HomeMy WebLinkAboutCC RESO 15,054RESOLUTION N0. 15,054
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL
CITY AUTHORIZING THE MAYOR TO ENTER INTO A TRUST
AGREEMENT BETWEEN FIRST INTERSTATE BANK OF CALIFORNIA,
'rim PARKING AUTHORITY OF THE CITY OF NATIONAL
CITY, AND THE CITY OF NATIONAL CITY
WHEREAS, in 1982 pursuant to and in accordance with applicable laws of
the State of California, the Parking Authority of the City of National City
acquired certain real property and caused to be constructed thereon, for lease
back to the City for the use of the City, a public parking facility, together
with landscaping, utilities and appurtenant and related facilities therefor,
commonly known as the Plaza Bonita Parking Facilities Project; and
WHEREAS, the Authority agreed to construct and complete the.Project on
such real property and leased such real property and the Project constructed
thereon to the City by a Parking Facility Lease originally executed and entered
into as of January 15, 1982; and
WHEREAS, the Authority pursuant to Resolution No. 82-2(PA) adopted an
January 19, 1982, duly issued its bonds, designated the "Parking Authority of
the City of National City 1982 Lease Revenue Bonds", in the aggregate principal
amount of eight million four hundred ten thousand dollars ($8,410,000), and used
the proceeds of the Bonds to pay for the construction of the Project; and
WHEREAS, under and pursuant to the Project Lease, the City is obligated
to make base rental payments to the Authority for the lease of the Project to
it; and
WHEREAS, the Authority and the City have determined that it would be in
the best interests of the Authority and the City and the residents of the City
to defease the Bonds through the sale and delivery of refunding certificates of
participation evidencing and representing proportionate interests of the
registered owners thereof in the base rental payments to be paid by the City to
the Authority under and pursuant to the Project Lease; and
WHEREAS, the Authority and the City have amended the Project Lease as
of August 1, 1986, in order to facilitate and provide for such defeasance; and
WHEREAS, the Authority has assigned without recourse all its rights to
receive the base rental payments scheduled to be paid by the City under and
pursuant to the Project Lease, as amended, to the Trustee pursuant to an
Assignment Agreement executed and entered into as of August 1, 1986; and
WHEREAS, in consideration of such assignment and the execution and
entering into of a Trust Agreement, the Trustee has agreed to execute and
deliver refunding certificates of participation in an aggregate principal amount
equal to the aggregate principal components of such base rental payments, each
evidencing and representing a proportionate interest in the principal components
of such base rental payments; and
WHEREAS, the Authority and the City have agreed that the proceeds of
such refunding certificates of participation shall be used (together with other
available funds) to defease the outstanding Bonds; and
WHEREAS, all acts, conditions and things required by law to exist, to
have happened and to have been performed precedent to and in connection with the
execution and entering into of the Trust Agreement do exist, have happened and
have been performed in regular and due time, form and manner as required by law,
and the parties hereto are now duly authorized to execute and enter into the
Trust Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the Mayor is authorized to enter into a Trust Agreement
between First Interstate Bank of California, the Parking Authority of the City
of National City, and the City of National City, a copy of which is attached
hereto as Exhibit "A" and incorporated herein by reference.
PASSED and ADOPTED this 19th day of August, 1986.
ATTEST:
Ione:Campbell, Cit. Clerk
APPROVED AS TO FORM:
George H. Eiser, III -City Attorney
�r.
TRUST AGREEMENT
by and among
FIRST INTERSTATE BANK OF CALIFORNIA
and the
PARKING AUTHORITY OF THE CITY OF NATIONAL CITY
and the
CITY OF NATIONAL CITY
RELATING TO
REFUNDING CERTIFICATES OF PARTICIPATION
IN RENTAL PAYMENTS TO BE MADE
UNDER AND PURSUANT TO THE
PROJECT LEASE
FOR THE
CITY OF NATIONAL CITY
PLAZA BONITA PARKING FACILITIES PROJECT
Executed and Entered Into as of August 1, 1986
•
1\
PARTIES
RECITALS
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01. Definitions
SECTION 1.02. Equal Security
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
ARTICLE II
CONDITIONS AND TERMS OF CERTIFICATES
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
Page
1
1
2
8
Preparation of Certificates 8
Denominations, Medium, Method
and Place of Payment and
Dating of Certificates 9
Payment Dates of Certificates 10
Form of Certificates 10
Execution of Certificates 17
Transfer and Exchange of
Certificates 17
Certificate Registration Books 18
Temporary Certificates 18
Certificates Mutilated, Destroyed,
Lost or Stolen 18
ARTICLE III
PROCEEDS OF CERTIFICATES
Delivery of Certificates
Deposit of Proceeds of Certificates
Use of Money in the Refunding Fund
Use of Money in the Expense Fund
19
19
20
20
'f
Page
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4.01. Terms of Prepayment 20
SECTION 4.02. Selection of Certificates
for Prepayment 21
SECTION 4.03. Notice of Prepayment 22
SECTION 4.04. Partial Prepayment of Certificates 22
SECTION 4.05. Effect of Prepayment 22
ARTICLE V
RENTAL PAYMENTS
SECTION 5.01. Pledge of Rental Payments 23
SECTION 5.02. Deposit of Money in the Rental
Payment Fund 23
(a) Interest Fund 24
(b) Principal Fund 24
(c) Prepayment Fund 24
SECTION 5.03 Reserve Fund 24
SECTION 5.04 Application of Insurance Proceeds 25
ARTICLE VI
COVENANTS
SECTION 6.01. Compliance with Trust Agreement 25
SECTION 6.02. Compliance with Project Lease 25
SECTION 6.03. Observance of Laws and Regulations 26
SECTION 6.04. Other Liens 26
SECTION 6.05. Prosecution and Defense of Suits 26
SECTION 6.06. Accounting Records and Statements 27
SECTION 6.07. Recordation and Filing 27
SECTION 6.08. Further Assurances 27
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7.01. Action on Default 28
SECTION 7.02. Other Remedies of the Trustee 28
SECTION 7.03. Non -Waiver 28
SECTION 7.04. Remedies Not Exclusive 29
ii
Page
SECTION 7.05. No Liability by the Authority
to the Owners 29
SECTION 7.06. No Liability by the City
to the Owners 30
SECTION 7.07. No Liability by the Trustee
to the Owners 30
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Employment and Duties of
the Trustee 30
SECTION 8.02. Removal and Resignation of
the Trustee 30
SECTION 8.03. Compensation and Indemnification
of the Trustee 31
SECTION 8.04. Protection of the Trustee 32
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO
THE TRUST AGREEMENT
SECTION 9.01. Amendment or Supplement by
Consent of Owners 34
SECTION 9.02. Endorsement or Replacement of
Certificates After Amendment
or Supplement 35
SECTION 9.03. Amendment or Supplement by
Mutual Consent 35
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Certificates and
Trust Agreement
SECTION 10.02. Unclaimed Money
iii
35
37
SECTION
SECTION 11.02.
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
ARTICLE XI
MISCELLANEOUS
11.01. Benefits of the Trust Agreement
Limited to Parties
Successor Deemed Included in
All References to Predecessor
11.03. Execution of Documents by Owners
11.04. Waiver of Personal Liability
11.05. Acquisition of Certificates
by City
11.06. Content of Certificates
11.07. Notice by Mail
11.08. Funds
11.09. Investments
11.10. Disqualified Certificates
11.11. Article and Section Headings,
Gender and References
11.12. Partial Invalidity
11.13. California Law
11.14. Notices
11.15. Effective Date
11.16. Execution in Counterparts
Page
37
37
38
38
38
38
39
39
40
40
40
41
41
41
42
42
EXECUTION 43
iv
TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement"),
executed and entered into as of August 1, 1986, by and among
First Interstate Bank of California, a banking corporation
duly organized and existing under and by virtue of the laws of
the State of California (the "Trustee"), the Parking Authority
of the City of National City, a public body corporate and
politic duly organized and existing under and by virtue of the
laws of the State of California (the "Authority"), and the
City of National City, a municipal corporation duly organized
and existing under and by virtue of the Constitution and laws
of the State of California (the "City");
W ITNESSET H:
WHEREAS, in 1982 pursuant to and in accordance with
applicable laws of the State of California, the Authority
determined to acquire, for lease to the City for the use of
the City, a public parking facility, together with
landscaping, utilities and appurtenant and related facilities
therefor, commonly known as the Plaza Bonita Parking
Facilities Project (the "Project"); and
WHEREAS, the Authority leased the Project to the
City by a Parking Facility Lease originally executed as of
January 15, 1982 (the "Project Lease"); and
WHEREAS, the Authority pursuant to Resolution No.
82-2(PA) adopted on January 19, 1982, duly issued its bonds,
designated the "Parking Authority of the City of National City
1982 Lease Revenue Bonds" (the "Bonds"), in the aggregate
principal amount of eight million four hundred ten thousand
dollars ($8,410,000), and used the proceeds of the Bonds to
pay for the acquisition of the Project; and
WHEREAS, under and pursuant to the Project Lease,
the City is obligated to make base rental payments to the
Authority for the lease of the Project to it; and
WHEREAS, the Authority and the City have determined
that it would be in the best interests of the Authority and
the City and the residents of the City to defease the Bonds
through the sale and delivery of refunding certificates of
participation evidencing and representing proportionate
interests of the registered owners thereof in the base rental
payments to be paid by the City to the Authority under and
pursuant to the Project Lease, as amended; and
WHEREAS, the Authority and the City have amended the
Project Lease as of August 1, 1986, in order to facilitate and
provide for such defeasance; and
WHEREAS, the Authority has assigned without recourse
all its rights to receive the base rental payments scheduled
to be paid by the City under and pursuant to the Project
Lease, as amended, to the Trustee pursuant to an Assignment
Agreement (the "Assignment Agreement") executed and entered
into as of August 1, 1986; and
WHEREAS, in consideration of such assignment and the
execution and entering into of the Trust Agreement, the
Trustee has agreed to execute and deliver refunding
certificates of participation in an aggregate principal amount
equal to the aggregate principal components of such base
rental payments, each evidencing and representing a
proportionate interest in the principal components of such
base rental payments; and
WHEREAS, the Authority and the City have agreed that
the proceeds of such refunding certificates of participation
shall be used (together with other available funds) to defease
the outstanding Bonds; and
WHEREAS, all acts, conditions and things required by
law to exist, to have happened and to have been performed
precedent to and in connection with the execution and entering
into of the Trust Agreement do exist, have happened and have
been performed in regular and due time, form and manner as
required by law, and the parties hereto are now duly
authorized to execute and enter into the Trust Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND
OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND
FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY
AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01. Definitions. Unless the context
otherwise requires, the terms defined in this section shall
for all purposes hereof and of any amendment hereof or
supplement hereto and of the Certificates and of any
certificate, opinion, request or other document mentioned
herein or therein have the meanings defined herein, the
following definitions to be equally applicable to both the
singular and plural forms of any of the terms defined herein:
2
Assignment Agreement
"Assignment Agreement" means that certain Assignment
Agreement executed and entered into as of August 1, 1986, by
and between the Authority and the Trustee.
