HomeMy WebLinkAboutREIMB,CREDIT,SEC AG 11-20-95103669.002
Draft {^} _1_1/10/95
REIMBURSEMENT, CREDIT AND SECURITY AGREEMENT
Dated as of {^} December 1, 1995
Between
CITY OF TUSTIN
(City)
and
KREDIETBANK{^} N.V. (NEW YORK BRANCH)
(Bank)
TABLE OF CONTENTS
Paq~
Recitals ....
ARTICLE I
DEFINITIONS
Section 1.01. Definitions . · ............... : _ 3
Section 1.02. Rules of Construction; Time of Day .... {^} I
ARTICLE II
LETTER OF CREDIT AND REIMBURSEMENT
Section 2.01. Issuance of Letter of Credit ......... 7
Section 2.02. Reimbursement and Other Payments ....... 7
Section 2.03. Transfer; Reduction; Reinstatement .... {^} 13
Section 2.04. Obligations Absolute ............. 13
Section 2.05. Indemnification ............. I~l 14
Section 2.06. Liability of Bank ...... , ...... 15
ARTICLE III
SECURITY; BANK BONDS
Section 3.01. Security and Subrogation Under Bond Documents
Section 3.02. Security ..........
Section 3.03. Purchase of Bank Bonds ........ ..
Section 3.04. {^} Rennarketinq of Bank Bonds~ .
Section 3.05. No Interest Accrual on Bank Bonds . . .
Section 3.06. Term Repayment of Bank Bonds .
Section 3.07. Bank Bond Payments ......
16
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Documentation ..............
Section 4.02. Other Conditions ............
Section 4.03. Issuance of Fixed Rate 95-1 Bonds ....
Section 4.04. Defeasance of Prior Bonds .......
. 19
21
21
.
{^)
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01. Existence ........ {^} 21
Section 5 02 Power and Authorization . . . {^} 21
· · . 22
·
Section 5.03. No Legal Bar .... . {^}
Section 5.04. Consents ....
Section 5 05 Litigation ..... ' ' 23
· · 23
Section 5.06. Enforceability ........
Section 5.07. Changes in Law .............. ^ 23
Section 5.08. Disclosure of Information ·
Section 5 09 Reassessment District, Liens and ~n~tallmgn~
· · 24
Section 5.10. Reassessment District 95-1 .........
Section 5.11. Representations in Other Documents .... {^} 24
ARTICLE VI
GENERAL COVENANTS.
Section 6.01. Maintenance of 'Existence ....... {^} 24
Section 6 02 Compliance with this Agreement and BOnd
' ' 25
Documents · · ' ...........
Section 6.03. Laws, Permits. and O~ligltions ........ 25
Section 6.04. Use of Proceeds '[' [~ . . ' ....... 25
.
Section 6.05. Accounting Records ind Financial Statements I~t 25
Section 6.06. Visitation and Examination ........ 25
Section 6.07. Maintenance of Tax-Exempt Status of {^} Bonds 26
Section 6.08. Enforcement of Irvine Agreements ....... 26
Section 6.09. Agreement to Market Fixed Rate Bonds .... 26
Section 6.10. Collection and Payment of Reassessments {!1 26
Section 6.11. Punctual Payment . 2.~..
Section 6.12. No Other Encumbrances · - 26
Section 6.13. Consents Under Bond Documents · . 27
Section 6.14.. {^} N~ Change in Bond Documents {^} 27
Section 6.15. Limitation on Optional Calls . · 27
Section 6.16. Conversions; Limitation. · . {~7{^~
Section 6.17. Application of Letter of Credit Proceeds } 27
Section 6.18. Further Assurances ...... 28
ARTICLE VII
DEFAULTS AND REMEDIES
........ 28
Section 7.01. Defaults ........
Section 7.02. Remedies ......... 30
Section 7.03. Waivers; consents ......... I~1 30
Section 7.04. No Waiver; Remedies Cumulative ..... 30
Section 7.05. Waiver of Laws ........ 31
Section 7.06. Absolute Obligation of City .......... 31
(ii)
Paqe
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Notices .............. {^} 31
Section 8.02. Successors and Assigns ........... 33
Section 8.03. Survival of Representations, Warranties and
Covenants .............. {^} 33
Section 8.04. Counterparts ............... 34
Section 8.05.. Costs, Expenses and Taxes ......... 34
Section 8.06. Amendments ...... . . . . . . . . . . . 34
Section 8.07. Severability; Interest Limitation ..... 34
Section 8.08. Complete Agreement .............. 35
Section 8.09~ Conflicts ............... 35
Section 8.10. Waiver of Jury Trial and Certain Damages .. 35
Section 8.11. Governing Law .............. {^} 35
Section 8.12. Table of Contents and Headings ...... 36
Section 8.13. Participations ................ 36
Section 8.14. Limited Obligation; No Personal Liability. . . 36
EXECUTION ...................
EXHIBIT A - Form of Letter of Credit ........... A-1
EXHIBIT B - {^} Information Reqardinq Reassessment District B-1
EXHIBIT C - Exception Parcels ............. C-1 {^}
(iii)
REIMBURSEMENT, CREDIT AND SECURITY AGREEMENT
THIS REIMBURSEMENT, CREDIT AND SECURITY AGREEMENT (this
,,Agreement"), made as of the first day of {^} December, 1995
between CITY OF TUSTIN, a general law city and a political
subdivision of the State of California (the "City"), and
KREDIETBANK N.V., a Belgian banking corporation acting by and
through its New York Branch (the "Bank"),
W I TNE S SETH :
A. The City is issuing {^} $45,000,000 aggregate
principal amount of its Limited Obligation Improvement Bonds,
Reassessment District No. 95-2 (Tustin Ranch), Series A (the
"Bonds") pursuant to a Fiscal Agent Agreement dated as of
December 1, 1995 (the "Fiscal Agent Agreement") between the City
and State Street Bank {^) and Trust Company of California, N.A.,
as fiscal agent (including any successor fiscal agent under the
Fiscal Agent Agreement, the "Fiscal Agent"). The proceeds from
the Bonds will be used (i) to refund the variable rate portions
-of'the Assessment District No~ ..... 85-1Limited Obligation
Improvement Bonds in the original principal amount of $50,600,000
and the Assessment District No. 86-2 Limited Obligation
Improvement Bonds'in the original principal amount of $81,400,00
(collectively, the "Prior Bonds") issued by the City for
Assessment District No. 85-1 and Assessment District No. 86-2
(collectively, the "Prior Assessment Districts") and (ii) to pay
capitalized interest and costs of issuance in respect of the
Bonds. The Bonds will be secured by unpaid reassessments on the
area duly designated by the City as Reassessment District No.
95-2 (Tustin Ranch) in connection with the issuance of the Bonds
(the ,,Reassessment District").
B. The Reassessment District is within the boundaries
of the City {^}(or the boundaries of the County of Orange,
California {x) outside of the incorporated municipalities
thereof) and is bounded generally by the Santa Aha.Freeway
(Interstate 5), Browning Avenue and Tustin Ranch Road, Santiago
Canyon Road, and Jamboree Road, as more fully described in
Exhibit B attached hereto. The parcels of land constituting the
Reassessment District are parcels of land in the Prior Assessment
Districts designated by the City for inclusion in the
Reassessment District, and {^} with the exception of the parcels
identified on Exhibit C hereto, the parcels so designated are
those parcels which had unpaid prior assessments which, at the
time the reassessments were levied, were security for the
outstanding Prior Bonds bearing interest at a variable rate (the
"Prior Variable Rate Bonds"). The Irvine Company and Irvine
Apartment Communities, {^} L.P. are currently the only owners of
the parcels of land within the Reassessment District. Irvine
Apartment Communities, L.P. is a California limited partnership
as to which (i) the Irvine Company is the sole limited partne~
and holds a 55.4% economic interest and (ii) Irvine Apartment
Communities, Inc. is the sole general partner and holds a 44.6%
economic interest. The Irvine Company has an approximate 61%
ownership interest in Irvine Apartment Communities, Inc.
C.' The proceeds of the Prior Bonds have been used
primarily to fund the costs of design and construction of public
improvements to facilitate development of and to serve the
property within the combined area of the Prior Assessment
Districts, including bridges, interchange improvements, streets
and parkways, traffic signals, signing and striping, street
lights, trails, landscaping, drainage and flood control
facilities, water lines, sanitary sewers, and utility
improvements, together with the costs and expenses of the
assessment proceedings and bond issuance.
D. At the time of issuance of the Prior Bonds, the
major land owner in the Prior Assessment Districts was The Irvine
Company. Pursuant to the financing documents for the Prior
Bonds, as parcels of land within the Prior Assessment Districts'
were conveyed to third parties (other than Irvine Apartment
Communities, L.P. or Irvine Apartment Communities~ Inc.) or
otherwise developed by The Irvine Company, the interest rate
borne by an allocable portion of the Prior Bonds was converted to
a fixed rate. The amount of the Prior Bonds converted to bear
interest at a fixed rate (the "Prior Fixed Rate Bonds")
corresponded with the amount of the unpaid assessments on the
parcels of land conveyed to Such third parties or otherwise
developed. Concurrently with the issuance of the Bonds, the City
is refunding.the Prior Fixed Rate Bonds through.the issuance of
its Limited Obligation Improvement Bonds, Reassessment District
No. 95-1 (Tustin Ranch) Series A (the "Fixed Rate 95-1 Bonds"),
which will be secured by unpaid reassessments on parcels of land
within Reassessment District No. 95-1 (Tustin Ranch)
("Reassessment District 95-1") generally comprised of parcels
heretofore supporting the Prior Fixed Rate Bonds. Such, parcels
do not constitute part of the Reassessment District.
E. In order to secure the payment of the Bonds and to
facilitate the issuance, sale and remarketing of the Bonds and
thereby achieve interest cost savings, the City has asked the
Bank to issue its Irrevocable Letter of Credit (including any
amendments thereto and any substitute letter of credit therefor
issued pursuant to the terms hereof, the "Letter of Credit'.) to
the Fiscal Agent for the account of the City authorizing the
Fiscal Agent to make one Or more draws on the Bank up to an
aggregate of {^} $45,739,726.03 (as reduced and reinstated from
time to time, the "Letter of C~edit Amount"), of which originally
I~3669 . 002 {PF)
t t£^1 ~45,?00 000 shall be in respect of principal of the Bonds and
^ ~739 72~.03 shall be in respect of interest on the Bonds.
F. The purpose of the Letter of Credit is to provide
for ~payment of the principal of and interest on the Bonds (other
than Bonds hereafter converted to bear interest at a fixed rate)
and for the payment of the'purchase price of Bonds which have
been tendered for purchase pursuant to the terms of the Fiscal
Agent Agreement and the Bonds to the extent remarketing proceeds
are not available therefor in accordance with the provisions of
the Fiscal Agent Agreement.
G. The Bank is willing to issue the Letter of Credit
upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and
the undertakings herein set forth and intending to be legally
bound, the City and the Bank hereby agree as follows:
ARTICLE I
·
DEFINITIONS
Section 1.01. Definitions. In this Agreement (unless
the context otherwise requires) the following terms have the
meanings specified in the foregoing recitals:
Agreement
Bank
Bonds
City
Fiscal Agent
Fiscal Agent Agreement
Fixed Rate 95-1 Bonds
Letter of Credit
Letter of Credit Amount
Prior Assessment Districts
Prior Bonds
Prior Fixed Rate Bonds
PriOr Variable Rate Bonds
Reassessment District
Reassessment District 95-1
In addition, the following terms shall have the meanings
specified in this Article, unless the context otherwise requires:
"Act" means the Refunding Act of 1984 for 1915
Improvement Act Bonds, being Division 11.5 of the .California
Streets and Highways Code, and the Improvement Bond Act of~1915,
as amended, Division 10 of the California Streets and Highways
Code.
"Alternate Letter of Credit" means an Alternate Letter'
of Credit, as defined in the Fiscal Agent-Agreement, delivered to
the Fiscal Agent in substitution for the Letter of Credit as
103669. 002(PF) 3
security for the payment of the principal of and interest on the
Bonds.
"Authorized Representative" means the City Manager or
the Treasurer of the City or any.other Person designated as an
Authorized Representative of the City, in a written certificate
of an Authorized Representative of the City filed with the Fiscal
Agent, to make the certifications or take the other actions
indicated by the context.
"Bank Bonds" shall have the meaning ascribed to such
term~in Section 3.03.
"Base ~Rate" means for any day the greater of:
(a) the rate of interest announced by the Bank
from time to time as its prime commercial rate, or
equivalent, as in effect on such day for U.S. dollar loans
to borrowers located in the United States, with any change
in the Base Rate resulting from a change in said prime
commercial rate to be effective as of the date of the
relevant change in such prime commercial rate; and
(b) the sum of (i) the rate determined by the Bank
to be the prevailing rate per annum (rounded upward, if
necessary, to the next higher 1/100 of 1%) at approximately
10:00 a.m. (or as soon thereafter as is practicable) on such
day (or, if such day is not a Business Day, on the
immediately preceding Business Day) for the purchase at face
value of overnight federal funds in the secondary market in
an amount comparable to the principal amount owed to the
Bank for which such rate is being determined, plus (ii) 1%.
"Bond Documents" means the Bonds, the Fiscal Agent
Agreement, the Bond Purchase Agreement, the Remarketing Agreement
and the Protocol Agreement.
"Bond Purchase Agreement" means the Bond Purchase
Agreement dated {^} December XX, 1995 between PaineWebber
Incorporated and the City relating to the original issuance and
sale of the Bonds.
"Business Day" means any day other than (i) a Saturday,
Sunday or legal holiday, (ii) 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 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
103669. 002 (PF)
(including executive order) to close, or (iii) a day on which the
New York Stock Exchange, Inc. is closed.
,,Closing Date" means the date of execution and delivery
of this Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder.
"Continuing Costs of the Adjustable Bonds" shall have .
the meaning ascribed to such term in the Fiscal Aqent Aqreement.
--
,'Default" means an event which with-the passage of time
or giving of notice or both would become an Event of Default.
"Event of Default" shall have the meaning ascribed to
such term in Section 7.01.
"Fixed Rate Bonds" means Bonds which bear interest at a
Fixed Interest Rate (as defined in the Fiscal Agent Agreement) ·
"IA~I" means ~IrVine APar~ent communities', Inc., a
California self-a~inistered real estate investment trust
corporation.
"IACLP" means Irvine Apartment Communities, L.P., a
California limited partnership, of which IACI is its sole qeneral
partner and TIC is the sole limited partner.
"Interest Component" shall have the meaning ascribed to
such term in the Letter of Credit.
"Interest Draft." shall have the meaning ascribed to
such term in the Letter of Credit.
"Irvine" means {^} any or all of TIC, TACLP or TACI.
,,Offering Document'' means the Official Statement and
any official statement, offering memorandum, placement memorandum
or similar document relating to any remarketing of the Bonds.
