice, demand or other communication be given by personal delivery, telex, facsimile or telegram, notice shall be conclusively deemed made at the time of such delivery. If such notice, PUI3L:31835_4 l016 ] B2495.00038 5 01/05/96 demand or other communication be given by mail,-it shall be conclusively deemed given forty-eight (48) hours after the deposit thereof in 'the United States mail addressed to the party to whom such notice, demand or other communication is to be given as hereinafter set forth: To the City' City of Tustin 300 Centennial Way Tustin, California 92680 Attention: City Manager With a copy to: 'City of Tustin 300 Centennial Way Tustin, California 92680 Attention: DirectOr of Finance To the Company: The Irvine Company 550 Newport Center Drive Newport Beach, California 92660 Attention: Vice President, 'Public Finance With a copy to: The Irvine Company 550 Newport Center Drive Newport Beach, California 92660 Attention: General Counsel Either party hereto may change its address for the purpose of receiving notices, demands and other communications as herein provided by a written notice given in the manner aforesaid to the other party or parties hereto. 11. Expiration. This Agreement shall expire and be of no further force or effect on the first .day on which no Adjustable Rate Bond remains outstanding and all amounts due and payable under the Reimbursement Agreement have been paid in full. 12. Governing Law. This Agreement shall, in all respects, be governed by the internal laws of the State of California. 13. Further Assurances. Each of the parties hereto shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary in connection with the performance of its obligations hereunder and to carry out the intent of the parties hereto. The Bank. is hereby recognized as a third-party beneficiary of this Section 13. 14. Limitation on City Liability. The City shall have no liability to the Bank of any kind whatsoever arising out of or in connection with any act or omission of the Company. hereunder, including but not limited to, any failure on the part of the Company to file a Conversion Request or to pay money pursuant to Section 6, any conveyance of property in violation of Section 8, any failure to pay money pursuant to Section 9, and any failure to comply with Section 13. PUi~L:31835_4 l0161 B2495.00038 6 01/05/96 15. Amendment. No amendment,, change or modification of this Agreement shall be valid unless in writing and signed by both of the parties hereto. 16. Successors and Assigns. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. 17. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS .WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first abOve written. CITY OF TUSTIN THE IRVINE COMPANY By: Mayor Thomas B. Rogers Senior Vice President Corporate Finance ATTEST: City Clerk Approved as to form. Daniel H. Tonini Vice President Public Finance City Attorney PUBL:31825_4 I Ol 6t B2495.00038 7 01/05/96