Authority
"Authority" means the Parking Authority of the City
of National City, a public body corporate and politic duly
organized and existing under and by virtue of the laws of the
State of California.
Bonds
"Bonds" means the outstanding 1982 Lease Revenue
Bonds of the Authority issued under the Resolution.
Certificate of the City
"Certificate of the City" means an instrument in
writing signed by the Mayor of the City, or by any other
officer of the City duly organized by the City Council of the
City for that purpose, and by the City Clerk of the City, with
the seal of the City affixed.
Certificates
"Certificates" means the $8,080,000 refunding
certificates of participation authorized hereby and at any
time Outstanding hereunder that are executed and delivered by
the Trustee under and pursuant to Article II.
Certificate of Participation Purchase Contract
"Certificate of Participation Purchase Contract"
means that certain Certificate of Participation Purchase
Contract by and among the Purchaser and the City and the
Authority relating to the Certificates.
City
"City" means the City of National City, a municipal
corporation duly organized and existing under and by virtue of
the Constitution and laws of the State of California.
Escrow Agent
"Escrow Agent" means Crocker National Bank, a
national banking association duly organized and existing under
and by virtue of the laws of the United States of America, at
3
its principal corporate trust office in San Francisco,
California.
Escrow Agreement
"Escrow Agreement" means that certain Escrow
Agreement executed and entered into as of August 1, 1986, by
and among the Escrow Agent, the Authority and the City
providing, among other things, for the defeasance of the Bonds.
Expense Fund
"Expense Fund" means the fund by that name
established in Section 3.04.
Interest Fund
"Interest Fund" means the fund by that name
established in Section 5.02.
Interest Payment Date
"Interest Payment Date" means a date on which
interest evidenced and represented by the Certificates becomes
due and payable, being March 1 and September 1 of each year to
which reference is made (commencing on March 1, 1987).
Opinion of Counsel
"Opinion of Counsel" means a written opinion of
counsel of recognized national standing in the field of law
relating to municipal bonds, appointed and paid by the City
and satisfactory to and approved by the Trustee (who shall be
under no liability by reason of such approval).
Outstanding
"Outstanding," when used as of any particular time
with reference to Certificates, means (subject to the
provisions of Section 11.10) all Certificates except --
(1) Certificates cancelled by the Trustee or
surrendered to the Trustee for cancellation;
(2) Certificates paid or deemed to have been paid
within the meaning of Section 10.01; and
(3) Certificates in lieu of and in substitution for
which other Certificates shall have been executed and
delivered by the Trustee hereunder.
Owner
"Owner" means the registered owner of any
Outstanding Certificate.
Permitted Investments
"Permitted Investments" means any of the following
to the extent then permitted by law:
(1) United States of America Treasury bills, notes,
bonds or certificates of indebtedness, or those for which
the full faith and credit of the United States of America
are pledged for the payment of interest and principal;
(2) Obligations issued by banks for cooperatives,
federal land banks, federal intermediate credit banks,
federal home loan banks, the Federal Farm Credit Bank,
the Federal Home Loan Bank Board or the Tennessee Valley
Authority, or guaranteed portions of Small Business
Administration notes, or obligations, participations or
other instruments of or issued by a federal agency or a
United States of America government -sponsored enterprise;
(3) Bills of exchange or time drafts drawn on and
accepted by a commercial bank (including the Trustee)
rated "A" or higher by Standard & Poor's Corporation,
otherwise known as banker's acceptances, which are
eligible for purchase by members of the Federal Reserve
System; provided, that purchase of eligible banker's
acceptances may not exceed two hundred seventy (270)
days' maturity;
(4) Commercial paper of "prime" quality of the
highest ranking or of the highest letter and numerical
rating as provided by Standard & Poor's Corporation,
which commercial paper is limited to issuing corporations
that are organized and operating within the United States
of America and that have total assets in excess of five
hundred million dollars ($500,000,000) and that have an
"A" or higher rating for the issuer's debentures, other
than commercial paper, as provided by Standard & Poor's
Corporation; provided, that purchases of eligible
commercial paper may not exceed one hundred eighty (180)
days' maturity nor represent more than ten per cent (10%)
of the outstanding commercial paper of an issuing
corporation;
(5) Certificates of deposit, whether negotiable or
non-negotiable, issued by a state or national bank
(including the Trustee) rated "A" or higher by Standard &
5
Poor's Corporation or by a state or federal savings and
loan association; provided, that such certificates of
deposit shall be purchased directly from such bank or
savings and loan association and shall be either
(A) continuously and fully insured by the Federal Deposit
Insurance Corporation or the Federal Savings and Loan
Insurance Corporation, or (B) continuously and fully
secured by such obligations as are described above in
clauses (1) through (4), inclusive, which have a market
value (exclusive of accrued interest) at all times at
least equal to one hundred ten per cent (110%) of the
principal amount of such certificates of deposit, or
continuously and fully secured by promissory notes
secured by first mortgages and first trust deeds upon
improved real property located in California which have a
market value (exclusive of accrued interest) at all times
at least equal to one hundred fifty per cent (150%) of
the principal amount of such certificates of deposit, and
the bank or savings and loan association issuing each
such certificate of deposit required to be so secured
shall furnish the Trustee with an undertaking
satisfactory to it that the aggregate market value of all
such obligations securing each such certificate of
deposit will at all times be in an amount at least equal
to one hundred ten per cent (110%) or one hundred fifty
per cent (150%), as the case may be, of the principal
amount of each such certificate of deposit and that the
Trustee shall be entitled to rely on each such
undertaking;
(6) Any repurchase agreement with any state or
national bank (including the Trustee) rated "A" or higher
by Standard & Poor's Corporation or with any government
bond dealer reporting to, trading with, and recognized as
a primary dealer by the Federal Reserve Bank of New York,
which agreement is secured by any one or more of the
securities described above in clauses (1) through (3),
inclusive, if the Trustee shall have received a perfected
first security interest in such securities securing such
agreement and the Trustee or its appointed agent shall
hold such obligations free and clear of the claims of
third parties; and
(7) Units of any taxable money-market fund
portfolio composed of obligations guaranteed by the full
faith and credit of the United States of America.
Prepayment Fund
"Prepayment Fund" means the fund by that name
established in Section 5.02.
6
Principal Fund
"Principal Fund" means the fund by that name
established in Section 5.02.
Principal Payment Date
"Principal Payment Date" means a date on which
principal evidenced and represented by the Certificates
becomes due and payable, being March 1 of each year to which
reference is made (commencing on March 1, 1987).
Project
"Project" means the Plaza Bonita Parking Facilities
Project which has been leased by the Authority to the City
under and pursuant to the Project Lease.
Project Lease
"Project Lease" means that certain Parking Facility
Lease originally executed and entered into as of January 15,
1982, by and between the Authority and the City, and amended
as of August 1, 1986, and as it may from time to time be
further amended in accordance herewith and therewith.
Purchaser
"Purchaser" means Stone & Youngberg, as underwriter
and purchaser of the Certificates under and pursuant to the
Certificate of Participation Purchase Contract.
Refunding Fund
"Refunding Fund" means the fund by that name
established in Section 3.03.
Rental Payment Fund
"Rental Payment Fund" means the fund by that name
established in Section 5.01.
Rental Payments
"Rental'Payments" means the base rental payments
with interest components and principal components scheduled to
be paid by the City under and pursuant to the Project Lease.
Reserve Fund
"Reserve Fund" means the fund by that named
established in Section 5.02.
7
Reserve Requirement
"Reserve Requirement" means $646,400.
Resolution
"Resolution" means Resolution No. 82-2(PA) adopted
by the Authority on January 19, 1982.
Trust Agreement
"Trust Agreement" means this Trust Agreement
executed and entered into as of August 1, 1986, by and among
the Trustee, the Authority and the City, as originally
executed and entered into and as it may from time to time be
amended or supplemented in accordance herewith.
Trustee
"Trustee" means First Interstate Bank of California,
a banking corporation duly organized and existing under and by
virtue of the laws of the State of California, at its
principal corporate trust office in Los Angeles, California,
or any other bank or trust company at its principal corporate
trust office which may at any time be substituted in its place
as provided in Section 8.02.
Written Request of the City
"Written Request of the City" means an instrument in
writing signed by the Mayor of the City, or by any other
officer of the City duly authorized by the City Council of the
City for that purpose, and by the City Clerk of the City, with
the seal of the City affixed.
SECTION 1.02. Equal Security. In consideration of
the acceptance of the Certificates by the Owners, the Trust
Agreement shall be deemed to be and shall constitute a
contract between the Trustee and the Owners to secure the full
and final payment of the interest and principal evidenced and
represented by the Certificates, subject to the agreements,
conditions, covenants and terms contained herein; and all
agreements, conditions, covenants and terms contained herein
required to be observed or performed by or on behalf of the
Trustee shall be for the equal and proportionate benefit,
protection and security of all Owners without distinction,
preference or priority as to benefit, protection or security
of any Certificates over any other Certificates by reason of
the number or date thereof or the time of execution or
delivery thereof or otherwise for any cause whatsoever, except
as expressly provided herein or therein.
8
ARTICLE II
CONDITIONS AND TERMS OF CERTIFICATES
SECTION 2.01. Preparation of Certificates. The
Trustee is hereby authorized and directed to prepare the
Certificates in the aggregate principal amount of eight
million eighty thousand dollars ($8,080,000), evidencing and
representing the aggregate principal components of the Rental
Payments and each evidencing and representing a proportionate
interest in the Rental Payments.
SECTION 2.02. Denominations, Medium, Method and
Place of Payment and Dating of Certificates. The Certificates
shall be prepared in the form of fully registered Certificates
in denominations of five thousand dollars ($5,000) or any
integral multiple thereof, except that no Certificate shall
evidence and represent principal becoming due and payable in
more than one year. The interest and principal evidenced and
represented by the Certificates shall be payable in lawful
money of the United States of America. The interest evidenced
and represented by the Certificates shall be payable on their
respective Interest Payment Dates by check mailed by the
Trustee to the respective Owners thereof as shown in the books
required to be kept by the Trustee pursuant to the provisions
of Section 2.07 on the fifteenth (15th) day of the month
preceding each Interest Payment Date, and the principal
evidenced and represented by the Certificates shall be payable
on their respective Principal Payment Dates or on prepayment
prior thereto upon surrender thereof by the respective Owners
thereof at the office of the Trustee. The Trustee may treat
the Owner of any Certificate as the absolute owner of such
Certificate for all purposes, whether or not such Certificate
shall be overdue, and the Trustee shall not be affected by any
knowledge or notice to the contrary; and payment of the
interest and principal evidenced and represented by such
Certificate shall be made only to such Owner as above
provided, which payments shall be valid and effectual to
satisfy and discharge the liability evidenced and represented
by such Certificate to the extent of the sum or sums so paid.