"Official Statement" means the City's Official
Statement relating to the original offering for sale of the
Bonds.
"Outstanding" when applied to the Bonds shall have the
meaning ascribed to such term in the Fiscal Agent Agreement.
"Participating Banks" shall have the meaning ascribed
to such term in Section 8.13.
103669. 002 (PF) 5
"Participation Agreements" shall have the meaning
ascribed to such term in Section 8.13.
"Paying Agent" shall have the meaning ascribed to such
term in the Fiscal Agent Agreement.
"Person" means any individual, for-profit or non-profit
corporation, partnership, joint venture, association, joint-stock
company, estate, trust, unincorporated organization, governmental
body or any agency or political subdivision there, of, or other
legal entity.
"Principal Component" shall have the meaning ascribed
t~ such term in the Letter of Credit.
"Protocol Agreement" means the Protocol Agreement dated
as of ~^~ December 1, 1995 between the City and {^} TIC with
respect to the Reassessment District, as the same may be amended
or supplemented from time to time.
"Purchase Draft" shall have the meaning ascribed to
such term in the Letter of Credit.
"Reassessments" shall have the meaning ascribed to such
term in the Fiscal Agent Agreement.
"Remarketing Agent" means PaineWebber Incorporated as
Remarketing Agent, as defined in the Fiscal Agent Agreement, and
any successor Remarketing Agent as defined therein.
"Remarketing Agreement" means the Remarketing Agreement
dated as of {^~ December 1, 1995 between the City and the
Remarketing Agent relating to the Bonds, and any replacement
remarketing agreement with the original or any successor
'Remarketing Agent.
"Redemption Draft" shall have the meaning ascribed to
such term in the Letter of Credit.
"State" means the State of California.
"TIC" means The Irvine Company, a Michigan corporation.
"Unremarketed Tendered Bonds" means Variable Rate Bonds
which (a) have been delivered for purchase pursuant to the
provisions of such Bonds and the Fiscal Agent Agreement and (b)
have not been successfully remarketed by the Remarketing Agent
prior to 11:30 a.m. on the required purchase date.
"Variable Rate Bond Reassessments" shall have the
meaning ascribed to such term in Section 5.09.
103669. 002 (PF) 6
"Variable Rate Bonds" means the Bonds other than Fixed
·
Rate Bonds.
· Section 1.02. Rules of Constr~ction; Time of Day. In
this Agreement, unless otherwise indicated, (i) defined terms may
be used in the singular or the plural and the use of any gender
includes all genders, (ii) the words "hereof", "herein",
,,hereto", "hereby" and ,'hereunder" refer to this entire
Agreement, and (iii) all references to particular Articles or
Sections are references to the Articles or Sections of 'this
Agreement. References to any time of the day in this Agreement
shall refer to eastern standard time or eastern daylight saving
time, as in effect in New York, New York on such day
ARTICLE II
LETTER OF CREDIT AND REIMBURSEMENT
Section 2.01. Issuance of Letter of Credit. The City
hereby requests the Bank to issue the Letter of Credit to the
Fiscal Agent for the City's account. Subject to the conditions
precedent hereinafter set forth, the Bank will issue to the
Fiscal Agent pursuant to the foregoing request of the City, on
the Closing Date, the Letter of Credit substantially in the form
attached hereto as Exhibit A, appropriately completed. The
initial Letter of Credit Amount shall be {^} $45,739,726.03 (with
a Principal Component of {^} ~45,000,000 and an Interest
Component of {^} $739,726.03)... The Interest Component of the
Letter of Credit Amount has been established on the basis of 50
days interest on the Bonds and a 365-day year, at an assumed
maximum interest rate of 12% per annum. The Letter of Credit
shall expire at 5:00 p.m. on {^} December 15, 2002 or, if such
day is not a Business Day, on the next succeeding Business Day,
unless the Bank, at its option, upon written request of the City,
by one or more amendments delivered to the Fiscal Agent, extends
the Letter of Credit as provided in the first paragraph thereof,
in which case'the Letter of Credit shall expire as set forth in
such amendments, it being understood that the Bank shall have no
ob!ication to grant any such extensions. The Letter of Credit is
Subject to prior automatic termination as provided in paragraph 8
thereof.
Section 2.02. Reimbursement and Other Payments.
(a) Reimbursement Payments. The City hereby .~
agrees to pay or cause to be paid to the Bank, with interest as~
provided in Section 2.02(b):
103669 · 002 (PF)
(1) a sum equal to each amount drawn under
the Letter of Credit by an Interest Draft, on the same
Business Day that such drawing is honored;
(2) a sum equal to each amount drawn against
the Interest Component of the Letter of Credit Amount by a
Purchase Draft, on or before the first to occur of (i) the
fifth Business Day of the first calendar month following the
calendar month in which such drawing is honored, (ii) the
date on which the Bonds purchased with the proceeds of such
Purchase Draft are remarketed by the Remarketing Agent, or
(iii) the date on which the Bonds purchased with the
proceeds of such Purchase Draft are redeemed or otherwise
paid in full;
(3) a sum equal to each amount drawn against
the Principal Component of a Letter of Credit Amount by a
Purchase Draft, on or before the first to occur of (i) the
date on which the Bonds purchased with the proceeds of such
Purchase Draft are ~remarketed by the Remarketing Agent or
(ii) the date on which the Bonds purchased with the proceeds
of such Purchase Draft are redeemed or otherwise paid in
full; provided that, if such sum has not become due and
payable as aforesaid, or has not otherwise been paid in
full, on or before the 60th day following the Business Day
on which such drawing is honored, then (A) the outstanding
balance of such sum shall be payable in 82 approximately
equal consecutive monthly installments (as stipulated by the
Bank) commenckng on the first Business Day of the third
calendar month following the calendar month in which such
drawing is honored and on the first Business Day of each
calendar month thereafter, and, on the first Business Day of
the 84th calendar month following .the calendar, month in
which such drawing is honored, the entire unpaid balance of
such sum and all unpaid accrued interest thereon shall be
due and payable in full, and (B) in the event of any
prepayment of such sum, the City shall also pay to the Bank
any out-of-pocket breakage or unwinding costs incurred by
the Bank in connection therewith; and
(4) a sum equal to each amount drawn under a
Letter of Credit by a Redemption Draft, on the same Business
Day that such drawing is honored.
(b) Interest On Drawings. Ail sums payable to
the Bank under Section 2.02(a) shall bear interest, from the date
the corresponding drawing is honored under the Letter of Credit
until such sums are paid in full (it being understood and agreed
that any such sum received by the Bank after 3:00 p.m. on a
Business Day shall bear interest as if it was paid at 9:00 a.m.
on the next following Business Day), at a fluctuating rate per
103669. 002 (PF)
annum (computed for the actual number of days elapsed, based on a
360-day year) equal to the Base~Rat,e {^} the Base Rate; provided
that (i) any s~ payable to the Bank under Section 2.02(a) (3)
which is outstandinq in excess of three years shall thereafter
bear interest at a 'fluctuatinq rake per annum (computed for the
actual number of days elapsed~ based on a 360-da¥ Year) equal to
plus 1%, and (ii) if any sum payable to the Bank under
Section. 2.02(a) or interest thereon or any other amount due
pursuant to this Agreement is not paid within 10 days of the date
such sum, interest or other.amount is due and payable by the City.~.
to the Bank pursuant to this Agreement, then all such sums shall
thereafter bear interest at a fluctuating rate per annum
(computed for the actual number of days elapsed, based on a
360-day year) equal to the .Base Rate plus 2% until such sum or
interest and all other amounts due and payable pursuant to this
Agreement have been paid in full. Interest accruing pursuant to
this Section 2.02(b) during each calendar month shall be due and
payable on the fifth Business Day of t'he next calendar month and
on-the date the respective sum is paid. Except as the Bank may
otherwise elect, all payments by or on'behalf of the City under
Section 2.02(a), includinq all amounts credited to such payments
pursuant to Section 2.02(c), shall be applied first to the
payment of interest due and payable by the City under this
Section 2.02(b) and then to the reduction of the principal
balance of sums due and payable by the City under Section
2.02(a) .
(c) Credits for payments on Bank Bonds. Amounts
received by the Bank as payment of principal of and/or interest
on Bank Bonds purchased pursuant to Section 3..03 shall be
credited against the {~} payments due under Sections 2.02(a) (2),
2.02(a) (3) and 2.02(b) with respect to the Purchase {^} Drafts
honored by the Bank to purchase such Bank Bonds.
(d) ~Commitment Fees. On {^} March 15, 1995 and
quarterly on each March 15, June 15, September 15 and December 15
thereafter so long as any credit remains available to the Fiscal
Agent under the Letter of Credit and on the date of termination
of the Letter of Credit, the City shall pay to the Bank a Letter
of Credit commitment fee computed at the rate of 52 baSis points
(0.52%) per annum on the average daily Letter of Credit Amount
during the preceding quarterly period (or portion thereof in the
case of the first such payment and in the case of a termination
of the Letter of Credit on a day other than a March 15, June 15,
September 15 or December 15); provided that, for purposes of
computing 'such average daily Letter of Credit Amount, there shall
be added to the Letter of Credit Amount for each day the
aggregate amount of any Interest Drafts or Purchase Drafts
theretofore honored by the Bank in respect of which the Bank may
thereafter be required to reinstate the Letter of Credit pursuant
to the terms thereof. Computations of Letter'of Credit
'~ 03~69 · 00R [PF) 9
commitment fees under this Section shall be for the actual number
of days in the applicable period,.based on a 360-day year. {^}
In the event of a termination of the Letter of Credit prior to
{^} December 15, {^} 1996 as a result of optional redemptions of
Bonds, the delivery of an Alternate Letter of Credit or the
conversion of all of the Outstanding Bonds to Fixed Rate Bonds,
the City shall also pay to the Bank on the date of such
termination a premium fee {^} ~f $50,000; provided that no such
premium shall become due and payable if such optional redemption~
delivery of an Alternate Letter of Credit or conversion to Fixe~
Rate Bonds has been implemented .by the City as a result of
additional amounts becominq due pursuant to Section 2.02(f).
(e) Transaction and Transfer Charqes. The City
shall pay to the Bank, all reasonable transaction charges that
the Bank may make for drawings under the Letter of Credit (as of
the date hereof, the transaction charge for each such drawing
shall be $150). Such transaction charges shall be payable upon
submission to the City by the Bank of the Bank's bill therefor.
In addition, the City shall pay to the Bank on demand any and all
reasonable charges and expenses which the Bank may pay or incur
relative to the Letter of Credit.- The City shall pay to the Bank
upon each transfer of the Letter of Credit in accordance with its
terms to a successor Fiscal Agent a transfer fee equal to $1,000,
together with any'and all reasonable costs and expenses of the
Bank incurred in connection with such transfer.
(f) Increased Costs. If after the date of this
Agreement any enactment, promulgation or adoption of or change in
any applicable foreign or domestic law, regulation or rule or in
the interpretation or administration thereof by any court,
administrative or governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank or any
Participating Bank (or any controlling affiliate) with any
guideline, request or directive issued after the date hereof
(whether or not having the force of law) of any such authority,
central bank or comparable agency, shall either (i) impose,
modify or deem applicable any reserve, special deposit, insurance
assessment or similar requirement (including.without limitation a
guideline, request or directive which affects the manner in which
the Bank or any Participating Bank allocates capital resources to
its commitments and/or risks, including its obligations and/or
risks under this Agreement, the Letter of Credit, any Bank Bonds
or any Participation Agreement), (ii) affect the amount of
capital required or %xpected to be maintained by the Bank or any
Participating Bank (or any controlling affiliate), (iii) subject
the Bank or any Participating Bank (or any controlling affiliate)
to any tax,~ levy, impost, duty, deduction, withholding or other
charge or change the basis of taxation of the Bank or any
Participating Bank (or.her than a change in a rate of tax based on
103669.002(PF)
overall net income of the Bank or such Participating Bank), or
(iv) impose on the Bank or any Participating Bank any other
condition regarding this Agreement, the Letter of Credit, any
Bank Bonds or any Participation Agreement, and the result of any
event referred to in clause (i), (ii), (iii) or (iv) of this
sentence shall be to increase the direct or indirect cost to the
Bank or any Participating Bank of issuing or maintaining the
Letter of Credit'or the obligations and/or risks of the Bank or
any Participating Bank'under this Agreement, any Bank Bonds or
any Participation Agreement or to reduce the amoun'ts receivable ~.~
by the-Bank or any Participating Bank hereunder, under any Bank
Bonds or under any Participation Agreement or to reduce the rate
of return on the capital of the Bank or any Participating Bank in
connection with this Agreement, any Bank Bonds or any
Participation Agreement (which increase in cost, reduction in
amounts receivable or reduction in rate of return shall be
determined by the Bank's or the Participating Bank's reasonable
allocation of such cost increase, reduction in amounts receivable
or reduction in rate of return resulting from such event), then
within {^} 30 days after demand by the Bank (on behalf of itself
or any Participating Bank), the City shall pay to the Bank or the
applicable Participating Bank, from time to time as specified by ....
the Bank or the applicable Participating Bank, additional amounts
that in the aggregate shall be sufficient to compensate the Bank
or such Participating Bank for such increased cost, reduction in
amounts receivable or reduction in rate of return. A certificate
as to such increased cost, reduction in amounts receivable by the
Bank or any Participating Bank or reduction in rate of return
submitted by the Bank or the applicable Participating Bank to the
City containing~ an explanation of such increased cost, reduction
in amounts receivable or reduction in rate of return and the
manner of calculation thereof shall, in absence of manifest
error, be conclusive and binding for all purposes. Any amounts
paid by the City to the Bank pursuant to this. Section 2.02(f) or
Section 2.02(q) which are subsequently recovered by the Bank, os
with respect to which the Bank is reimbursed, from any taxing or
other goverrk~ental a~ency shall be repaid to the City by the Bank
within 30 days after the officers of the Bank responsible for
a~inisterinq this AGre,~ent acquire actual knowledge of such
recovery or reimbursement.
(g) No Deductions. The City shall not deduct or
withhold Taxes (as defined below) from~payments required to be
made under-this Agreement or any Bank Bonds if and to the extent
that, pursuant to applicable provisions of an income tax treaty
between the United States and the country under the laws of which
the Bank is organized, the Code or any other applicable law, the
City is permitted to make such payments free of any such
deduction or withholding. The Bank shall provide the City with
the form prescribed by the Internal Revenue Service certifying ~
the exemption of the Bank under current law from United States
oo2 cPF) 11
withholding taxes with respect to all payments made by the City
under this Agreement. Except as set forth above in this Section,
all payments by the City to the Bank under this Agreement or any
Bank Bonds shall be made free and clear of and without deduction
for any present or future taxes or other amounts for or on
account of levies, imposts, duties, deductions, withholdings or
other charges of whatsoever nature (including, without
Iimitation, interest, additions to tax and penalties thereon),
imposed, levied, collected, withheld or assessed by any
governmental 'authority (excluding any taxes based on income of
the Bank and excluding franchise and similar taxes imposed by the
jurisdiction under which it is organized or in which the Bank's
office at the address set forth in Section 8.01 is located or any
political subdivision thereof) (collectively, "Taxes"'). If the
City shall be required to withhold or deduct Taxes from any sum
payable to the Bank hereunder or under any Bank Bonds, (i) the
sum payable to the Bank shall be increased as may be necessary so
that the Bank receives an amount equal to the sum it would have
received had no such withholdings or deductions been made, (ii)
the City shall make such necessary withholdings and deductions,
and (iii) the City shall pay the full amount withheld or deducted
to the relevant authority according to applicable law so that the
Bank shall not be required to make any deduction or payment'of
such Taxes.
