SR-203-001-06 (2)
INDENTURE
REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA
and
BNY WESTERN TRUST COMPANY,
AS TRUSTEE
Dated as of _________ 1, 1999
Relating to
$____________
Redevelopment Agency of the City of Santa Monica
Santa Monica Earthquake Recovery Redevelopment Project
Tax Allocation Bonds, Series 1999
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ARTICLE I
DEFINITIONS; EQUAL SECURITY
Section 1.01. Definitions..........................................................................................................3
Section 1.02. Equal Security...................................................................................................15
ARTICLE II
THE BONDS; SERIES 1999 BOND PROVISIONS
Section 2.01. Authorization....................................................................................................16
Section 2.02. Terms of Series 1999 Bonds..............................................................................16
Section 2.03. Form of Series 1999 Bonds...............................................................................17
Section 2.04. Redemption of Series 1999 Bonds; Selection of Bonds; Purchase in Lieu
of Redemption; Notice......................................................................................17
Section 2.05. Execution of Bonds...........................................................................................20
Section 2.06. Transfer and Registration of Bonds...................................................................21
Section 2.07. Exchange of Bonds...........................................................................................21
Section 2.08. Bond Registration Books...................................................................................21
Section 2.09. Mutilated, Destroyed, Stolen or Lost Bonds......................................................21
Section 2.10. Temporary Bonds..............................................................................................22
Section 2.11. Validity of Bonds..............................................................................................22
Section 2.12. Book-Entry System...........................................................................................22
ARTICLE III
ISSUANCE OF SERIES 1999 BONDS;
APPLICATION OF PROCEEDS OF SALE
Section 3.01. Issuance of Series 1999 Bonds..........................................................................25
Section 3.02. Application of Proceeds of Sale of Series 1999 Bonds.......................................25
ARTICLE IV
ISSUANCE OF ADDITIONAL BONDS
Section 4.01. Conditions for the Issuance of Additional Bonds...............................................26
Section 4.02. Procedure for the Issuance of Additional Bonds................................................28
Section 4.03. Limit on Indebtedness.......................................................................................28
ARTICLE V
TAX REVENUES; CREATION OF FUNDS
Section 5.01. Pledge of Tax Revenues....................................................................................30
Section 5.02. Revenue Fund; Debt Service Fund; Receipt and Deposit of Tax Revenues........30
Section 5.03. Establishment of Funds.....................................................................................31
Section 5.04. Redevelopment Fund........................................................................................31
Section 5.05. Expense Fund...................................................................................................31
Section 5.06. Establishment and Maintenance of Accounts for Use of Moneys in the
Debt Service Fund.............................................................................................32
Section 5.07. Rebate Fund......................................................................................................34
Section 5.08. Investment of Moneys in Funds and Accounts..................................................35
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ARTICLE VI
COVENANTS OF THE AGENCY
Section 6.01. Punctual Payment..............................................................................................36
Section 6.02. Against Encumbrances......................................................................................36
Section 6.03. Extension or Funding of Claims for Interest......................................................36
Section 6.04. Management and Operation of Properties..........................................................36
Section 6.05. Payment of Claims............................................................................................36
Section 6.06. Books and Accounts; Financial and Project Statements.....................................36
Section 6.07. Protection of Security and Rights of Owners.....................................................37
Section 6.08. Payment of Taxes and Other Charges................................................................37
Section 6.09. Financing the Project........................................................................................37
Section 6.10. Taxation of Leased Property.............................................................................37
Section 6.11. Disposition of Property in Project Area.............................................................37
Section 6.12. Amendment of Redevelopment Plan.................................................................38
Section 6.13. Tax Revenues...................................................................................................38
Section 6.14. Agreements with Other Taxing Agencies..........................................................38
Section 6.15. Tax Covenants..................................................................................................39
Section 6.16. Continuing Disclosure.......................................................................................39
Section 6.17. Further Assurances............................................................................................39
ARTICLE VII
THE TRUSTEE
Section 7.01. Duties and Liabilities of Trustee........................................................................40
Section 7.02. Merger or Consolidation...................................................................................41
Section 7.03. Liability of Trustee...........................................................................................41
Section 7.04. Right to Rely on Documents.............................................................................42
Section 7.05. Preservation and Inspection of Documents........................................................43
Section 7.06. Compensation and Indemnification...................................................................43
ARTICLE VIII
AMENDMENT OF THE INDENTURE
Section 8.01. Amendment by Consent of Owners...................................................................44
Section 8.02. Disqualified Bonds............................................................................................45
Section 8.03. Endorsement or Replacement of Bonds After Amendment................................45
Section 8.04. Amendment by Mutual Consent........................................................................45
Section 8.05. Opinion of Counsel...........................................................................................45
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF OWNERS
Section 9.01. Events of Default and Acceleration of Maturities..............................................46
Section 9.02. Application of Funds Upon Acceleration...........................................................47
Section 9.03. Other Remedies.................................................................................................47
Section 9.04. Non-Waiver......................................................................................................47
Section 9.05. Remedies Not Exclusive...................................................................................48
Section 9.06. Power of Trustee to Enforce..............................................................................48
Section 9.07. Bond Owners Direction of Proceedings.............................................................48
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Section 9.08. Limitation on Bond Owners’ Right to Sue.........................................................48
Section 9.09. Bond Insurer’s Direction of Proceedings...........................................................49
ARTICLE X
DEFEASANCE
Section 10.01. Discharge of Indebtedness.................................................................................50
Section 10.02. Unclaimed Moneys...........................................................................................51
ARTICLE XI
MISCELLANEOUS
Section 11.01. Liability of Agency Limited to Tax Revenues...................................................52
Section 11.02. Benefits of Indenture Limited to Parties............................................................52
Section 11.03. Successor Is Deemed Included in All References to Predecessor.......................52
Section 11.04. Execution of Documents by Owners.................................................................52
Section 11.05. Waiver of Personal Liability.............................................................................53
Section 11.06. Acquisition of Bonds by Agency.......................................................................53
Section 11.07. Destruction of Canceled Bonds.........................................................................53
Section 11.08. Content of Certificates and Reports...................................................................53
Section 11.09. Notice to Bond Insurer......................................................................................54
Section 11.10. Funds and Accounts..........................................................................................54
Section 11.11. Article and Section Headings and References....................................................54
Section 11.12. Partial Invalidity...............................................................................................54
Section 11.13. Execution in Several Counterparts.....................................................................55
Section 11.14. Business Days...................................................................................................55
Section 11.15. Governing Law.................................................................................................55
Section 11.16. Notices..............................................................................................................55
APPENDIX A FORM OF BOND.........................................................................................A-1
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INDENTURE
THIS INDENTURE
(this “Indenture”) is made and entered into as of _________ 1,
1999, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SANTA
MONICA, a public body, corporate and politic, organized and existing under and by virtue of the
laws of the State of California (the “Agency”), and BNY WESTERN TRUST COMPANY, a
banking corporation duly organized and existing under and by virtue of the laws of the State of
California, as Trustee (the “Trustee”);
W I T N E S S E T H:
WHEREAS,
the Agency is a redevelopment agency, a public body, corporate and politic
duly created, established and authorized to transact business and exercise its powers, all under
and pursuant to the Community Redevelopment Law (Part 1 of Division 24 of the California
Health and Safety Code) (the “Law”) and the powers of such Agency include the power to issue
bonds for any of its corporate purposes;
WHEREAS,
a redevelopment plan for a redevelopment project known and designated as
the “Santa Monica Earthquake Recovery Redevelopment Project” has been adopted and
approved and all requirements of law for, and precedent to, the adoption and approval of said
plan have been duly complied with;
WHEREAS,
the plan contemplates that the Agency will issue its bonds to finance a
portion of the cost of such redevelopment;
WHEREAS,
in order to provide funds to finance a portion of the cost of such
redevelopment, the Agency desires to provide for the issuance of Redevelopment Agency of the
City of Santa Monica, Santa Monica Earthquake Recovery Redevelopment Project Tax
Allocation Bonds, Series 1999 (the “Series 1999 Bonds”), in the aggregate principal amount of
not to exceed $______________;
WHEREAS,
the Agency desires to provide for the issuance of additional bonds (the
“Additional Bonds”) payable on a parity with the Series 1999 Bonds, provided that said issuance
is in accordance with the Law and this Indenture (the Series 1999 Bonds and any such Additional
Bonds being collectively referred to as the “Bonds”);
WHEREAS,
in order to provide for the authentication and delivery of the Bonds, to
establish and declare the terms and conditions upon which the Bonds are to be issued and
secured and to secure the payment of the principal thereof, premium, if any, and interest thereon,
the Agency has authorized the execution and delivery of this Indenture; and
WHEREAS,
the Agency has determined that all acts and proceedings required by law
necessary to make the Bonds, when executed by the Agency, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal special obligations of the Agency, and to
constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth
in accordance with its terms, have been done and taken, and the execution and delivery of the
Indenture has been in all respects duly authorized;
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NOW, THEREFORE, THIS INDENTURE WITNESSETH,
that in order to secure
the payment of the principal of, premium, if any, and the interest on all Bonds at any time issued
and outstanding under this Indenture, according to their tenor, and to secure the performance and
observance of all the covenants and conditions therein and herein set forth, and to declare the
terms and conditions upon and subject to which the Bonds are to be issued and received, and in
consideration of the premises and of the mutual covenants herein contained and of the purchase
and acceptance of the Bonds by the owners thereof, and for other valuable consideration, the
receipt whereof is hereby acknowledged, the Agency does hereby covenant and agree with the
Trustee, for the benefit of the respective owners from time to time of the Bonds, as follows:
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ARTICLE I
DEFINITIONS; EQUAL SECURITY
Section 1.01. Definitions
. Unless the context otherwise requires, the terms defined in
this section shall for all purposes of this Indenture and of the Bonds and of any certificate,
opinion, report, request or other document herein or therein mentioned have the meanings herein
specified.
“Additional Allowance”
means, as of any date of calculation, the sum of (a) the amount
of Tax Revenues that, as shown in a Consultant’s Report of an Independent Redevelopment
Consultant, are estimated to be allocable to the Agency in the next succeeding Fiscal Year as a
result of increases in the assessed valuation of taxable property in the Project Area due to either
(i) construction that has been completed but has not yet been reflected on the tax roll, or (ii) the
transfer of ownership, or any other interest, in real property that is not then reflected on the tax
roll, plus (b) the amount of Tax Revenues that, as shown in a Consultant’s Report of an
Independent Redevelopment Consultant, are estimated to be allocable to the Agency in the next
succeeding Fiscal Year as a result of increases in the assessed valuation of taxable property in the
Project Area due to inflation at an assumed annual inflation rate equal to the lesser of (i) the
annual rate of inflation as shown in the consumer price index or comparable data for the Project
Area during the most recent twelve month-period for which figures are available, or (ii) 2%. For
purposes of this definition, the phrase “increases in the assessed valuation” means the amount by
which the assessed valuation of taxable property in the Project Area in the next succeeding Fiscal
Year is estimated, as of the date on which such calculation is made, to exceed the assessed
valuation of taxable property in the Project Area (as evidenced by a written document from an
appropriate official of Los Angeles County).
“Additional Bonds”
means all tax allocation bonds of the Agency authorized and
executed pursuant to the Indenture and issued and delivered in accordance with Article IV.
“Agency”
means the Redevelopment Agency of the City of Santa Monica, a public body,
corporate and politic, duly organized and existing under and pursuant to the Law.
“Aggregate Available L&M Revenues”
means, for any Bond Year, the aggregate
amount of Available L&M Revenues for all Series of Outstanding Bonds for such Bond Year.
“Annual Debt Service”
means, for each Bond Year, the sum of (a) the interest falling
due on the Outstanding Bonds in such year, assuming that the Outstanding Serial Bonds are
retired as scheduled and that the Outstanding Term Bonds, if any, are redeemed from the sinking
account as may be scheduled, (b) the principal amount of the Outstanding Serial Bonds, if any,
falling due by their terms in such year, and (c) the minimum amount of such Outstanding Term
Bonds required to be paid or called and redeemed in such year.
“Authorized Investments”
means any of the following which at the time of investment
are legal investments under the laws of the State of California for the moneys proposed to be
invested therein:
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(1) (a) Direct obligations (other than an obligation subject to variation in principal
repayment) of the United States of America (“United States Treasury Obligations”), (b)
obligations fully and unconditionally guaranteed as to timely payment of principal and
interest by the United States of America, (c) obligations fully and unconditionally
guaranteed as to timely payment of principal and interest by any agency or
instrumentality of the United States of America when such obligations are backed by the
full faith and credit of the United States of America, or (d) evidences of ownership of
proportionate interests in future interest and principal payments on obligations described
above held by a bank or trust company as custodian, under which the owner of the
investment is the real party in interest and has the right to proceed directly and
individually against the obligor and the underlying government obligations are not
available to any person claiming through the custodian or to whom the custodian may be
obligated (collectively “United States Obligations”). These include, but are not
necessarily limited to:
- U.S. Treasury obligations
All direct or fully guaranteed obligations
- Farmers Home Administration
Certificates of beneficial ownership
- General Services Administration
Participation certificates
- U.S. Maritime Administration
Guaranteed Title XI financing
- Small Business Administration
Guaranteed participation certificates
Guaranteed pool certificates
- Government National Mortgage Association (GNMA)
GNMA-guaranteed mortgage-backed securities
GNMA-guaranteed participation certificates
- U.S. Department of Housing & Urban Development
Local authority bonds
- Washington Metropolitan Area Transit Authority
Guaranteed transit bonds
(2) Federal Housing Administration debentures.
(3) The listed obligations of government-sponsored agencies which are not
backed by the full faith and credit of the United States of America:
- Federal Home Loan Mortgage Corporation (FHLMC)
Participation certificates (excluded are stripped mortgage securities
which are purchased at prices exceeding their principal amounts)
Senior debt obligations
- Farm Credit Banks (formerly: Federal Land Banks, Federal Intermediate
Credit Banks and Banks for Cooperatives)
Consolidated systemwide bonds and notes
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- Federal Home Loan Banks (FHL Banks)
Consolidated debt obligations
- Federal National Mortgage Association (FNMA)
Senior debt obligations
Mortgage-backed securities (excluded are stripped mortgages
securities which are purchased at prices exceeding their principal
amounts)
- Student Loan Marketing Association (SLMA)
Senior debt obligations (excluded are securities that do not have a
fixed par value and/or whose terms do not promise a fixed dollar
amount at maturity or call date)
- Financing Corporation (FICO)
Debt obligations
- Resolution Funding Corporation (REFCORP)
Debt obligations
(4) Unsecured certificates of deposit, time deposits, and bankers’ acceptances
(having maturities of not more than 180 days) of any bank the short-term obligations of
which are rated “A-1+” or better by S&P and “P-1” or better by Moody’s.
(5) Deposits the aggregate amount of which are fully insured by the Federal
Deposit Insurance Corporation (FDIC), in banks which have capital and surplus of at
least $5 million.
(6) Commercial paper (having original maturities of not more than 270 days)
rated “A-1+” by S&P and “Prime-1” by Moody’s.
(7) Money market funds rated “AAm” or “AAm-G” or better by S&P and
“AA” or better by Moody’s.
(8) Repurchase agreements:
(a) With any domestic bank the long term debt of which is rated “AA”
or better by S&P and Moody’s (so long as an opinion is rendered that the
repurchase agreement is a “repurchase agreement” as defined in the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) and
that such bank is subject to FIRREA), or any foreign bank rated at least “AA” by
S&P and “Aaa” by Moody’s or “AAA” by S & P and at least “Aa” by Moody’s;
provided the term of such repurchase agreement is for one year or less.
(b) With (i) any broker-dealer with “retail customers” which has, or
the parent company of which has, long-term debt rated at least “AA” by S&P and
“Aa” by Moody’s, which broker-dealer falls under the jurisdiction of the
Securities Investors Protection Corp. (SIPC); provided that:
A. The market value of the collateral is maintained for United
States Treasury Obligations, at the levels shown below under “Collateral
Levels for United States Treasury Obligations”;
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B. Failure to maintain the requisite collateral percentage will
require the Agency or the Trustee to liquidate the collateral;
C. The Trustee, the Agency or a third party acting solely as
agent therefor (the “Holder of the Collateral”) has possession of the
collateral or the collateral has been transferred to the Holder of the
Collateral in accordance with applicable state and federal laws (other than
by means of entries on the transferor’s books);
D. The repurchase agreement states, and an opinion of counsel
is rendered to the effect, that the Trustee has a perfected first priority
security interest in the collateral, any substituted collateral and all
proceeds thereof (in the case of bearer securities, this means the Holder of
the Collateral is in possession);
E. The transferor represents that the collateral is free and clear
of any third-party liens or claims;
F. An opinion is rendered that the repurchase agreement is a
“repurchase agreement” as defined in the United States Bankruptcy Code;
G. There is or will be a written agreement governing every
repurchase transaction;
H. Each of the Agency and the Trustee represents that it has
no knowledge of any fraud involved in the repurchase transaction; and
I. The Agency and the Trustee receive an opinion of counsel
(which opinion shall be addressed to the Agency and the Trustee) that
such repurchase agreement is legal, valid and binding and enforceable
against the provider in accordance with its terms.