All Certificates paid pursuant to the provisions of this
section shall be cancelled by the Trustee and shall not be
redelivered.
The Certificates shall be dated August 1, 1986, and
shall bear interest from the Interest Payment Date next
preceding the date of execution thereof by the Trustee, unless
such date of execution is on or after the sixteenth (16th) day
of the month next preceding an Interest Payment Date, in which
case they shall bear interest from such Interest Payment Date,
or unless such date of execution is prior to February 16,
9
1987, in which case they shall bear interest from August 1,
1986.
SECTION 2.03. Payment Dates of Certificates. The
principal evidenced and represented by the Certificates shall
become due and payable on the Principal Payment Dates in the
principal amounts, with interest thereon at the rates, as
follows:
Principal
Payment Date Principal Interest
(March 1) Amount Rate
1987 $ 340,000 4.75%
1988 585,000 5.25
1989 615,000 5.50
1990 650,000 5.75
1991 690,000 6
1992 735,000 6.20
1993 780,000 6.40
1994 830,000 6.60
1995 890,000 6.70
1996 950,000 6.80
1997 1,015,000 6.90
The interest evidenced and represented by the
Certificates shall become due and payable on their respective
Interest Payment Dates, beginning on the Interest Payment Date
following their date and continuing to and including their
Principal Payment Dates or on prepayment prior thereto, and
shall evidence and represent in sum the portions of the Rental
Payments constituting interest components becoming due and
payable to but not including the Interest Payment Dates in
each year.
The principal evidenced and represented by the
Certificates shall become due and payable on their respective
Principal Payment Dates or on prepayment prior thereto, and
shall evidence and represent in sum the portions of the Rental
Payments constituting principal components becoming due and
payable on the Principal Payment Dates or on prepayment prior
thereto in each year.
SECTION 2.04. Form of Certificates. The
Certificates and the assignment to appear thereon shall be in
substantially the following forms, respectively, with
appropriate or necessary insertions, omissions and variations
as permitted or required hereby:
10
[FORM OF CERTIFICATE OF PARTICIPATION]
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
No. $
REFUNDING CERTIFICATE OF PARTICIPATION
Evidencing and Representing a Proportionate
Interest of the Owner Hereof
in Rental Payments to Be Made
by the
CITY OF NATIONAL CITY
to the
PARKING AUTHORITY OF THE CITY OF NATIONAL CITY
Under and Pursuant to the
Project Lease
for the
CITY OF NATIONAL CITY
PLAZA BONITA PARKING FACILITIES PROJECT
Interest Principal
Rate Payment Date Dated as of CUSIP
0
REGISTERED OWNER:
March 1, August 1, 1986
PRINCIPAL AMOUNT: DOLLARS
THIS IS TO CERTIFY that the registered owner set
forth above, the registered owner of this Certificate of
Participation (the -"Certificate"), is the owner of a
proportionate interest in the rights to receive the Rental
Payments (as that term is defined in the Trust Agreement
hereinafter mentioned) under and pursuant to that certain
Project Lease (the "Project Lease") for the City of National
City Plaza Bonita Parking Facilities Project originally
executed and entered into as of January 15, 1982, and amended
11
as of August 1, 1986, by and between the Parking Authority of
the City of National City (the "Authority"), a public body
corporate and politic duly organized and existing under and by
virtue of the laws of the State of California, and the City of
National City (the "City"), a municipal corporation duly
organized and existing under and by virtue of the Constitution
and laws of the State of California, all of which rights to
receive such Rental Payments have been assigned without
recourse by the Authority to First Interstate Bank of
California, a banking corporation duly organized and existing
under and by virtue of the laws of the State of California, at
its principal corporate trust office in Los Angeles,
California, as trustee (the "Trustee"), or any other bank or
trust company at its principal corporate trust office which
may at any time be substituted in its place as provided in the
Trust Agreement hereinafter mentioned.
The registered owner of this Certificate is entitled
to receive, subject to the terms of the Project Lease and any
right of prepayment hereinafter provided for, on the Principal
Payment Date (as that term is defined in the Trust Agreement
hereinafter mentioned, and herein a "Principal Payment Date")
set forth above or on the date of prepayment, upon surrender
of this Certificate on such Principal Payment Date or on the
date of prepayment at the office of the Trustee, the principal
sum set forth above, representing the registered owner's
proportionate share of the Rental Payments constituting
principal components becoming due and payable on such
Principal Payment Date or on the date of prepayment, and the
registered owner of this Certificate as shown in the
registration books maintained by the Trustee on the
fifteenth (15th) day of the month preceding each Interest
Payment Date (as that term is defined in the Trust Agreement
hereinafter mentioned, and herein an "Interest Payment Date")
is entitled to receive on each Interest Payment Date from the
Interest Payment Date next preceding the date of execution
hereof by the Trustee (unless such date of execution is on or
after the sixteenth (16th) day of the month next preceding an
Interest Payment Date, in which case from such Interest
Payment Date, or unless such date of execution is prior to
February 16, 1987, in which case from August 1, 1986) to and
including such Principal Payment Date or the date of
prepayment, whichever is earlier, by check mailed on such
dates to such registered owner, such registered owner's
proportionate share of the Rental Payments constituting
interest components becoming due and payable to but not
including each Interest Payment Date, which such proportionate
share is the result of the multiplication of the aforesaid
portion of the Rental Payments constituting principal
components becoming due and payable on such Principal Payment
Date by the interest rate per annum set forth above. All such
12
amounts are payable in lawful money of the United States of
America.
This Certificate has been executed by the Trustee
under and pursuant to the terms of a Trust Agreement (the
"Trust Agreement") executed and entered into as of August 1,
1986, by and among the Trustee, the Authority and the City.
Copies of the Trust Agreement are on file at the office of the
Trustee, and reference is hereby made to the Trust Agreement
and to any and all amendments thereof and supplements thereto
for a description of the agreements, conditions, covenants and
terms securing the Certificates, for the nature, extent and
manner of enforcement of such agreements, conditions,
covenants and terms, for the rights and remedies of the
registered owners of the Certificates with respect thereto and
for the other agreements, conditions, covenants and terms upon
which the Certificates are executed and delivered thereunder.
To the extent and in the manner permitted by the
terms of the Trust Agreement, the provisions of the Trust
Agreement may be amended or supplemented by the parties
thereto, but no such amendment or supplement shall (1) reduce
the rate of interest evidenced and represented hereby or
extend the time of payment thereof or reduce the amount of
principal evidenced and represented hereby or extend the
Principal Payment Date hereof without the prior written
consent of the registered owner hereof, or (2) reduce the
percentage of registered owners of Certificates whose consent
is required for the execution of any amendment of or
supplement to the Trust Agreement, or (3) modify any rights or
obligations of the Trustee without its prior written consent
thereto.
The Certificates are authorized to be executed and
delivered in the form of fully registered Certificates in
denominations of five thousand dollars ($5,000) or any
integral multiple thereof, except that no Certificate shall
evidence and represent principal becoming due and payable in
more than one year.
This Certificate is transferable or exchangeable by
the registered owner hereof, in person or by his attorney duly
authorized in writing, at the office of the Trustee, but only
in the manner, subject to the limitations and upon payment of
the charges provided in the Trust Agreement, and upon
surrender of this Certificate for cancellation accompanied by
delivery of a duly executed written instrument of transfer or
exchange, a new Certificate or Certificates of authorized
denominations of the same Principal Payment Date equal to the
principal amount hereof will be executed and delivered by the
Trustee to the registered owner thereof in exchange or
13
transfer herefor. The Trustee may treat the registered owner
hereof as the absolute owner hereof for all purposes, whether
or not this Certificate shall be overdue, and the Trustee
shall not be affected by any knowledge or notice to the
contrary; and payment of the interest and principal evidenced
and represented by this Certificate shall be made only to such
registered owner as above provided, which payments shall be
valid and effectual to satisfy and discharge the liability
evidenced and represented by this Certificate to the extent of
the sum or sums so paid.
The Certificates are subject to prepayment prior to
their respective Principal Payment Dates, upon notice as
hereinafter provided, as a whole on any date, or in part on
any Interest Payment Date within each Principal Payment Date
in an integral multiple of five thousand dollars ($5,000) so
that the aggregate annual amounts of principal evidenced and
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate annual amounts of principal
evidenced and represented by the outstanding Certificates,
from funds received by the City due to a taking of the Project
(as that term is defined in the Trust Agreement) or discrete
portions thereof under the power of eminent domain, or from
the net proceeds of insurance received for material damage to
or destruction of the Project or discrete portions thereof,
under the circumstances and upon the conditions and terms
prescribed in the Project Lease and in the Trust Agreement, at
a prepayment price equal to the sum of the principal amount or
such portion thereof evidenced and represented by the
Certificates to be prepaid plus accrued interest evidenced and
represented thereby to the date of prepayment.
The Certificates with Principal Payment Dates of
March 1, 1993, and thereafter are subject to optional
prepayment prior to their respective Principal Payment Dates,
upon notice as hereinafter provided, as a whole on any date on
or after March 1, 1992, or in part in a minimum principal
amount of twenty thousand dollars ($20,000) in inverse order
of their respective Principal Payment Dates on any Interest
Payment Date on or after March 1, 1992, from any source of
available funds, under the circumstances and upon the
conditions and terms prescribed in the Project Lease and in
the Trust Agreement, at a prepayment price equal to the sum of
the principal amount or such portion thereof evidenced and
represented by the Certificates to be prepaid plus accrued
interest evidenced and represented thereby to the date of
prepayment plus a prepayment premium equal to a percentage of
the principal amount thereof in accordance with the following
schedule:
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Prepayment Prepayment
Dates - Premium
On or after March 1, 1992 and prior to March 1, 1993 2
On or after March 1, 1993 and prior to March 1, 1994 1-1/2
On or after March 1, 1994 and prior to March 1, 1995 1
On or after March 1, 1995 and prior to March 1, 1996 1/2
On or after March 1, 1996 0
As provided in the Trust Agreement, notice of
prepayment hereof or of any portion hereof shall be mailed,
first class postage prepaid, not less than thirty (30) nor
more than sixty (60) days before the prepayment date, to the
registered owner of this Certificate at his address as it
appears in the registration books maintained by the Trustee,
but failure to receive any such notice shall not affect the
validity of the proceedings for the prepayment of this
Certificate or such portion thereof. If this Certificate or
such portion thereof is called for prepayment and payment is
duly provided therefor as specified in the Trust Agreement,
the interest evidenced and represented hereby or by such
portion shall cease to accrue from and after the date fixed
for such prepayment.