(h) General Interest Accrual. Except as
otherwise provided in Section 2.02(b), all payments to the Bank
under this Agreement (including without limitation all payments
becoming due under Sections 2.02(d), (e), (f) and (g)) shall be
accompanied by interest thereon, from the date such payments
become due until they are paid in full, at a fluctuating rate per
annum (computed for the actual number of days elapsed, based on a
360-day year) equal to the Base Rate until {^} December 1, 1998,
and thereafter the Base Rate plus 1%; provided that if any amount
is not paid within 10 days of the date such amount is due and
payable to the Bank pursuant to this Agreement, then all amounts
payable pursuant to this Agreement shall thereafter bear interest
at a fluctuating rate per annum (computed for the actual number
of days elapsed; based on a 360-day year) equal to the Base Rate
plus 2% until' all amounts due and payable pursuant to this
Agreement have been paid in full.
(i) Place and Manner of Payment. Ail payments by
the City to the Bank under this Agreement shall be made in lawful
currency of the United States by wire transfer to the Bank's
account with Bank of New York, New York, New York, ABA No.
021000018, Account No. 820301568, in favor of Kredietbank N.V.,
New York Branch, 155 West 55th Street, New York, New York 10019,
Reference City of Tustin, California, Attention: Lynda Resuma
(212) 541-0657. All pa]zments under Sections 2.02(a), (b), (c),
(d), (e) and (f) shall be made in immediately available funds as
103669. 002 (PF)
aforesaid or as the Bank may otherwise stipulate by written
·
notice to the City.
Section 2.03. Transfer; Reduction; Reinstatement.
(a) Transfer. The Letter of Credit may be
transferred to a successor Fiscal Agent in accordance with .the
provisions set forth in paragraph 9 of the Letter of Credit.
(b) Reduction. The Letter of Credit Amount and ~..
the Principal Component and Interest Component thereof shall be
automatically reduced as specified in paragraph 5 of the Letter
of Credit. With respect to any reduction of the Letter of Credit
Amount pursuant to the terms of the Letter of Credit as. a result
of Bonds being converted to Fixed Rate Bonds or ceasing' to be
Outstanding, the Bank shall have the right, at its option, to
require the Fiscal Agent to promptly surrender the outstanding
Letter of Credit to the Bank and to accept in substitution
therefor a substitute letter of credit in the form of Exhibit A
attached hereto, appropriately completed and dated the date of
such substitution, for an amount equal to the Letter of Credit
Amount as so reduced, but otherwise having terms identical to the
outstanding Letter of Credit.
(c) Reinstatement. In the event of a drawing
under the Letter of Credit with an Interest Draft, the Interest
Component of the'Letter of Credit Amount shall, as provided in
paragraph 6 of the Letter of Credit and subject to the conditions
therein set forth, be automatically reinstated by an amount equal
to the amount of such drawing. In the event of a drawing under ..
the Letter of Credit with a Purchase Draft, the Principal
Component and the Interest Component of the Letter of Credit
Amount shall, as provided in paragraph 7 of the Letter of Credit,
be reinstated with respect to such drawing (1) when and to the
extent that (i) the Bank has received immediately available funds
for application to the City's reimbursement obligation under
Section 2.02(a) for such drawing and (ii) the Fiscal Agent has
delivered a certificate to the Bank in respect of such
reinstatement in the form required by paragraph 7 of the Letter
of Credit, or (2) when and to the extent the Bank, at its option,
upon the City's request, advises the Fiscal Agent in writing that
such reinstatement shall occur, it being understood that the Bank
shall have no obligation to grant any such reinstatement except
as set forth in clause (1) of this sentence.
Section 2.04. Obliqations Absolute. The obligations
of the City under this Article shall be absolute, unconditional
and irrevocable, shall be performed strictly in accordance with
the terms of this Agreement, under all circumstances whatsoever,
including without limitation the following circumstances: (i)
any lack of validity or enforceability of the Letter of Credit,
the Bond Documents or any other agreement or document relating
thereto; (ii) any amendment or waiver of or any consent to or
departure from the Letter of Credit, the Bond Documents or any
document relating thereto; (iii) the existence of any claim,
set-off, defense or other right which the City may have at any
time against the Fiscal Agent (or any Person for whom the Fiscal
Agent may be acting), the Paying Agent (or any Person for whom
the Paying Agent may be acting), the Remarketing Agent, the Bank,
.any Par~ticipating Bank or any other Person, whether in connection
with this Agreement, the transactions described herein or any
unrelated transaction; or (iv) any of the circumstances
contemplated in clauses (1) through (7) , inclusive, of Section
2.06(a) .
Section 2.05. Indemnification. In addition to any and
all rights of reimbursement, indemnification, 'subrogation or any
other rights pursuant hereto or under law or equity, to the
fullest extent permitted by applicable law, but subject to the
limitations set forth in Section 8.14, the City hereby
indemnifies and holds harmless the Bank and the Participating
Banks (and their directors, officers, employees and agents) from
and against any and all claims, damages, losses, liabilities,
costs or expenses (including reasonable attorneys' fees for
Counsel of the Bank's or the applicable Participating Bank's
choice) whatsoever which the Bank or any Participating Bank may
incur (or which may be claimed against the Bank or any
Participating Bank by any Person whatsoever) by reason of or in
connection with (a) the issuance or a transfer of, or payment or
failure to pay under, the Letter of Credit, (b) any breach by the
City of any representation, warranty, covenant, term or condition
in, or the occurrence of any default by the City under this
Agreement or the Bond Documents, including all reasonable fees or
expenses resulting from the settlement or defense of any claims
or liabilities arising as a result of any such breach or default,
(c) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in any
Offering Document or the omission or alleged omission to state in
any Offering Document a material fact necessary to make such
statements, in the light of the circumstances under which they
are or were made, not misleading, (d) the remarketing of the
Bonds, (e) the use of the proceeds of the Bonds, and (f)
involvement of the Bank or any Participating Bank in any legal
suit, investigation, proceeding, inquiry or action as a
consequence, direct or indirect, of the Bank's issuance of the
Letter of Credit, its entering into this Agreement or action
taken thereunder or under any of the Bond Documents, or any other
event or transaction in connection with or.contemplated by any of
the foregoing; provided the City shall not be required to
indemnify the Bank or.any Participating Bank for any claims,
damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (i) the willful misconduct or
002 (pF) 14
gross negligence of the Bank in determining whether documents
presented under the Letter of Credit complied with the terms of
the Letter of Credit.or (ii) the Bank's willful failure to pay
Under the Letter of Credit after the presentation to it by the
Fiscal Agent of a draft and c£rtificate strictly complying with
the terms and conditions of the Letter of Credit, unless the Bank
in good faith believes that it is prohibited by law or other
legal authority from making such payment, or (iii) any untrue
Statement of a material fact contained in or incorporated by
reference, in any description of the'Bank furnished by the Bank
for inclusion in an Offering Document or any omission to state in.
any such description of the Bank a material fact necessary to
make such statements, in light of the circumstances under which
they were made, not misleading. Nothing in this Section is
intended to limit the City's reimbursement and interest payment
obligations contained in Sections 2.02(a) and 2.02 (b). The
obligations of the City under this Section shall survive the
termination of this Agreement.
Section 2.06. Liability of Bank.
(a) As between the City and the Bank, the City
assumes all risks of the acts or omissions of the Fiscal Agent
with respect to the Fiscal Agent's use of the Letter of Credit.
Neither the Bank nor any of its officers or directors shall be
liable or responsible for: (1) the use which may be made by the
Fiscal Agent of the Letter of Credit or for any acts or omissions-
of the Fiscal Agent or the Paying Agent in connection therewith;
(2) the form, validity, sufficiency, accuracy or genuineness of
any documents (including without limitation any documents
presented under the Letter of Credit), or of any statement
therein or endorsement thereon, even if any such documents,
statements or endorsements should in fact prove to be in any or
all respects invalid, insufficient, fraudulent, forged,
inaccUrate or untrue; (3) the payment by the Bank against
presentation of documents which do not comply with the terms of
the Letter of Credit, including failure of any documents to bear
any reference or adequate reference to the Letter of Credit; or
any other failure by the Fiscal Agent to comply fully with
conditions required in order to effect a drawing under the Letter
of Credit; (4) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign the
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (5) errors, omissions, interruptions,
losses or delays in transmission or delivery of any messages by
mail, cable, telegraph, telex, telephone or otherwise; (6) any ·
loss or delay in the transmission or otherwise of any document or
draft required in order to make a drawing under the Letter of
Credit; or (7) any other circumstances whatsoever in making or
failing to make payment under the Letter of Credit; except only -~
that the City shall have a claim against the Bank, and the Bank
103669.002 (PF) 15
shall be liable to the City, to the extent, but only to the
extent, of any direct, as opposed to special, exemplary,
consequential or punitive, damages suffered by the City which the
City proves were caused by (i) the willful misconduct or gross
negligence of the Bank in determining whether documents presented
under the Letter of Credit complied with the terms of .the Letter
of Credit or (ii) the Bank's willful failure to pay under the
Letter of Credit after the presentation to it by the Fiscal Agent
of a draft and certificate strictly complying with the terms and
conditions of the Letter of Credit, unless the Bank in good faith
believes that it is prohibited by law or other legal authority
from making such payment. In furtherance and not in limitation
of the foregoing, the Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary; provided that if the Bank shall receive timely written
notification from the Fiscal Agent that documents conforming to
the terms of the Letter of Credit presented to the Bank are not
to be honored, the Bank agrees that it will not honor such
documents.
(b) Except for the Bank's obligations under the
Letter of Credit, the Bank shall have no liability Do the City or
any other Person as a result of any reduction of the credit
rating of the Bank or any deterioration in the Bank's financial
condition. No reductiOn of the Bank's credit rating or
deterioration in the Bank's financial condition shall reduce or
in any way diminish the obligations of the City to the Bank under
this Agreement, including without limitation the City's
obligations to pay Letter of Credit commitment fees to the Bank
and to reimburse the Bank, with interest, for drawings under the
Letter of Credit.
ARTICLE III
SECURITY; BANK BONDS
Section 3.01. Security and Subroqation Under Bond
Documents. The City and the Bank intend that (i) the obligations
of the City under this Agreement shall have the benefit and
security of the Fiscal Agent Agreement, as provided in the Fiscal
Agent Agreement, and (ii) in the event of one or more draws under
the Letter of Credit and the application of the proceeds thereof
to the payment of principal of and/or interest on Variable Rate
Bonds, the Bank will be subrogated pro tanto to the rights of the
Fiscal Agent and the holders of the Variable Rate Bonds in and to
all funds and security held by the Fiscal Agent under the Fiscal
Agent Agreement for the payment of the principal of and interest
on the Variable Rate Bonds, including without limitation all
103669 . 002 (PF)
Reassessments and an¥..and all bond proceeds funds, escrow funds,
revenue funds, debt service {^:}~ funds and redemption funds and
securities and other instruments comprising investments thereof
pledged or held as security for the payment of Variable Rate
Bonds. In addition, the Bank shall'have any and all other
subrogation rights available to the Bank at law or in equity.
Section 3.02. Security. The pledge and security
interest granted for the benefit of the Bank pursuant to the
Fiscal Agent Agreement is hereby incorporated herein by this
reference, and shall extend to and secure all obligations of the
city to the Bank hereunder, notwithstanding any termination or
discharge of the Fiscal Agent Agreement and shall survive until
all~ sums owing hereunder are paid in full.
Section 3.03. Purchase of Bank Bonds. Upon the funding
of each Purchase Draft preSented under the Letter of ~Credit, the
Bank shall be deemed to have purchased the Unremarketed Tendered
Bonds purchased with the proceeds of such Purchase Draft, and
such Bonds shall thereupon be "Bank Bonds" owned by the Bank
evidencing and securing the obligations of the City under Section
2.02(a) (2) and (3) and Section 2.02(b) to reimburse the Bank,
with interest, for the amount drawn under the Letter of Credit by
such Purchase Draft. The Bank Bonds shall be registered in the
name of the Bank and shall be held in trust by the Paying Agent
for the benefit of the Bank (or, if such Bonds are registered to
The Depository Trust Company or its successor as security
depository for such Bonds, registered to the beneficial ownership
of the Bank on the internal records of the Remarketing Agent, the
Paying Agent and/or another participant of The Depository Trust
Company satisfactory to the Bank) as provided in Section 5.03(c)-
of the Fiscal Agent Agreement; provided that, in the case of any
such Bonds held by the Paying Agent in certificated form, upon
the written request of the Bank, such Bonds shall be promptly
delivered by the Paying Agent to the Bank or its designee.
Section 3.04. ~^} Remarket~ng of Bank Bonds. The Bank
hereby authorizes the Remarketing Agent to remarker Bonds
purchased by the Bank pursuant to Section 3.03 on behalf of the
Bank (or other Bank Bondholder) pursuant to Section 5.03 of the
Fiscal Agent Agreement at a price equal to the principal amount
of such Bonds plus accrued interest; provided that the
Remarketinq Agent shall not rem&rket Bonds purchased at the
direction of the Bank given pursuant to Section 7.02(b) . Prior
to 11:00 a.m. on any Business Day on which Bank Bonds are
Outstanding, the Remarketing Agent may deliver a notice (the
"Remarketing Notice") to the Bank {^} and the Paying Agent ~.
stating that it has located a purchaser (the "Purchaser") for
some or all of such Bonds and that such Purchaser desires to
purchase on such Business Day a minimum of $100,000 of such Bonds
or any multiple of $5,000 in excess thereof (provided that the
103669. 002 {PF) 17
aggregate principal amount of any Bank Bonds not being purchased
on .such Business Day shall be in an Authorized Denomination) at a
price of par plus interest accrued to but excluding such Business
Day.~^~ The Bank ~^~ shall {^~ sell any remarketed Bank Bonds to
any Purchaser and shall ~^} deliver such Bonds to the Payinq
~gent (if held by the Bank in certificated form) and authorize
the Paying Agent to deliver such Bonds to or for the benefit of
the Purchaser (or, if such Bonds are registered to The Depository
Trust Company or its successor as security depository for such
Bonds, authorize the Paying Agent and the Remarketing Agent to
cause the transfer of the beneficial ownership of such Bonds to
the Purchaser) on such Business Day against receipt of the
purchase price therefor in immediately available funds paid to
the Bank ~^~. Any sale of a Bank Bond (or portion thereof)
pursuant to this Section shall be without recourse to the Bank
{^} and without representation or warranty of any kind, except as.
required by law.