(9) State Obligations
(a) Direct general obligations of any state of the United States or any
subdivision or agency thereof to which is pledged the full faith and credit of a
state the unsecured general obligation debt of which is rated “A” by Moody’s and
“A” by S&P, or better, or any obligation fully and unconditionally guaranteed by
any state, subdivision or agency whose unsecured general obligation debt is so
rated.
(b) Direct, general short-term obligations of any state agency or
subdivision described in (a) above and rated “A-1+” by S&P and “Prime-1” by
Moody’s.
(c) Special Revenue Bonds (as defined in the United States
Bankruptcy Code) of any state, state agency or subdivision described in (a) above
and rated “AA” or better by S&P and “Aa” or better by Moody’s.
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(10) Investment agreements with a domestic or foreign bank or corporation
(other than a life or property casualty insurance company) the long-term debt of which,
or, in the case of a guaranteed corporation the long-term debt of the guarantor, or in the
case of a monoline financial guaranty insurance company the claims paying ability of the
guarantor, is rated at least “AA” by S&P and “Aa” by Moody’s; provided, that prior
written notice of an investment in the investment agreement is provided to S&P and,
provided, further, by the terms of the investment agreement:
(a) interest payments are to be made to the Trustee at times and in
amounts as necessary to pay debt service (or, if the investment agreement is for
the construction fund, construction draws) on the Bonds;
(b) the invested funds are available for withdrawal without penalty or
premium, at any time for purposes identified in the Indenture other than
acquisition of alternative investment property upon not more than seven days
prior notice (which notice may be amended or withdrawn at any time prior to the
specified withdrawal date); provided that the Indenture specifically requires the
Trustee or the Agency to give notice in accordance with the terms of the
investment agreement so as to receive funds thereunder with no penalty or
premium paid;
(c) the investment agreement shall state that it is the unconditional and
general obligation of, and is not subordinated to any other obligation of, the
provider thereof;
(d) a fixed guaranteed rate of interest is to be paid on invested funds
and all future deposits, if any, required to be made to restore the amount of such
funds to the level specified under the Indenture;
(e) the Trustee and the Agency receive the opinion of domestic
counsel (which opinion shall be addressed to the Agency) that such investment
agreement is legal, valid and binding and enforceable against the provider in
accordance with its terms and of foreign counsel (if applicable);
(f) the investment agreement shall provide that if during its term (A)
the provider’s or the guarantor’s rating by either Moody’s or S&P is withdrawn or
suspended or falls below “AA” or “Aa”, respectively, or, with respect to a foreign
bank, below the ratings of such provider at the delivery date of the investment
agreement, the provider must, at the direction of the Agency or the Trustee within
10 days of receipt of such direction, either (1) collateralize the investment
agreement by delivering or transferring in accordance with applicable state and
federal laws (other than by means of entries on the provider’s books) to the
Trustee, the Agency or a Holder of the Collateral, United States Treasury
Obligations which are free and clear of any third-party liens or claims at the
Collateral Levels set forth below; or (2) repay the principal of and accrued but
unpaid interest on the investment (the choice of (1) or (2) above shall be that of
the Agency or Trustee, as appropriate), and (B) the provider’s or the guarantor’s
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rating by either Moody’s or S&P is withdrawn or suspended or falls below “A”,
or, with respect to a foreign bank, below “AA” or “Aa” by S&P or Moody’s, as
appropriate, the provider must, at the direction of the Agency or the Trustee,
within 10 days of receipt of such direction, repay the principal of and accrued but
unpaid interest on the investment, in either case with no penalty or premium to the
Agency or Trustee;
(g) the investment agreement shall state, and an opinion of counsel
shall be rendered to the effect, that the Trustee has a perfected first priority
security interest in the collateral, any substituted collateral and all proceeds
thereof (in the case of bearer securities, this means the Trustee is in possession);
and
(h) the investment agreement must provide that if during its term (A)
the provider shall default in its payment obligations, the provider’s obligation
under the investment agreement shall, at the direction of the Agency or the
Trustee, be accelerated and amounts invested and accrued but unpaid interest
thereon shall be repaid to the Agency or Trustee, as appropriate, and (B) the
provider shall become insolvent, not pay its debts as they become due, be
declared or petition to be declared bankrupt, etc. (“event of insolvency”), the
provider’s obligations shall automatically be accelerated and amounts invested
and accrued but unpaid interest thereon shall be repaid to the Agency or Trustee,
as appropriate.
(11) Pre-refunded municipal obligations rated “AAA” by S&P and “Aaa” by
Moody’s meeting the following requirements:
(a) the municipal obligations are (i) not subject to redemption prior to
maturity or (ii) the trustee for the municipal obligations has been given
irrevocable instructions concerning their call and redemption and the issuer of the
municipal obligations has covenanted not to redeem such municipal obligations
other than as set forth in such instructions;
(b) the municipal obligations are secured by cash or United States
Treasury Obligations which may be applied only to payment of the principal of,
interest and premium on such municipal obligations;
(c) the principal of and interest on the United States Treasury
Obligations (plus any cash in the escrow) has been verified by the report of
independent certified public accountants to be sufficient to pay in full all principal
of, interest, and premium, if any, due and to become due on the municipal
obligations (“Verification”);
(d) the cash or United States Treasury Obligations serving as security
for the municipal obligations are held by an escrow agent or trustee in trust for
owners of the municipal obligations; and
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(e) no substitution of a United States Treasury Obligation shall be
permitted except with another United States Treasury Obligation and upon
delivery of a new Verification; and
(f) the cash or the United States Treasury Obligations are not available
to satisfy any other claims, including those by or against the trustee or escrow
agent.
Collateral Levels For United States Treasury Obligations
Remaining Maturity
Frequency of 1 year 5 years 10 years 15 years 30 years
Valuation or less or less or less or less or less
Daily 102 105 106 108 114
Weekly 103 111 112 114 120
Monthly 105 117 120 125 133
Quarterly 107 120 130 133 140
Further Requirements: (a) On each valuation date the Agency, the Trustee, or the
custodian who shall confirm to the Agency and the Trustee, shall value the market value
(exclusive of accrued interest) of the collateral, which market value will be an amount equal to
the requisite collateral percentage times the principal amount of the investment (including unpaid
accrued interest thereon) that is being secured, (b) in the event the collateral level is below its
collateral percentage on a valuation date, such percentage shall be restored within the following
restoration periods: one Business Day for daily valuations, two Business Days for weekly and
monthly valuations, and one month for quarterly valuations (the use of different restoration
periods affect the requisite collateral percentage), (c) the Agency or the Trustee shall terminate
the repurchase agreement or the investment agreement, as the case may be, upon a failure to
maintain the requisite collateral percentage after the restoration period and, if not paid by the
counterparty in federal funds against transfer of the collateral, liquidate the collateral.
“Authorized Representative”
means, with respect to the Agency, the Executive
Director of the Agency, the Treasurer of the Agency, and any other Person designated as an
Authorized Representative of the Agency in a Written Certificate of the Agency filed with the
Trustee.
“Available L&M Revenues”
means, with respect to a Series of Bonds for any Bond
Year, an amount equal to the amount, if any, of the Annual Debt Service on such Series of Bonds
for such Bond Year that may be paid from Tax Revenues that otherwise would be required to be
deposited by the Agency in the Housing Fund, which amount shall be equal to the product of (a)
a fraction (i) the numerator of which is the amount of the proceeds of such Series of Bonds (or
the amount of the proceeds of Bonds refunded by such Series of Bonds) deposited in or
transferred to a special account within the Redevelopment Fund (such as the Series 1999
Housing Account) to be used and disbursed in the manner provided in Section 33334.2 of the
Law solely for the purpose of aiding in increasing, improving or preserving low and moderate
income housing within or of benefit to the Project Area, and (ii) the denominator of which is the
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sum of (x) the amount of the proceeds of such Series of Bonds (or the amount of the proceeds of
Bonds refunded by such Series of Bonds) initially deposited in the Redevelopment Fund (less
any amount subsequently transferred to any special account described in (i), above, plus (y) the
amount of the numerator described in (i), above, times (b) the amount Annual Debt Service on
such Series of Bonds for such Bond Year.
“Average Annual Debt Service”
means the aggregate Annual Debt Service divided by
the number of twelve-month periods ending on the last day of each Bond Year (including any
fractional periods) remaining until the last maturity date of any Outstanding Bond.
“Book-Entry Bonds”
means Bonds of any Series registered in the name of the Nominee
of a Depository as the Owner thereof pursuant to the terms and provisions of Section 2.12 hereof.
“Bond Insurance Policy”
means the municipal bond insurance policy, if any, issued by
the applicable Bond Insurer and guaranteeing, in whole or in part, the payment of principal of
and interest on a Series of Bonds.
“Bond Insurer”
means the issuer or issuers of a policy or policies of municipal bond
insurance obtained by the Agency to insure the payment of principal of and interest on a Series
of Bonds issued under the Indenture, when due otherwise than by acceleration, and which, in
fact, are at any time insuring such Series of Bonds. For the purposes of this definition, all
consents, approvals or actions required by the Bond Insurer shall be unanimous action of all
Bond Insurers if there is more than a single Bond Insurer.
“Bond Year”
means (a) with respect to the initial Bond Year, the period extending from
the date the Series 1999 Bonds are originally delivered to July 1, 2000, and (ii) thereafter, each
twelve month period extending from the day immediately following July 1 in any calendar year
to the July 1 in the next following calendar year, all dates inclusive. Notwithstanding the
foregoing, the term Bond Year as used in Section 6.16 hereof is defined in the manner set forth
in the Rebate Certificate.
“Bonds”
means the Series 1999 Bonds and all Additional Bonds.
“City”
means the City of Santa Monica, California.
“Code”
means the Internal Revenue Code of 1986.
“Consultant’s Report”
means a report signed by an Independent Financial Consultant or
an Independent Redevelopment Consultant, as may be appropriate to the subject of the report,
and including
(a) a statement that the Independent Financial Consultant or Independent
Redevelopment Consultant making or giving such report has read the pertinent provisions
of this Indenture to which such report relates;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the report is based;
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(c) a statement that, in the opinion of such Independent Financial Consultant
or Independent Redevelopment Consultant, sufficient examination or investigation was
made as is necessary to enable said Independent Financial Consultant or Independent
Redevelopment Consultant to express an informed opinion with respect to the subject
matter referred to in the report.
“Continuing Disclosure Certificate”
means the Continuing Disclosure Certificate,
dated as of the date hereof, executed by the Agency, as originally executed and as it may from
time to time be amended in accordance with the provisions thereof.
“Depository”
means the securities depository acting as Depository pursuant to Section
2.12 hereof.
“DTC”
means The Depository Trust Company, New York, New York, and its successors
and assigns.
“Federal Securities”
means United States Treasury notes, bonds, bills or certificates of
indebtedness, or other evidences of indebtedness secured by the full faith and credit of the United
States of America; and also any securities now or hereafter authorized both the interest on and
principal of which are guaranteed directly by the full faith and credit of the United States of
America.
“Fiscal Year”
means the period commencing on July 1 of each year and terminating on
the next succeeding June 30, or any other annual accounting period hereafter selected and
designated by the Agency as its Fiscal Year in accordance with the Law and identified in writing
to the Trustee.
“Fitch”
means Fitch IBCA, Inc., or any rating agency which is a successor thereto.
“Forward Purchase and Sale Agreement”
means an agreement entered into by the
Trustee and/or the Agency and a bank or financial institution (the “Provider”) rated “A2” or
higher by Moody’s and “A” or higher by S&P providing for the Provider to tender, and for the
Trustee to purchase, certain eligible securities on one or more dates occurring at least 30 business
days after the date of such agreement; provided, however, that (a) securities tendered by the
Provider are purchased on a delivery versus payment basis, (b) securities purchased constitute
Authorized Investments at the time they are tendered, and (c) the Agency receives an opinion of
counsel acceptable to the Agency and to the Trustee which states that the agreement constitutes a
legally valid, binding, and enforceable obligation of the Provider and that in the event of a
bankruptcy of the Provider, securities sold by the Provider to the Trustee pursuant to the
agreement do not constitute property of the estate of the Provider within the applicable
bankruptcy or insolvency laws.
“Housing Fund”
means the Low and Moderate Income Housing Fund, established
pursuant to Section 33334.3 of the Law with respect to the Project Area and held by the Agency.
“Indenture”
means this Indenture, as originally executed and as it may be amended or
supplemented from time to time by any Supplemental Indenture.
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“Independent Certified Public Accountant”
means any certified public accountant or
firm of such accountants duly licensed and entitled to practice and practicing as such under the
laws of the State of California, appointed and paid by the Agency, and who, or each of whom:
(a) is in fact independent and not under the domination of the Agency;
(b) does not have any substantial interest, direct or indirect, with the Agency;
and
(c) is not connected with the Agency as a member, officer or employee of the
Agency, but who may be regularly retained to make annual or other audits of the books
of or reports to the Agency.
“Independent Financial Consultant”
means a financial consultant or firm of such
consultants generally recognized to be well qualified in the financial consulting field, appointed
and paid by the Agency and who, or each of whom:
(a) is in fact independent and not under the domination of the Agency;
(b) does not have any substantial interest, direct or indirect, with the Agency; and
(c) is not connected with the Agency as a member, officer or employee of the
Agency, but who may be regularly retained to make annual or other reports to the Agency.
“Independent Redevelopment Consultant”
means a consultant or firm of such
consultants generally recognized to be well qualified in the field of consulting relating to tax
allocation bond financing by California redevelopment agencies, appointed and paid by the
Agency, and who, or each of whom:
(a) is in fact independent and not under the domination of the Agency;
(b) does not have any substantial interest, direct or indirect, with the Agency;
and
(c) is not connected with the Agency as a member, officer or employee of the
Agency, but who may be regularly retained to make annual or other reports to the
Agency.
“Information Services”
means Financial Information, Inc.’s “Daily Called Bond
Service”, 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor;
Kenny Information Services Called Bond Service, 55 Broad Street, 28th Floor, New York, New
York 10004; “Moody’s Investors Service Municipal and Government”, 5250 77 Center Drive,
Suite 150, Charlotte, North Carolina 28217, Attention: Municipal News Reports; Standard &
Poor’s “Called Bond Record”, 25 Broadway, 3rd Floor, New York, New York 10004; and, in
accordance with then current guidelines of the Securities and Exchange Commission, such other
addresses and/or such services providing information with respect to called bonds as the Agency
may designate in a Written Certificate of the Agency delivered to the Trustee.
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“Interest Payment Date”
means each January 1 or July 1 on which interest on any
Series of Bonds is scheduled to be paid, commencing July 1, 2000.
“Investment Agreement”
means an investment agreement or guaranteed investment
contract by and between the Trustee and a national or state chartered bank or savings and loan
institution (including the Trustee) or other financial institution the long-term debt obligations of
which are rated “A” or higher by S&P, or “A” or higher by Moody’s, in each case without regard
to negative modifiers, respecting the investment of moneys in certain funds or accounts
established pursuant to this Indenture.
“Law”
means the Community Redevelopment Law of the State of California (being Part
1 of Division 24 of the California Health and Safety Code, as amended), and all laws amendatory
thereof or supplemental thereto.
“Letter of Representations”
means the letter of the Agency delivered to and accepted
by the Depository on or prior to the issuance of a Series of Book-Entry Bonds setting forth the
basis on which the Depository serves as depository for such Book-Entry Bonds, as originally
executed or as it may be supplemented or revised or replaced by a letter to a substitute
depository.
“Maximum Annual Debt Service”
means the largest Annual Debt Service for any Bond
Year, including the Bond Year in which the calculation is made.
“Moody’s”
means Moody’s Investors Service, or any rating agency which is a successor
thereto.
“Nominee”
shall mean the nominee of the Depository, which may be the Depository, as
determined from time to time pursuant to Section 2.12 hereof.
“Outstanding”
when used as of any particular time with reference to Bonds, means
(subject to the provisions of Section 8.02) all Bonds except:
(a) Bonds theretofore canceled by the Trustee or surrendered to the Trustee
for cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of
Section 10.01; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
authorized, executed, issued and delivered by the Agency pursuant to the Indenture.
“Owner”
means, with respect to a Bond, the Person in whose name such Bond is
registered on the registration books required to be maintained by the Trustee pursuant to Section
2.08 hereof.
“Participating Underwriter”
shall have the meaning ascribed thereto in the Continuing
Disclosure Certificate.
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“Participants”
shall mean those broker-dealers, banks and other financial institutions
from time to time for which the Depository holds Book-Entry Bonds as securities depository.
“Person”
means an individual, corporation, firm, association, partnership, trust, or other
legal entity or group of entities, including a governmental entity or any agency or political
subdivision thereof.
“Principal Corporate Trust Office”
means the principal corporate trust office of the
Trustee in Los Angeles, California, or such other office as may be specified to the Agency by the
Trustee in writing.
“Principal Payment Date”
means any date on which principal on any Series of Bonds is
scheduled to be paid, which dates shall be as set forth in Section 2.02 hereof for the Series 1999
Bonds.
“Project”
means the undertaking of the Agency pursuant to the Redevelopment Plan and
the Law for the redevelopment of the Project Area.
“Project Area”
means the project area described in the Redevelopment Plan.
“Qualified Reserve Instrument”
means a letter of credit meeting the requirements of
Section 5.06(d)(ii) or an insurance policy meeting the requirements of Section 5.06(d)(iii).
“Record Date”
means the 15th day of the month next preceding each Interest Payment
Date, whether or not such day is a business day.