The Certificates each evidence and represent a
proportionate interest in the Rental Payments and enjoy the
benefits of a security interest in the money held in the funds
established pursuant to the Trust Agreement, subject to the
provisions of the Trust Agreement permitting the disbursement
thereof for or to the purposes and on the conditions and terms
set forth therein. The obligation of the City to make the
Rental Payments is subject to abatement during any period in
which, by reason of material damage or destruction, there is
substantial interference with the use and occupancy of the
Project or discrete portions thereof or if the Project or
discrete portions thereof are taken under the power of eminent
domain, all as more particularly provided in the Project Lease
to which reference is hereby made; and such obligation does
not constitute a debt of the City or the State of California
or any political subdivision thereof within the meaning of any
constitutional or statutory debt limitation or restriction,
and does not constitute an obligation for which the City is
obligated to levy or pledge any form of taxation or for which
the City has levied or pledged any form of taxation.
The Trustee has no obligation or liability to the
registered owners of the Certificates for the payment of the
interest or principal evidenced and represented by the
Certificates; but rather the Trustee's sole obligation is to
administer, for the benefit of the City and the Authority and
the registered owners of the Certificates, the various funds
15
established under the Trust Agreement. The Authority has no
obligation or liability whatsoever to the registered owners of
the Certificates.
IN WITNESS WHEREOF, this Certificate has been dated
as of August 1, 1986, and has been executed by the manual
signature of an authorized signatory of the Trustee on
FIRST INTERSTATE BANK OF CALIFORNIA,
as Trustee
By
Authorized Signatory
16
[FORM OF ASSIGNMENT]
For value received, the undersigned do(es) hereby
sell, assign and transfer unto
the within Certificate and do(es) hereby irrevocably
constitute and appoint attorney to
transfer such Certificate on the register of the Trustee, with
full power of substitution in the premises.
Dated:
SIGNATURE GUARANTEED BY:
Note: The signature(s) to this Assignment must correspond
with the name(s) as written on the face of the within
Certificate in every particular, without alteration or
enlargement or any change whatsoever, and the
signature(s) must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or
trust company.
SECTION 2.05. Execution of Certificates. The
Certificates shall be executed by the Trustee by the manual
signature of an authorized signatory of the Trustee.
SECTION 2.06. Transfer and Exchange of
Certificates. All Certificates are transferable or
exchangeable by the Owner thereof; in person or by his
attorney duly authorized in writing, at the office of the
Trustee in the books required to be kept by the Trustee
pursuant to the provisions of Section 2.07, upon surrender of
such Certificates accompanied by delivery of a duly executed
written instrument of transfer or exchange in a form approved
by the Trustee. Whenever any Certificate or Certificates
shall be surrendered for transfer or exchange, the Trustee
shall execute and deliver a new Certificate or Certificates of
authorized denominations of the same Principal Payment Date
representing the same aggregate principal amount. The Trustee
shall require the payment by any Owner requesting such
transfer or exchange of any tax or other governmental charge
required to be paid with respect to such transfer or exchange,
and may charge a reasonable sum for each new Certificate
delivered upon any such transfer or exchange. All
Certificates surrendered pursuant to the provisions of this
17
section shall be cancelled by the Trustee and shall not be
redelivered.
The Trustee shall not be required to transfer or
exchange any Certificate selected for prepayment in whole or
in part from and after the date that such Certificate is
selected for prepayment in whole or in part hereunder.
SECTION 2.07. Certificate Registration Books. The
Trustee will keep at its office sufficient books for the
registration of the ownership, transfer or exchange of the
Certificates, which books shall be available for inspection by
the Authority, the City or any Owner or his agent duly
authorized in writing at reasonable hours and under reasonable
conditions during regular business hours; and upon
presentation for such purpose the Trustee shall, under such
reasonable regulations as it may prescribe, register the
ownership, transfer or exchange of the Certificates in such
books as herein provided. The ownership of any Certificates
may be proved by the books required to be kept by the Trustee
pursuant to the provisions of this section.
SECTION 2.08. Temporary Certificates. The
Certificates may be initially delivered in temporary form
exchangeable for definitive Certificates when ready for
delivery, which temporary Certificate shall be printed,
lithographed or typewritten, shall be of such denominations as
may be determined by the Trustee, shall be in fully registered
form and shall contain such reference to any of the provisions
hereof as may be appropriate. Every temporary Certificate
shall be executed and delivered by the Trustee upon the same
conditions and terms and in substantially the same manner as
definitive Certificates. If the Trustee executes and delivers
temporary Certificates, it will prepare and execute definitive
Certificates without delay, and in that case, upon demand of
the Owner of any temporary Certificates, such definitive
Certificates shall be exchanged without cost to such Owner for
temporary Certificates at the office of the Trustee upon
surrender of such temporary Certificates, and until so
exchanged such temporary Certificates shall be entitled to the
same benefit, protection and security hereunder as the
definitive Certificates executed and delivered hereunder. All
temporary Certificates surrendered pursuant to the provisions
of this section shall be cancelled by the Trustee and shall
not be redelivered.
SECTION 2.09. Certificates Mutilated, Destroyed,
Lost or Stolen. If any Certificate shall become mutilated,
the Trustee shall execute and deliver a new Certificate of
like tenor, Principal Payment Date and number in exchange and
substitution for the Certificate so mutliated, but only upon
18
surrender to the Trustee of the Certificate so mutilated, and
every mutilated Certificate so surrendered to the Trustee
shall be cancelled by it. If any Certificate shall be lost,
destroyed or stolen, evidence of such loss, destruction or
theft may be submitted to the Trustee, and if such evidence is
satisfactory to the Trustee and indemnity satisfactory to the
Trustee shall be given, the Trustee shall execute and deliver
a new Certificate of like tenor, Principal Payment Date and
number in lieu of and in substitution for the destroyed, lost
or stolen Certificate. The Trustee may require payment of a
sum not exceeding the actual cost of preparing each new
Certificate executed and delivered by it under this section
and of the expenses which may be incurred by it under this
section. Any replacement Certificate executed and delivered
under the provisions of this section in lieu of and in
substitution for any mutilated, destroyed, lost or stolen
Certificate shall be equally and proportionately entitled to
the benefit, protection and security hereof with all other
Certificates executed and delivered hereunder; and the Trustee
shall not be required to treat both the original Certificate
and any replacement Certificate as being Outstanding for the
purpose of determining the principal amount of Certificates
which may be executed and delivered hereunder or for the
purpose of determining any percentage of Certificates
Outstanding hereunder, but both the original and the
replacement Certificate shall be treated as one and the same.
Notwithstanding any other provisions of this section, rather
than executing and delivering a new Certificate for a
mutilated, destroyed, lost or stolen Certificate which has
been called for prepayment or the Principal Payment Date of
which has occurred, the Trustee may make payment of the
principal evidenced and represented by such mutilated,
destroyed, lost or stolen Certificate directly to the Owner
thereof under such regulations as the Trustee may prescribe.
ARTICLE III
PROCEEDS OF CERTIFICATES
SECTION 3.01. Delivery of Certificates. The
Trustee is hereby authorized to execute and deliver the
Certificates to the Purchaser pursuant to the Certificates of
Participation Purchase Contract upon receipt of a Written
Request of the City and upon receipt of the proceeds of sale
thereof.
SECTION 3.02. Deposit of Proceeds of Certificates.
The proceeds received from the sale of the Certificates
(except for an amount equal to the accrued interst on the
Certificates, which shall be deposited in the Rental Payment
19
Fund, and except for the sum of $143,247.66, which shall be
deposited in the Expense Fund) shall be deposited by the
Trustee in the Refunding Fund; provided, that at the same time
there shall be deposited in the Reserve Fund from other
available funds of the Authority a sum equal to the Reserve
Requirement.
SECTION 3.03. Use of Money in the Refunding Fund.
All money in the Refunding Fund shall, upon the Written
Request of the City, be transferred by the Trustee to the
Escrow Agent, to be held under and applied as provided in the
Escrow Agreement.
SECTION 3.04. Use of Money in the Expense Fund.
The Trustee shall disburse moneys from the Expense Fund on
such dates and in such amounts as are necessary to pay all the
costs of issuing the Certificates, including, but not limited
to, all printing and document preparation expenses in
connection with the Trust Agreement, the Project Lease, the
Certificates and the preliminary official statement and the
official statement pertaining to the Certificates, rating
agency fees, CUSIP Service Bureau charges, market study fees,
legal fees and expenses of counsel with respect to the
defeasance of the Bonds, any computer and other expenses
incurred in connection with verification of the determination
that the Certificates are not "arbitrage bonds," the initial
fees and expenses of the Trustee and its counsel, and other
fees and expenses incurred in connection with the issuance of
the Certificates or the implementation of the defeasance of
the Bonds, to the extent such fees and expenses are approved
by a Written Request of the City. Any amounts remaining in
the Expense Fund on the one hundred eightieth (180th) day
following the date of execution and delivery of the
Certificates shall be transferred to the City.
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4.01. Terms of Prepayment. The
Certificates are subject to prepayment prior to their
respective Principal Payment Dates, upon notice as hereinafter
provided, as a whole on any date, or in part on any Interest
Payment Date within each Principal Payment Date in integral .
multiples of five thousand dollars ($5,000) so that the
aggregate annual amounts of principal evidenced and
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate annual amounts of principal
evidenced and represented by the Outstanding Certificates,
from funds received by the City due to a taking of the Project
20
or discrete portions thereof under the power of eminent
domain, or from the net proceeds of insurance received for
material damage to or destruction of the Project or discrete
portions thereof, under the circumstances and upon the
conditions and terms prescribed in the Project Lease and
herein, at a prepayment price equal to the sum of the
principal amount or such portion thereof evidenced and
represented by the Certificates to be prepaid plus accrued
interest evidenced and represented thereby to the date of
prepayment.
The Certificates with Principal Payment Dates of
March 1, 1993, and thereafter are subject to optional
prepayment prior to their respective Principal Payment Dates,
upon notice as hereinafter provided, as a whole on or after
March 1, 1992, or in part in a minimum principal amount of
twenty thousand dollars ($20,000) in inverse order of their
respective Principal Payment Dates on any Interest Payment
Date on or after March 1, 1992, from any source of available
funds, under the circumstances and upon the conditions and
terms prescribed in the Project Lease and herein, at a
prepayment price equal to the sum of the principal amount or
such portion thereof evidenced and represented by the
Certificates to be prepaid plus accrued interest evidenced and
represented thereby to the date prepayment plus a prepayment
premium of the principal amount thereof in accordance with the
following schedule:
Prepayment Prepayment
Dates Premium
On or after March 1, 1992 and prior to March 1, 1993 2
On or after March 1, 1993 and prior to March 1, 1994 1-1/2
On or after March 1, 1994 and prior to March 1, 1995 1
On or after March 1, 1995 and prior to March 1, 1996 1/2
On or after March 1, 1996 0
SECTION 4.02. Selection of Certificates for
Prepayment. Whenever fewer than all the Outstanding
Certificates of any one Principal Payment Date are to be
prepaid on any one date, the Trustee shall select the
Certificates of such Principal Payment Date to be prepaid in
whole or in part from the Outstanding Certificates of such
Principal Payment Date by lot in any manner that the Trustee
deems fair, and the Trustee shall promptly notify the
Authority and the City in writing of the numbers of the
Certificates so selected for prepayment in whole or in part on
such date.