Section 3.05. No Interest Accrual on Bank Bonds.
Bank Bonds shall not bear interest while they are Bank Bonds;
however, unpaid accrued interest on Bonds as of the date they
become Bank Bonds in respect of which purchase price was paid to
the. seller of such Bonds from amounts drawn on the Letter of
Credit shall be paid to the Bank if it is the record holder of
such Bonds as of the record date for the payment of such
interest. In addition, the amounts drawn with one or more
Purchase Drafts to pay the purchase price of Bonds correspondinq
to principal of or interest on such Bonds shall bear interest as
provided in Section 2.02(b), which shall be Dayable as provided
in such Section.
Section 3.06. Term Repayment of Bank Bonds. If any
Bank Bonds are purchased and held by the Bank more than 60 days,
then the outstanding principal of such Bank Bonds shall be
payable in full in mandatory sinking fund redemption installments
over a term of approximately seven years in 82 approximately
equal monthly mandatory sinking fund redemption installments,
commencin9 on the first 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 installment^~ayment date the entire outstanding
principal balance of { } such Bank Bonds shall be due and payable
in full~ provided that (i) each mandatory sinking fund redemption
installment of principal of the Bank Bonds shall be adjusted to
an integral multiple of {^} $5,000, (ii) the final mandatory
sinkinq fund redemption installment shall in the principal amount
of $100,000 or an inteqral multiple of $5,000 in excess of
$100,000, and (iii) such mandatory sinkinq fund redemption
installments shall otherwise be scheduled in the Bank's
~03669.0o2 cPF) 18
discretion to provide approximately level aggregate monthly
principal payments during the coUrse!~of such seven-year term.
Section 3.07. Bank Bond Payments. Ail payments to the
Bank on Bank Bonds shall be made by wire transfer to the Bank's
account with Bank of New York, New York, New York, ABA No.
021000018, Account No. 8023015618 in favor of Kredietbank N.V.,
New York Branch, Reference City of Tustin, California, Attention:
Lynda Resuma (212) 541-0657, in lawful money of the United States
of America and in funds immediately available on or prior to 3:00
p.m. on the date'such payment is due. Any such payments received
after 3:00 p.m. on any day will be deemed to have been received
on the'next succeeding Business Day. If any payment on a Bank
Bond becomes due and payable on a day other than a Business Day,
unless sooner paid such payment shall be extended to the next
succeeding.Business Day and interest thereon shall be payable at
the then applicable rate during such extension.
ARTICLE IV
CONDITIONS PRECEDENT
Each of the following are conditions precedent to the
Bank's issuance of the Letter of Credit:
Section. 4.01. Documentation. The Bank shall have'
received each of the following in form and substance satisfactory
to the Bank:
(a) Executed copies of this Agreement, the Fiscal
Agent Agreement, the Bond Purchase Contract', the Remarketing
Agreement and the Protocol Agreement and all documentation
delivered in connection therewith;
(b) Certified copies of all proceedings taken by
the City authorizin9 the formation of the Reassessment District,
the levy of the Reassessments, the issuance of the Bonds, the
refunding of the Prior Bonds and the execution, delivery and
performance of this Agreement and the Bond Documents;
(c) A certificate of an Authorized Representative
of the City as of the Closing Date Stating that (i) the
representations and warranties contained in Article V are true
and correct and (ii) no Default or Event of Default has occurred
and is continuing;
(d) A certificate of an authorized representative
of {^} TIC as of'the Closing Date stating that (i) the
representations and warranties of {^} TIC contained in ~the
103669 · 002
19
Protocol Agreement are true and correct and (ii) covering such
matters with respect to the Reassessment District as the Bank may
reasonably request;
(e) An opinion of the City Attorney to the City
to the effect that (1) the City is a duly created and validly
existing municipal corporation under the Constitution and laws of.
the State, constituting a general law city ~^} of the State with
all requisite power and authority to execute, deliver and perform
its obligations under this Agreement and the Bond Documents, (2)
except as set forth in such opinion, the City has obtained from
the governmental authorities, boards, agencies, courts, officers
and commissions having jurisdiction over it all approvals,
consents, authorizations, certifications, reviews and other
orders that are necessary for the execution, delivery and
performance by the City of this Agreement and the Bond Documents,
(3) the execution and delivery by the City of this Agreement and
the Bond Documents have been duly authorized by all requisite
action of the City Council of the City and all conditions
precedent to the execution and ~delivery by the City of this
Agreement and the Bond Documents have been fulfilled, (4) this
Agreement and the Bond Documents have been duly executed and
delivered by'the City and constitute legal, valid and binding
obligations of the City enforceable against the City in
accordance with their terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency or other laws affecting the rights of creditors
generally and by the application of general principles of equity,
(5).the execution, delivery and performance by the City of this
Agreement and the Bond Documents will not violate, conflict with
or constitute a default under any law, rule, regulation, order or
judgment applicable to the City, (6) to the best knowledge of
such counsel, the City is not in any material way in breach of or
in default under this Agreement or the Bond Documents, and no
event has occurred and is continuing which, with the passage of
time or the giving of notice or both, would constitute an event
of default under any such instrument or contract, and (7) there
is no pending or, to the best knowledge of such counsel,
threatened action, suit, proceeding, inquiry or investigation
before or by any court, governmental agency or arbitrator against
or involving the City or the Reassessment District which, in any
case, might materially adversely affect the validity or
enforceability of this Agreement or the Bond Documents;
(f) Opinions of Jones, Hall, Hill & White, San
Francisco, California, Bond Counsel, covering such matters as to
the City and the Bond Documents as the Bank may reasonably
request;
(g) An opinion of Stradling, Yocca, Carlson &
Rauth, Newport Beach, California, counsel to Irvine, with respect
~03669. oo2 (P~) 2 0
tO the Protocol Agreement and covering such other matters as to
Irvine as the Bank may reasonably~request;
(h) {^} An appraisal report of{^}
, (1) setting forth, for each parcel (or related ~roup of
~ of land in the Reassessment District, (i) the owner,,
acreage, assessed valuation and fair market value thereof, (ii)
the Reassessment thereon, (iii) the amount and nature of any
overlapping assessment thereon, and (iv) if improved, a
description of the improvements thereon, and (2) showing that,
for each parcel (or related ~roup of parcels) 'in the Reassessment
District, the ratio of the {^} fair market value~^) to the sum of
the Reassessment and any overlapping assessments thereon is at
least 2 to 1; and
(i) Such other documents, instruments,
certificates, opinions, approvals and assurances customary in
this type of financing' as the Bank or its counsel may reasonably
request.
Section 4.02. Other Conditions. On the Closing Date,
(i) the representations and warranties set forth in Article V and
in any and all documents delivered to the Bank in connection
herewith shall be true and correct in all material respects and
(ii) no Default or Event of Default shall have occurring and be
continuing.
Section 4.03. Issuance of Fixed Rate 95-1 Bonds. On
the Closing Date, the Fixed Rate 95-1 Bonds shall have been duly
and~validly issued, and the proceeds thereof shall have been
applied to refund all of the Prior Fixed Rate Bonds.
Section 4.04. Defeasance of Prior BOnds. On the
Closing Date, provisions shall have been made for the payment in
full of the Prior Bonds, and all assessments on parcels of land
in the Prior Assessment Districts securing the Prior Bonds shall
have been {^} superseded and supplemented, all in form and
substance satisfactory to the Bank.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The City represents and warrants as follows:
Section 5.01. Existence. The City is a municipal
corporation, constituting a general law city and a political
subdivision of the State, duly Organized, validly existing {^}
under and by virtue of the Constitution and laws of the State.
~03669.002 (PF) 21
Section 5.02. Power and Authorization. The City has
all requisite power and authority (i) to 'execute, deliver and
perform its obligations under this Agreement and the Bond
Documents and (ii) to issue and sell the Bonds in the manner and
for the purposes contemplated by the Fiscal Agent Agreement and
this Agreement. The City has taken all necessary action to form
the Reassessment District, to levy the Reassessments, to
authorize the.issuance and sale of the Bonds and to authorize the
execution, delivery and performance of this Agreement and the
Bond Documents. The City is duly authorized pursuant to the Act
to pledge and assign the Reassessments and other asset~ purported
to be pledged and assigned under the Fiscal Agent Agreement in
the manner and to the extent provided in the Fiscal Agent
Agreement. The City and the Fiscal Agent (subject to the
provisions of Article VIII of the Fiscal Agent Agreement) shall
at all times, to the extent permitted by law, 'defend, .preserve
and protect such pledge and assignment of Reassessments and other
assets and all the rights of the owners of the Bonds under the
Fiscal Agent Agreement, and the Bank under the Fiscal Agent
Agreement and this Agreement, against all claims and demands of
all Persons whomsoever.
Section 5.03. No Legal Bar. The City is not in
default under any of the provisions of the laws of the State
which would affect its existence or its powers referred to in
Section 5.02. The formation of the Reassessment District, the
levy of the Reassessments, the execution, delivery and
performance by the City of this Agreement, the issuance and'the
sale of the Bonds in the manner and for the purposes contemplated
by this Agreement and the Fiscal Agent Agreement, and the
execution, delivery and performance by the City of all other Bond
Documents do not and will not constitute a default under, or
violate or conflict with, any provision of any applicable law or
regulation or of any order, writ, judgment or decree of any
court, arbitrator or governmental authority, or any contract to
which the City is a party or is bound or to which the
Reassessment District is subject.
Section 5.04. Consents. The City has obtained all
consents, permits, licenses and approvals of, and has made all
registrations and declarations with, any governmental
authorities, legislative bodies, boards, agencies or commissions
required under law which would constitute conditions precedent to
the formation of the Reassessment District, the levy of the
Reassessments, the authorization, issuance or sale of the Bonds
(except as may be required under the Blue Sky or securities laws
of any state) or the execution and delivery of this Agreement,
the Fiscal Agent Agreement or any other Bond Document or the
absence of which would materially adversely affect the
performance by the City of its obligations under this Agreement,
the Fiscal Agent Agreement and the other Bond Documents.
oo2 (PF) 22
Section 5.05. Litiqation. Except as disclosed in the
official Statement, there is no. action, suit, inquiry,
investigation or proceeding to which the City is a party at law
or in equity, before or by any court, government agency, public
board or body and which is pending or, to the best knowledge of
the City, threatened, affecting the {C~ existence of the City or
the titles of its representatives to their respective offices, or
affecting or seeking to prohibit, restrain or enjoin the
execution or delivery of this Agreement or in any way contesting
or affecting the validity or enforceability of this Agreement or
any of the Bond Documents, or contesting the exclusion from gross
income for federal income tax purposes of interest on the Bonds,
or contesting the powers of the City, in connection with any of
the transactions contemplated by this Agreement, the Fiscal Agent
Agreement and the other Bond Documents, the result of which
could, if decided adversely to the City, have a materially
adverse effect on the City's ability to perform its obligations
under this Agreement and the Bond Documents.
.Section 5.06. Enforceability. This Agreement, the
Fiscal Agent Agreement, the Bond Purchase Agreement, the
Remarketing Agreement and the Protocol Agreement have each been
duly executed and delivered by the City and constitute, and, when
executed by the City and authenticated (where required) and
delivered by the Fiscal Agent, the Bonds will constitute, legal,
valid and binding obligations of the City, enforceable against
the City in accordance with its terms (except as such
enforceability may be limited by bankruptcy, moratorium or other
similar laws affecting creditors' rights.generally and provided
that'the application of equitable remedies is subject to the
application of equitable principles).
Section 5.07. Chanqes in Law. There is not pending
any change of law which, if enacted or adopted, could have a
material adverse effect on the City's ability to perform its
obligations under this Agreement or any of the Bond Documents.
Section 5.08. Disclosure of Information. The
information relating to the City contained in the Official
Statement and supplied in writing by the City for inclusion~
therein, including any exhibits, appendices or attachments
thereto, as such statements may be amended or supplemented from
time to time, is true and correct and does not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
Section 5.09. Reassessment District, Liens and
Installments. The Reassessment District is duly formed and
validly existing,~ and the Reassessments have been duly and
validly levied on all parcels of land in the Reassessment
103669.002 {PF) 23
District. The Variable Rate Bonds and the obligations owing to
the Bank pursuant to this Agreement, the Fiscal Agent Agreement
and any Bank Bonds purchased by the Bank from time to time are
and will be secured by a pledge under the Fiscal Agent Agreement
of valid and enforceable liens for the Reassessments (the
"Variable Rate Bond Reassessments'') upon the parcels of la~d
within the Reassessment District other than any such parcels
which have been designated by the City pursuant to the Fiscal
Agent Agreement as parcels on which the Reassessments. shall
secure Fixed Rate Bonds. The Variable Rate Bond Reassessments
constitute first liens ~^} against such parcels (including all
present and future improvements thereon comprising part of such
parcels) coequal with the liens securing real. property taxes
thereon. The Fiscal Agent Agreement validly and enforceably
pledges, in Section 6.01 thereof, the Variable Rate Bond
Reassessments to the payment of all amounts due under the
Variable Rate Bonds and this Agreement and such pledge
constitutes a first lien and charge against such Reassessments.
Section 5.10. Reassessment District 95-1.
Reassessment District 95-1 has been duly formed and is validly
existing~'~and ~the' Fixed Rate 95-1 Bonds are secured solely by
liens upon the parcels of land in Reassessment District 95-1.
None of the parcels of land in the Reassessment District are
subject to liens for reassessments securing the Fixed Rate 95-1
Bonds.
Section 5.11. Representations in Other Documents. The
City hereby makes to and for the benefit of the Bank each of the
representations and warranties of the City contained in the Bond
Documents and the other documents delivered by the City in
connection therewith, and each such representation and warranty
shall be deemed to be reaffirmed by the City at the time of each
draw on the Letter of Credit.
ARTICLE VI
GENERAL COVENANTS
So long as any amount is available under the Letter of
Credit, the Letter of Credit has not been terminated 'as provided
by its terms or any amount is owing to the Bank hereunder or
under any Bond Document, the City covenants that, except to the
extent the Bank shall otherwise consent in writing, each of the
following covenants shall be performed and complied with bY the
City:
Section 6.01. Maintenance of Existence. The City will
maintain its existence as a municipal corporation constituting a
~03669.002 (PF) 2 4
general law city ~^~ of the State ~^} under the Constitution and
laws of the State.
Section 6.02. Compliance with this Aqreement and ~^~
Bond Documents. The City will observe and perform each term,
covenant, condition and agreement on its part to be performed or
observed under this Agreement and the Bond Documents.