“Redevelopment Plan”
means the redevelopment plan for the Santa Monica Earthquake
Recovery Redevelopment Project, adopted and approved as the Redevelopment Plan for the
Project by Ordinance No. 1747, adopted by the City Council of the City on June 21, 1994,
together with all amendments thereto thereafter made in accordance with the Law.
“Reserve Requirement”
means an amount equal to the least of (a) 10% of the proceeds
(within the meaning of Section 148 of the Code) of each Series of Bonds Outstanding, (b) 125%
of Average Annual Debt Service, and (c) Maximum Annual Debt Service; provided that for the
purpose of such calculations, there shall be excluded an amount of Bonds or debt service thereon
equal to the amount deposited in any escrow fund established pursuant to Section 4.01(c).
“Securities Depositories”
means The Depository Trust Company, 711 Stewart Avenue,
Garden City, New York 11530, Fax - (516) 227-4039 or 4190; and, in accordance with then
current guidelines of the Securities and Exchange Commission, such other addresses and/or such
other securities depositories as the Agency may designate in a Written Certificate of the Agency
delivered to the Trustee.
“Serial Bonds”
means Bonds for which no mandatory sinking account payments are
provided.
“Series”
means the initial series of Bonds executed, authenticated and delivered on the
date of initial issuance of the Bonds and identified pursuant to this Indenture as the Series 1999
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Bonds, and any Additional Bonds issued pursuant to a Supplemental Indenture and identified as
a separate Series of Bonds.
“Series 1999 Bonds”
means the Redevelopment Agency of the City of Santa Monica,
Santa Monica Earthquake Recovery Redevelopment Project Tax Allocation Bonds, Series 1999.
“Sinking Account Installment”
means the amount of money required by or pursuant to
this Indenture to be paid by the Agency on any single date toward the retirement of any
particular Term Bonds of any particular Series on or prior to their respective stated maturities.
“Sinking Account Payment Date”
means any date on which Sinking Account
Installments on any Series of Bonds are scheduled to be paid.
“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc., or any rating agency which is a successor thereto.
“Supplemental Indenture”
means any supplemental indenture amendatory of or
supplemental to this Indenture, but only if and to the extent that such Supplemental Indenture is
specifically authorized hereunder.
“Tax Certificate”
means the Tax Certificate executed by the Agency at the time of
issuance of the Series 1999 Bonds relating to the requirements of Section 148 of the Code, as
originally executed and as it may from time to time be amended in accordance with the
provisions thereof.
“Tax Revenues”
means, for each Fiscal Year, the taxes (including all payments,
reimbursements and subventions, if any, specifically attributable to ad valorem taxes lost by
reason of tax exemptions and tax rate limitations) eligible for allocation to the Agency pursuant
to the Law in connection with the Project Area, excluding (a) amounts, if any, required to be
deposited by the Agency in the Housing Fund and used for certain housing purposes, provided,
however, that such amounts shall not be excluded if and to the extent that the Agency makes
such amounts available as Tax Revenues, and excluding (b) amounts, if any, payable pursuant to
Sections 33607.5 and 33607.7 of the Law but only to the extent such amounts are not
subordinated to the payment of debt service on the Bonds. By virtue of a portion of the proceeds
of the Series 1999 Bonds having been deposited in the Series 1999 Housing Account, the
amounts, if any, required to be deposited by the Agency in the Housing Fund and used for
certain housing purposes have been made available as Tax Revenues so long as the Series 1999
Bonds are Outstanding.
“Term Bonds”
means Bonds which are payable on or before their specified maturity
dates from mandatory sinking account payments established for that purpose and calculated to
retire such Bonds on or before their specified maturity dates.
“Trustee”
means BNY Western Trust Company, a banking corporation duly organized
and existing under and by virtue of the laws of the State of California, or any successor thereto as
Trustee hereunder, appointed as provided herein.
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“Written Certificate”“Written Request”
and of the Agency mean, respectively, a
written certificate or written request signed in the name of the Agency by an Authorized
Representative. Any such certificate or request may, but need not, be combined in a single
instrument with any other instrument, opinion or representation, and the two or more so
combined shall be read and construed as a single instrument.
Section 1.02. Equal Security.
In consideration of the acceptance of the Bonds by the
Owners thereof, this Indenture shall be deemed to be and shall constitute a contract among the
Agency, the Trustee and the Owners from time to time of all Bonds authorized, executed, issued
and delivered hereunder and then Outstanding to secure the full and final payment of the
principal of, premium, if any, and interest on all Bonds which may from time to time be
authorized, executed, issued and delivered hereunder, subject to the agreements, conditions,
covenants and provisions contained herein; and all agreements and covenants set forth herein to
be performed by or on behalf of the Agency shall be for the equal and proportionate benefit,
protection and security of all Owners of the Bonds without distinction, preference or priority as
to security or otherwise of any Bonds over any other Bonds by reason of the number or date
thereof or the time of authorization, sale, execution, issuance or delivery thereof or for any cause
whatsoever, except as expressly provided herein or therein.
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ARTICLE II
THE BONDS; SERIES 1999 BOND PROVISIONS
Section 2.01. Authorization
. Bonds in unlimited amount may be issued at any time
under and subject to the terms of this Indenture. The Agency has reviewed all proceedings
heretofore taken relative to the authorization of the Series 1999 Bonds and has found, as a result
of such review, and hereby finds and determines that all acts, conditions and things required by
law to exist, happen or be performed precedent to and in connection with the issuance of the
Series 1999 Bonds do exist, have happened and have been performed in due time, form and
manner as required by law, and the Agency is now duly authorized, pursuant to each and every
requirement of law, to issue the Series 1999 Bonds in the manner and form provided in this
Indenture. Accordingly, the Agency hereby authorizes the issuance of the Series 1999 Bonds for
the purpose of providing funds to aid in financing the Project.
Section 2.02. Terms of Series 1999 Bonds
. The Series 1999 Bonds authorized to be
issued by the Agency under and subject to the terms of this Indenture and the Law shall be
designated the “Redevelopment Agency of the City of Santa Monica, Santa Monica Earthquake
Recovery Redevelopment Project Tax Allocation Bonds, Series 1999” and shall be in the
aggregate principal amount of $___________. The Series 1999 Bonds shall be dated the [date of
delivery of the Series 1999 Bonds], shall bear interest, at such rate or rates (payable on January 1
and July 1 in each year, commencing July 1, 2000), and shall mature and become payable on
July 1 in each of the years as to principal in the amounts set forth below:
Maturity
Date Principal Interest
(July 1) Amount Rate
* Term Bonds
Interest on the Series 1999 Bonds shall be computed on the basis of a 360-day year of twelve 30-
day months.
The Series 1999 Bonds shall be issued as fully registered bonds in the denomination of
$5,000, or any integral multiple of $5,000 (not exceeding the principal amount of Series 1999
Bonds maturing at any one time). Interest on the Series 1999 Bonds shall be payable from the
Interest Payment Date next preceding the date of authentication thereof unless (i) a Series 1999
Bond is authenticated on or before an Interest Payment Date and after the close of business on
the preceding Record Date, in which event it shall bear interest from such Interest Payment Date,
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or (ii) a Series 1999 Bond is authenticated on or before the first Record Date, in which event
interest thereon shall be payable from ____________, 1999; provided, however, that if, at the
time of authentication of any Series 1999 Bond, interest is then in default on the Outstanding
Series 1999 Bonds, such Series 1999 Bond shall bear interest from the Interest Payment Date to
which interest previously has been paid or made available for payment on the Outstanding Series
1999 Bonds. Payment of interest on the Series 1999 Bonds due on or before the maturity or prior
redemption of such Series 1999 Bonds shall be made to the Person whose name appears on the
bond registration books of the Trustee as the registered owner thereof, as of the close of business
on the Record Date next preceding the Interest Payment Date, such interest to be paid by check
mailed on the Interest Payment Date by first class mail to such registered owner at his address as
it appears on such books, or, upon written request received prior to the Record Date preceding an
Interest Payment Date of an Owner of at least $1,000,000 in aggregate principal amount of
Series 1999 Bonds, by wire transfer in immediately available funds to an account within the
continental United States designated by such Owner.
Principal of and redemption premiums, if any, on the Series 1999 Bonds shall be payable
upon the surrender thereof at maturity or the earlier redemption thereof at the Principal Corporate
Trust Office. Principal of and redemption premiums, if any, and interest on the Series 1999
Bonds shall be paid in lawful money of the United States of America.
Section 2.03. Form of Series 1999 Bonds.
The Series 1999 Bonds, the authentication
and registration endorsement and the assignment to appear thereon shall be substantially in the
forms attached hereto as Appendix A, with necessary or appropriate variations, omissions and
insertions as permitted or required by this Indenture.
Section 2.04. Redemption of Series 1999 Bonds; Selection of Bonds; Purchase in
Lieu of Redemption; Notice.
(a) Optional Redemption. Series 1999 Bonds due on or before
July 1, _____ are not subject to redemption prior to their respective stated maturities. Series 1999
Bonds maturing on or after July 1, _____ are subject to redemption, as a whole or in part, as
designated by the Agency, or, absent such designation, pro rata among maturities, and by lot
within any one maturity if less than all of the Series 1999 Bonds of such maturity are to be
redeemed, prior to their respective maturity dates, at the option of the Agency, on any date on or
after July 1, _____, from funds derived by the Agency from any source, at the following
redemption prices (expressed as a percentage of the principal amount of the Bonds to be
redeemed), together with interest accrued thereon to the date fixed for redemption.
Redemption Dates Redemption Price
July 1, _____ through June 30, _____ 101%
July 1, _____ and thereafter 100
The Agency shall provide written notice to the Trustee at least 60 days prior to the
redemption date specifying the principal amount of the Series 1999 Bonds to be redeemed.
(b) Sinking Account Redemption. Series 1999 Bonds maturing on July 1, _____ (the
“_____ Term Series 1999 Bonds”) shall also be subject to mandatory redemption in part by lot
prior to their stated maturity dates on any July 1, on or after July 1, _____, solely from funds
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derived by the Agency from the required deposit into the Sinking Account provided for in
Section 5.06 hereof, at the principal amount thereof plus accrued interest thereon to the
redemption date, without premium, in the aggregate principal amounts and on the dates set forth
below:
_____ Term Series 1999 Bonds
Sinking
Payment Date Principal Amount
(July 1) to be Redeemed
_____________
* Maturity
Series 1999 Bonds maturing on July 1, _____ (the “_____ Term Series 1999 Bonds”)
shall also be subject to mandatory redemption in part by lot prior to their stated maturity dates on
any July 1, on or after July 1, _____, solely from funds derived by the Agency from the required
deposit into the Sinking Account provided for in Section 5.06 hereof, at the principal amount
thereof plus accrued interest thereon to the redemption date, without premium, in the aggregate
principal amounts and on the dates set forth below:
_____ Term Series 1999 Bonds
Sinking
Payment Date Principal Amount
(July 1) to be Redeemed
* Maturity
Series 1999 Bonds maturing on July 1, _____ (the “_____ Term Series 1999 Bonds”)
shall also be subject to mandatory redemption in part by lot prior to their stated maturity dates on
any July 1, on or after July 1, _____, solely from funds derived by the Agency from the required
deposit into the Sinking Account provided for in Section 5.06 hereof, at the principal amount
thereof plus accrued interest thereon to the redemption date, without premium, in the aggregate
principal amounts and on the dates set forth below:
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_____ Term Series 1999 Bonds
Sinking
Payment Date Principal Amount
(July 1) to be Redeemed
_____________
* Maturity
Notwithstanding the foregoing schedules for Sinking Account Redemption, if some but
not all of such Term Series 1999 Bonds have been redeemed pursuant to subsection (a) above,
the total amount of all future Sinking Account Installments set forth in the tables contained this
subsection (b) shall be reduced, as appropriate, by the aggregate principal amount of Series 1999
Bonds so redeemed, to be allocated among such Sinking Account Installments as are thereafter
payable, as designated by the Agency, or, absent such designation, on a pro rata basis, in integral
multiples of $5,000.
(c) Selection of Bonds. Whenever less than all Outstanding Bonds maturing on any
one date are called for redemption at any one time, the Trustee shall select the Bonds to be
redeemed from the Outstanding Bonds maturing on such date not previously selected for
redemption, by lot in any manner which the Trustee deems appropriate. For purposes of
selecting Bonds for redemption, the Bonds shall be deemed to be composed of $5,000 portions
and any such portions may be separately redeemed.
(d) Purchase in Lieu of Redemption. In lieu of redemption of any Term Bond,
amounts on deposit in the Debt Service Fund or in the Sinking Account therein may also be used
and withdrawn by the Trustee at any time, upon the Written Request of the Agency, for the
purchase of such Term Bonds at public or private sale as and when and at such prices (including
brokerage and other charges, but excluding accrued interest, which is payable from the Interest
Fund) as the Agency may in its discretion determine, but not in excess of the principal amount
thereof plus accrued interest to the purchase date. The principal amount of any Term Bonds so
purchased by the Trustee in any twelve-month period ending 60 days prior to any Principal
Payment Date in any year shall be credited towards and shall reduce the principal amount of such
Term Bonds required to be redeemed on such Principal Payment Date in such year.
(e) Notice. Notice of redemption shall be mailed by first class mail by the Trustee,
not less than 30 nor more than 60 days prior to the redemption date to (i) the respective Owners
of Bonds designated for redemption at their addresses appearing on the bond registration books
of the Trustee, (ii) to one or more Information Services designated in writing to the Trustee by
the Agency, and (iii) the Securities Depositories. Each notice of redemption shall state the date
of such notice, the Bonds to be redeemed, the date of issue of such Bonds, the redemption date,
the redemption price, the place or places of redemption (including the name and appropriate
address or addresses), the CUSIP number (if any) of the maturity or maturities, and, if less than
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all of any such maturity are to be redeemed, the distinctive certificate numbers of the Bonds of
such maturity to be redeemed and, in the case of Bonds to be redeemed in part only, the
respective portions of the principal amount thereof to be redeemed. Each such notice shall also
state that on said date there will become due and payable on each of such Bonds the redemption
price thereof or of said specified portion of the principal amount thereof in the case of a Bond to
be redeemed in part only, together with interest accrued thereon to the redemption date, and that
from and after such redemption date interest thereon shall cease to accrue, and shall require that
such Bonds be then surrendered at the address or addresses of the Trustee specified in the
redemption notice.
Failure by the Trustee to give notice pursuant to this Section to any one or more of the
Information Services or Securities Depositories, or the insufficiency of any such notice shall not
affect the sufficiency of the proceedings for redemption. The failure of any Owner to receive any
redemption notice mailed to such Owner and any defect in the notice so mailed shall not affect
the sufficiency of the proceedings for redemption.
The Agency shall have the right to rescind any optional redemption by written notice to
the Trustee on or prior to the date fixed for redemption. Any notice of optional redemption shall
be canceled and annulled if for any reason funds are not available on the date fixed for
redemption for the payment in full of the Bonds then called for redemption, and such
cancellation shall not constitute an Event of Default hereunder. The Agency and the Trustee shall
have no liability to the Owners or any other party related to or arising from such rescission of
redemption. The Trustee shall mail notice of such rescission of redemption in the same manner
as the original notice of redemption was sent.
(f) Partial Redemption. Upon surrender of any Bond redeemed in part only, the
Agency shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the
expense of the Agency, a new Bond or Bonds of authorized denominations equal in aggregate
principal amount to the unredeemed portion of the Bond surrendered and of the same interest
rate and the same maturity.
(g) Effect of Redemption. From and after the date fixed for redemption, if notice of
such redemption shall have been duly given and funds available for the payment of such
redemption price of the Bonds so called for redemption shall have been duly provided, no
interest shall accrue on such Bonds from and after the redemption date specified in such notice.
All Bonds redeemed pursuant to the provisions of this section shall be canceled and
destroyed by the Trustee.
Section 2.05. Execution of Bonds.
The Chairperson of the Agency is hereby authorized
and directed to execute each of the Bonds on behalf of the Agency and the Secretary of the
Agency is hereby authorized and directed to attest each of the Bonds on behalf of the Agency.
Any of the signatures of said Chairperson or said Secretary may be by printed, lithographed or
engraved facsimile reproduction. In case any officer whose signature appears on the Bonds shall
cease to be such officer before the delivery of the Bonds to the purchaser thereof, such signature
shall nevertheless be valid and sufficient for all purposes the same as though he had remained in
office until such delivery of the Bonds.
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Only such of the Bonds as shall bear thereon a certificate of authentication and
registration in the form hereinbefore recited, executed and dated by the Trustee, shall be entitled
to any benefits under the Indenture or be valid or obligatory for any purpose, and such certificate
of the Trustee shall be conclusive evidence that the Bonds so registered have been duly issued
and delivered hereunder and are entitled to the benefits of the Indenture.
Section 2.06. Transfer and Registration of Bonds.
Any Bond may, in accordance with
its terms, be transferred, upon the books required to be kept pursuant to the provisions of Section
2.08, by the Person in whose name it is registered, in person or by his duly authorized attorney,
upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument
of transfer in a form acceptable to the Trustee, duly executed.
Whenever any Bond or Bonds shall be surrendered for transfer, the Agency shall execute
and the Trustee shall authenticate and deliver a new Bond or Bonds of the same Series in a like
aggregate principal amount, in any authorized denomination. The Trustee shall require the
payment by the Owner requesting such transfer of any tax or other governmental charge required
to be paid with respect to such transfer.