21
•
SECTION 4.03. Notice of Prepayment. Notice of
prepayment shall be given by mail in accordance with -Section
11.07 to the respective Owners of any Certificates designated
for prepayment in whole or in part prior to their prepayment
date. Each notice of prepayment shall state the prepayment
date, the prepayment place and the prepayment price, shall
designate the serial numbers of the Certificates to be prepaid
by giving the individual number of each Certificate or by
stating that all Certificates between two stated numbers, both
inclusive, have been called for prepayment, shall (in the case
of any Certificate called for prepayment in part only) state
the part of the principal amount evidenced and represented
thereby which is to be prepaid, and shall state that the
interest evidenced and represented by the Certificates or
parts thereof designated for prepayment shall cease to accrue
from and after such prepayment date and that on such
prepayment date there will become due and payable on each of
the Certificates or parts thereof designated for prepayment
the prepayment price evidenced and represented thereby.
In case of the prepayment of all the Certificates
then Outstanding, the notice of prepayment need not specify
the serial numbers of the Certificates to be prepaid.
The Trustee shall give notice of prepayment of any
Certificates or portions thereof to be prepaid upon receipt of
a Written Request of the City (which request shall be given to
the Trustee at least sixty (60) days prior to the date fixed
for prepayment), but only after the City shall have made a
Rental Payment to the Trustee and the Trustee shall have
determined that such Rental Payment is sufficient to provide
for the payment of the prepayment price evidenced and
represented by all Certificates or portions thereof to be
prepaid (or the Trustee shall have determined that a Rental
Payment will be timely made available to it which will be
sufficient to provide for such purpose), together with the
estimated expense of giving such notice.
SECTION 4.04. Partial Prepayment of Certificates.
Upon surrender of any Certificate prepaid in part only, the
Trustee shall execute and deliver to the Owner thereof a new
Certificate or Certificates representing the unprepaid
principal amount of the Certificate so surrendered.
SECTION 4.05. Effect of Prepayment. If notice of
prepayment has been duly given as aforesaid and money for the
payment of the prepayment price of the Certificates or parts
thereof to be prepaid is held by the Trustee, then on the
prepayment date designated in such notice the Certificates or
such parts thereof so called for prepayment shall become
payable at the prepayment price evidenced and represented
22
thereby as specified in such notice; and from and after the
date so designated interest evidenced and represented by the
Certificates or such parts thereof so called for prepayment
shall cease to accrue, such Certificates or such parts thereof
shall cease to be entitled to such benefit, protection or
security hereunder and the Owners of such Certificates shall
have no rights in respect thereof except to receive payment of
the prepayment price evidenced and represented by the
Certificates or such parts to be prepaid. The Trustee shall,
upon surrender for prepayment of any of the Certificates to be
prepaid in whole or in part on their prepayment dates, pay
such Certificates or such parts thereof at the prepayment
price evidenced and represented thereby.
All Certificates paid pursuant to the provisions of
this article shall be cancelled by the Trustee and shall not
be redelivered.
ARTICLE V
RENTAL PAYMENTS
SECTION 5.01. Pledge of Rental Payments. The
Rental Payments are hereby irrevocably pledged to the Trustee
for the benefit of the Owners of the Certificates and shall be
used for the punctual payment of the interest and principal
evidenced and represented by the Certificates, and the Rental
Payments shall not be used for any other purpose while any of
the Certificates remain Outstanding. Subject to the
provisions of Section 8.03, this pledge shall constitute a
first and exclusive lien on the Rental Payments for the
foregoing purpose in accordance with the terms hereof.
All Rental Payments shall be paid directly by the
City to the Trustee, and if received by the Authority at any
time shall be deposited by the Authority with the Trustee
within one (1) business day after the receipt thereof. All
Rental Payments received by the Trustee shall be held in trust
by the Trustee under the terms hereof -and shall be deposited
by it as and when received in the Rental Payment Fund, which
fund the Trustee hereby agrees to establish and maintain so
long as any Certificates are Outstanding, and all money in
such fund shall be held in trust by the Trustee for the
benefit of the City until deposited in the funds provided in
Section 5.02, whereupon such money shall be held in trust in
such funds by the Trustee for the benefit of the Owners.
SECTION 5.02. Deposit of Money in the Rental
Payment Fund. The Trustee shall deposit the money contained
in the Rental Payment Fund at the following respective times
in the following respective funds in the manner hereinafter
23
provided, each of which funds the Trustee hereby agrees to
establish and maintain so long as any Certificates are
Outstanding, and the money in each of such funds shall be
disbursed only for the purposes and uses hereinafter
authorized:
(a) Interest Fund. The Trustee, on each Interest
Payment Date (commencing on March 1, 1987), shall deposit
in the Interest Fund that amount of money representing
the portion of the Rental Payments constituting the
interest component becoming due and payable to but not
including such Interest Payment Date. All money in the
Interest Fund shall be used and withdrawn by the Trustee
solely for the purpose of paying the interest evidenced
and represented by the Certificates to but not including
their respective Interest Payment Dates.
(b) Principal Fund. The Trustee, on each Principal
Payment Date (commencing on March 1, 1987), shall deposit
in the Principal Fund that amount of money representing
the portion of the Rental Payments constituting the
principal component becoming due and payable on such
Principal Payment Date. All money in the Principal Fund
shall be used and withdrawn by the Trustee solely for the
purpose of paying the principal evidenced and represented
by the Certificates on their respective Principal Payment
Dates.
(c) Prepayment Fund. The Trustee, on the
prepayment date specified in the Written Request of the
City filed with the Trustee at the time that any prepaid
Rental Payment is paid to the Trustee pursuant to the
Project Lease, shall deposit in the Prepayment Fund that
amount of money representing the portion of the Rental
Payments constituting prepaid Rental Payments. All money
in the Prepayment Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest and
principal evidenced and represented by the Certificates
to be prepaid on their respective prepayment dates.
SECTION 5.03. Reserve Fund. All money on deposit
in the Reserve Fund shall be used and withdrawn by the Trustee
solely for the payment of Rental Payments due and payable by
the City under the Project Lease if and when other money of
the City is not available to make such Rental Payments, or for
the purpose of making the final Rental Payments scheduled to
be paid under the Project Lease; provided, that if the final
Rental Payments scheduled to be paid under the Project Lease
are paid out of funds other than amounts on deposit in the
Reserve Fund, the Trustee shall transfer any moneys remaining
in the Reserve Fund (after making the final Rental Payments)
to the City.
24
SECTION 5.04. Application of Insurance Proceeds.
In the event of any damage to or destruction of any discrete
portion of the Project covered by insurance, the City shall
cause the proceeds of such insurance to be utilized for the
repair, reconstruction or replacement of the damaged or
destroyed portion of such discrete portion of the Project, and
the Trustee shall hold said proceeds separate and apart from
all other funds, to the end that such proceeds shall be
applied to the repair, reconstruction or replacement of such
discrete portion of the Project to at least the same condition
as it was in prior to the damage or destruction, insofar as
the same may be accomplished by the use of said proceeds. The
Trustee shall permit withdrawals of said proceeds from time to
time upon receiving the Written Request of the City, stating
that the City has expended moneys or incurred liabilities in
an amount equal to the amount therein requested to be paid
over to it for the purpose of the repair, reconstruction or
replacement of a discrete portion of the Project, and
specifying the items for which such moneys were expended, or
such liabilities were incurred. Any balance of such proceeds
not required for such repair, reconstruction or replacement
shall be treated by the Trustee as Rental Payments and applied
in accordance with the provisions of Section 5.01.
Notwithstanding the foregoing, the City at its option, with
the prior written consent of the Authority, may elect not to
repair, reconstruct or replace any damaged or destroyed
discrete portion of the Project, whereupon the City shall
cause said proceeds to be used for the prepayment of
Outstanding Certificates in accordance with the provisions of
Section 4.01.
ARTICLE VI
COVENANTS
SECTION 6.01. Compliance with Trust Agreement. The
Trustee will not execute or deliver any Certificates in any
manner other than in accordance with the provisions hereof;
and the Authority and the City will not suffer or permit any
default by them to occur hereunder, but will faithfully
observe and perform all the agreements, conditions, covenants
and terms contained herein required to be observed and
performed by them.
SECTION-6.02. Compliance with Project Lease.
The Authority and the City will faithfully observe and perform
all the agreements, conditions, covenants and terms contained
in the Project Lease required to be observed and performed by
them and will enforce the Project Lease against the other
party thereto in accordance with its terms.
25
The Authority and the City will not amend the
Project Lease without the prior written consent of the
Trustee, which consent shall be given only if, in the opinion
of the Trustee (which opinion may, in the discretion of the
Trustee, be based upon an Opinion of Counsel or a Certificate
of the City), such amendment will not result in any material
impairment of the security given or intended to be given by
the Project Lease for the payment of the Rental Payments.
SECTION 6.03. Observance of Laws and Regulations.
The Authority and the City and the Trustee will faithfully
observe and perform all lawful and valid obligations or
regulations now or hereafter imposed on them by contract, or
prescribed by any state or national law, or by any officer,
board or commission having jurisdiction or control, as a
condition of the continued enjoyment of each and every
franchise, right or privilege now owned or hereafter acquired
by them, including their right to exist and carry on their
respective businesses, to the end that such franchises, rights
and privileges shall be maintained and preserved and shall not
be abandoned, forfeited or in any manner impaired.
SECTION 6.04. Other Liens. The City will keep the
Project and all discrete portions thereof free from judgments
and liens and free from all claims, demands or encumbrances of
whatever nature or character, and free from any claim or
liability which might embarrass or hamper the City in
conducting its business or utilizing the Project or any
discrete portion thereof. So long as any Certificates are
Outstanding, the City will not create or suffer to be created
any pledge of or lien on the Rental Payments other than the
pledge and lien hereof.
SECTION 6.05. Prosecution and Defense of Suits.
The City will promptly, upon request of the Trustee, the
Authority, or any Owner, take such action from time to time as
may be necessary or proper to remedy or cure any cloud upon or
defect in the title to the Project or any part thereof,
whether now existing or hereafter developing, will prosecute
all actions, suits or other proceedings as may be appropriate
for such purpose and will indemnify and save the Trustee and
every Owner harmless from all cost, damage, expense or loss,
including attorneys' fees, which they or any of them may incur
by reason of any such cloud, defect, action, suit or other
proceeding.