Section 6.03. Laws, Permits and Obliqations. The City'
Will comply with all valid acts, rules, regulations, orders and
directions of any 'legislative, executive, administrative or
judicial body applicable to this Agreement or any of the Bond
Documents, violations of which could have a material adverse
effect on the rights of the Bank or the Fiscal Agent under this
Agreement or any of the Bond Documents or the City's ability to
perform its obligations under this Agreement or any of the Bond
Documents.
Section 6.04. Use of Proceeds. The City will use or
cause to be used the proceeds of the sale of the Bonds to refund
the Prior Variable Rate Bonds in accordance with the provisions
of the Fiscal Agent Agreement and the documents governing the~
Prior Bonds and in accordance with the statements pertaining
thereto in the Official Statement.
Section 6.05. Accountinq Records and Financial
Statements. The City will cause the Fiscal Agent at all times to
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 the Fiscal Agent
Agreement. Such books of record and account shall be available
for inspection by the Bank, during regular business hours and
upon 24 hours notice and under reasonable circumstances as agreed
to by.the Fiscal Agent. The-City will furnish, or cause to be
furnished, to the Bank as soon as available but in no event later
than {^}._. days after the end of each {^} calendar month, a
financial~statement in detail reasonably satisfactory to the Bank
with respect to the Reassessments and the funds, accounts and
subaccounts established under the Fiscal Agent Agreement.
Section 6.06. Visitation and Examination. Except to
the extent prohibited by law, the City will permit any person
designated by the Bank to visit any of the offices of the City to
examine the books and financial records, inclUding without
limitation minutes of meetings at the City Council, and make
copies thereof or extracts therefrom, and to discuss the affairs,
finances and accounts Of the City with its principal officials,
all at such reasonable times and as often as the Bank may
reasonably request, to the extent such information and material
~03669.002 (Pr) 2 5
relate to the transactions contemplated by this Agreement and the
Bond Documents.
Section 6.07. Maintenance of Tax-Exempt Status of {^}
Bonds. The City will not take any action or omit.to take any
action which, if taken or omitted, would adversely affect the
exclusion of interest on the Bonds from gross income for federal
income tax purposes or the exemption of interest on the Bonds
.from State personal income taxes.
Section 6.08. Enforcement of Irvine Agreements. The
City will take such action to enforce the Protocol Agreement and
other agreements of the City with Irvine relating to the
Reassessment District and the parcels of land therein as the Bank
may.reasonably direct.
Section 6.09. Agreement to Market Fixed Rate Bonds.
Prior to any conversion of Bonds to Fixed Rate Bonds, the City
will enter into an agreement with PaineWebber Incorporated or
another national firm reasonably acceptable to the Bank for the
.sale of such Bonds upon conversion to Fixed Rate Bonds on a" {^}
. .
subject to sale" basis; provided that, in the event of a failure
to remarket such Bonds, such conversion shall not take place and
such Bonds shall remain outstanding as Variable Rate Bonds.
· . Section '6.10. Collection and Payment of Reassessments.
The City will collect and deposit with the Fiscal Agent, or cause
the Fiscal Agent to collect, for payment to the Bank when due the
Variable Rate Bond Reassessments either as due or, in the event
of delinquency, byl foreclosure proceedings in accordance with the
Fiscal Agent Agreement.
Section 6.11. Punctual Payment. The City will
punctually pay or cause to be paid the principal and interest
becoming due from time to time in respect of this Agreement and
the Variable Rate Bonds, in strict conformity With the terms of
this Agreement, the Variable Rate Bonds and the Fiscal AGent
Agreement, according to the true intent and meaning thereof, but
only out of the Variable Rate Bond Reassessments and other assets
pledged for such payment as provided in the Fiscal Agent
Agreement and received by the City or the Fiscal Agent.
Section 6.12. No Other Encumbrances. Except for the
pledge and lien created by the Fiscal Agent Agreement, so long as
any of the Variable Rate Bonds are Outstanding or the City has
any obligations under this Agreement, the City will not create,
.or permit to be created or exist, any pledge, lien, charge of
other encumbrance upon the Variable Rate Bond Reassessments, the
funds and accounts established under Fiscal Agent Agreement with
respect to the Variable Rate Bonds or the City's obligations
under this Agreement, or any other assets pledged or assigned
-103669 . 002
under the Fiscal Agent Agreement as security for the Variable
Rate Bonds or the City's obligations under this Agreement.
Section 6.13. Consents Under Bond Documents. The City
will obtain the congent of the Bank whenever the City is required',
to obtain the consent of the Fiscal Agent under the Fiscal Agent
Agreement, unless such consent relates solely to Fixed Rate
Bonds.
Section 6.14. No Chanqe in Bond Documents. The City
shall not'cancel, terminate, amend, supplement, modify or waive
any o'f the provisions of the Fiscal Agent Agreement, the Protocol
Agreement or anyof the other Bond Documents and will not consent
to any such cancellation, termination, amendment, supplement,
modification or waiver, without the prior written consent of the
Bank, unless such consent relates solely to Fixed Rate Bonds and
does not adversely affect the riqhts or interests of the Bank.
Section 6.15. Limitation on Optional Calls. The City
will not exercise its rights under the Bond Documents to call any
Variable Rate Bonds for any optional redemption thereof, unless
the City first demonstrates to the reasonable satisfaction of the
Bank that at the time of such redemption the. Bank will be fully
reimbursed for all drawings on the Letter of Credit in connection
with such redemption.
Section 6.16. Conversions; Limitation. The Fiscal
Agent Agreement and the Protocol Agreement require that {^} in
connection with any sale by Irvine of parcels of land in the
Reassessment District, (a) within nine months of the completion ·
of such sale, Variable Rate Bonds in an amount equal, to or
exceeding the Reassessments on suCh parcels shall be either (i)
converted to Fixed Rate Bonds or (ii) redeemed, and (b) prior to
such conversion or redemption the Reassessments and Continuinq
Costs of the Adjustable Bonds with respect to such parcels shall
be payable by TIC on behalf of the Person purchasinq such parcels
· The City will, as and to the extent permitted by the Act, the
Fiscal Agent Agreement and the Protocol Agreement, exercise its
right to convert Variable Rate Bonds to Fixed Rate Bonds with
respect to any and all parcels of land in the Reassessment
District to be sold by Irvine. The City shall not convert Bonds
to any mode other than the Daily Mode, the Weekly Mode, the
Monthly Mode or the Fixed Rate Mode (as defined in the Fiscal
Agent Agreement).
Section 6.17. Application of Letter of Credit 'Proceeds
· The City will cause the Fiscal Agent and the Paying Agent to
apply the proceeds of any and all drawings under the Letter of
Credit in accordance with the certifications of the Fiscal Agent
contained in the respective Interest Drafts, Purchase Drafts and~
Redemption Drafts.
103669. 002 (PF) 2 7
Section 6.18. Further Assurances. The City'will
execute and deliver from time to time such further instruments
and take such further actions as may be reasonably required by
the Bank to carry out the purposes and provisions of this
Agreement and the Bond Documents and to assure the Bank of its
rights and benefits under this Agreement and the Bond Documents,
including, without limitation, the subrogation and security
rights in favor of the Bank contemplated by Article III.
ARTICLE VII
.
DEFAULTS AND REMEDIES
Section 7.01. Defaults. Each of the following shall
constitute an event of default hereunder ("Event of Default"):
(a) Failure by the City to make or cause to be
made to the Bank when due under this Agreement any payment as
(i) reimbursement for a drawing under the Letter of Credit,
(ii) a Letter'of"Credit'commitment fee, or (iii) interest on any
such drawing or commitment fee;
(b) Failure by the City to make any other payment
to the Bank under this Agreement within 10 days of the date when
it is due;
(c) Default in the payment when due of any
principal of or interest on any Variable Rate Bond (except to the
extent that such failure is solely attributable to a default by
the Bank in payment of a conforming draw request presented under
the Letter of Credit);
(d) Failure by the City to perform or comply with
any of the terms or conditions contained in Section 6.01, 6.04,
6.12, 6.14, 6.15, 6.16 or 6.17;
(e) Failure by the City (or {^} TIC with respect
to the Protocol Agreement) to perform or comply with any of the
other terms or conditions contained in this Agreement or with any
of the terms and conditions contained the Bond Documents and
continuance of such failure for 30 days after the earlier of
written notice from the Bank to the City (and {^} TIC with
respect to the Protocol Agreement), or such longer period to
Which the Bank in its sole discretion may agree in the case of a
failure not curable by the exercise of due diligence within such
30-day period, provided that the City (or {^} TIC with respect to
its obligations under the Protocol Agreement) shall have
commenced to cure such failure within such 30-day period and
103669 · 002 (PF)
shall complete such cure as quickly as reasonably possible with
the exercise of due diligence;
(f) Any of the representations or warranties of
the City or Irvine set forth in this Agreement or the Bond
Documents or in the other document furnished to the Bank pursuant.
.to ~the terms hereof proves to have been false or misleading in
any material respect;
(g) Any material provision of this Agreement or
the Bond Documents shall at any time for any reason cease to be
valid and binding on the City or {^} TIC, as applicable, or shall
be declared to be null and void, or shall be violative of any
applicable law relating to a maximum amount of interest permitted
to be contracted for, charged or received, or the validity or
enforceability thereof shall be contested by the City or ~^~ TIC
or any governmental agency, court or authority, or the City or
{^} TIq, as applicable, shall deny that it has any or further
liability, or obligation under this Agreement or any of the Bond
Documents to which it is a party;
(h) The occurrenCe of an Event of Default as
defined in the Fiscal Agent Agreement (without regard to any
waiver of such Event of Default by any Person other than the
Bank); or
(i) The City or Irvine shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or
custodian or the like of the City or Irvine or of property of the
City or Irvine or (ii) admit in'writing the inability of the City
or Irvine to pay its debts generally as they become due, or (iii).
make a general assignment for the benefit of creditors, or (iv)
be adjudicated a bankrupt or insolvent, or (v) commence a
voluntary case under the United States Bankruptcy Code or file a
voluntary petition or answer seeking reorganization, an
arrangement with creditors or an order for relief or seeking to
take advantage of any insolvency law or file an answer admitting
the material allegations of a petition filed against the City or .
Irvine in any bankruptcy, reorganization or insolvency
proceeding, or take corporate action for the purpose of effecting
any of the foregoing, or (vi) have instituted against it, without
its application, approval or consent, a proceeding in any court
of competent jurisdiction, under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking in
respect of the City or Irvine an order for relief or an
adjudication in bankruptcy, reorganization, dissolution, winding~
up or liquidation, a composition or arrangement with creditors, a
readjustment of debts, the appointment of a trustee, receiver,
liquidator or custodian or the like of the City or Irvine or of
all or any substantial part of the assets of the City or Irvine .
or other like relief in respect thereof under any bankruptcy or
002 {?F) 2 9
insolvency law, and, if such proceeding is being contested by the
City or Irvine in good faith, the same shall (A) result in the
entry of an order for relief or any such adjudication or
appointment or (B) remain undismissed and undischarged for a
period of 60 days.
Section 7.02. Remedies. Upon or after the occurrence
of any EVent of Default, the Bank may, at its sole option and
without prior notice, demand or presentment, and to the extent
permitted by applicable law, do any or all of the following:
(a) Notify the Fiscal Agent that such Event of
Default has occurred and direct the Fiscal Agent in the exercise
of remedies under and pursuant to the Bond Documents;
(b) Direct the Fiscal Agent to call the Variable
Rate Bonds for mandatory purchase pursuant to the Fiscal Agent
Agreement;
(c) By mandamus, suit, action or proceeding,
compel the City and its members, officers, agents and employees
to perform'each and'every term, provision, covenant and agreement
contained in this Agreement, in the Fiscal Agent Agreement and in
the Bonds, and require the carrying out of any or all such terms,
provisions, covenants and agreements of the City and the
fulfillment of all duties imposed upon by it by the Act;
(d) By suit, action or proceeding in equity,
enjoin any acts or things which are unlawful or the violation of
any rights of the Bank or the Fiscal Agent;
(e) By suit, action or proceeding in any court of
competent jurisdiction, require the City and its members,
officers, agents and employees to account as if the City and they
were the trustees of an express trust; and
(f) Exercise, or cause to be exercised, any and
all such remedies as it may have under this Agreement, the Bond
Documents or any other document or at law or in equity.
Section 7.03. Waivers; Consents. No waiver of, or
consent with respect to, any provision of this Agreement or the
Bond Documents by the Bank shall in any event be effective unless
the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
Section 7.04. No Waiver; Remedies Cumulative. No
failure on the part of the Bank to exercise, and no delay in
exercising, any right hereunder or under the Bond Documents shall
operate as a waiver thereof; and no single or partial exercise by
103669.002 (PF) 3 0
the Bank of any right hereunder or under the Bond Documents shall
preclude any other or further exercise thereof or the exercise of
any other right. To the extent permitted by applicable law, the
remedies herein and in the Bond Documents provided are cumulative
and' not exclusive of any remedies available under any other
document or at law or in equity.
Section 7.05. 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
covenahts and agreements contained in this Agreement, the Fiscal
Agent Agreement or 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 7.06. Absolute Obliqation of City. Nothing in
this Agreement, the Fiscal Agent Agreement or the Bonds contained
shall affect or impair the obligation of the City, which is
absolute and unconditional, to pay the City's obligations under
this Agreement and to pay the principal of and interest on any
and all Bank Bonds at their dates of maturity, or upon call for
redemption, as herein and in the Fiscal Agent Agreement 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 rights of the Bank, which are also absolute and
unconditional, to enforce such payment of Bank Bonds by virtue of
the contract embodied therein.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Notices. Ail notices and other
communications provided for hereunder shall be in writing and
sent by United States certified or registered mail, return
receipt requested, or by telegraph, telex, telecopier or private
delivery service, addressed as follows:
If to the Bank:
Kredietbank N.V.
{^} 55 S. Hope Street., Suite 1775
Los Anqeles, CA 90021 {^}
Attention: Roxanne Cheng
Vice President
Telephone: I~1(213) 624-0401
Telecopier: ^ (213) 629-5801
~03669.002 (Pr) 31
with a copy to:
Kredietbank N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Linda Resuma .