The Trustee shall not be obligated to make any transfer of Bonds of a Series pursuant to this
Section during the period established by the Trustee for the selection of Bonds of such Series for
redemption, or with respect to any Bonds of such Series selected for redemption.
Section 2.07. Exchange of Bonds.
The Bonds may be exchanged at the Principal
Corporate Trust Office for a like aggregate principal amount of Bonds of the same Series in other
authorized denominations. The Trustee shall require the payment by the Owner requesting such
exchange of any tax or other governmental charge required to be paid with respect to such
exchange.
The Trustee shall not be obligated to make any exchange of Bonds of a Series pursuant to
this Section during the period established by the Trustee for the selection of Bonds of such Series
for redemption, or with respect to any Bonds of such Series selected for redemption.
Section 2.08. Bond Registration Books.
The Trustee will keep at the Principal
Corporate Trust Office sufficient books for the registration and transfer of the Bonds, which shall
at all times be open to inspection by the Agency during regular business hours with reasonable
prior notice; and, upon presentation for such purpose, the Trustee shall, under such reasonable
regulations as it may prescribe, register or transfer the Bonds on said books as hereinbefore
provided.
Section 2.09. Mutilated, Destroyed, Stolen or Lost Bonds.
If any Bond shall become
mutilated, the Agency, at the expense of the Owner of said Bond, shall execute, and the Trustee
shall thereupon authenticate and deliver, a new Bond of like tenor and Series in exchange and
substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so
mutilated. Every mutilated Bond so surrendered to the Trustee shall be canceled by it and
delivered to, or upon the order of, the Agency. If any Bond shall be lost, destroyed or stolen,
evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence
and indemnity satisfactory to the Trustee shall be given, the Agency, at the expense of the
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Owner, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of
like tenor and Series in lieu of and in replacement for the Bond so lost, destroyed or stolen (or if
any such Bond shall have matured or shall have been selected for redemption, instead of issuing
a replacement Bond, the Trustee may pay the same without surrender thereof). The Agency may
require payment by the Owner of a sum not exceeding the actual cost of preparing each
replacement Bond issued under this Section and of the expenses which may be incurred by the
Agency and the Trustee. Any Bond of a Series issued under the provisions of this Section in lieu
of any Bond of such Series alleged to be lost, destroyed or stolen shall constitute an original
additional contractual obligation on the part of the Agency whether or not the Bond so alleged to
be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the
benefits of this Indenture with all other Bonds of such Series secured by this Indenture.
Section 2.10. Temporary Bonds.
Until definitive Bonds shall be prepared, the Agency
may cause to be executed and delivered in lieu of such definitive Bonds and subject to the same
provisions, limitations and conditions as are applicable in the case of definitive Bonds, except
that they may be in any denominations authorized by the Agency, one or more temporary typed,
printed, lithographed or engraved Bonds in fully registered form, as may be authorized by the
Agency, substantially of the same tenor and, until exchange for definitive Bonds, entitled and
subject to the same benefits and provisions of the Indenture as definitive Bonds. If the Agency
issues temporary Bonds it will execute and furnish definitive Bonds without unnecessary delay
and thereupon the temporary Bonds may be surrendered to the Trustee at the Principal Corporate
Trust Office, without expense to the Owner in exchange for such definitive Bonds. All temporary
Bonds so surrendered shall be canceled by the Trustee and shall not be reissued.
Section 2.11. Validity of Bonds.
The validity of the authorization and issuance of the
Bonds shall not be affected in any way by any proceedings taken by the Agency for the financing
or refinancing of the Project, or by any contracts made by the Agency in connection therewith,
and shall not be dependent upon the completion of the financing or refinancing of the Project or
upon the performance by any Person of his obligation with respect to the Project, and the recital
contained in the Bonds that the same are issued pursuant to the Law shall be conclusive evidence
of their validity and of the regularity of their issuance.
Section 2.12. Book-Entry System.
(a) Prior to the issuance of any Series of Bonds
issued hereunder, the Agency may provide that such Series of Bonds shall be initially issued as
Book-Entry Bonds, and in such event, each maturity of such Series shall be in the form of a
separate single fully registered Bond (which may be typewritten). Upon initial issuance, the
ownership of each such Bond shall be registered in the bond register in the name of the Nominee,
as nominee of the Depository.
With respect to Book-Entry Bonds, the Agency and the Trustee shall have no
responsibility or obligation to any Participant or to any Person on behalf of which such a
Participant holds an interest in such Book-Entry Bonds. Without limiting the immediately
preceding sentence, the Agency and the Trustee shall have no responsibility or obligation with
respect to (i) the accuracy of the records of the Depository, the Nominee, or any Participant with
respect to any ownership interest in Book-Entry Bonds, (ii) the delivery to any Participant or any
other Person, other than an Owner as shown in the bond register, of any notice with respect to
Book-Entry Bonds, including any notice of redemption, (iii) the selection by the Depository and
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its Participants of the beneficial interests in Book-Entry Bonds to be redeemed in the event the
Agency redeems such in part, or (iv) the payment of any Participant or any other Person, other
than an Owner as shown in the bond register, of any amount with respect to principal of,
premium, if any, or interest on Book-Entry Bonds. The Agency and the Trustee may treat and
consider the Person in whose name each Book-Entry Bond is registered in the bond register as
the absolute Owner of such Book-Entry Bond for the purpose of payment of principal, premium
and interest with respect to such Bond, for the purpose of giving notices of redemption and other
matters with respect to such Bond, for the purpose of registering transfers with respect to such
Bond, and for all other purposes whatsoever. The Trustee shall pay all principal of, premium, if
any, and interest on the Bonds only to or upon the order of the respective Owner, as shown in the
bond register, or his respective attorney duly authorized in writing, and all such payments shall
be valid and effective to fully satisfy and discharge the Agency’s obligations with respect to
payment of principal of, premium, if any, and interest on the Bonds to the extent of the sum or
sums so paid. No Person other than an Owner, as shown in the bond register, shall receive a
Bond evidencing the obligation of the Agency to make payments of principal, premium, if any,
and interest pursuant to this Indenture. Upon delivery by the Depository to the Owner, Trustee
and Agency of written notice to the effect that the Depository has determined to substitute a new
nominee in place of the Nominee, and subject to the provisions herein with respect to record
dates, the word Nominee in this Indenture shall refer to such nominee of the Depository.
(b) In order to qualify the Book-Entry Bonds for the Depository’s book-entry system,
the Agency and the Trustee (if required by the Depository) shall execute and deliver to the
Depository a Letter of Representations. The execution and delivery of a Letter of
Representations shall not in any way impose upon the Agency or the Trustee any obligation
whatsoever with respect to Persons having interests in such Book-Entry Bonds other than the
Owners, as shown on the bond register. By executing a Letter of Representations, the Trustee
shall agree to take all action necessary for all representations of the Trustee in such Letter of
Representations to at all times be complied with. In addition to the execution and delivery of a
Letter of Representations, the Agency and the Trustee, at the Agency’s request, shall take such
other actions, not inconsistent with this Indenture, as are reasonably necessary to qualify Book-
Entry Bonds for the Depository’s book-entry program.
(c) In the event (i) the Depository determines not to continue to act as securities
depository for any Series of Book-Entry Bonds, or (ii) the Depository shall no longer so act and
gives notice to the Trustee of such determination, then the Agency will discontinue the book-
entry system with the Depository. If the Agency determines to replace the Depository with
another qualified securities depository, the Agency shall prepare or direct the preparation of a
new single, separate, fully registered Bond for each of the maturities of such Book-Entry Bonds,
registered in the name of such successor or substitute qualified securities depository or its
nominee. If the Agency fails to identify another qualified securities depository to replace the
Depository, then the Bonds shall no longer be restricted to being registered in such bond register
in the name of the Nominee, but shall be registered in whatever name or names Owners
transferring or exchanging such Bonds shall designate, in accordance with provisions of Sections
2.04 and 2.05 hereof.
(d) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Book-Entry Bond is registered in the name of the Nominee, all payments with respect to
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principal of, premium, if any, and interest on such Bond and all notices with respect to such
Bond shall be made and given, respectively, as provided in the Letter of Representations or as
otherwise instructed by the Depository.
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ARTICLE III
ISSUANCE OF SERIES 1999 BONDS;
APPLICATION OF PROCEEDS OF SALE
Section 3.01. Issuance of Series 1999 Bonds.
The Agency may at any time execute and
deliver the Series 1999 Bonds authorized to be issued hereunder.
Section 3.02. Application of Proceeds of Sale of Series 1999 Bonds .
Upon the
issuance of the Series 1999 Bonds, the proceeds of the sale of the Series 1999 Bonds received by
the Trustee, $___________, shall be deposited by the Trustee as follows:
(a) The Trustee shall deposit in the Reserve Account an amount equal to
$___________, which is equal to the Reserve Requirement.
(b) The Trustee shall deposit in the Expense Fund an amount equal to
$__________.
(c) The Trustee shall deposit in the Redevelopment Fund an amount equal to
$__________.
(d) The Trustee shall deposit in the Series 1999 Housing Account in the
Redevelopment Fund an amount equal to $__________.
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ARTICLE IV
ISSUANCE OF ADDITIONAL BONDS
Section 4.01. Conditions for the Issuance of Additional Bonds.
The Agency may at
any time after the issuance and delivery of the initial Series of Bonds hereunder issue Additional
Bonds payable from Tax Revenues and secured by a lien and charge upon Tax Revenues equal to
and on a parity with the lien and charge securing the Outstanding Bonds theretofore issued under
the Indenture, but only subject to the following specific conditions, which are hereby made
conditions precedent to the issuance of any such Additional Bonds:
(a) The Agency shall be in compliance with all covenants set forth in this
Indenture, and a Written Certificate of the Agency to that effect shall have been filed with
the Trustee.
(b) The issuance of such Additional Bonds shall have been duly authorized
pursuant to the Law and all applicable laws, and the issuance of such Additional Bonds
shall have been provided for by a Supplemental Indenture which shall specify the
following:
(1) The purpose for which such Additional Bonds are to be issued and
the fund or funds into which the proceeds thereof are to be deposited, including a
provision requiring the proceeds of such Additional Bonds to be applied solely for
(i) the purpose of aiding in financing the Project, including payment of all costs
incidental to or connected with such financing, and/or (ii) the purpose of
refunding any Bonds or other indebtedness related to the Project, including
payment of all costs incidental to or connected with such refunding;
(2) The authorized principal amount of such Additional Bonds;
(3) The date and the maturity date or dates of such Additional Bonds;
provided, however, that (i) Principal Payment Dates and Sinking Account
Payment Dates may occur only on Interest Payment Dates, (ii) all such Additional
Bonds of like maturity shall be identical in all respects, except as to number, and
(iii) fixed serial maturities or mandatory Sinking Account Installments, or any
combination thereof, shall be established to provide for the retirement of all such
Additional Bonds on or before their respective maturity dates;
(4) The Interest Payment Dates for such Additional Bonds; provided
that Interest Payment Dates shall be on the same semiannual dates as the Interest
Payment Dates for Series 1999 Bonds;
(5) The denomination of such Additional Bonds;
(6) The redemption premiums, if any, and the redemption terms, if
any, for such Additional Bonds;
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(7) The amount and due date of each mandatory Sinking Account
Installment, if any, for such Additional Bonds;
(8) The amount, if any, to be deposited from the proceeds of such
Additional Bonds in the Interest Account;
(9) The amount, if any, to be deposited from the proceeds of such
Additional Bonds into the Reserve Account; provided, however, that the amount
on deposit in the Reserve Account shall be increased at or prior to the time such
Additional Bonds become Outstanding to an amount at least equal to the Reserve
Requirement on all then Outstanding Bonds and such Additional Bonds, which
amount shall be maintained in the Reserve Account;
(10) The form of such Additional Bonds; and
(11) Such other provisions as are necessary or appropriate and not
inconsistent with this Indenture.
(c) The Tax Revenues, based upon the assessed valuation of taxable property
in the Project Area as shown on the most recently equalized assessment roll and the most
recently established tax rates preceding the date issuance of such Additional Bonds, plus,
at the option of the Agency, the Additional Allowance, shall be in an amount equal to at
least 150% of the Maximum Annual Debt Service on all then Outstanding Bonds and
such Additional Bonds and any loans, advances or indebtedness payable from Tax
Revenues pursuant to the Law on a basis that is not subordinate to the payment of the
Bonds; provided, however, that if either (i) the aggregate assessed value of the properties
within the Project Area owned by the top ten taxpayers in the Project Area, as shown on
the most recently equalized assessment roll, is less than 50% of the remainder of (x) the
aggregate assessed value of all properties within the Project Area, as shown on the most
recently equalized assessment roll, less (y) the aggregate assessed value of all properties
within the Project Area, as shown on the equalized assessment roll for the 1993-94 Fiscal
Year, or (ii) the aggregate assessed value of the properties within the Project Area owned
by the top two taxpayers in the Project Area, as shown on the most recently equalized
assessment roll, is less than 20% of the remainder of (x) the aggregate assessed value of
all properties within the Project Area, as shown on the most recently equalized
assessment roll, less (y) the aggregate assessed value of all properties within the Project
Area, as shown on the equalized assessment roll for the 1993-94 Fiscal Year, then the
Tax Revenues, based upon the assessed valuation of taxable property in the Project Area
as shown on the most recently equalized assessment roll and the most recently
established tax rates preceding the date issuance of such Additional Bonds, plus, at the
option of the Agency, the Additional Allowance, need only be in an amount equal to at
least 125% of the Maximum Annual Debt Service on all then Outstanding Bonds and
such Additional Bonds and any loans, advances or indebtedness payable from Tax
Revenues pursuant to the Law on a basis that is not subordinate to the payment of the
Bonds.
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For the purposes of the issuance of Additional Bonds, Outstanding Bonds shall not
include any Bonds the proceeds of which are deposited in an escrow fund held by an escrow
agent, provided that the Supplemental Indenture authorizing issuance of such Additional Bonds
shall provide that: (A) such proceeds shall be deposited or invested with or secured by an
institution rated “A” by S&P or “A” by Moody’s (without regard to negative modifiers) at a rate
of interest which, together with amounts made available by the Agency from bond proceeds or
otherwise, is at least sufficient to pay Annual Debt Service on the foregoing Bonds, (B) moneys
may be transferred from said escrow fund only if Tax Revenues for the next preceding Fiscal
Year will be at least equal to ___% of Maximum Annual Debt Service on all Outstanding Bonds
less a principal amount of Bonds which is equal to moneys on deposit in said escrow fund after
each such transfer, and (C) Additional Bonds shall be redeemed from moneys remaining on
deposit in said escrow fund at the expiration of a specified escrow period in such manner as may
be determined by the Agency.
In the event such Additional Bonds are to be issued solely for the purpose of refunding
and retiring any Outstanding Bonds, interest and principal payments on the Outstanding Bonds to
be so refunded and retired from the proceeds of such Additional Bonds being issued shall be
excluded from the foregoing computation of Maximum Annual Debt Service. Nothing contained
in this Indenture shall limit the issuance of any tax allocation bonds of the Agency payable from
Tax Revenues and secured by a lien and charge on Tax Revenues if, after the issuance and
delivery of such tax allocation bonds, none of the Bonds theretofore issued hereunder will be
Outstanding, nor shall anything contained in this Indenture prohibit the issuance of any tax
allocation bonds or other indebtedness by the Agency secured by a pledge of tax increment
revenues (including Tax Revenues) subordinate to the pledge of Tax Revenues securing the
Bonds.
Section 4.02. Procedure for the Issuance of Additional Bonds.
All of the Additional
Bonds shall be executed by the Agency for issuance under the Indenture and delivered to the
Trustee and thereupon shall be delivered by the Trustee upon the Written Request of the Agency,
but only upon receipt by the Trustee of the following documents or money or securities:
(1) A certified copy of the Supplemental Indenture authorizing the issuance of
such Additional Bonds;
(2) A Written Request of the Agency as to the delivery of such Additional
Bonds;
(3) An opinion of counsel of recognized standing in the field of law relating to
municipal bonds to the effect that (i) the Agency has the right and power under the Law
to execute and deliver the Indenture and all Supplemental Indentures thereto, and the
Indenture and all such Supplemental Indentures have been duly and lawfully executed
and delivered by the Agency, are in full force and effect and are valid and binding upon
the Agency and enforceable in accordance with their terms (except as enforcement may
be limited by bankruptcy, insolvency, reorganization and other similar laws relating to
the enforcement of creditors’ rights), and no other authorization for the Indenture or such
Supplemental Indentures is required, (ii) the Indenture creates the valid pledge which it
purports to create of the Tax Revenues as provided in the Indenture, subject to the
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application thereof to the purposes and on the conditions permitted by the Indenture, and
(iii) such Additional Bonds are valid and binding special obligations of the Agency,
enforceable in accordance with their terms (except as enforcement may be limited by
bankruptcy, insolvency, reorganization and other similar laws relating to the enforcement
of creditors’ rights) and the terms of the Indenture and all Supplemental Indentures
thereto and entitled to the benefits of the Indenture and all such Supplemental Indentures
and the Law, and such Additional Bonds have been duly and validly authorized and
issued in accordance with the Law and the Indenture and all such Supplemental
Indentures;
(4) A Written Certificate of the Agency containing such statements as may be
reasonably necessary to show compliance with the requirements of the Indenture; and
(5) Such further documents, money and securities as are required by the
provisions of the Indenture and the Supplemental Indenture providing for the issuance of
such Additional Bonds.