The City will defend against every action, suit or
other proceeding at any time brought against the Trustee, the
Authority or any Owner upon any claim arising out of the
receipt, deposit or disbursement of any of the Rental Payments
or involving any rights or obligations of the Trustee or any
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Owner hereunder; provided, that the Trustee, the Authority or
any Owner at its or his election may appear in and defend any
such action, suit or other proceeding. The City will
indemnify and hold harmless the Trustee, the Authority and the
Owners against any and all liability claimed or asserted by
any person arising out of any such receipt, deposit or
disbursement, and will indemnify and hold harmless the Owners
against any attorneys' fees or other expenses which any of
them may incur in connection with any litigation or otherwise
in connection with the foregoing to which any of them may
become a party in order to enforce their rights hereunder or
under the Certificates; provided, that such litigation shall
be concluded favorably to such Owners' contentions therein.
SECTION 6.06. Accounting Records and Statements.
The Trustee will keep proper accounting records in which
complete and correct entries shall be made of all transactions
relating to the receipt, deposit and disbursement of the
Rental Payments, and such accounting records shall be
available for inspection by the Authority or the City or any
Owner or his agent duly authorized in writing at reasonable
hours and under reasonable conditions. Not later than the
fifteenth (15th) day of each March, commencing on March 15,
1987, and continuing so long as any Certificates are
Outstanding, the Trustee will furnish to the Authority, to the
City and to any Owner who may so request in writing (at the
expense of such Owner) a complete statement covering the
receipts, deposits and disbursements of the Rental Payments
for the preceding year.
SECTION 6.07. Recordation and Filing. The City
will file, record, register, renew, refile and rerecord all
such documents, including financing statements (or
continuation statements in connection therewith), as may be
required by law in order to maintain at all times a security
interest in the Rental Payments under and pursuant to the
Trust Agreement, all in such manner, at such times and in such
places as may be required in order to fully perfect, preserve
and protect the benefit, protection and security of the Owners
and the rights of the Trustee hereunder, and the City will do
whatever else may be necessary or be reasonably required in
order to perfect and continue the pledge of and lien on the
Rental Payments as provided herein.
SECTION-6.08. Further Assurances. Whenever and so
often as requested to do so by the Trustee or any Owner, the
Authority and the City will promptly execute and deliver, or
cause to be executed and delivered, all such other and further
assurances, documents or instruments and promptly do or cause
to be done all such other and further things as may be
necessary or reasonably required in order to further and more
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fully vest in the Trustee and the Owners the benefit,
protection and security conferred, or intended to be
conferred, upon them hereby.
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7.01. Action on Default. If an event of
default (as provided in Section 8 of the Project Lease) shall
happen, then such event of default shall constitute a default
hereunder, and in each and every such case during the
continuance of such event of default the Trustee or the Owners
of not less than a majority in aggregate principal amount
evidenced and represented by the Certificates at the time
Outstanding shall be entitled, upon notice in writing to the
Authority and to the City, to exercise the remedies provided
to the Authority in the Project Lease; provided, that nothing
contained herein shall affect or impair the right of action of
any Owner to institute suit directly against the City to
enforce payment of the obligation evidenced and represented by
such Owner's Certificate.
SECTION 7.02. Other Remedies of the Trustee. The
Trustee shall have the right --
(a) by mandamus or other action or proceeding or
suit at law or in equity to enforce its rights against
the Authority or the City or any councilmember, officer
or employee thereof, and to compel the Authority or the
City or any such councilmember, officer or employee
thereof to observe or perform its or his duties under
applicable law and the agreements, conditions, covenants
and terms contained herein required to be observed or
performed by it or him;
(b) by suit in equity to enjoin any acts or things
which are unlawful or violate the rights of the Trustee;
or
(c) by suit in equity upon the happening of any
default hereunder to require the Authority and the City
and its councilmembers, officers and employees to account
as the trustee of any express trust.
SECTION 7.03. Non -Waiver. A waiver of any default
hereunder or breach of any obligation by the Trustee hereunder
or by the Authority under the Project Lease shall not affect
any subsequent default hereunder or any subsequent breach of
an obligation by the Trustee hereunder or impair any rights or
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remedies on any such subsequent default hereunder or on any
such subsequent breach of an obligation by the Trustee
hereunder. No delay or omission by the Trustee to exercise
any right or remedy accruing upon any default hereunder shall
impair any such right or remedy or shall be construed to be a
waiver of any such default hereunder or an acquiescence
therein, and every right or remedy conferred upon the Trustee
by applicable law or by this article may be enforced and
exercised from time to time and as often as shall be deemed
expedient by the Trustee.
If any action, proceeding or suit to enforce any
right or to exercise any remedy is abandoned or determined
adversely to the Trustee or the Authority, the Trustee, the
Authority and the City shall be restored to their former
positions, rights and remedies as if such action, proceeding
or suit had not been brought or taken.
SECTION 7.04. Remedies Not Exclusive. No remedy
conferred herein upon or reserved herein to the Trustee is
intended to be exclusive and all remedies shall be cumulative
and each remedy shall be in addition to every other remedy
given hereunder or now or hereafter existing under applicable
law or equity or by statute or otherwise and may be exercised
without exhausting and without regard to any other remedy
conferred by any other applicable law.
SECTION 7.05. No Liability by the Authority to the
Owners. Except as expressly provided herein, the Authority
shall not have any obligation or liability to the Owners with
respect to the payment when due of the Rental Payments by the
City, or with respect to the observance or performance by the
City of the other agreements, conditions, covenants and terms
contained in the Project Lease or herein required to be
observed or performed by it, or with respect to the
performance by the Trustee of any obligation contained herein
required to be performed by it.
SECTION 7.06. No Liability by the City to the
Owners. Except for the payment when due of the Rental
Payments and the observance and performance of the other
agreements, conditions, covenants and terms contained in the
Project Lease or herein required to be observed or performed
by it, the City shall not have any obligation or liability to
the Owners with respect to the Trust Agreement or the
preparation, execution, delivery, transfer, exchange or
cancellation of the Certificates or the receipt, deposit or
disbursement of the Rental Payments by the Trustee, or with
respect to the performance by the Trustee of any obligation
contained herein required to be performed by it.
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SECTION 7.07. No Liability by the Trustee to the
Owners. Except as expressly provided herein, the Trustee
shall not have any obligation or liability to the Owners with
respect to the payment when due of the Rental Payments by the
City, or with respect to the observance or performance by the
City of the other agreements, conditions, covenants and terms
contained in the Project Lease or herein required to be
observed and performed by it.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Employment and Duties of the Trustee.
The Authority and the City hereby appoint and employ the
Trustee to receive, deposit and disburse the Rental Payments
as provided herein, to prepare, execute, deliver, transfer,
exchange and cancel the Certificates as provided herein, to
pay the interest and principal evidenced and represented by
the Certificates to the Owners thereof as provided herein and
to perform the other obligations contained herein; all in the
manner provided herein and subject to the conditions and terms
hereof. By executing and delivering the Trust Agreement, the
Trustee undertakes to perform such obligations (and only such
obligations) as are specifically set forth herein, and no
implied covenants or obligations shall be read herein against
the Trustee.
SECTION 8.02. Removal and Resignation of the
Trustee. The Authority and the City may at any time remove
the Trustee initially a party hereto and any successor thereto
by giving written notice of such removal to the Trustee and by
giving notice by mail of such removal to all Owners of
Certificates, and the Trustee initially a party hereto and any
successor thereto may at any time resign by giving written
notice of such resignation to the Authority and the City and
by giving notice by mail of such resignation to all Owners of
Certificates. Upon giving any such notice of removal or upon
receiving any such notice of resignation, the Authority and
the City shall promptly appoint a successor Trustee by an
instrument in writing; provided, that in the event the
Authority and the City do not appoint a successor Trustee
within sixty (60) days following the giving of any such notice
of removal or the receipt of any such notice of resignation,
the removed or resigning Trustee may petition any appropriate
court having jurisdiction to appoint a successor Trustee. Any
successor Trustee shall be a bank or trust company doing
business and having a principal corporate trust office either
in Los Angeles or San Francisco, California, having a combined
capital (exclusive of borrowed capital) and surplus of at
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least fifty million dollars ($50,000,000) and subject to
supervision or examination by state or national authorities.
If such bank or trust company publishes a report of condition
at least annually, pursuant to law or to the requirements of
any supervising or examining authority above referred to, then
for the purposes of this section the combined capital and
surplus of such bank or trust company shall be deemed to be
its combined capital and surplus as set forth in its most
recent report of condition so published.
Any removal or resignation of a Trustee and
appointment of a successor Trustee shall become effective only
upon the acceptance of the appointment by the successor
Trustee.
SECTION 8.03. Compensation and Indemnification of
the Trustee. The City shall from time to time, subject to any
agreement then in effect with the Trustee, pay the Trustee
compensation for its services and reimburse the Trustee for
all its advances and expenditures hereunder, including, but
not limited to, advances to and fees and expenses of
accountants, agents, appraisers, consultants, counsel or other
experts employed by it in the observance and performance of
its rights and obligations hereunder.
To the extent permitted by law, the City does hereby
assume liability for, and agree to defend, indemnify, protect,
save and keep harmless, the Trustee and its directors,
officers and employees and its successors and assigns from and
against any and all liabilities, obligations, losses, damages
(including consequential damages incurred by others), taxes
and impositions, penalties, fines, claims, actions, suits,
costs and expenses and disbursements (including legal fees and
expenses) of whatsoever kind and nature imposed in, asserted
against or incurred or suffered by the Trustee or its
directors, officers or employees or its successors and assigns
in any way relating to or arising out of (i) the condition,
management, maintenance or use of or from any work done in
connection with the Project by the City, (ii) any act of
negligence of the City or of any of its agents, contractors,
councilmembers, employees, invitees, licensees or officers in
connection with the Project, (iii) any untrue statement or
alleged untrue statement of any material fact or omission or
alleged omission to state a material fact necessary to make
the statements made, in light of the circumstances under which
they were made, not misleading in any official statement or
other offering circular used in connection with the sale of
the Certificates, or (iv) the exercise of any rights or
obligations of the Trustee hereunder; provided, that no
indemnification will be made for willful misconduct or gross
negligence hereunder by the Trustee.
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As security for the payment to the Trustee of the
compensation and indemnity herein provided, the Trustee is
hereby granted a lien on any and all funds held by it
hereunder; provided, that such lien shall not be superior to
the lien of the Owners unless an event of default (as provided
in Section 7.01) shall have occurred and shall be then
continuing. The obligation of the City contained herein shall
remain valid and binding and enforceable against the City
notwithstanding the payment of all Certificates executed and
delivered hereunder.