Loan Administration
Telephone: (212) 541-0657
Telecopier: (212) 956-5580
If to the City:
City of Tustin
300 Centennial Way
Tustin, CA 92680
Attention: Mr. Ronald Nault
Director of Finance
Telephone: (714) 573-3061
Telecopier: (714) 832-0825
If to Irvine:
The Irvine Company
550 Newport Center Drive
P.O. Box I
Newport Beach, CA 92658-8904
Attention: Daniel Tonini
Vice President
Telephone: (714) 720-2884
Telecopier:. (714) 720-9453
If to 'the Fiscal Agent:
· State Street Bank {^} and Trust
Company of California, N.A., {^} Fiscal Aqent
725 South Figueroa Street, Suite 3100
Los Angeles, CA 90017
Attention: Corporate Trust Department
Scott E. Emmons
Telephone: (213) 362-7369
Telecopier: (213) 362-7357
103669. 002 (PF) 32
If to the Paying Agent:
State Street Bank and Trust
Company of California, N.A.,
Pa¥inq Aqent
New York, NY
Attention:~
Telephone:
Telecopier:
If to the Remarketing Agent:
PaineWebber Incorporated,
Remarketing Agent
1285 Avenue of the Americas, {^} 10 Floor
New York, NY 10019
Attention: {^} Short-Term Desk
Telephone: (212)
Telecopier: (212)
Ail notices to the Bank shall refer to this Agreement and the
Bonds and the number of the Letter of Credit. The Bank, the
City, Irvine, the Fiscal Agent, the Paying Agent or the
Remarketing Agent may change the address to which notices to it
are to be sent by written notice given to the other persons
listed in this Section. All notices shall, when mailed as
aforesaid, be effective on the date indicated on the return
receipt, and all notices given by other means shall be effective
when reCeived. Whenever in this Agreement the giving of notice
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.
Section 8.02. Successors and Assiqns. This Agreement
shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns;
provided that this Agreement shall also inure to the benefit of
the Participating Banks as provided herein.. The City may not
assign its rights under this Agreement without the prior written
consent of the Bank. The City and the Bank intend that, except
as set forth in the first sentence of this Section, no other
person shall have any claim or interest under this Agreement or
right of action hereon or hereunder.
Section 8.03. Survival of Representations, Warranties
and Covenants. All representations, warranties and covenants
'made by the City herein and in any document delivered pursuant
103669.002 (PF) 3 3
hereto shall survive the delivery of this Agreement, the Letter
of Credit and any advances under the Letter of Credit.
Section 8.04. Counterparts. The execution and
delivery hereof by the City and the Bank shall constitute a
contract between them for the uses and purposes herein set forth,
and this Agreement may be executed in any number of counterparts,
with each executed counterpart constituting an original and all
'counterparts together constituting one agreement.
Section 8.05. CoSts, Expenses and Taxes. The City
agrees to pay on demand all costs and expenses of the Bank in
connection with the preparation, execution, delivery and
administration of this Agreement, the Letter of Credit and the
Bond Documents and .any other documents that may be delivered in
connection with this Agreement, the Letter of Credit or the Bond
Documents or any amendments or supplements thereto, including
without limitation the reasonable fees and expenses of counsel
for the Bank with respect thereto and with respect to advising
the Bank as to its rights and responsibilities under this
Agreement, the Letter of Credit, the Bond Documents and such
other docUments[ and ail cOsts and expenses, including without
limitation reasonable counsel fees and expenses, if any, in
connection with the enforcement of this Agreement, the Letter of
Credit, the Bond Documents and such other documents. In
addition, the City shall pay any and all stamp and other taxes
and fees payable or determined to be payable in connection with
the execution and delivery of this'Agreement, the Letter of
Credit, the Bond Documents and such other documents, and shall
indemnify and hold the Bank and the Participating Banks harmless
from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes
and fees.
Section 8.06. Amendments. This Agreement may be
amended by an instrument in writing executed and delivered by the
City and the Bank.
Section 8.07. Severabi!it¥; Interest Limitation. If
any provision hereof is found by a court of competent
jurisdiction to be prohibited or'unenforceable in any
jurisdiction, it shall be ineffective as to such jurisdiction
only to the extent of such prohibition or unenforceability, and
such prohibition or unenforceability shall not invalidate the
balance of such provision as to such jurisdiction to the extent
it is not prohibited or unenforceable, nor invalidate such
provision in any other jurisdiction, nor invalidate the other
provisions hereof, all of which shall be liberally construed in
order to effect the provisions of this Agreement.
Notwithstanding anything to the contrary herein contained, the
total liability of the City for payment of interest pursuant
hereto shall not exceed the maximum amount, if any, of such
interest permitted by applicable, law to be contracted for,
charged or received, and if any payments by the City to the Bank
include interest in excess of such a maximum amount, the Bank
shall apply such excess to the reduction of the unpaid principal
amount or other sums due from the City pursuant hereto, or if
none is due, such excess shall be refunded to the City; provided
that, to the extent permitted by applicable law, in the event the
interest is not collected, is applied to principal or is refunded
pur~ant to~ this sentence and interest thereafter payable ~
pursuant hereto shall be less than such maximum amount, then such
interest thereafter so payable shall be increased up to such
maximum amount to the extent necessary to recover, the amount of
interest, if any, theretofore'uncollected, applied to principal
or refunded pursuant to this sentence. Any such application or
refund shall not cure or waive any Event of Default. in
determining whether or not any interest payable under this
Agreement exceeds the highest rate permitted by law, any
non-principal payment (except payments specifically stated in
this Agreement to be "interest") shall be deemed, to the extent
permitted by applicable law, to be an expense, fee, premium or
penalty rather than interest.
Section-8.08. Complete Aqreement. Taken together with
the Fiscal Agent Agreement and the other instruments and
documents delivered in compliance herewith, this Agreement is a
complete memorandum of the agreement of the City and the Bank.
Waivers or modifications of any provision hereof must be in
writing signed by the party to be charged with the effect
thereof.
Section 8.09. Conflicts. Insofar as possible the
provisions of this Agreement shall be deemed complementary to the
terms of the Fiscal Agent Agreement, but in the event of conflict
the terms hereof shall control to the extent such are enforceable
under applicable law.
Section 8..10. waiver of Jury Trial and Certain Damaqes
THE CITY AND THE BANK HEREBY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICkBLE LAW, (A) ANY RIGHT TO TRIAL BY JTJRY IN
ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT,
THE LETTER OF CREDIT OR THE BOND DOCUMENTS AND (B) ANY RIGHT TO
CLAIM OR RECOVER IN ~ ACTION ARISING UATDER OR IN CONNECTION
WITH THIS AGREEMENT, THE LETTER OF CREDIT OR THE BOND DOCUMENTS
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ~
DAMAGES OTHER THAN, OR IN ADDITION TO, DIRECT DAMAGES.
Section 8.11. Governinq Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State. The Letter of Credit shall be governed and construed as
set forth in paragraph 12 thereof.
103669.002(PF) 35·
Section 8.12. Table of Contents and Headings. The
Table of Contents and Section headings of this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
Section 8.13. Participations. Notwithstanding any
other provision of this Agreement, the City understands that the.
Bank may at any time enter into one.or more participation
agreements ("Participation Agreements") with other banks
("Participating Banks") whereby .the Bank will allocate to the "
Participating Banks certain percentages of the payment
obligations.of the City under this Agreement and any Bank Bonds
and the funding obligations of the. Bank under the Letter of
Credit and this Agreement. The City acknowledges, that, for the
convenience of all parties, this Agreement is being entered into
with the Bank only and that the City's obligations under, this
Agreement and the Fiscal Agent Agreement and any Bank Bonds are
and will be undertaken for the benefit of, and as an inducement
to, the Participating Banks as well as the Bank. Without
limiting the foregoing, the City acknowledges that Sections
2.02(f), 2.05 and the indemnity under Section 8.05 are also for
the benefit'of the participating'Banks, and agree to make any
payments required by such provisiOns for the account of any one
or more Participating Banks on demand of the Bank.
Notwithstanding the foregoing, the City shall not be required to
respond to requests or inquiries made by any of the Participating
Banks unless such requests or inquiries are made through the
Bank. The .City hereby waives any right of set-off {^} .it may at
any time have against the Bank or any Participating Bank as a
result of the participations of the Participating Banks in the
payment obligations of the City under this Agreement. The Bank
agrees to give written notice to the City identifying each
Participating Bank with whom the Bank has entered into a
Participation Agreement from time to time; provided that failure
to give any such notice shall not affect the rights of any
Participating Bank or result in any liability of the Bank.
Section 8.14. Limited Obliqation; No Personal
Liability. The obligations of the City under this Agreement
shall not be general obligations of the City, but shall be
limited obligationsi payable solely from the Reassessments
(includinq amounts receivable or received by the Fiscal Aqent or
the City in respect of Reassessments), amounts for the Continuinq
Costs of the Adjustable Bonds (includinq any such amounts which
are receivable or received by the Fiscal Aqent or the City), the
proceeds of the Bonds, the funds and accounts established under
the Fiscal Agent'Agreement and the other assets pledged under the
Fiscal Agent Agreement. Neither the faith and credit of the City
nor of the State or any political subdivision thereof is pledged
to the payment of this Agreement. Notwithstanding any other
provision of this Agreement, the City is not obligated to advance
o02 (Pr) 3 6
available surplus funds from the City treasury to make any
payment under this Agreement,~ No member, officer, agent or
employee of the City shall be individually or personally liable
for the payment of the obligations of the City under this
Agreement or be.subject to any personal liability or
accountability by reason of the execution and delivery hereof;
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 the Fiscal Agent Agreement or this
Agreement.
103669. 002 (PF) 37
IN WITNESS WHEREOF, the City and the Bank have caused
this Agreement to be duly executed and delivered as of the date
first above written.
CITY OF TUSTIN
By
City Manager
This execution page is part~ of the Reimbursement, Credit and
Security Agreement dated as of {^} December 1, 1995 between City
of Tustin and Kredietbank N.V., New York Branch.
oo2 (Pr) 38
KREDIETBANK N.V., NEW YORK
BRANCH
By
Vice President
Vice President
This execution page is part of the Reimbursement, Credit and
Security Agreement dated as of {^~ December 1, 1995 between City
of Tustin and Kredietbank N.V., New York Branch.
103669. oo2 (PF) 3 9
EXHIBIT A
[Letterhead of Kredietbank N.V., New York Branch]
IRREVOCABLE LETTER OF CREDIT NO. XXXX
{^} December , 1995
State Street Bank {^} Bnd Trust
Company of California, N.A., Fiscal Agent
725 South Figueroa Street, Suite 3100
Los Angeles, CA 90017
Attention: Corporate Trust Department
Re: City of Tustin -- Limited Obligation
Improvement Bonds, Reassessment District
No. 95-2 (Tustin Ranch), Series A
Dear Sirs:
1. At the request and for the account of City of
Tustin, a California municipal corporation (the "City"), we
hereby establish in your favor, as Fiscal Agent under the Fiscal
Agent Agreement dated as of {^} December 1, 1995, as hereafter
supplemented and amended.(the "Fiscal Agent Agreement") between
the City and you, pursuant to which {^} $45,000,000.00 aggregate
outstanding principal amount of Limited Obligation Improvement
Bonds, Reassessment District No. 95-2 (Tustin Ranch), Series A
(the'"Bonds").have been issued by the City, our Irrevocable
Letter of Credit No. XXXX (the "Letter of Credit") in the amount
of {^} $45,729,726.03 (as more fully described below), effective
immediately and expiring at 5:00 p.m. on {^} December 15, 2002
or, if such day'is not a Business Day, on the next succeeding
Business Day (the "Stated Expiration Date"), unless, at our
option, we deliver to you a written amendment signed by an
authorized signer (specifically referring to "Kredietbank N.V.,
New York Branch Irrevocable Letter of Credit No. XXXX") extending
the Stated Expiration Date to the date set forth in such
amendment, in which case this Letter of Credit shall expire on
such extended Stated Expiration Date unless further extended, it
being understood that we shall be under no obligation herein to
grant any such extension. This Letter of Credit is subject to
.automatic termination as provided in paragraph 8 hereof.
2. We hereby irrevocably authorize you to draw on us
in accordance with the terms and conditions hereinafter set
forth, by one or more drafts.on us, an aggregate amount not
exceeding {^} Forty-Five Million, {^} Seven-Hundred
Thirty-Nine Thousand, {^} Seven Hundred {^} Twenty-Six and {^}
03/100 Dollars {^}($45,739,726.03} (as reduced and reinstated
A-1
State Street Bank an~ £rust Company of
california, N.A., Fiscal"Agent
Irrevocable Letter of Credit No. XXXX
Page 2 ~
from time to time in accordance with the provisions hereof, the
,,Letter of Credit Amount"), of which (i) an aggregate amount not
exceeding {^} $45,000,000.00 (as reduced and reinstated from time
to time in accordance with the provisions hereof, the "Principal
Component") may be drawn upon with respect to principal of the
Variable Rate Bonds (hereinafter defined) and ('ii) an aggregate
amount not exceeding {^} $739,726.03 (as reduced and reinstated
from time to time in accordance with the provisions hereof, the
,,Interest Component") may be drawn upon with respect to interest
on the Variable Rate Bonds. As Used herein, "Variable Rate
Bonds" means Bonds other than .Bonds which have been converted to
bear interest at a Fixed Interest. Rate (as defined in the Fiscal
Agent Agreement). The Interest Component has been initially
established on the basis of 50 days interest and a year of 365
days, at an assumed maximum interest rate of 12% Per annum,
applied to the aggregate principal amount of the Bonds. The
Principal Component shall not be available to pay amounts
_corresponding to the interest on the Bonds, and the Interest
Component shall not be available to pay amounts corresponding to
principal of the Bonds.
3. Funds under this Letter of Credit are available to
you, at the times specified below, (a) in one or more drawings by
one or more of'your drafts, each dated the date of its
presentation and stating on its face: "Drawn under Kredietbank
N.V., New York Branch Irrevocable Letter of Credit No. XXXX",
accompanied by one or more of your certificates in the form of
Annex 1 attached hereto appropriately completed and executed (any
such draft accompanied by such certificate being herein called an
"Interest Draft"); (b) in one or more drawings by one or more of
your drafts, each dated the date of its presentation and stating
on its face: "Drawn under Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX", accompanied by one or
more of your certificates in the form of Annex 2 attached hereto
appropriately completed and executed (any such draft accompanied
by such certificate'being herein called a "Purchase Draft"); and
(c) in one or more drawings by one or more of your drafts, each
dated the date of its presentation and stating on its face:
"Drawn under Kredietbank N.Y., New York Branch Irrevocable Letter
of Credit No..XXXX", accompanied by one or more of your
certificates' in the form of Annex 3 attached hereto appropriately
completed and executed (any.such draft accompanied by such
certificate being herein called a "Redemption Draft,'). Each such
draft and certificate shall be presented at our office at 125
West 55th Street, New York, New York 10019, Attention: Letter of
Credit Department, or such other office of ours in New York, New
York as we hereafter designate by written notice to you, and
shall be made either (i) in the form of a letter on your
.A-2
State Street Bank and Trust Company of
California, N.A., Fiscal Agent
Irrevocable Letter of Crediu No. XXXX
Page 3
letterhead manually signed by one of your officers and addressed
to us at such office, or (ii) in the form of a telecopy
transmission of the letter described in clause (i) of this
sentence ~to Telecopier No. (212) 956-5580 (with transmission
confirmed by call to Telephone No. (212) 541-0643) or such other
telecopier and telephone numbers that may be designated by us by
written notice delivered to you. If a drawing 'is made by
telecopier, it must contain an additional certification by you
that originals of the draft and certificate on your letterhead
manually signed by one of your officers will be mailed to us
concurrently by first class United States mail. If we receive
your Interest Draft or Redemption Draft at such office, all in
strict conformity with the terms and conditions of this Letter of
Credit, at or prior to 4:00 p.m., on a Business Day, we will
honor the same in accordance with your payment instructions by
4:00 P.m. on the later of (x) the Business Day immediately
following the Business Day on which you present to us your draft
and certificate or (y) the "Value Date" set forth in such
certificate; and if we receive your Interest Draft or Redemption
Draft at such office, all in strict conformity with the terms and
conditions of this Letter of Credit, after 4:00 p.m., on a
Business Day, we will honor the same in accordance with your
payment instructions by 4:00 p.m. on the later of (i) the second
Business Day immediately following the Business Day on which you
present to us your draft and certificate or (ii) the "Value Date"
set forth in such certificate. If we receive, your Purchase Draft
at such office, all in strict conformity with the terms and
conditions of this Letter of Credit, at or prior to 12:30 p.m.,
on a Business Day, we will honor the same in accordance with your
payment instructions by 4:00 p.m. on the later of (a) the
Business Day on which you present to us your draft and
certificate or (b) the "Value Date" set forth in such
certificate; and if we receive your Purchase Draft at such
office, all in strict conformity with the terms and conditions of
this Letter of Credit, after 12:30 p.m., on a Business Day, we
will honor the same in accordance with your payment instructions
by 4:00 p.m. on the later of (1) the Business Day immediately
following the Business Day on which you present to us your draft
and certificate or (2) the "Value Date" set forth in such
certificate. '.For purposes of this Letter of Credit', we shall be
deemed to have "honored" a draft at the time at which we commence
a wire transfer of immediately available funds in accordance with
your instructions.