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ARTICLE V
TAX REVENUES; CREATION OF FUNDS
Section 5.01. Pledge of Tax Revenues.
Subject to the provisions of this Indenture
permitting application thereof for the purposes and on the terms and conditions set forth herein,
all of the Tax Revenues and all money in the Revenue Fund, and in the funds or accounts so
specified and provided for in this Indenture (except the Rebate Fund), are hereby irrevocably
pledged to the punctual payment of the interest on and principal of and redemption premiums, if
any, on the Bonds. This pledge shall constitute a first lien on the Tax Revenues and such other
money for the payment of the Bonds in accordance with the terms thereof.
Section 5.02. Revenue Fund; Debt Service Fund; Receipt and Deposit of Tax
Revenues.
There is hereby established a special fund to be known as the “Redevelopment
Agency of the City of Santa Monica, Santa Monica Earthquake Recovery Redevelopment
Project Tax Revenue Fund” (the “Revenue Fund”) which shall be held by the Agency. The
Agency shall promptly deposit all of the Tax Revenues received in any Bond Year in the
Revenue Fund, until such time during such Bond Year as the amounts on deposit in the Revenue
Fund equal the aggregate amounts required to be transferred to the Trustee for deposit into the
Debt Service Fund in such Bond Year pursuant to this Section; provided, however, that in no
event shall the amount of Tax Revenues made available pursuant to clause (a) of the definition
thereof deposited in the Revenue Fund in any Bond Year exceed the Aggregate Available L&M
Revenues for such Bond Year. All Tax Revenues received by the Agency during any Bond Year
in excess of the amount required to be deposited in the Revenue Fund during such Bond Year
pursuant to the preceding sentence shall be released from the pledge and lien hereunder. So long
as any Bonds remain Outstanding hereunder, the Agency shall not have any beneficial interest in
or right to the moneys on deposit in the Revenue Fund, except as may be provided in this
Indenture.
There is hereby established a special fund to be known as the “Redevelopment Agency of
the City of Santa Monica, Santa Monica Earthquake Recovery Redevelopment Project, Tax
Allocation Bonds Debt Service Fund” (the “Debt Service Fund”) which shall be held by the
Trustee. On or before five days preceding each Interest Payment Date, the Agency shall transfer
from the Revenue Fund to the Trustee for deposit in the Debt Service Fund an amount equal to
the amount required to be transferred by the Trustee from the Debt Service Fund to the Interest
Account, Principal Account, Sinking Account and Reserve Account pursuant to Section 5.06
hereof; provided, however, that the Agency shall not be obligated to transfer to the Trustee in
any Bond Year an amount of Tax Revenues which, together with other available amounts then in
the Debt Service Fund, exceeds the amounts required to be transferred to the Trustee for deposit
in the Interest Account, the Principal Account, the Sinking Account and the Reserve Account in
such Bond Year, pursuant to Section 5.06 hereof. There shall not be deposited with the Trustee
any taxes eligible for allocation to the Agency for deposit in the Debt Service Fund in an amount
in excess of that amount which, together with all money then on deposit with the Trustee in the
Debt Service Fund and the accounts therein, shall be sufficient to discharge all Outstanding
Bonds as provided in Section 10.01 hereof.
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All such Tax Revenues deposited in the Revenue Fund shall be disbursed, allocated and
applied solely to the uses and purposes herein set forth, and shall be accounted for separately and
apart from all other money, funds, accounts or other resources of the Agency.
Section 5.03. Establishment of Funds.
In addition to the Revenue Fund and the Debt
Service Fund, there are further created a special trust fund to be held by the Trustee called the
“Redevelopment Agency of the City of Santa Monica, Santa Monica Earthquake Recovery
Redevelopment Project Redevelopment Fund” (the “Redevelopment Fund”), and a special trust
fund to be held by the Trustee called the “Redevelopment Agency of the City of Santa Monica,
Santa Monica Earthquake Recovery Redevelopment Project Expense Fund” (the “Expense
Fund”). The Redevelopment Fund may be consolidated with any other similar fund or account
established for the purposes described in Section 5.04 hereof; provided, however, that proceeds
of Bonds deposited in such fund shall be separately accounted for to the extent appropriate or as
required by any Tax Certificate. Within the Redevelopment Fund there is hereby created an
account called the Series 1999 Housing Account (the “Series 1999 Housing Account”).
So long as any of the Bonds herein authorized, or any interest thereon, remain unpaid, the
moneys in the foregoing funds shall be used for no purpose other than those required or
permitted by this Indenture and the Law.
Pursuant to the Tax Certificate, the funds and accounts established herein may be divided
into sub-accounts for each Series of Bonds issued hereunder, in order to perform the necessary
rebate calculations.
Section 5.04. Redevelopment Fund and Series 1999 Housing Account.
(a) Moneys in
the Redevelopment Fund shall be used and disbursed in the manner provided by the Law for the
purpose of aiding in financing or refinancing the Project (or for making reimbursements to the
Agency for such costs theretofore paid by it), including payment of all costs incidental to or
connected with such financing or refinancing.
(b) The moneys in the Redevelopment Fund shall be used and withdrawn by the Trustee
from time to time to pay costs incidental to or connected with the financing or refinancing the
Project upon submission of a Written Request of the Agency stating (i) the Person to whom
payment is to be made, (ii) the amount to be paid, (iii) the purpose for which the obligation was
incurred, (iv) that such payment constitutes a cost incidental to or connected with the financing
or refinancing the Project and is a proper charge against the Redevelopment Fund, and (v) that
such amounts have not been the subject of a prior disbursement from the Redevelopment Fund.
Upon the filing of a Written Certificate of the Agency stating that the financing or refinancing of
the Project has been completed, the Trustee shall transfer and apply the amount, if any,
remaining in the Redevelopment Fund to the Revenue Fund. Additionally, upon submission of a
Written Request of the Agency directing the Trustee to transfer the amount specified therein to
the Series 1999 Housing Account, or to another special account within the Redevelopment Fund
established in connection with the issuance of an additional Series of Bonds and to be used for
the same purposes as the Series 1999 Housing Account, the Trustee shall so transfer such
amount.
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(c) Moneys in the Series 1999 Housing Account shall be used and disbursed in the
manner provided by Section 33334.2 of the Law solely for the purpose of aiding in increasing,
improving and preserving low and moderate income housing within or of benefit to the Project
Area (or for making reimbursements to the Agency for such costs theretofore paid by it),
including payment of all costs incidental to or connected with such financing.
(d) The moneys in the Series 1999 Housing Account shall be used and withdrawn by the
Trustee from time to time to pay costs incidental to or connected with increasing, improving and
preserving low and moderate income housing within or of benefit to the Project Area upon
submission of a Written Request of the Agency stating (i) the Person to whom payment is to be
made, (ii) the amount to be paid, (iii) the purpose for which the obligation was incurred, (iv) that
such payment constitutes a cost incidental to or connected with the financing of low and
moderate income housing within or of benefit to the Project Area and is a proper charge against
the Series 1999 Housing Account, and (v) that such amounts have not been the subject of a prior
disbursement from the Series 1999 Housing Account.
Section 5.05. Expense Fund.
(a) All moneys in the Expense Fund shall be applied to
the payment of costs and expenses incurred by the Agency in connection with the authorization,
issuance and sale of the Bonds.
(b) The moneys in the Expense Fund shall be used and withdrawn by the Trustee from
time to time to pay costs and expenses incurred by the Agency in connection with the
authorization, issuance and sale of the Bonds upon submission of a Written Request of the
Agency stating (i) the Person to whom payment is to be made, (ii) the amount to be paid, (iii) the
purpose for which the obligation was incurred, (iv) that such payment constitutes a cost or
expense incurred by the Agency in connection with the authorization, issuance and sale of the
Bonds and is a proper charge against the Expense Fund, and (v) that such amounts have not been
the subject of a prior disbursement from the Expense Fund. Upon the payment in full of such
costs and expenses or the making of adequate provision for the payment thereof, evidenced by a
Written Certificate of the Agency to the Trustee, any balance remaining in the Expense Fund
shall be transferred to the Redevelopment Fund.
Section 5.06. Establishment and Maintenance of Accounts for Use of Moneys in the
Debt Service Fund.
All moneys in the Debt Service Fund shall be set aside by the Trustee in
each Bond Year when and as received in the following respective special accounts within the
Debt Service Fund (each of which is hereby created and each of which the Agency hereby
covenants and agrees to cause to be maintained with the Trustee), in the following order of
priority (except as otherwise provided in subparagraph (2) below):
(1) Interest Account;
(2) Principal Account;
(3) Sinking Account; and
(4) Reserve Account.
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All moneys in each of such accounts shall be held in trust by the Trustee and shall be
applied, used and withdrawn only for the purposes hereinafter authorized in this Section.
(1) Interest Account. The Trustee shall set aside from the Debt Service Fund and
deposit in the Interest Account an amount of money which, together with any money contained
therein, is equal to the aggregate amount of the interest becoming due and payable on all
Outstanding Bonds on the Interest Payment Dates in such Bond Year. No deposit need be made
into the Interest Account if the amount contained therein is at least equal to the aggregate amount
of the interest becoming due and payable on all Outstanding Bonds on the Interest Payment
Dates in such Bond Year. All moneys in the Interest Account shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest on the Bonds as it shall become due and
payable (including accrued interest on any Bonds purchased or redeemed prior to maturity).
(2) Principal Account. The Trustee shall set aside from the Debt Service Fund and
deposit in the Principal Account an amount of money which, together with any money contained
therein, is equal to the aggregate amount of the principal becoming due and payable on all
Outstanding Serial Bonds on the Principal Payment Date in such Bond Year. In the event that
there shall be insufficient money in the Debt Service Fund to make in full all such principal
payments and Sinking Account Installments required to be made pursuant to Section 5.06(3)
hereof in such Bond Year, then, subject to subparagraph (4) hereof, the money available in the
Debt Service Fund shall be applied pro rata to the making of such principal payments and such
Sinking Account Installments in the proportion which all such principal payments and Sinking
Account Installments bear to each other.
No deposit need be made into the Principal Account if the amount contained therein is at
least equal to the aggregate amount of the principal of all Outstanding Serial Bonds becoming
due and payable on the Principal Payment Date in such Bond Year.
All money in the Principal Account shall be used and withdrawn by the Trustee solely for
the purpose of paying the principal of the Serial Bonds as they shall become due and payable.
(3) Sinking Account. The Trustee shall deposit in the Sinking Account an amount of
money equal to the Sinking Account Installment payable on the Sinking Account Payment Date
in such Bond Year. All moneys in the Sinking Account shall be used by the Trustee to redeem
(or purchase) the Term Bonds in accordance with Article II hereof.
(4) Reserve Account. (a) The Trustee shall set aside from the Debt Service Fund and
deposit in the Reserve Account an amount of money (or other authorized deposit of security, as
contemplated by the following paragraphs) equal to the Reserve Requirement. No deposit need
be made in the Reserve Account so long as there shall be on deposit therein an amount equal to
the Reserve Requirement. All money in (or available to) the Reserve Account shall be used and
withdrawn by the Trustee solely for the purpose of replenishing the Interest Account, the
Principal Account or the Sinking Account in such order, in the event of any deficiency at any
time in any of such accounts, or for the purpose of paying the interest on or principal of or
redemption premiums, if any, on the Bonds in the event that no other money of the Agency is
lawfully available therefor, or for the retirement of all Bonds then Outstanding, except that for so
long as the Agency is not in default hereunder, any amount in the Reserve Account in excess of
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the Reserve Requirement shall be transferred from the Reserve Account by the Trustee to the
Debt Service Fund.
(b) In lieu of making the Reserve Requirement deposit in the Reserve Account or in
replacement of moneys then on deposit in the Reserve Account (which shall be transferred by the
Trustee to the Agency upon delivery of a letter of credit satisfying the requirements stated
below), the Agency, with the consent of the Bond Insurer, if any, and with prior written
notification to S&P and/or Moody’s and/or Fitch, if the Bonds are then rated by S&P and/or
Moody’s and/or Fitch, may deliver to the Trustee an irrevocable letter of credit issued by a
financial institution having, at the time of such delivery, unsecured debt obligations rated in at
least the second highest rating category (without respect to any negative modifier) of S&P and/or
Moody’s and/or Fitch, in an amount, together with moneys, Authorized Investments or insurance
policies (as described in Section 5.06(4)(c)hereof) on deposit in the Reserve Account, equal to
the Reserve Requirement. Draws on such letter of credit must be payable no later than two
business days after presentation of a sight draft thereunder. Such letter of credit shall have a term
of no less than three years. The issuer of such letter of credit shall be required to notify the
Trustee and the Agency whether or not the letter of credit will be extended no later than 13
months prior to the stated expiration date thereof. At least one year prior to the stated expiration
of such letter of credit, the Agency shall either (i) deliver a replacement letter of credit, (ii)
deliver an extension of the letter of credit for at least an additional year, or (iii) deliver to the
Trustee an insurance policy satisfying the requirements of Section 5.06(4)(c)hereof. Upon
delivery of such replacement letter of credit, extended letter of credit, or insurance policy, the
Trustee shall cancel and deliver the then-effective letter of credit, if replaced, to the issuer
thereof. If the Agency shall fail to deposit a replacement letter of credit, extended letter of credit
or insurance policy with the Trustee, the Agency shall immediately commence to make monthly
deposits with the Trustee so that an amount equal to the Reserve Requirement is on deposit in the
Reserve Account no later than the stated expiration date of the letter of credit. If the Agency shall
fail to make such deposits, the Trustee shall draw on such letter of credit on or before 10 days
prior to its stated expiration date in an amount necessary to replenish the Reserve Account to the
Reserve Requirement. If a drawing is made on the letter of credit, the Agency shall make such
payments as may be required by the terms of the letter of credit or any obligations related thereto
(but no less than quarterly pro rata payments) so that the letter of credit shall, absent the delivery
to the Trustee of an insurance policy satisfying the requirements of Section 5.06(4)(c) hereof or
the deposit in the Reserve Account of an amount sufficient to increase the balance in the Reserve
Account to the Reserve Requirement, be reinstated in the amount of such drawing within one
year of the date of such drawing.
(c) In lieu of making the Reserve Requirement deposit in the Reserve Account or in
replacement of moneys then on deposit in the Reserve Account (which shall be transferred by the
Trustee to the Agency upon delivery of an insurance policy satisfying the requirements stated
below), the Agency, with the consent of the Bond Insurer, if any, and with prior written
notification to S&P and/or Moody’s and/or Fitch, if the Bonds are then rated by S&P and/or
Moody’s and/or Fitch, may also deliver to the Trustee an insurance policy securing an amount,
together with moneys, Authorized Investments or letters of credit (as described in Section
5.06(4)(b) hereof) on deposit in the Reserve Account, no less than the Reserve Requirement,
issued by an insurance company licensed to issue insurance policies guaranteeing the timely
payment of debt service on the Bonds and whose unsecured debt obligations (or for which
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obligations secured by such insurance company’s insurance policies), at the time of such
delivery, are rated in the two highest rating categories (without respect to any negative modifier)
of S&P and Moody’s.
(d) If and to the extent that the Reserve Account has been funded with a combination
of cash (or Authorized Investments) and a Qualified Reserve Instrument, then all such cash (or
Authorized Investments) shall be completely used before any demand is made on such Qualified
Reserve Instrument, and replenishment of the Qualified Reserve Instrument shall be made prior
to any replenishment of any cash (or Authorized Investments). If the Reserve Account is funded,
in whole or in part, with more than one Qualified Reserve Instrument, then any draws made
against such Qualified Reserve Instrument shall be made pro rata.
(5) Surplus. If during any Bond Year (i) Tax Revenues remain in the Debt Service
Fund after providing (or otherwise reserving) for all deposits required by paragraphs (1) through
(3) above during such Bond Year, (ii) the amounts on deposit in the Reserve Account equal the
Reserve Requirement, (iii) Qualified Reserve Instruments, if any, used to fund the Reserve
Account are fully replenished and all interest on amounts advanced under such Qualified
Reserve Instruments has been paid to the provider thereof, and (iv) the Agency is not in default
hereunder, then the Trustee shall transfer any amount remaining on deposit in the Debt Service
Fund to the Agency to be used for any lawful purpose of the Agency.
Section 5.07. Rebate Fund.
(a) The Trustee shall establish and maintain a special fund
designated the “Rebate Fund”. There shall be deposited in the Rebate Fund such amounts as are
required to be deposited therein pursuant to the Tax Certificate, as specified in a Written Request
of the Agency. All money at any time deposited in the Rebate Fund shall be held by the Trustee
in trust, to the extent required to satisfy the Rebate Requirement, for payment to the United
States of America. Notwithstanding defeasance of the Bonds pursuant to Article X hereof or
anything to the contrary contained herein, all amounts required to be deposited into or on deposit
in the Rebate Fund shall be governed exclusively by this Section and by the Tax Certificate
(which is incorporated herein by reference). The Trustee shall be deemed conclusively to have
complied with such provisions if it follows the written directions of the Agency, and shall have
no liability or responsibility to enforce compliance by the Agency with the terms of the Tax
Certificate. The Trustee may conclusively rely upon the Agency’s determinations, calculations
and certifications required by the Tax Certificate. The Trustee shall have no responsibility to
independently make any calculation or determination or to review the Agency’s calculations.