SECTION 8.04. Protection of the Trustee. The
Trustee shall be protected and indemnified as stated in this
Trust Agreement by the City and shall incur no liability in
acting or proceeding in good faith upon any affidavit, bond,
certificate, consent, notice, request, requisition,
resolution, statement, telegram, voucher, waiver or other
paper or document which it shall in good faith believe to be
genuine and to have been adopted, executed or delivered by the
proper party or pursuant to any of the provisions hereof, and
the Trustee shall be under no duty to make any investigation
or inquiry as to any statements contained or matters referred
to in any such instrument, but may accept and rely upon the
same as conclusive evidence of the truth and accuracy of such
statements. The Trustee may consult with counsel, who may be
counsel to the City, with regard to legal questions arising
hereunder, and the opinion of such counsel shall be full and
complete authorization and protection in respect to any action
taken or suffered by it hereunder in good faith in accordance
therewith.
The Trustee shall not be responsible for the
sufficiency of the Project Lease, or of the assignment made to
it by the Assignment Agreement of all rights to receive the
Rental Payments thereunder, or of the title or value of the
Project, and shall not be deemed to have knowledge of any
Event of Default unless and until it shall have actual
knowledge thereof or have received written notice thereof at
its office. All recitals, warranties or representations
contained therein are statements of the City and the Trustee
assumes no responsibility for their correctness, and the
Trustee shall not be accountable for the use or application by
the City, or any other party, of any funds which the Trustee
properly releases to the City or which the City may otherwise
receive from time -to time. The Trustee makes no
representation concerning, and has no responsibility for, the
validity, genuineness, sufficiency, or performance by parties
other than the Trustee of the Trust Agreement, any
Certificate, or of any other paper or document, or for taking
any action on them (except as specifically and expressly
stated for the Trustee in the Trust Agreement), or with
respect to any obligation of the City or the Authority.
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Whenever in the observance or performance of its
rights and obligations hereunder or under the Certificates the
Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action
hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a Certificate of the
City, and such certificate shall be full warrant to the
Trustee for any action taken or suffered under the provisions
hereof upon the faith thereof, but in its discretion the
Trustee may, in lieu thereof, accept other evidence of such
matter or may require such additional evidence as to it may
seem reasonable.
The Trustee may buy, sell, own, hold and deal in any
of the Certificates and may join in any action which any Owner
may be entitled to take with like effect as it were not a
party hereto. The Trustee, either as principal or agent, may
also engage in or be interested in any financial or other
transaction with the Authority or the City, and may act as
agent, depositary or trustee for any committee or body of
Owners or of owners of obligations of the Authority or the
City as freely as if it were not the Trustee hereunder.
The Trustee shall not be answerable for the exercise
of any of its rights hereunder or for the performance of any
of its obligations hereunder or for anything whatsoever in
connection with the funds established hereunder, except only
for its own willful misconduct or gross negligence, and the
Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with
the direction of the Owners of a majority in principal amount
of the Outstanding Certificates relating to the tine, method
and place of conducting any proceeding for any remedy
available to it, or exercising any trust or right conferred
upon it hereunder.
No provision hereof shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
or other liability or risk in the performance of any of its
obligations hereunder, or in the exercise of any of its rights
hereunder, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it, and
before taking any action hereunder the Trustee may require
that indemnity satisfactory to it be furnished for all
expenses to which it may be put and to protect it from all
liability thereunder.
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ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO THE TRUST AGREEMENT
SECTION 9.01. Amendment or Supplement by Consent of
Owners. The Trust Agreement and the rights and obligations of
the Authority and the City and Owners and the Trustee
hereunder may be amended or supplemented at any time by an
amendment hereof or supplement hereto which shall become
binding when the written consents of the Owners of a majority
in aggregate principal amount of the Certificates then
Outstanding are filed with the Trustee. No such amendment or
supplement shall (1) reduce the rate of interest evidenced and
represented by any Certificate or extend the time of payment
thereof or reduce the amount of principal evidenced and
represented by any Certificate or extend the Principal Payment
Date thereof without the prior written consent of the Owner of
the Certificate so affected, or (2) reduce the percentage of
Owners whose consent is required for the execution of any
amendment hereof or supplement hereto, or (3) modify any of
the rights or obligations of the Trustee without its prior
written consent thereto.
The Trust Agreement and the rights and obligations
of the Authority and the City and the Owners and the Trustee
hereunder may also be amended or supplemented at any time by
an amendment hereof or supplement hereto which shall become
binding upon execution without the written consents of any
Owners, but only to the extent permitted by law and after
receipt of an approving Opinion of Counsel and only for any
one or more of the following purposes --
(a) to add to the agreements, conditions, covenants
and terms contained herein required to be observed or
performed by the Authority or the City other agreements,
conditions, covenants and terms thereafter to be observed
or performed by the Authority or the City, or
surrender any right reserved herein to or conferred
herein on the Authority or the City, and which in either
case shall not adversely affect the interests of the
Owners; or
(b) to make such provisions for the purpose of
curing any ambiguity or of correcting, curing or
supplementing, any defective provision contained herein or
in regard to questions arising hereunder which the
Authority or the City may deem desirable or necessary and
not inconsistent herewith, and which shall not adversely
affect the interests of the Owners.
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SECTION 9.02. Endorsement or Replacement of
Certificates After Amendment or Supplement. After the
effective date of any action taken as hereinabove provided,
the Trustee may determine that the Certificates may bear a
notation by endorsement in form approved by the Trustee as to
such action, and in that case upon demand of the Owner of any
Outstanding Certificate and presentation of the Certificate
for such purpose at the office of the Trustee a suitable
notation as to such action shall be made on such Certificate.
If the Trustee shall so determine, new Certificates so
modified as in the opinion of the Trustee shall be necessary
to conform to such action shall be prepared, and in that case
upon demand of the Owner of any Outstanding Certificates such
new Certificates shall be exchanged without cost to each Owner
for Certificates then Outstanding at the office of the Trustee
upon surrender of such Outstanding Certificates. All
Certificates surrendered to the Trustee pursuant to the
provisions of this section shall be cancelled by the Trustee
and shall not be redelivered.
SECTION 9.03. Amendment or Supplement by Mutual
Consent. The provisions of this article shall not prevent any
Owner from accepting any amendment or supplement as to the
particular Certificates owned by him; provided, that due
notation thereof is made on such Certificates.
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Certificates and Trust
Agreement.
(a) If the Trustee shall pay or cause to be paid or
there shall otherwise be paid to the Owners of all Outstanding
Certificates the interest and principal evidenced and
represented thereby at the times and in the manner provided
herein and therein, then such Owners shall cease to be
entitled to the pledge of and lien on the Rental Payments as
provided herein, and all agreements and covenants of the
Authority and the City to such Owners hereunder shall
thereupon cease, terminate and become void and shall be
discharged and satisfied.
(b) Any Outstanding Certificates shall on their -
Principal Payment Dates or their dates of prepayment be deemed
to have been paid within the meaning of and with the effect
expressed in subsection (a) of this section if there shall be
on deposit with the Trustee money which is sufficient to pay
the interest and principal evidenced and represented by such
35
Certificates payable on and prior to their Principal Payment
Dates or their dates of prepayment prior thereto.
(c) Any Outstanding Certificates shall prior to
their Principal Payment Dates or their dates of prepayment be
deemed to have been paid within the meaning of and with the
effect expressed in subsection (a) of this section if (1) in
case any of such Certificates are to be prepaid on any date
prior to their Principal Payment Dates, the City shall have
given to the Trustee in form satisfactory to it irrevocable
instructions to give notice by mail to the Owners of such
Certificates of the prepayment of such Certificates on such
prepayment dates, (2) there shall have been deposited with the
Trustee either money or United States Treasury bills, notes,
bonds or certificates of indebtedness, or obligations for
which the full faith and credit of the United States of
America are pledged for the payment of interest and principal,
and which are not subject to redemption except by the holder
thereof prior to maturity (including any such securities
issued or held in book -entry form on the books of the
Department of the Treasury of the United States of America),
the interest on and principal of which when paid will provide
money which, together with the money, if any, deposited with
the Trustee at the same time, shall be sufficient (as
certified by an independent certified public accountant) to
pay when due the interest evidenced and represented by such
Certificates on and prior to their Principal Payment Dates or
their dates of prepayment prior thereto, as the case may be,
and the principal evidenced and represented by such
Certificates, and (3) in the event such Certificates are not
by their terms subject to prepayment within the next
succeeding sixty (60) days, the City shall have given the
Trustee in form satisfactory to it irrevocable instructions to
give notice by mail to the Owners of such Certificates that
the deposit required by clause (2) above has been made with
the Trustee and that such Certificates are deemed to have been
paid in accordance with this section and stating their
Principal Payment Dates or their dates of prepayment prior
thereto upon which money is to be available for the payment of
the interest and principal evidenced and represented by such
Certificates.
(d) After the payment of the interest and principal
evidenced and represented by all Outstanding Certificates as
provided in this section, the Trustee shall execute and
deliver to the Authority and the City all such instruments as
may be necessary to evidence the discharge and satisfaction of
the Trust Agreement, and the Trustee shall pay over or deliver
to the City all money or deposits or investments held by it
pursuant hereto which are not required for the payment of the
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interest and principal evidenced and represented by such
Certificates.
SECTION 10.02. Unclaimed Money. Anything contained
herein to the contrary notwithstanding, any money held by the
Trustee in trust for the payment and discharge of the interest
or principal evidenced and represented by any Certificates
which remains unclaimed for six (6) years after the date when
the payments evidenced and represented by such Certificates
have become payable, if such money was held by the Trustee on
such date, or for six (6) years after the date of deposit of
such money if deposited with the Trustee after the date when
the interest and principal evidenced and represented by such
Certificates have become payable, shall at the Written Request
of the City be repaid by the Trustee to the City as its
absolute property free from trust, and the Trustee shall
thereupon be released and discharged with respect thereto and
the Owners shall look only to the City for the payment of the
interest and principal evidenced and represented by such
Certificates; provided, that before being required to make any
such payment to the City, the Trustee shall, at the expense of
the City, give notice by mail to all Owners of Certificates
that such money remains unclaimed and that after a date named
in such notice, which date shall not be less than sixty (60)
days after the date of giving such notice, the balance of such
money then unclaimed will be returned to the City.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Benefits of the Trust Agreement
Limited to Parties. Nothing contained herein, expressed or
implied, is intended to give to any person other than the
Authority, the City, the Trustee and the Owners any claim,
remedy or right under or pursuant hereto, and any agreement,
condition, covenant or term contained herein required to be
observed or performed by or on behalf of the Authority or the
City shall be for the sole and exclusive benefit of the
Trustee and the Owners.
SECTION 11.02. Successor Deemed Included in All
References to Predecessor. Whenever either the Authority or
the City or the Trustee or any officer thereof is named or
referred to herein, such reference shall be deemed to include
the successor to the powers, duties and functions that are
presently vested in the Authority, the City or the Trustee or
such officer, and all agreements, conditions, covenants and
terms contained herein required to be observed or performed by
or on behalf of the Authority, the City or the Trustee or any
37
officer thereof shall bind and inure to the benefit of the
respective successors thereof whether so expressed or not.