4. As used herein the term "Business Day" means any
day other than (i) a Saturday, Sunday or legal holiday, (ii) a
day on which banking institutions in Los Angeles, California or
New York, New York or in any other city where either your
A-3
State Street Bank anu £rust Company of
California, N.A., Fiscal Agent
Irrevocable Letter of Credit No. XXXX
Page 4
principal corporate trust office, the office of the Paying Agent
(as defined in the Fiscal Agent Agreement) designated for payment
and. tender of Bonds or our office at which drafts are required to
be presented under this Letter of Credit is located are required
Or authorized by law (including executive order) to close, or
(iii) a day on which the New York Stock Exchange, Inc. is closed.
References to any time of day in this Letter of Credit shall
refer to eastern standard time or eastern daylight saving time,
as in effect in New York, New York on such day.
5. Each drawing honored by us hereunder shall reduce
the Letter of Credit Amount and the respective Principal and
Interest Components thereof by the respective amounts of such
drawing and the corresponding components of such drawing. In
addition, the Letter of Credit Amount and the respective
Principal and Interest Components thereof shall be reduced
automatically, without notice to you, upon our receipt from you
of a certificate in the form of Annex 4 attached hereto
appropriately completed and executed, each such reduction to be
(i) in the amounts necessary to reduce the Letter of Credit
Amount and the Principal and Interest Components thereof to the
respective amounts specified by you in such certificate and (ii)
effective on the Business Day on which we receive such
certificate from you. No drawing hereunder honored by us shall
exceed the Letter of Credit Amount at the time of such drawing,
as the Letter of Credit Amount has been reduced and reinstated in
accordance with the terms hereof, and no component of any such
drawing corresponding to principal of or interest on the Bonds
shall exceed the corresponding Principal or Interest Component of
the Letter of Credit Amount as such Component has been reduced
'and reinstated in accordance with the terms hereof..
6. On the tenth calendar day following the date of
each drawing under this Letter of Credit by your Interest Draft,
the Letter of Credit AmoUnt and the Interest Component shall be
automatically reinstated by an amount equal'to the amount of such
drawing, unless before said tenth day, we give written notice
specifically referring to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX signed by our authorized
officer and received by you, to the effect that an Event of
Default has occurred and is continuing under the Reimbursement,
Credit and Security Agreement dated as of {^} December 1, 1995
between the City and us (the ,'Reimbursement Agreement") and such
reinstatement shall not occur, in which case such reinstatement
shall not occur.
7. Following any drawing under this Letter of Credit
by your Purchase Draft, the Letter of Credit Amount and the
A-4
State Street Bank and Trust Company of
California, N.A., Fiscal Agent
Irrevocable Letter of Credit No. XXXX
Page 5
Principal and Interest Components. thereof shall be reinstated
with respect to such drawing (a) automatically when and to the
extent that both (i) we have received immediately available funds
for application to the City's reimbursement obligation for such
drawing (such funds shall be remitted to the attention of our
Letter of Credit Department with a statement that they constitute
reimbursement for such Purchase Draft under Kredietbank N.V., New
York Branch Letter of Credit No. XXXX) and (ii) you have
delivered to us a certificate in respect of such reinstatement in
the form of Annex 5 attached hereto appropriately completed and
executed, which may be sent by telecopier in the manner, to the
number and with the confirmation and follow-up mailing described
in paragraph 3 of this Letter of Credit, or (b) when and to the
extent that we, at our option, upon the City's request, advise
you in writing that such reinstatement .shall occur, it being
understood that we shall have no obligation to grant any such
reinstatement except as provided in clause (a) of this sentence.
8. This Letter' of Credit shall automatically
terminate upon the first to occur of: (a) the Stated Expiration
Date (as such date may have been extended), (b) the date on which
we receive a certificate from you in the form of Annex 6 attached
hereto to the effect that there are no Variable Rate Bonds
Outstanding (as defined in the Fiscal Agent Agreement) other than
Bonds secured by an Alternate Letter of Credit (as defined in the
Fiscal Agent Agreement), or (c) the date On which the final
drawing available hereunder is honored. This Letter of Credit
shall be promptly surrendered to us by you upon such termination.
9. This Letter of Credit is transferable in its
entirety (but not in part) to any transferee who you certify to
us has succeeded you as Fiscal Agent under the Fiscal Agent
Agreement, and may be successively transferred. Transfer of this
Letter of Credit to such transferee shall be effected by the
presentation to us of this Letter of Credit accompanied by.a
certificate substantially in the form of Annex 7 attached hereto
appropriately completed and executed.
10. Only you (or a transferee permitted by the terms
of this Letter of Credit) may make drawings under this Letter of
Credit. Upon the payment to you or your account of the amount
specified in a draft drawn hereunder, we shall be fully
discharged on our obligation under this Letter of Credit with
respect to such draft, and we shall not thereafter be obligated
to make any further payments under this Letter of Credit with
respect to such draft.
A-5
Stare'Street Bank al._ Trust Company of
California, N.A., Fiscal Agent
Irrevocable Letter of Credit No. XXXX
Page 6
11. This Letter of Credit sets forth in full the terms
of our undertaking, and this undertaking shall not in any way be
modified, amended, amplified or limited by reference to any
document, instrument or agreement referred to herein or in which
this Letter of Credit is referred to or to which this Letter of
Credit relates, except only the drafts and certificates referred
to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or
agreement, except such drafts and certificates.. All drafts and
certificates referred to herein that are presented to us from
time to time shall become an integral part of this Letter of
Credit and shall be binding on any transferee, permitted by the
terms of this Letter of Credit. Payment of all drawings honored
under this Letter of Credit will be made with our own funds.
12. This Letter of Credit is subject, to the provisions
of the Uniform Customs and Practice for Documentary Credits, 1993
Revision, International Chamber of Commerce Publication No. 500
....... (the "UCP")' other than Article 48(g) thereof. This Letter of
Credit shall be issued under the laws of the State of New York
and shall, as to matters not governed by the UCP, be governed and
construed in accordance with the laws of said State, without
regard to principles of conflicts of law. This Letter of Credit
is an obligation of Kredietbank N.V., acting by and through its
New York Branch.
Very truly yours,
KREDIETBANK N.V.,
NEW YORK BRANCH
By
Title
By
Title
A-6
ANNEX 1 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR INTEREST DRAWING IN RESPECT OF
INTEREST ON LIMITED OBLIGATION IMPROVEMENT BONDS,
REASSESSMENT DISTRICT NO. 95-2 (TUSTIN RANCH),
SERIES A (THE "BONDS") ISSUED BY CITY OF TUSTIN
( THE "C I TY" )
The undersigned, a duly authorized officer of STATE
STREET BANK {^) AND TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^) December 1, 1995 between the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies, with reference to Irrevocable Letter of
Credit No. XXXX (the "Letter of Credit") issued by Kredietbank
N.V., New York Branch (the "Bank") in favor of the Fiscal Agent
(the capitalized terms used herein and not defined herein shall
have the meanings ascribed to them in the Letter of Credit),
that:
1. The Fiscal Agent is the Fiscal Agent. under the
Fiscal Agent Agreement for the holders of the Bonds.
2. This Certificate accompanies a draft in the amount
of $ by which the Fiscal Agent is making a drawing.
under the Letter of Credit to be applied to payment of accrued
interest on Variable Rate Bonds (none of which is presently owned
of record by the City or the Bank). Payment of the draft
accompanying this Certificate is requested to be made on
(the "Value Date").
3. The Fiscal Agent has not received a notice from
the Bank that reinstatement of the Letter of Credit in respect of
any Interest Draft shall not occur.
4. The amount of the draft accompanying this
Certificate (i) is being drawn against the Interest Component of
the Letter of Credit Amount and does not exceed the Letter of
Credit Amount, as reduced and reinstated in accordance with the
terms of the Letter of Credit, or the Interest Component, as
Page 1 of Annex 1
A-7
reduced and reinstated in acCordance with the terms of the Letter
of Credit, (ii) was computed in accordance with the terms and
conditions of the Fiscal Agent Agreement and the Bonds, (iii)
does not include any amount in respect of interest on Bonds which
was included in any Interest Draft, Purchase Draft or Redemption
Draft presented and not dishonored on or prior to the date of
this Certificate, and (iv) shall be applied pursuant to the'
provisions of the Fiscal Agent Agreement to the payment of
accrued interest on Variable Rate Bonds which are not owned of
record by the City or the Bank.
5. Upon receipt of payment, of the draft accompanying
this Certificate, the Fiscal Agent shall immediately pay or cause
to be paid by wire transfer of immediately available funds to the
Bank an amount equal to the amount of such draft to the extent
funds are available therefor pursuant to the Fiscal Agent
Agreement.
6. If this Certificate and the accompanying draft are
initially presented by telecopier, the originals of such draft
and this Certificate on the Fiscal Agent's letterhead manually
s~gned by one of its officers are being mailed to you
concurrently by first class United States mail.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this Certificate as of the day of ,
19 .
TRUST
COMPANY OF CALIFORNIA,
N.A., FISCAL AGENT
By
Name
Title
Page 2 of Annex 1
A-8
ANNEX 2 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
_
To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR TENDER DRAWING IN RESPECT OF
PURCHASE PRICE CORRESPONDING TO PRINCIPAL OF
AND ACCRUED INTEREST ON LIMITED OBLIGATION IMPROVEMENT
BONDS, REASSESSMENT DISTRICT NO. 95-2 (TUSTIN RANCH),
SERIES a (THE "BONDS") ISSUED BY CITY OF TUSTIN
(THE "CITY")
The undersigned, a duly authorized officer of STATE
STREET BANK {+} AND TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^} December 1, 1995 between 'the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies, with reference to Irrevocable Letter of
Credit No. XXXX (the "Letter of Credit") issued by Kredietbank
N.V., New York Branch (the "Bank") in favor of the Fiscal Agent
(the capitalized terms used. herein and not defined herein shall
have the meanings ascribed to them in the Letter of Credit),
that:
1. The Fiscal Agent is the Fiscal Agent under the
Fiscal Agent Agreement for the holders of the Bonds.
2. This Certificate accompanies a draft in the amount
of $ by which the Fiscal Agent is making a drawing
under the Letter of Credit in respect of the payment of the
purchase price of Variable Rate Bonds, corresponding to the
principal thereof and unpaid accrued interest thereon, tendered
for purchase pursuant to the provisions of the Fiscal Agent
Agreement and the. Bonds and not successfully, remarketed pursuant
to the Fiscal Agent Agreement. Such Bonds are herein called
"Unremarketed Tendered Bonds". Payment of the draft accompanying
%his Certificate is requested to be made on
(the "Value Date"), which is the date the purchase price payment
for the Unremarketed Tendered Bonds is due.. None of the
Unremarketed Tendered Bonds is presently owned of record by the
Ci[y or the Bank.
3. The amount of the draft accompanying this
Certificate is equal to the sum of (i) $ being' drawn
Page 1 of Annex 2
A-9
against the Principal Component' of the Letter of Credit Amount in
respect of the payment of the portion of the purchase price of
the Unremarketed Tendered Bonds corresponding to the principal
thereof and (ii) $ being drawn against the Interest
Component of the Letter of Credit AmoUnt in respect of the
portion of the purchase price of~the Unremarketed Tendered B~onds
corresponding to accrued and unpaid interest thereon.
4. The amOunt of the draft accompanying this
Certificate does not exceed the Letter of Credit Amount, as
reduced and reinstated in accordance with the terms of the Letter
of Credit. Neither of the components of the amount set forth in
paragraph 3 of this Certificate exceeds the corresponding
component of the Letter of Credit Amount as reduced and
reinstated in accordance with the terms of the Letter of Credit.
The amount of the draft accompanying this Certificate (i) was
computed in accordance with the terms and conditions of the
Fiscal Agent Agreement and the Bonds, (ii) does~not include any
amount in respect of principal of or interest on the Bonds which
was included in any Interest Draft, Purchase Draft or Redemption
Draft presented and not dishonored on or prior to the date of
this Certificate, and (iii) shall be applied pursuant to the
provisions of the Fiscal Agent Agreement and the Bonds to the
payment of purchase price of the Unremarketed Tendered Bonds,
which shall thereupon'be registered to the record or beneficial
ownership of the Bank pursuant to the Fiscal Agent Agreement and
the Reimbursement Agreement.
5. If this Certificate and the accompanying draft are
initially presented by telecopier, the originals of such draft
and this Certificate on the Fiscal Agent's letterhead manually
signed by one of its officers are being mailed to you
concurrently by first claSs United States mail.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this certificate this day of , 19
TRUST
STATE STREET BANK {^) AND
COMPANY OF CALIFORNIA,
N.A. , FISCAL AGENT
By
Name
Title
Page 2 of Annex 2
A-10
ANNEX 3 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
To: KREDIETBANK N.V., New'York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR REDEMPTION OR FINAL PAYMENT DRAWING IN
RESPECT OF PRINCIPAL OF AND ACCRUED INTEREST ON
LIMITED OBLIGATION IMPROVEMENT BONDS, 'REASSESSMENT
DISTRICT NO. 95-2 (TUSTIN RANCH), SERIES A
(THE "BONDS") ISSUED BY CITY OF TUSTIN (THE "CITY")
The undersigned, a duly authorized officer of STATE
STREET BANK {^} AND TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^} December 1, 1995 between the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies, with reference to Irrevocable Letter of
Credit No. XXXX (the "Letter of Credit") issued by Kredietbank
N.V., New York Branch (the "Bank") in favor of the Fiscal Agent
(the capitalized terms used herein shall have the meanings
ascribed to them in the Letter of Credit), that:
1. The Fiscal Agent is the Fiscal Agent under the
Fiscal Agent Agreement for the holders of the Bonds.