(b) Any funds remaining in the Rebate Fund after payment in full of all of the Bonds
and after payment of any amounts described in this Section, shall be withdrawn by the Trustee
and remitted to the Agency.
Section 5.08. Investment of Moneys in Funds and Accounts.
Upon the written
direction of the Agency, received by the Trustee at least two business days prior to such
investment, moneys in the Debt Service Fund, the Interest Account, the Principal Account, any
Sinking Account, the Expense Fund, the Rebate Fund or the Reserve Account shall be invested
by the Trustee in Authorized Investments. In the absence of such instructions the Trustee shall
invest in the investments described in paragraph (___) of the definition of Authorized
Investments, except as otherwise provided in this Section. The obligations in which moneys in
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the Debt Service Fund, the Interest Account, the Principal Account or any Sinking Account are
so invested shall mature prior to the date on which such moneys are estimated to be required to
be paid out hereunder. The obligations in which moneys in the Reserve Account are so invested
shall be invested in obligations maturing no more than five years from the date of purchase by
the Trustee or on the final maturity date of the Bonds, whichever date is earlier; provided,
however, that if an obligation may be redeemed at par on the business day prior to each Interest
Payment Date during which such obligation is outstanding, such obligation may have any
maturity. Any interest, income or profits from the deposits or investments of all funds (except the
Revenue Fund, Redevelopment Fund, Expense Fund and Rebate Fund) and accounts shall be
deposited in the Debt Service Fund. All earnings on amounts in the Revenue Fund, Expense
Fund, Redevelopment Fund and Rebate Fund shall remain in such funds. For purposes of
determining the amount on deposit in any fund or account held hereunder, all Authorized
Investments credited to such fund or account shall be valued at the amortized cost thereof.
Except as otherwise provided in this Section, Authorized Investments representing an investment
of moneys attributable to any fund or account and all investment profits or losses thereon shall be
deemed at all times to be a part of said fund or account. Amounts deposited in the Revenue Fund
and the Redevelopment Fund may be invested in any investment permitted by law for Agency
funds.
The Trustee or any of its affiliates may act as principal or agent in the acquisition or
disposition of investments hereunder. The Trustee may commingle moneys in any of the funds or
accounts created hereunder for purposes of investment. Absent negligence, bad faith or willful
misconduct by the Trustee, the Trustee shall not be responsible or liable for any loss suffered in
connection with any investment of funds made by it in accordance with this Section.
The Trustee or any of its affiliates may act as sponsor, advisor or manager in connection
with any investments made by the Trustee hereunder.
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ARTICLE VI
COVENANTS OF THE AGENCY
Section 6.01. Punctual Payment.
The Agency will punctually pay the interest on and
principal of and redemption premiums, if any, to become due with respect to the Bonds, in strict
conformity with the terms of the Bonds and of the Indenture and will faithfully satisfy, observe
and perform all conditions, covenants and requirements of the Bonds and of the Indenture.
Section 6.02. Against Encumbrances.
The Agency will not mortgage or otherwise
encumber, pledge or place any charge upon any of the Tax Revenues, except as provided in this
Indenture, and will not issue any obligation or security superior to or on a parity with the Bonds
payable in whole or in part from the Tax Revenues (other than Additional Bonds).
Section 6.03. Extension or Funding of Claims for Interest.
In order to prevent any
claims for interest after maturity, the Agency will not, directly or indirectly, extend or consent to
the extension of the time for the payment of any claim for interest on any Bonds and will not,
directly or indirectly, be a party to or approve any such arrangements by purchasing or funding
said claims for interest or in any other manner. In case any such claim for interest shall be
extended or funded, whether or not with the consent of the Agency, such claim for interest so
extended or funded shall not be entitled, in case of default hereunder, to the benefits of the
Indenture, except subject to the prior payment in full of the principal of all of the Bonds then
Outstanding and of all claims for interest which shall not have been so extended or funded.
Section 6.04. Management and Operation of Properties.
The Agency will manage
and operate all properties owned by the Agency and comprising any part of the Project in
compliance with all applicable laws and in conformity with all valid requirements of any
governmental authority relative to the Project or any part thereof.
Section 6.05. Payment of Claims.
The Agency will pay and discharge any and all
lawful claims for labor, materials or supplies which, if unpaid, might become a lien or charge
upon the properties owned by the Agency or upon the Tax Revenues or any part thereof, or upon
any funds in the hands of the Trustee, or which might impair the security of the Bonds; provided,
however, that nothing herein contained shall require the Agency to make any such payments so
long as the Agency in good faith shall contest the validity of any such claims.
Section 6.06. Books and Accounts; Financial and Project Statements.
The Agency
will keep proper books of record and accounts, separate from all other records and accounts of
the Agency, in which complete and correct entries shall be made of all transactions relating to
the Project and the Revenue Fund. Such books of record and accounts shall at all times during
business hours be subject to the inspection of the Trustee or of the Owners of not less than 10%
of the aggregate principal amount of the Bonds then Outstanding or their representatives
authorized in writing.
The Agency will prepare not later than 180 days after the close of each Fiscal Year, so
long as any Bonds are Outstanding, an audited financial statement of the Agency prepared by an
Independent Certified Public Accountant. The Agency will furnish a copy of such audited
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financial statement to any Owner upon request. The Trustee is hereby authorized to furnish, and
the Agency will furnish to the Trustee, such reasonable number of copies of such audited
financial statement as may be required by the Trustee for distribution (at the expense of the
Agency) to investment bankers, security dealers and others interested in the Bonds. The Trustee
shall have no duty or responsibility to review such financial statements.
Section 6.07. Protection of Security and Rights of Owners.
The Agency will preserve
and protect the security of the Bonds and the rights of the Owners, and will warrant and defend
their rights against all claims and demands of all Persons. From and after the sale and delivery of
any Bonds by the Agency, such Bonds shall be incontestable by the Agency.
Section 6.08. Payment of Taxes and Other Charges.
Subject to the provisions of
Section 6.10 hereof, the Agency will pay and discharge all taxes, service charges, assessments
and other governmental charges which may hereafter be lawfully imposed upon the Agency or
any properties owned by the Agency in the Project Area, or upon the revenues therefrom, when
the same shall become due; provided that nothing herein contained shall require the Agency to
make any such payments so long as the Agency in good faith shall contest the validity of any
such taxes, service charges, assessments or other governmental charges.
Section 6.09. Financing the Project.
The Agency will commence the financing of the
Project to be aided with the proceeds of the Bonds with all practicable dispatch, and such
financing will be accomplished and completed in a sound, economical and expeditious manner
and in conformity with the Redevelopment Plan and the Law so as to complete the Project as
soon as possible.
Section 6.10. Taxation of Leased Property.
Whenever any property in the Project is
redeveloped by the Agency and thereafter is leased by the Agency to any Person or Persons, or
whenever the Agency leases any real property in the Project to any Person or Persons for
redevelopment, the property shall be assessed and taxed in the same manner as privately-owned
property (in accordance with the Law), and the lease or contract shall provide (a) that the lessee
shall pay taxes upon the assessed value of the entire property and not merely upon the assessed
value of the leasehold interest, and (b) that if for any reason the taxes paid by the lessee on such
property in any year during the term of the lease shall be less than the taxes that would have been
payable upon the entire property if the property were assessed and taxed in the same manner as
privately-owned property, the lessee shall pay such difference to the Agency within 30 days after
the taxes for such year become payable, and in any event prior to the delinquency date of such
taxes established by law, which such payments shall be treated as Tax Revenues.
Section 6.11. Disposition of Property in Project Area.
Except as provided below, the
Agency will not authorize the disposition of any real property in the Project Area to anyone
which will result in such property becoming exempt from taxation because of public ownership
or use or otherwise (except for public ownership or use contemplated by the Redevelopment Plan
in effect on the date of execution and delivery of this Indenture, or property to be used for public
streets or public off-street parking facilities or easements or rights of way for public utilities, or
other similar uses) if such dispositions, together with all similar prior dispositions on or
subsequent to the date of execution and delivery of this Indenture, shall comprise more than 10%
of the land area in the Project Area. If the Agency proposes to make any such disposition which,
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together with all similar dispositions on or subsequent to the effective date of the Indenture, shall
comprise more than 10% of the land area in the Project Area, it shall cause to be filed with the
Trustee a Consultant’s Report on the effect of such proposed disposition. If the Consultant’s
Report concludes that the Tax Revenues will not be materially reduced by such proposed
disposition, the Agency may proceed with such proposed disposition. If the Consultant’s Report
concludes that Tax Revenues will be materially reduced by such proposed disposition, the
Agency shall not proceed with such proposed disposition unless, as a condition precedent to such
proposed disposition, the Agency shall require that such new owner or owners either:
(1) Pay to the Agency, so long as any of the Bonds are Outstanding, an
amount equal to the amount that would have been received by the Agency and deposited
with the Trustee as Tax Revenues if such property were assessed and taxed in the same
manner as privately-owned non-exempt property, which payment shall be made within 30
days after taxes for each year would become payable to the taxing agencies for non-
exempt property and in any event prior to the delinquency date of such taxes established
by law; or
(2) Pay to the Agency a single sum equal to the amount estimated and
certified to the Agency and Trustee by an Independent Redevelopment Consultant to be
receivable from taxes on such property from the date of such payment to the last maturity
date of all Outstanding Bonds, less a reasonable discount value.
All such payments to the Agency in lieu of taxes shall be treated for all purposes as Tax
Revenues.
Section 6.12. Amendment of Redevelopment Plan.
If the Agency proposes to amend
the Redevelopment Plan in a manner which will reduce the amount of Tax Revenues received by
the Agency, it shall cause to be filed with the Trustee a Consultant’s Report on the effect of such
proposed amendment. If the Consultant’s Report concludes that Tax Revenues will not be
materially reduced by such proposed amendment, the Agency may adopt such amendment. If the
Consultant’s Report concludes that Tax Revenues will be materially reduced by such proposed
amendment, the Agency shall not adopt such proposed amendment.
Section 6.13. Tax Revenues.
The Agency shall comply with all requirements of the
Law to insure the allocation and payment to it of the Tax Revenues, including without limitation
the timely filing of any necessary statements of indebtedness with appropriate officials of Los
Angeles County. The Agency shall, in addition, comply with all requirements of the Law relating
to the deposit of tax revenues allocated to the Agency from the Project Area in the Housing
Fund.
Section 6.14. Agreements with Other Taxing Agencies.
So long as any Bonds are
Outstanding, the Agency shall not enter into any agreement which operates as a waiver of the
Agency’s right to receive Tax Revenues under the Redevelopment Plan, unless the Agency’s
obligations under such agreement are made expressly subordinate and junior to the Agency’s
obligations under this Indenture and the Bonds.
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Section 6.15. Tax Covenants.
(a) The Agency shall not take any action, or fail to take
any action, if such action or failure to take such action would adversely affect the exclusion from
gross income of interest on the Series 1999 Bonds under Section 103 of the Code. Without
limiting the generality of the foregoing, the Agency shall comply with the requirements of the
Tax Certificate, which is incorporated herein as if fully set forth herein. This covenant shall
survive payment in full or defeasance of the Bonds.
(b) In the event that at any time the Agency is of the opinion that for purposes of this
Section it is necessary or helpful to restrict or limit the yield on the investment of any moneys
held by the Trustee in any of the funds or accounts established hereunder, the Agency shall so
instruct the Trustee in writing, and the Trustee shall take such action as may be necessary in
accordance with such instructions.
(c) Notwithstanding any provisions of this Section, if the Agency shall provide to the
Trustee an opinion of Bond Counsel to the effect that any specified action required under this
Section is no longer required or that some further or different action is required to maintain the
exclusion from federal income tax of interest on the Series 1999 Bonds, the Trustee may
conclusively rely on such opinion in complying with the requirements of this Section and of the
Tax Certificate, and the covenants hereunder shall be deemed to be modified to that extent.
Section 6.16. Continuing Disclosure.
The Agency shall comply with and carry out all
of the provisions of the Continuing Disclosure Certificate. Notwithstanding any other provision
of this Indenture, failure of the Agency to comply with the Continuing Disclosure Certificate
shall not be considered an Event of Default; provided, however, that the Trustee may (and, at the
written direction of any Participating Underwriter or the holders of at least 25% aggregate
principal amount of Outstanding Series 1999 Bonds, shall) or any holder or beneficial owner of
the Series 1999 Bonds may, take such actions as may be necessary and appropriate to compel
performance, including seeking mandate or specific performance by court order.
Section 6.17. Further Assurances.
The Agency will adopt, make, execute and deliver
any and all such further indentures, instruments and assurances as may be reasonably necessary
or proper to carry out the intention or to facilitate the performance of the Indenture, and for the
better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided
in the Indenture.
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ARTICLE VII
THE TRUSTEE
Section 7.01. Duties and Liabilities of Trustee.
(a) Duties of Trustee Generally. The
Trustee shall, prior to an Event of Default, and after the curing or waiver of all Events of Default
which may have occurred, perform such duties and only such duties as are expressly and
specifically set forth in this Indenture. The Trustee shall, during the existence of any Event of
Default which has not been cured or waived, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Removal of Trustee. The Agency may upon 30 days prior written notice remove
the Trustee at any time unless an Event of Default shall have occurred and then be continuing,
and shall remove the Trustee if at any time requested to do so by an instrument or concurrent
instruments in writing signed by the Owners of not less than a majority in aggregate principal
amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any
time the Trustee shall cease to be eligible in accordance with subsection (e) of this Section, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or its property shall be appointed, or any public officer shall take control or charge of
the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, in each case by giving written notice of such removal to the Trustee and thereupon
shall appoint a successor Trustee by an instrument in writing.
(c) Resignation of Trustee. The Trustee may at any time resign by giving written
notice of such resignation by first class mail, postage prepaid, to the Agency, and to the Bond
Owners at the respective addresses shown on the Registration Books. Upon receiving such
notice of resignation, the Agency shall promptly appoint a successor Trustee by an instrument in
writing. The Trustee shall not be relieved of its duties until such successor Trustee has accepted
appointment.
(d) Appointment of Successor Trustee. Any removal or resignation of the Trustee and
appointment of a successor Trustee shall become effective upon acceptance of appointment by
the successor Trustee; provided, however, that under any circumstances the successor Trustee
shall be qualified as provided in subsection (e) of this Section. If no qualified successor Trustee
shall have been appointed and have accepted appointment within 45 days following giving notice
of removal or notice of resignation as aforesaid, the resigning Trustee or any Bond Owner (on
behalf of himself and all other Bond Owners) may petition any court of competent jurisdiction
for the appointment of a successor Trustee, and such court may thereupon, after such notice (if
any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed
under this Indenture shall signify its acceptance of such appointment by executing and delivering
to the Agency and to its predecessor Trustee a written acceptance thereof, and to the predecessor
Trustee an instrument indemnifying the predecessor Trustee for any costs or claims arising
during the time the successor Trustee serves as Trustee hereunder, and after payment by the
Agency of all unpaid fees and expenses of the predecessor Trustee, then such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the moneys, estates,
properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like
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effect as if originally named Trustee herein; but, nevertheless at the Written Request of the
Agency or the request of the successor Trustee, such predecessor Trustee shall execute and
deliver any and all instruments of conveyance or further assurance and do such other things as
may reasonably be required for more fully and certainly vesting in and confirming to such
successor Trustee all the right, title and interest of such predecessor Trustee in and to any
property held by it under this Indenture and shall pay over, transfer, assign and deliver to the
successor Trustee any money or other property subject to the trusts and conditions herein set
forth. Upon request of the successor Trustee, the Agency shall execute and deliver any and all
instruments as may be reasonably required for more fully and certainly vesting in and confirming
to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and
obligations. Upon acceptance of appointment by a successor Trustee as provided in this
subsection, the Agency shall mail or cause the successor Trustee to mail, by first class mail
postage prepaid, a notice of the succession of such Trustee to the trusts hereunder to each rating
agency which then maintains a rating on the Bonds and to the Bond Owners at the addresses
shown on the Registration Books. If the Agency fails to mail such notice within 15 days after
acceptance of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Agency.
(e) Qualifications of Trustee. The Trustee shall be a trust company or bank having
trust powers in good standing in or incorporated under the laws of the United States or any state
thereof, having (or if such bank or trust company is a member of a bank holding company
system, its parent bank holding company shall have) a combined capital and surplus of at least
$75,000,000, and subject to supervision or examination by federal or state agency. If such bank
or trust company publishes a report of condition at least annually, pursuant to law or to the
requirements of any supervising or examining agency above referred to, then for the purpose of
this subsection the combined capital and surplus of such bank or trust company shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so
published.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this subsection (e), the Trustee shall resign immediately in the manner and with the effect
specified in this Section.
Section 7.02. Merger or Consolidation.
Any bank or trust company into which the
Trustee may be merged or converted or with which it may be consolidated or any bank or trust
company resulting from any merger, conversion or consolidation to which it shall be a party or
any bank or trust company to which the Trustee may sell or transfer all or substantially all of its
corporate trust business, provided such bank or trust company shall be eligible under subsection
(e) of Section 7.01 shall be the successor to such Trustee, without the execution or filing of any
paper or any further act, anything herein to the contrary notwithstanding.
Section 7.03. Liability of Trustee.