SECTION 11.03. Execution of Documents by Owners.
Any declaration, request or other instrument which is
permitted or required herein to be executed by Owners may be
in one or more instruments of similar tenor and may be
executed by Owners in person or by their attorneys appointed
in writing. The fact and date of the execution by any Owner
or his attorney of any declaration, request or other
instrument or of any writing appointing such attorney may be
proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be
recorded in the state or territory in which he purports to act
that the person signing such declaration, request or other
instrument or writing acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution
duly sworn to before such notary public or other officer, or
by such other proof as the Trustee may accept which it may
deem sufficient.
Any declaration, request or other instrument in
writing of the Owner of any Certificate shall bind all future
Owners of such Certificate with respect to anything done or
suffered to be done by the Authority or the City or the
Trustee in good faith and in accordance therewith.
SECTION 11.04. Waiver of Personal Liability. No
councilmember, officer or employee of the City shall be
individually or personally liable for the payment of the
interest or principal evidenced and represented by the
Certificates, but nothing contained herein shall relieve any
council -member, officer or employee of the City from the
performance of any official duty provided by any applicable
provisions of law or by the Project Lease or by the Assignment
Agreement or hereby.
SECTION 11.05. Acquisition of Certificates by
City. All Certificates acquired by the City, whether by
purchase or gift or otherwise, shall be surrendered to the
Trustee for cancellation.
SECTION 11.06. Content of Certificates. Every
Certificate of the City with respect to compliance with any
agreement, condition, covenant or term contained herein shall
include (a) a statement that the person or persons executing
such certificate have read such agreement, condition, covenant
or term and the definitions herein relating thereto; (b) a
brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such
certificate are based; (c) a statement that, in the opinion of
38
the signers, they have made or caused to be made such
examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such
agreement, condition, covenant or term has been complied with;
and (d) a statement as to whether, in the opinion of the
signers, such agreement, condition, covenant or term has been
complied with.
Any Certificate of the City may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel unless
the person or persons executing such certificate know that the
Opinion of Counsel with respect to the matters upon which his
or their certificate may be based, as aforesaid, is erroneous,
or in the exercise of reasonable care should have known that
the same was erroneous. Any Opinion of Counsel may be based,
insofar as it relates to factual matters and information with
respect to which is in the possession of the City, upon a
representation by an officer or officers of the City unless
the counsel executing such Opinion of Counsel knows that the
representation with respect to the matters upon which his
opinion may be based, as aforesaid, is erroneous, or in the
exercise of reasonable care should have known that the same
was erroneous.
SECTION 11.07. Notice by Mail. Any notice required
to be given hereunder by mail to any Owners of Certificates
shall be given by mailing a copy of such notice, first class
postage prepaid, to the Owners of such Certificates at their
addresses appearing in the books required to be kept by the
Trustee pursuant to the provisions of Section 2.07 not less
than thirty (30) days nor more than sixty (60) days following
the action or prior to the event concerning which notice
thereof is required to be given; provided, that receipt of any
such notice shall not be a condition precedent to the effect
of such notice and failure to receive any such notice shall
not affect the validity of the proceedings taken in connection
with the action or the event concerning which such notice was
given.
SECTION 11.08. Funds. Any fund required to be
established and maintained herein by the Trustee may be
established and maintained in the accounting records of the
Trustee either as an account or a fund, and may, for the
purpose of such accounting records, any audits thereof and any
reports or statements with respect thereto, be treated either
as an account or a fund; but all such records with respect to
all such funds shall at all times be maintained in accordance
with sound accounting practice and with due regard for the
protection of the security of the Certificates and the rights
of the Owners.
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SECTION 11.09. Investments. Any money held by the
Trustee in the Rental Payment Fund or in the Reserve. Fund
shall be held in demand or time deposits (including
certificates of deposit) of any bank (including the Trustee)
authorized to accept deposits of public funds, and shall be
secured at all times by such obligations as are required by
law and to the fullest extent required by law, except that
such money may be invested (and, upon the Written Request of
the City, shall be invested) by the Trustee in Permitted
Investments which will, as nearly as practicable, mature on or
before the dates on which such money is anticipated to be
needed for disbursement hereunder. The Trustee may act as
principal or agent in the acquisition or disposition of any
such deposit or investment and may, for the purpose of any
such deposit or investment, commingle any of the money held by
it hereunder. The Trustee shall not be liable or responsible
for any loss suffered in connection with any such deposit or
investment made by it under the terms of and in accordance
with this section. The Trustee may present for redemption or
sell any such deposit or investment whenever it shall be
necessary in order to provide money to meet any payment of the
money so deposited or invested, and the Trustee shall not be
liable or responsible for any losses resulting from any such
deposit or investment presented for redemption or sold. Any
interest or profits on such deposits and investments received
by the Trustee shall be paid to the City semiannually on
March 2 and September 2 of each year; provided, that if the
balance in the Reserve Fund is less than the Reserve
Requirement, all such interest on profits shall be deposited
in the Reserve Fund.
SECTION 11.10. Disqualified Certificates. In
determining whether the Owners of the requisite aggregate
principal amount of Certificates have concurred in any demand,
request, direction, consent or waiver hereunder, Certificates
which are owned or held by or for the account of the Authority
or the City, or by any other obligor on the Certificates, or
by any person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, the
Authority or the City or any other obligor on the
Certificates, shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination; and in
case of a dispute hereunder as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full
protection to the -Trustee.
SECTION 11.11. Article and Section Headings, Gender
and References. The headings or titles of the several
articles and sections hereof and the table of contents
appended hereto shall be solely for convenience of reference
and shall not affect the meaning, construction or effect
40
s
hereof, and words of any gender shall be deemed and construed
to include all genders. All references herein to "Articles,"
"Sections" and other subdivisions or clauses are to the
corresponding articles, sections, subdivisions or clauses
hereof; and the words "hereby," "herein," "hereof," "hereto,"
"herewith," "hereunder" and other words of similar import
refer to the Trust Agreement as a whole and not to any
particular article, section, subdivision or clause thereof.
SECTION 11.12. Partial Invalidity. If any one or
more of the agreements, conditions, covenants or terms
contained herein required to be observed or performed by or on
the part of the Authority, the City or the Trustee shall be
contrary to law, then such agreement or agreements, such
condition or conditions, such covenant or covenants or such
term or terms shall be null and void and shall be deemed
separable from the remaining agreements, conditions, covenants
and terms hereof and shall in no way affect the validity
hereof or of the Certificates, and the Owners shall retain all
the benefit, protection and security afforded to them
hereunder and under all provisions of applicable law. The
Authority, the City and the Trustee hereby declare that they
would have executed and entered into the Trust Agreement and
each and every other article, section, paragraph, subdivision,
sentence, clause and phrase hereof and would have authorized
the execution and delivery of the Certificates pursuant hereto
irrespective of the fact that any one or more of the articles,
sections, paragraphs, subdivisions, sentences, clauses or
phrases hereof or the application thereof to any person or
circumstance may be held to be unconstitutional, unenforceable
or invalid.
SECTION 11.13. California Law. The Trust Agreement
shall be construed and governed in accordance with the laws of
the State of California.
SECTION 11.14. Notices. All written notices to be
given hereunder shall be given by mail to the party entitled
thereto at its address set forth below, or at such other
address as such party may provide to the other parties in
writing from time to time, namely:
If to the Trustee:
First Interstate Bank of California
Corporate Trust Department W10-2
707 Wilshire Boulevard
Los Angeles, California 90017
41
If to the Authority:
Parking Authority of the City of National City
c/o City Manager
City of National City
City Hall
1243 National City Boulevard
National City, California 92050
If to the City:
City Manager
City of National City
City Hall
1243 National City Boulevard
National City, California 92050
SECTION 11.15. Effective Date. The Trust Agreement
shall become effective upon its execution and delivery.
SECTION 11.16. Execution in Counterparts. The
Trust Agreement may be executed and entered into in several
counterparts, each of which shall be deemed an original, and
all of which shall constitute but one and the same instrument.
42
IN WITNESS WHEREOF, the parties hereto have executed
and entered into the Trust Agreement by their officers
thereunto duly authorized as of the day and year first above
written.
(SEAL)
ATTEST:
Assistant Secretary
(SEAL)
ATTEST:
Secretary
(SEAL)
Attest:
City Clerk
FIRST INTERSTATE BANK OF CALIFORNIA
By
By
PARKING AUTHORITY OF THE CITY OF
NATIONAL CITY
By
Chairman
CITY OF NATIONAL CITY
By
43
Mayor
IN WITNESS WHEREOF, the parties hereto have executed
and entered into the Trust Agreement by their officers
thereunto duly authorized as of the day and year first above
written.
(SEAL)
ATTEST:
Assistant Secretary
Secretary
(SEAL)
Attest:
f City
Clerk
FIRST INTERSTATE BANK OF CALIFORNIA
By
Vice President
By
Assistant Vice President
PARKING AUTHORITY OF THE CITY OF
NATIONAL CITY
By
Ch .' rman
CITY OF NATION ? CITY
By
43
ayor
e-
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
ss.
On this 2S'41day of August, in the year 1986, before
me, J9,41,, r �. S4,./0"., a Notary Public, State of
California, personally appeared K,/e y/Pr9 A
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the
within instrument as Chairman of the Parking Authority of the
City of National City, and irno/of ,4 Pv fit, -_. personally
known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument
as Secretary of the Parking Authority of the City of National
City, and acknowledged to me that the Parking Authority of the
City of National City executed it.
OFFICIAL SEAL
DAVID L. SHELDON
Notary Public California
Principal Office In
San Diego County
t U•i My Comm. Exp. Aug. 22. 1988
............4..-...-:4-...
[Notarial Seal]
Notary Public,��~
State of California
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
) ss.
On this 2T day of August, in the year 1986, before
me, DA v.% � t,pjB , a Notary Public, State of
California, personally appeared ,ri/,e Mo•.i
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed the
within instrument as Mayor of the City of National City, and
T n 9 1 LA.v/. (e // personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who
executed the within instrument as City Clerk of the City of
National City, and acknowledged to me that the City of
National City executed it.
OFFPCIAL
ffiricipal `M. <,,.,m . Saego Office In
�� Cornn u
'a S0x�I *
Co1 Qgg r
[Noegtiv. e
Notary Public,
State of California
STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO )
ss.
On this cArday of August, in the year 1986, before
me, L]NDA MADE!RA , a Notary Public State of
Calornia, personally appeared CECILEOBhY and
'iM• RLJtLUS and ! _KANE , personally known to
me (or proved to me on the basis of satisfactory evidence) to
be the persons who executed the within instrument on behalf of
the corporation therein named, and acknowledged to me that the
corporation executed it.
OFFICIAL SEAL
LINDA MADEIRA
NOTARY PUBLIC - CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO�
My Comm. Expires Oct. 20, 1989
[Notarial Seal]
No ary Public,
State of California