2. This Certificate accompanies a draft in the amount
of $ by which the Fiscal Agent is making a drawing
under the Letter of Credit in respect of the payment of principal
of and accrued interest on the Variable Rate Bonds (other than
Bonds which are owned of record by the City, such Bonds being
herein called "City Bonds", or t'he Bank, such Bonds being herein
called "Bank Bonds") upon the applicable event indicated in
paragraph 3 of this Certificate. Payment of the draft
accompanying this Certificate is requested to be made on
(the "Value Date")~, which is the date such
payment of principal of and interest on the Bonds is due.
3. The Fiscal Agent is presenting this Certificate
and the accompanying'draft in connection with (check and complete
one):
[ ] An optional redemption of Variable Rate Bonds in
the principal amount of $ pursuant to
the Fiscal Agent Agreement and the Bonds. {^}
After such redemption $ principal
Page 1 of Annex 3
A-II
amount of Variable Rat.e Bonds will remain
Outstanding, none of which are presently City
Bonds or Bank Bonds.
[ ] A mandatory redemption of Variable Rate Bonds in
the principal amount of $ pursuant to
the Fiscal Agent Agreement and the Bonds. After
such redemption $ principal amount of
the Bonds will remain Outstanding, none of which
are presently City Bonds or Bank Bonds.
[ ] The payment of Variable Rate Bonds at maturity
pursuant to the Fiscal Agent Agreement.
If the drawing under the Letter of Credit is being made in
respect of an optional or mandatory redemption in whole of all
Variable Rate Bonds or the payment of the Bonds at maturity, such
drawing shall be the final drawing available~under the Letter of
Credit.
~. ' The amount of the draft accompanying this
Certificate is equal to the sum of (i) $ being drawn
against the Principal Component of the Letter of Credit Amount in
respect of the principal of Variable Rate Bonds (other than Bonds
which are City Bonds or Bank Bonds) and (ii) $ being
drawn against the Interest Component of the Letter of Credit
Amount in respect of interest accrued and unpaid on such Bonds.
5. The amount of the draft accompanying this
Certificate does not exceed the Letter of Credit Amount, as
reduced and reinstated in accordance with the terms of the Letter
of Credit.' Neither of the components of the amount of the draft
set forth in paragraph 4 of this Certificate exceeds the
corresponding component of the Letter of Credit Amount, as
reduced and reinstated in accordance with the terms of the Letter
of Credit. The amount of the draft accompanying this Certificate
(i) was computed in accordance with the terms and conditions of
the Fiscal Agent Agreement and the Bonds, (ii) does not include
any amount in respect of principal of or interest on the Bonds
which was included in any Interest Draft, Purchase Draft or
Redemption Draft presented and not dishonored on or prior to the
date of this Certificate, and (iii) shall be applied pursuant to
the provisions of the Fiscal Agent Agreement and the Bonds to the
payment of the principal of and accrued interest on Variable Rate
Bonds which are not City Bonds or Bank Bonds.
Page 1 of Annex 3
A-12
.6. Upon receipt of payment of the draft accompanying
this Certificate, the Fiscal Agent shall immediately pay or cause
to be paid by wire transfer of immediately available funds to the
Bank an amount equal to the amount of such draft to the extent
funds are available therefor pursuant to the Fiscal Agent
Agreement.
7.. If this Certificate and the accompanying draft are
initially presented by telecopier, the originals of such draft
and this Certificate on the Fiscal Agent's letterhead manually
signed by one of its officers are being mailed to you
concurrently by first class United States mail.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this Certificate this day of , 19 .
TRUST
COMPANY OF CALIFORNIA, N.A.,
FISCAL AGENT
By
Name
Title
Page 3 of Annex 3
A-13
ANNEX 4 to Kredietbank N.V,, New York Branch
Irrevocable Letter of Credit No. XXXX
--
To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR REDUCING KREDIETBANK N.Y., NEW YORK
BRANCH (THE "BANK") IRREVOCABLE LETTER OF CREDIT
NO. XXXX (THE- "LETTER OF CREDIT") SUPPORTING
LIMITED OBLIGATION IMPROVEMENT BONDS, REASSESSMENT
DISTRICT NO. 95-2 (TUSTIN RANCH), SERIES A (THE
"BONDS") ISSUED BY CITY OF TUSTIN (THE "CITY")
The undersigned, a duly authorized officer of STATE
STREET BANK ~^} AND. TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^} DeCember 1, 1995 between the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies that (the capitalized terms used herein
and not defined herein shall have the meanings ascribed to them
in the Letter of Credit):
1. The Fiscal Agent is the Fiscal Agent under the
Fiscal Agent Agreement for the holders of the Bonds.
2. Pursuant to the terms of the Letter of Credit, the
Bank is hereby directed to reduce the Letter of Credit Amount and
the Principal and Interest CompOnents thereof, effective on the
Business Day on which you receive this Certificate, so that after
such reduction the Letter of Credit Amount shall be $ ,
of which $ shall be the Principal Component and
$ shall be the Interest Component (calculated on the
basis of 50 days interest and a 365-day year, at an assumed
maximum interest rate of 15% per annum, applied to the
Outstanding Variable Rate Bonds, less the amounts, if any, drawn
with Purchase Drafts to purchase Outstanding Bonds in respect of
which the Letter of Credit has not been reinstated).
3. The Fiscal'Agent is presenting this Certificate
and directing the Bank to reduce the Letter of credit Amount
because $ principal amount of the Bonds have been
converted to bear interest at a Fixed Interest Rate or have been
redeemed or are deemed to have.been paid. The .aggregate
principal amount Qf the Outstanding Variable Rate Bonds (other
than Bonds which have been purchased with the proceeds of a
Purchase Draft and not remarketed) is $
Page 1 of Annex 4
A-14
4. If this Certificate is initially presented by
telecopier, the originals of this Certificate on the Fiscal
Agent's letterhead manually signed by one of its officers are
being mailed to you concurrently by first class United States
mail.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this Certificate this day of , 19 .
TRUST
STATE STREET BANK {"} AND
COMPANY OF 'CALIFORNIA, N.A. ,
FISCAL AGENT
By
Name
Title
Page 2 of Annex 4'
A-15
ANNEX 5 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR REINSTATING KREDIETBANK N.V., NEW
YORK BRANCH (THE "BANK") IRREVOCABLE LETTER OF
CREDIT NO. XXXX (THE "LETTER OF CREDIT") SUPPORTING
LIMITED OBLIGATION, IMPROVEMENT BONDS, REASSESSMENT
DISTRICT NO. 95-2 (TUSTIN R3~NCH), SERIES A (THE "BONDS").
ISSUED BY CITY OF TUSTIN (THE "CITY")
The undersigned, a duly authorized officer of STATE
STREET BANK {^} AND TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^} December 1, 1995 between'the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies that (the capitalized terms used herein
and not defined herein shall have the meanings ascribed to them
in the Letter of Credit):
1. The Fiscal Agent is the Fiscal Agent under the
Fiscal Agent Agreement for the holders of the Bonds.
2. On the date of this Certificate $
aggregate principal amount of Variable Rate Bonds are being
purchased upon a remarketing thereof by the Remarketing Agent (as
defined in the Fiscal Agent Agreement). All of such Bonds were
heretofore purchased (or anticipated to be purchased) with the
proceeds of one or more Purchase Drafts in the total drawing
amount of $ , of which proceeds $ was
drawn in respect of principal of such Bonds and $ was
drawn in respect of accrued interest on such Bonds. Prior to the
date of this Certificate there has~been no reinstatement of the
Letter of Credit Amount with respect to amounts drawn by such
Purchase Drafts to purchase such Bonds.
3. The Paying Agent (as defined in the Fiscal Agent
Agreement) and/or the Fiscal Agent has received for immediate
payment (or repayment) to the Bank in respect of the Variable
Rate Bonds described in paragraph 2 of this Certificate the total
amount of $ , consisting of $ from the
Remarketing Agent (representing remarketing proceeds) and
$ from the Bank (representing excess proceeds of the
Page 1 of Annex 5
A-16
Purchase Drafts described in paragraph 2). Such total amount is
being paid to the Bank at the above address with reference to
Kredietbank N.V., New York Branch Irrevocable Letter of Credit
No. XXXX, as reimbursement for amounts drawn under the Letter of
Credit by the Purchase Drafts described in paragraph 2 of this
Certificate.
4. Of the total amount referred to in paragraph 3 of
[his Certificate, $ corresponds to the aggregate
principal amoUnt of Bonds described in paragraph 2 of this
Certificate and $ corresponds to accrued interest on such
Bonds.
5. Payment of the total amount referred to in
paragraph 3 of this Certificate, together with other amounts
heretofore paid to the Bank by or on behalf of the City in
respect of interest on such Bonds, represents reimbursement for
the entire outstanding balance of all amounts drawn in respect of
the Bonds described in paragraph 2 of this Certificate. The
foregoing certification is made in reliance upon representations
by the Paying Agent and/or the Bank to the Fiscal Agent that,
upon payment of such amounts, the Bank will be fully reimbursed
for all Purchase Drafts (or allocable portions thereof) presented
to the Bank to purchase such Bonds. No Certification is made by
the Fiscal Agent as to the payment of interest accrued pursuant
to the Reimbursement Agreement on the. amounts drawn by such
Purchase Drafts.
6. Pursuant to paragraph 7 of the Letter of Credit,
the Letter of Credit Amount shall be automatically reinstated by
an amount equal to $ (which does not exceed the
aggregate amount of the Purchase Drafts, or allocable portions
thereof, paid 'by the Bank to purchase such Bonds), of which
$ (which does not exceed the aggregate amount of such
Purchase'Drafts, or allocable portions thereof, drawn against the
Principal Component) shall be applied to the Principal Component
and $ (which does not exceed the aggregate amount of
such Purchase Drafts, or allocable portions thereof, drawn
against the Interest Component) shall be applied to the Interest
Component. PLEASE CONFIRM SUCH REINSTATEMENT BY TELEPHONE TO THE
FISCAL AGENT AT , ATTENTION: ,
AND BY WRITING TO THE FISCAL AGENT AT ITS ADDRESS ON FILE WITH
YOU (it being understood that such confirmation by you is not a
condition precedent to the automatic reinstatement provided for
by paragraph 7 of the Letter of Credit).
7. If this Certificate is initially presented by
telecopier, the original of this Certificate on the Fiscal ~^~
Agent's letterhead manually signed by one of its officers is
Page 2 of Annex 5
A-17
being mailed to you concurrently by first class United States
mail.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this Certificate this day of , 19 .
.,
TRUST
COX~N¥ O~ C~,~0~N~, N.~.,
FISCAL AGENT
By
Name
Title
Page 2 of Annex 5
A-18
ANNEX 6 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
CERTIFICATE FOR TERMINATING KREDIETBANK N.V., NEW YORK
BRANCH (THE "BANK") IRREVOCABLE LETTER OF~CREDIT NO.
XXXX (THE "LETTER OF CREDIT") SUPPORTING
LIMITED OBLIGATION IMPROVEMENT BONDS, REASSESSMENT
DISTRICT NO. 95-2 (TUSTIN RANCH), SERIES A (THE
"BONDS") ISSUED BY CITY OF TUSTIN (THE "CITY")
The undersigned, a duly authorized officer of STATE
STREET BANK {^} AND TRUST COMPANY OF CALIFORNIA, N.A., FISCAL
AGENT (the "Fiscal Agent") under the Fiscal Agent Agreement dated
as of {^} December 1, 1995 between the Fiscal Agent and the City
(the "Fiscal Agent Agreement") under which the Bonds have been
issued, hereby certifies that (the capitalized terms used herein
and not defined herein shall have the meanings ascribed to them
in the Letter of Credit):
1. The Fiscal Agent is the Fiscal Agent under the
Fiscal'Agent Agreement for the holders of the Bonds.
2. Pursuant to the Fiscal Agent Agreement and the
Letter of Credit, the Letter of Credit shall be terminated on the
date the Bank receives this Certificate, and the Fiscal Agent is
herewith delivering the Letter of Credit for cancellation,
because no Variable Rate Bonds remain Outstanding other than
Bonds secured by an Alternate Letter of Credit.
IN WITNESS WHEREOF, the Fiscal Agent has executed and
delivered this Certificate this day of , 19 .
TRUST,
COMPkNY OF CALIFORNIA, N.A.,
FISCAL AGENT
By
Name
Title
Page 1 of Annex 6
A-19
ANNEX 7 to Kredietbank N.V., New York Branch
Irrevocable Letter of Credit No. XXXX
(Date)
'To: KREDIETBANK N.V., New York Branch
125 West 55th Street
New York, NY 10019
Attention: Letter of Credit Department
Re: Kredietbank N.V., New York Branch
Irrevocable Letter of Credit
No. XXXX
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably transfers to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above
Letter of Credit in its entirety. Said transferee has succeeded
to the undersigned as Fiscal Agent under the Fiscal Agent
Agreement dated as of {^~ December 1, 1995 between the Fiscal
Agent and City of Tustin.
By this transfer, all rights of the undersigned
beneficiary in such Letter of Credit are transferred to the
transferee and the transferee shall have the sole rights as
beneficiary thereof, including sole rights relating to any
amendments whether increases or extensions or other amendments
and whether now existing or hereafter made. All amendments are
to be advised direct to the transferee without necessity of any
consent of or notice to the undersigned beneficiary.
The original of such Letter of Credit is returned
herewith, and in accordance therewith we ask you to transfer the
Letter'of Credit to the transferee in the Letter of Credit Amount
(as defined in the Letter of Credit) with provision for
reinstating the Letter of Credit Amount with respect to all
Page 1 of Annex 7
A-20
drawings by Interest Drafts and Purchase Drafts (as defined in
the Letter of Credit) with respect to which the Letter of Credit
Amount may be reinstated, and forward it directly to the
transferee with your customary notice of transfer.
Yours very truly,
'SIGNATURE AUTHENTICATED
TRUST
STATE STREET BANK {^} '~ND
COMPANY OF CALIFORNIA,
N.A., FISCAL AGENT
By
(Authorized Signature )
Title
Page 2 of Annex 7
A-21
EXHIBIT B
INFORMATION REGARDING REASSESSMENT DISTRICT
(To be supplied by {^) TIC)
B-1
EXHIBIT C
EX0CEPTION PARCELS
(To be supplied by TIC)
C-1