(a) The recitals of facts herein and in the Bonds
contained shall be taken as statements of the Agency, and the Trustee shall not assume
responsibility for the correctness of the same, or make any representations as to the validity or
sufficiency of this Indenture or of the Bonds or shall incur any responsibility in respect thereof,
other than as expressly stated herein in connection with the respective duties or obligations
herein or in the Bonds assigned to or imposed upon it. The Trustee shall, however, be
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responsible for its representations contained in its certificate of authentication on the Bonds. The
Trustee makes no representations as to the validity or sufficiency of the Indenture or of any
Bonds, or in respect of the security afforded by the Indenture and the Trustee shall incur no
responsibility in respect thereof. The Trustee shall be under no responsibility or duty with
respect to: (i) the issuance of the Bonds for value, (ii) the application of the proceeds thereof
except to the extent that such proceeds are received by it in its capacity as Trustee, or (iii) the
application of any moneys paid to the Agency or others in accordance with this Indenture. The
Trustee shall not be liable in connection with the performance of its duties hereunder, except for
its own negligence or willful misconduct. The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by the Indenture. The Trustee may become the Owner of Bonds with
the same rights it would have if it were not Trustee, and, to the extent permitted by law, may act
as depository for and permit any of its officers or directors to act as a member of, or in any other
capacity with respect to, any committee formed to protect the rights of Bond Owners, whether or
not such committee shall represent the Owners of a majority in aggregate principal amount of the
Bonds then Outstanding.
(b) The Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts.
(c) 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 not less than a
majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture.
(d) The Trustee shall have no responsibility with respect to any information,
statement, or recital in any official statement, offering memorandum or any other disclosure
material prepared or distributed with respect to the Bonds.
(e) No provision of this Indenture or any other document related hereto shall require
the Trustee to risk or advance its own funds.
(f) The immunities and protections extended to the Trustee also extend to its
directors, officers, employees and agents.
(g) The Trustee may execute any of its powers or duties hereunder through attorneys,
agents or receivers and shall not be answerable for the actions of such attorneys, agents or
receivers if selected by it with reasonable care.
(h) Before taking action under Article IX hereof or upon the direction of the Owners,
the Trustee may require indemnity satisfactory to the Trustee be furnished to it to protect it
against all fees and expenses, including those of its attorneys and advisors, and protect it against
all liability it may incur.
Section 7.04. Right to Rely on Documents.
The Trustee shall be protected in acting
upon any notice, resolution, request, consent, order, certificate, report, opinion, bonds or other
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paper or document believed by it to be genuine and to have been signed or presented by the
proper party or parties. The Trustee may consult with counsel, who may be counsel of or to the
Agency, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder
in good faith and in accordance therewith.
Whenever in the administration of the duties imposed upon it by this Indenture 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 Written
Certificate of the Agency, and such Written Certificate shall be full warrant to the Trustee for
any action taken or suffered in good faith under the provisions of this Indenture in reliance upon
such Written Certificate, but in its discretion the Trustee may, in lieu thereof, accept other
evidence of such matter or may require such additional evidence as it may deem reasonable.
Section 7.05. Preservation and Inspection of Documents.
All documents received by
the Trustee under the provisions of this Indenture shall be retained in its possession and shall be
subject during business hours and upon reasonable notice to the inspection of the Agency, the
Owners and their agents and representatives duly authorized in writing.
Section 7.06. Compensation and Indemnification.
Subject to the provisions of
Section 11.01, the Agency shall pay to the Trustee from time to time all reasonable
compensation pursuant to a pre-approved fee letter for all services rendered under this Indenture,
and also all reasonable expenses, charges, legal and consulting fees pursuant to a pre-approved
fee letter and other disbursements pursuant to a pre-approved fee letter and those of its attorneys,
agents and employees, incurred in and about the performance of their powers and duties under
this Indenture. Subject to the provisions of Section 11.01, the Agency further agrees, to the
extent permitted by law, to indemnify and save the Trustee harmless against any liabilities, costs,
claims or expenses, including those of its attorneys, which it may incur in the exercise and
performance of its powers and duties hereunder and under any related documents, including the
enforcement of any remedies and the defense of any suit, and which are not due to its negligence
or its willful misconduct. The duty of the Agency to indemnify the Trustee shall survive the
termination and discharge of this Indenture.
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ARTICLE VIII
AMENDMENT OF THE INDENTURE
Section 8.01. Amendment by Consent of Owners.
The Indenture and the rights and
obligations of the Agency and of the Owners may be amended at any time by a Supplemental
Indenture which shall become binding when the written consents of the Owners of at least 60%
in aggregate principal amount of the Bonds then Outstanding, exclusive of Bonds disqualified as
provided in Section 8.02 hereof, and the written consent of the Bond Insurer, if any, are filed
with the Trustee. No such amendment shall (a) extend the maturity of or reduce the interest rate
on, or otherwise alter or impair the obligation of the Agency to pay the interest or principal or
redemption premium, if any, at the time and place and at the rate and in the currency provided
herein of any Bond, without the express written consent of the Owner of such Bond, (b) permit
the creation by the Agency of any mortgage, pledge or lien upon the Tax Revenues superior to or
on a parity with the pledge and lien created in the Indenture for the benefit of the Bonds, except
as expressly permitted by this Indenture, (c) reduce the percentage of Bonds required for the
written consent to any such amendment, or (d) modify the rights or obligations of the Trustee
without its prior written assent thereto.
The Indenture and the rights and obligations of the Agency and of the Owners may also
be amended at any time by a Supplemental Indenture which shall become binding upon
execution, without the consent of any Owners, but only to the extent permitted by law and only
for any one or more of the following purposes:
(a) To add to the covenants and agreements of the Agency in the Indenture
contained, other covenants and agreements thereafter to be observed, or to surrender any
right or power herein reserved to or conferred upon the Agency;
(b) To make such provisions for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained in the Indenture,
or in regard to questions arising under the Indenture, as the Agency may deem necessary
or desirable and not inconsistent with the Indenture, and which shall not adversely affect
the interest of the Owners;
(c) To provide for the issuance of any Additional Bonds, and to provide the
terms and conditions under which such Additional Bonds may be issued, subject to and in
accordance with the provisions of Article IV;
(d) To modify, amend or supplement this Indenture in such manner as to
permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any
similar federal statute hereafter in effect, and to add such other terms, conditions and
provisions as may be permitted by said act or similar federal statute, and which shall not
materially adversely affect the interests of the Owners of the Bonds;
(e) To maintain the exclusion of interest on the Bonds from gross income for
federal income tax purposes;
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(f) To the extent necessary to obtain a Bond Insurance Policy, to obtain a
rating on the Bonds or in connection with satisfying all or a portion of the Reserve
Requirement by crediting a Qualified Reserve Instrument to the Reserve Account; or
(g) For any other purpose that does not materially adversely affect the
interests of the Owners.
The Bond Insurer shall be provided written notice of any amendment entered into without the
consent of Owners. A copy of any amendment of this Indenture which is consented to by the
Bond Insurer shall be delivered by the Trustee to Moody’s, Fitch and S&P as soon as practicable
after the execution and delivery of such amendment.
Section 8.02. Disqualified Bonds.
Bonds owned or held by or for the account of the
Agency or the City shall not be deemed Outstanding for the purpose of any consent or other
action or any calculation of Outstanding Bonds in this Indenture provided for, and shall not be
entitled to consent to, or take any other action in this Indenture provided for.
Section 8.03. Endorsement or Replacement of Bonds After Amendment.
After the
effective date of any action taken as hereinabove provided, the Agency may determine that the
Bonds may bear a notation, by endorsement in form approved by the Agency, as to such action,
and in that case upon demand of the Owner of any Bond Outstanding at such effective date and
presentation of his Bond for the purpose at the office of the Trustee or at such additional offices
as the Trustee may select and designate for that purpose, a suitable notation as to such action
shall be made on such Bond. If the Agency shall so determine, new Bonds so modified as, in the
opinion of the Agency, shall be necessary to conform to such action shall be prepared and
executed, and in that case upon demand of the Owner of any Bond Outstanding at such effective
date such new Bonds shall be exchanged at the office of the Trustee or at such additional offices
as the Trustee may select and designate for that purpose, without cost to each Owner, for Bonds
then Outstanding, upon surrender of such Outstanding Bonds.
Section 8.04. Amendment by Mutual Consent.
The provisions of this article shall not
prevent any Owner from accepting any amendment as to the particular Bonds held by him,
provided that due notation thereof is made on such Bonds.
Section 8.05. Opinion of Counsel.
The Trustee may conclusively accept an opinion of
counsel to the Agency that an amendment of the Indenture is in conformity with the provisions
of this Article.
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES OF OWNERS
Section 9.01. Events of Default and Acceleration of Maturities.
If one or more of the
following events (herein called “Events of Default”) shall happen, that is to say:
(a) If default shall be made in the due and punctual payment of the principal
of or redemption premium, if any, on any Bond when and as the same shall become due
and payable, whether at maturity as therein expressed, by declaration or otherwise;
(b) If default shall be made in the due and punctual payment of the interest on
any Bond when and as the same shall become due and payable;
(c) If default shall be made by the Agency in the observance of any of the
agreements, conditions or covenants on its part in the Indenture or in the Bonds
contained, and such default shall have continued for a period of 30 days after the Agency
shall have been given notice in writing of such default by the Trustee; provided, however,
that such default shall not constitute an Event of Default hereunder if the Agency shall
commence to cure such default within said 30-day period and thereafter diligently and in
good faith proceed to cure such default within a reasonable period of time; or
(d) If the Agency shall file a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law of the United
States of America, or if a court of competent jurisdiction shall approve a petition, filed
with or without the consent of the Agency, seeking reorganization under the federal
bankruptcy laws or any other applicable law of the United States of America, or if, under
the provisions of any other law for the relief or aid of debtors, any court of competent
jurisdiction shall assume custody or control of the Agency or of the whole or any
substantial part of its property;
then, and in each and every such case during the continuance of such Event of Default, the
Trustee may, and upon the written request of the Owners of not less than 25% in aggregate
principal amount of the Bonds at the time Outstanding, shall, by notice in writing to the Agency,
declare the principal of all of the Bonds then Outstanding, and the interest accrued thereon, to be
due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in the Indenture or in the Bonds contained to the contrary
notwithstanding; provided, however, that any such declaration shall be subject to the prior
written consent of the Bond Insurer, if any.
This provision, however, is subject to the condition that if, at any time after the principal
of the Bonds shall have been so declared due and payable, and before any judgment or decree for
the payment of the money due shall have been obtained or entered, the Agency shall deposit with
the Trustee a sum sufficient to pay all principal on the Bonds matured prior to such declaration
and all matured installments of interest (if any) upon all the Bonds, with interest at the rate of
10% per annum on such overdue installments of principal and interest, and the fees and expenses
of the Trustee, including attorneys fees, and any and all other defaults known to the Trustee
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(other than in the payment of principal of and interest on the Bonds due and payable solely by
reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee
or provision deemed by the Trustee to be adequate shall have been made therefor, then, and in
every such case, the Owners of at least 25% in aggregate principal amount of the Bonds then
Outstanding, by written notice to the Agency and to the Trustee, may, on behalf of the Owners of
all of the Bonds, rescind and annul such declaration and its consequences; provided, however,
that no such rescission or annulment shall occur without the prior written consent of the Bond
Insurer, if any. No such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair or exhaust any right or power consequent thereon.
Section 9.02. Application of Funds Upon Acceleration.
All money in the funds and
accounts provided for in the Indenture upon the date of the declaration of acceleration by the
Trustee as provided in Section 9.01, and all Tax Revenues thereafter received by the Agency
hereunder, shall be transmitted to the Trustee and shall be applied by the Trustee in the following
order:
First, to the payment of the fees, costs and expenses of the Trustee, if any, in
carrying out the provisions of this Article, including reasonable compensation to its
agents, attorneys and counsel;
Second, upon presentation of the several Bonds, and the stamping thereon of the
amount of the payment if only partially paid, or upon the surrender thereof if fully paid,
to the payment of the whole amount then owing and unpaid upon the Bonds for interest
and principal, with interest on the overdue interest and principal at the rate of 10% per
annum, and in case such money shall be insufficient to pay in full the whole amount so
owing and unpaid upon the Bonds, then to the payment of such interest, principal and
interest on overdue interest and principal without preference or priority among such
interest, principal and interest on overdue interest and principal, ratably to the aggregate
of such interest, principal and interest on overdue interest and principal.
Section 9.03. Other Remedies.
If an Event of Default shall have occurred under Section
9.01, the Trustee shall have the right:
(a) by mandamus, suit, action or proceeding, to compel the Agency and its
officers, agents or employees to perform each and every term, provision and covenant
contained in this Indenture and in the Bonds, and to require the carrying out of any or all
such covenants and agreements of the Agency and the fulfillment of all duties imposed
upon it by this Indenture and the Law;
(b) by suit, action or proceeding in equity, to enjoin any acts or things which
are unlawful, or the violation of any of the Trustee’s or Bond Owner’s rights; or
(c) by suit, action or proceeding in any court of competent jurisdiction, to
require the Agency and its officers and employees to account as if it and they were the
trustees of an express trust.
Section 9.04. Non-Waiver.
Nothing in this article or in any other provision of the
Indenture, or in the Bonds, shall affect or impair the obligation of the Agency, which is absolute
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and unconditional, to pay the interest on and principal of the Bonds to the respective Owners of
the Bonds at the respective dates of maturity, as herein provided, out of the Tax Revenues
pledged for such payment, or affect or impair the right of action, which is also absolute and
unconditional, of such Owners to institute suit to enforce such payment by virtue of the contract
embodied in the Bonds and in the Indenture.
A waiver of any default or breach of duty or contract by any Owner shall not affect any
subsequent default or breach of duty or contract, or impair any rights or remedies on any such
subsequent default or breach. No delay or omission by any Owner to exercise any right or power
accruing upon any default shall impair any such right or power or shall be construed to be a
waiver of any such default or an acquiescence therein, and every power and remedy conferred
upon the Owners by the Law or by this article may be enforced and exercised from time to time
and as often as shall be deemed expedient by the Owners.
If any suit, action or proceeding to enforce any right or exercise any remedy is abandoned
or determined adversely to the Owners, the Trustee, the Agency and the Owners shall be restored
to their former positions, rights and remedies as if such suit, action or proceeding had not been
brought or taken.
Section 9.05. Remedies Not Exclusive.
No remedy herein conferred upon or reserved
to the Owners is intended to be exclusive of any other remedy. Every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting
and without regard to any other remedy conferred by the Law or any other law.
Section 9.06. Power of Trustee to Enforce.
All rights of action under this Indenture or
the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of
any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit,
action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the
benefit and protection of the Owners of such Bonds, subject to the provisions of this Indenture.
Section 9.07. Bond Owners Direction of Proceedings.
Anything in this Indenture to
the contrary notwithstanding, the Owners of a majority in aggregate principal amount of the
Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in
writing executed and delivered to the Trustee, and upon indemnification of the Trustee to its
reasonable satisfaction, to direct the method of conducting all remedial proceedings taken by the
Trustee hereunder, provided that such direction shall not be otherwise than in accordance with
law and the provisions of this Indenture, and that the Trustee shall have the right to decline to
follow any such direction which in the opinion of the Trustee would be unjustly prejudicial to
Bond Owners not parties to such direction.
Section 9.08. Limitation on Bond Owners’ Right to Sue.
No Owner of any Bonds
shall have the right to institute any suit, action or proceeding at law or in equity, for the
protection or enforcement of any right or remedy under this Indenture, the Law or any other
applicable law with respect to such Bonds, unless (a) such Owner shall have given to the Trustee
written notice of the occurrence of an Event of Default, (b) the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding shall have made written request upon the
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Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding
in its own name, (c) such Owner or said Owners shall have tendered to the Trustee indemnity
against the costs, expenses and liabilities to be incurred in compliance with such request, and (d)
the Trustee shall have refused or omitted to comply with such request for a period of 60 days
after such written request shall have been received by, and said tender of indemnity shall have
been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are hereby
declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any
remedy hereunder or under law; it being understood and intended that no one or more Owners of
Bonds shall have any right in any manner whatever by his or their action to affect, disturb or
prejudice the security of this Indenture or the rights of any other Owners of Bonds, or to enforce
any right under the Bonds, this Indenture, the Law or other applicable law with respect to the
Bonds, except in the manner herein provided, and that all proceedings at law or in equity to
enforce any such right shall be instituted, had and maintained in the manner herein provided and
for the benefit and protection of all Owners of the Outstanding Bonds, subject to the provisions
of this Indenture.
Section 9.09. Bond Insurer’s Direction of Proceedings.
Notwithstanding any other
provision hereof, so long as a Bond Insurance Policy is in effect with respect to any Series of
Bonds, upon the occurrence and continuance of an Event of Default hereunder, the Bond Insurer
shall be entitled to control and direct the enforcement of all rights and remedies granted to the
Owners of such Series of Bonds or the Trustee for the benefit of the Owners of such Series of
Bonds hereunder, including, without limitation: (a) the right to accelerate the principal of the
Bonds of such Series, and (b) the right to annul any declaration of acceleration, and the Bond
Insurer shall also be entitled to approve all waivers of Events of Default with respect to such
Series of Bonds.
Notwithstanding anything in this Indenture to the contrary, if the Bond Insurer has failed
to make any payments under the Bond Insurance Policy, and such failure remains unremedied,
all rights accruing to the Bond Insurer hereunder with respect to the giving of instructions,
approvals or consents shall cease to be in force and effect until such time as such failure to make
such payments has been remedied.
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ARTICLE X
DEFEASANCE
Section 10.01. Discharge of Indebtedness.
If the Agency shall pay or cause to be paid,
or there shall otherwise be paid, to the Owners of all Outstanding Bonds the interest and
premium, if any, due thereon and the principal thereof, at the times and in the manner stipulated
therein and in the Indenture, then the Owners of such Bonds shall cease to be entitled to the
pledge of Tax Revenues, and all covenants, agreements and other obligations of the Agency to
the Owners of such Bonds under the Indenture shall thereupon cease, terminate and become void
and be discharged and satisfied. In such event, the Trustee shall execute and deliver to the
Agency all such instruments as may be desirable to evidence such discharge and satisfaction, and
the Trustee shall pay over or deliver to the Agency all money or securities held by it pursuant to
the Indenture which are not required for the payment of the interest and premium, if any, due on
and the principal of such Bonds other than the moneys, if any, in the Rebate Fund.
Bonds for the payment of which money shall have been set aside (through deposit by the
Agency or otherwise) to be held in trust by the Trustee for such payment at the maturity or
redemption date thereof shall be deemed, as of the date of such setting aside, to have been paid
within the meaning and with the effect expressed in the first paragraph of this Section.
Any Outstanding Bonds shall prior to the maturity date thereof be deemed to have been
paid within the meaning and with the effect expressed in the first paragraph of this section if (a)
there shall have been deposited with the Trustee either money in an amount which shall be
sufficient, or Federal Securities (including any Federal Securities issued or held in book-entry
form on the books of the Department of the Treasury of the United States of America) the
principal of and the interest on which when paid will provide money which, together with the
money, if any, deposited with the Trustee at the same time, shall be sufficient to pay when due
the interest due and to become due on such Bonds on and prior to the maturity date thereof, and
the principal of such Bonds (the sufficiency of such amounts to be appropriately verified), and
(b) the Agency shall have given the Trustee in form satisfactory to it irrevocable instructions to
mail, as soon as practicable, a notice to the Owners of such Bonds that the deposit required by (a)
above has been made with the Trustee and that such Bonds are deemed to have been paid in
accordance with this section and stating the maturity date upon which money is to be available
for the payment of the principal of such Bonds.
Neither Federal Securities nor money deposited with the Trustee pursuant to this Section
nor interest or principal payments on any such Federal Securities shall be withdrawn or used for
any purpose other than, and shall be held in trust for, the payment of the interest on and principal
of such Bonds; provided, however, that any cash received from such interest or principal
payments on such Federal Securities deposited with the Trustee, if not then needed for such
purpose, shall, to the extent practicable, be reinvested at the written direction of the Agency in
Federal Securities maturing at times and in amounts sufficient to pay when due the interest on
and principal of such Bonds on and prior to such maturity date thereof, and interest earned from
such reinvestments shall be deposited in accordance with this section in an escrow fund held by
an escrow agent. For the purposes of this Section, Federal Securities shall mean and include only
such securities as are not subject to redemption prior to their maturity.
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Section 10.02. Unclaimed Moneys.
Anything in the Indenture to the contrary
notwithstanding to the extent permitted by law and subject to the escheat laws of the State, any
money held by the Trustee in trust for the payment and discharge of any of the Bonds which
remain unclaimed for one year after the date when such Bonds have become due and payable, if
such money was held by the Trustee at such date, or for one year after the date of deposit of such
money if deposited with the Trustee after the said date when such Bonds or interest thereon
become due and payable, shall be repaid by the Trustee to the Agency, as its absolute property
and free from trust, and the Trustee shall thereupon be released and discharged with respect
thereto and the Owners shall look only to the Agency for the payment of such Bonds; provided,
however, that before being required to make any such payment to the Agency, the Trustee shall,
at the expense of the Agency, cause to be mailed to the registered Owners of such Bonds at their
addresses as they appear on the registration books of the Trustee a notice that said money
remains unclaimed and that, after a date named in said notice, which date shall not be less than
30 days after the date of the mailing of such notice, the balance of such money then unclaimed
will be returned to the Agency.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Liability of Agency Limited to Tax Revenues.
Notwithstanding
anything in the Indenture contained, the Agency shall not be required to advance any money
derived from any source of income other than the Tax Revenues for the payment of the interest
on or the principal of the Bonds or for the performance of any covenants herein contained, other
than the covenants contained in Section 6.07 and Section 6.15 hereof. The Agency may,
however, advance funds for any such purpose, provided that such funds are derived from a
source legally available for such purpose. The Agency’s obligation to pay the Rebate
Requirement to the United States of America pursuant Section 6.07 and Section 6.15 hereof,
shall be considered the general obligation of the Agency and shall be payable from any available
funds of the Agency.
The Bonds are limited obligations of the Agency and are payable, as to interest thereon
and principal thereof, exclusively from the Tax Revenues, and the Agency is not obligated to pay
them except from the Tax Revenues. All of the Bonds are equally secured by a pledge of, and
charge and lien upon, all of the Tax Revenues, and the Tax Revenues constitute a trust fund for
the security and payment of the interest on and the principal of the Bonds. The Bonds are not a
debt of the City of Santa Monica, the State of California or any of its political subdivisions, and
neither said City, said State nor any of its political subdivisions is liable therefor, nor in any
event shall the Bonds be payable out of any funds or properties other than those of the Agency.
The Bonds do not constitute an indebtedness within the meaning of any constitutional or
statutory limitation or restriction, and neither the members of the Agency nor any Persons
executing the Bonds are liable personally on the Bonds by reason of their issuance.
Section 11.02. Benefits of Indenture Limited to Parties.
Nothing in the Indenture,
expressed or implied, is intended to give to any Person other than the Agency, the Trustee and
the Owners any right, remedy or claim under or by reason of the Indenture. Any covenants,
stipulations, promises or agreements in the Indenture contained by and on behalf of the Agency
or any member, officer or employee thereof shall be for the sole and exclusive benefit of the
Trustee and the Owners.
Section 11.03. Successor Is Deemed Included in All References to Predecessor.
Whenever in the Indenture either the Agency or any member, officer or employee thereof is
named or referred to, such reference shall be deemed to include the successor to the powers,
duties and functions, with respect to the management, administration and control of the affairs of
the Agency, that are presently vested in the Agency or such member, officer or employee, and all
the agreements, covenants and provisions contained in the Indenture by or on behalf of the
Agency or any member, officer or employee thereof shall bind and inure to the benefit of the
respective successors thereof whether so expressed or not.
Section 11.04. Execution of Documents by Owners.
Any request, consent, declaration
or other instrument which the Indenture may require or permit to be executed by Owners may be
in one or more instruments of similar tenor, and shall be executed by Owners in person or by
their attorneys appointed in writing.
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Except as otherwise herein expressly provided, the fact and date of the execution by any
Owner or his attorney of such request, consent, declaration or other instrument, or of such
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 request, declaration 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.
The ownership of registered Bonds and the amount, maturity, number and date of holding
the same shall be proved by the registry books provided for in Section 2.08.
Any request, consent, declaration or other instrument or writing of the Owner of any
Bond shall bind all future Owners of such Bond in respect of anything done or suffered to be
done by the Agency or the Trustee in good faith and in accordance therewith.
Section 11.05. Waiver of Personal Liability.
No member, officer or employee of the
Agency shall be individually or personally liable for the payment of the interest on or principal
of the Bonds; but nothing herein contained shall relieve any member, officer or employee of the
Agency from the performance of any official duty provided by law.
Section 11.06. Acquisition of Bonds by Agency.
All Bonds acquired by the Agency,
whether by purchase or gift or otherwise, shall be surrendered to the Trustee for cancellation.
Section 11.07. Destruction of Canceled Bonds.
Whenever in the Indenture provision is
made for return to the Agency of any Bonds which have been canceled pursuant to the provisions
of the Indenture, the Trustee shall destroy such Bonds and furnish to the Agency a certificate of
such destruction.
Section 11.08. Content of Certificates and Reports.
Every certificate or report with
respect to compliance with a condition or covenant provided for in the Indenture, shall include
(a) a statement that the Person or Persons making or giving such certificate or report have read
such covenant or condition and the definitions herein relating thereto, (b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or report are based, (c) a statement that, in the opinion of the
signers, they have made or caused to be made such examination or investigation as is necessary
to enable them to express an informed opinion as to whether or not such covenant or condition
has been complied with, and (d) a statement as to whether, in the opinion of the signers, such
condition or covenant has been complied with.
Any such certificate made or given by an officer of the Agency may be based, insofar as
it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of
reasonable care should have known that the same were erroneous. Any such certificate or
opinion or representation made or given by counsel may be based, insofar as it relates to factual
matters information with respect to which is in the possession of the Agency, upon the certificate
or opinion of or representations by an officer or officers of the Agency, unless such counsel
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knows that the certificate or opinion or representations with respect to the matters upon which
his certificate, opinion or representation may be based, as aforesaid, are erroneous, or in exercise
of reasonable care should have known that the same were erroneous.
Section 11.09. Notice to Bond Insurer.
Whenever any notice, authorization, request or
demand is required or permitted to be given to any party pursuant to this Indenture, such notice,
authorization, request or demand shall also be given in writing to the Bond Insurer, if any, by
registered or certified mail at the address specified by such Bond Insurer. The Trustee shall
notify the Bond Insurer of any known failure of the Agency to provide to the Trustee relevant
notices, certificates, reports or other documents hereunder. Notwithstanding any other provision
hereof, the Trustee shall notify the Bond Insurer immediately if at any time there are insufficient
moneys to make any payments of principal or interest as required hereunder and immediately
upon the Trustee having actual knowledge of the occurrence of any Event of Default or any
event, which with the passage of time could become an Event of Default. The Agency and the
Trustee agree to provide the Bond Insurer with any additional information concerning the Bonds
as the Bond Insurer may reasonably request.
Section 11.10. Funds and Accounts.
Any fund or account required by the Indenture to
be established and maintained by the Agency or the Trustee may be established and maintained
in the accounting records of the Agency or the Trustee either as a fund or an account, and may,
for the purposes of such records, any audits thereof and any reports or statements with respect
thereto, be treated either as a fund or as an account; but all such records with respect to all such
funds and accounts shall at all times be maintained in accordance with sound accounting
practices and with due regard for the protection of the security of the Bonds and the rights of the
Owners.
Section 11.11. Article and Section Headings 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 of the
Indenture.
All references herein to “Articles,” “Sections” and other subdivisions are to the
corresponding articles, sections or subdivisions of the Indenture; and the words “herein,”
“hereof,” “hereunder” and other words of similar import refer to the Indenture as a whole and not
to any particular article, section or subdivision hereof.
Section 11.12. Partial Invalidity.
If any one or more of the provisions contained in this
Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in
any respect, then such provision or provisions shall be deemed severable from the remaining
provisions contained in this Indenture and such invalidity, illegality or unenforceability shall not
affect any other provision of this Indenture, and this Indenture shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein. The Agency
hereby declares that it would have entered into this Indenture and each and every other Section,
subsection, paragraph, sentence, clause or phrase hereof and authorized the issuance of the
Bonds pursuant thereto irrespective of the fact that any one or more Sections, subsections,
paragraphs, sentences, clauses or phrases of this Indenture may be held illegal, invalid or
unenforceable.
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Section 11.13. Execution in Several Counterparts.
This Indenture may be executed in
any number of counterparts and each of such counterparts shall for all purposes be deemed to be
an original; and all such counterparts, or as many of them as the Agency and the Trustee shall
preserve undestroyed, shall together constitute but one and the same instrument.
Section 11.14. Business Days.
When any action is provided for herein to be done on a
day named or within a specified time period, and the day or the last day of the period falls on a
day other than a day which is not a Saturday, a Sunday, or a day on which banks located in the
city where the principal corporate trust office of the Trustee is located are required or authorized
to remain closed (a “business day”), such action may be performed on the next ensuing business
day with the same effect as though performed on the appointed day or within the specified
period.
Section 11.15. Governing Law.
This Indenture shall be governed and construed in
accordance with the laws of the State of California.
Section 11.16. Notices.
Any written notice, statement, demand, consent, approval,
authorization, offer, designation, request or other communication to be given hereunder shall be
given 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 Agency: Redevelopment Agency of
the City of Santa Monica
1685 Main Street
Santa Monica, California 90401
Attention: Executive Director
With a copy to: City of Santa Monica
1685 Main Street
Santa Monica, California 90401
Attention: City Attorney
And to: Redevelopment Agency of
the City of Santa Monica
1717 4th Street, Suite 250
Santa Monica, California 90401
Attention: Treasurer
If to the Trustee: BNY Western Trust Company
700 South Flower Street, Suite 500
Los Angeles, California 90017
Attention: Corporate Trust Department
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IN WITNESS WHEREOF,
the Agency has caused this Indenture to be signed in its
name by its officer thereunto duly authorized, and the Trustee has caused this Indenture to be
signed in its corporate name by its officer thereunto duly authorized, all as of the day and year
first above written.
REDEVELOPMENT AGENCY OF THE
CITY OF SANTA MONICA
By:_________________________________
ATTEST:
___________________________________
Maria M. Stewart, Secretary
APPROVED AS TO FORM:
Marsha Jones Moutrie, Agency Counsel
BNY WESTERN TRUST COMPANY,
asTrustee
By:_________________________________
Authorized Officer
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APPENDIX A
FORM OF BOND
No. A-l $
REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA
SANTA MONICA EARTHQUAKE RECOVERY REDEVELOPMENT PROJECT
TAX ALLOCATION BOND, SERIES 1999
RATE OF MATURITY
INTEREST: DATE: DATED DATE: CUSIP:
July 1, _________ __, 1999
Registered Owner:
Principal Amount: DOLLARS
THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA, a public
body, corporate and politic, duly organized and existing under and pursuant to the laws of the
State of California (the “Agency”), for value received hereby promises to pay, from Tax
Revenues (as defined below) to the registered owner specified above, or registered assigns, on
the Maturity Date specified above the Principal Amount specified above, together with interest
thereon from the interest payment date next preceding the date of authentication on this Bond
(unless this Bond is authenticated after the close of business on the 15th day of the month next
preceding an interest payment date and on or before such interest payment date, in which event it
shall bear interest from such interest payment date, or unless this Bond is authenticated on or
before the fifteenth day of the month next preceding the first interest payment date, in which
event it shall bear interest from the dated date) until the principal hereof shall have been paid, at
the Rate of Interest specified above, payable on July 1, 2000 and semiannually thereafter on
January 1 and July 1 in each year. Both the interest hereon and principal hereof are payable in
lawful money of the United States of America. The principal (or redemption price) hereof is
payable upon surrender hereof at maturity or the earlier redemption hereof at the Principal
Corporate Trust Office (as defined in the Indenture) of BNY Western Trust Company, as
Trustee. Interest hereon is payable by check mailed by first class mail to the person in whose
name this Bond is registered at the close of business on the 15th day of the month next preceding
the applicable interest payment date at such person’s address as it appears on the registration
books of the Trustee, or upon written request of an owner, received prior to the 15th day of the
month preceding an interest payment date, of at least $1,000,000 in aggregate principal amount
of Bonds, by wire transfer in immediately available funds to an account designated by such
owner within the continental United States.
This Bond is one of a duly authorized issue of Redevelopment Agency of the City of
Santa Monica, Santa Monica Earthquake Recovery Redevelopment Project Tax Allocation
Bonds, Series 1999 (the “Bonds”), limited in aggregate principal amount to $__________, all of
like tenor and date (except for such variations, if any, as may be required to designate varying
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numbers, maturities, interest rates or redemption provisions), all issued under the provisions of
the Community Redevelopment Law of the State of California, as supplemented and amended
(the “Law”), and pursuant to the provisions of an Indenture, dated as of ___________ 1, 1999
(the “Indenture”), between the Agency and the Trustee. All Bonds are equally and ratably
secured in accordance with the terms and conditions of the Indenture, and reference is hereby
made to the Indenture, to any indentures supplemental thereto and to the Law for a description of
the terms on which the Bonds are issued, for the provisions with regard to the nature and extent
of the security provided for the Bonds and of the nature, extent and manner of enforcement of
such security, and for a statement of the rights of the registered owners of the Bonds; and all the
terms of the Indenture and the Law are hereby incorporated herein and constitute a contract
between the Agency and the registered owner from time to time of this Bond, and to all the
provisions thereof the registered owner of this Bond, by his acceptance hereof, consents and
agrees. Each registered owner hereof shall have recourse to all the provisions of the Law and the
Indenture and shall be bound by all the terms and conditions thereof.
The Bonds are issued to provide funds to aid in the financing of the Santa Monica
Earthquake Recovery Redevelopment Project of the Agency, a duly adopted redevelopment
project in the City of Santa Monica, California, as more particularly described in the Indenture.
The Bonds are special obligations of the Agency and are payable, as to interest thereon, principal
thereof and any premiums upon the redemption thereof, exclusively from certain tax revenues
(the “Tax Revenues”), and the Agency is not obligated to pay them except from the Tax
Revenues. The Bonds are equally secured by a pledge of, and charge and lien upon, the Tax
Revenues, and the Tax Revenues constitute a trust fund for the security and payment of the
interest on and principal of and redemption premiums, if any, on the Bonds. Additional tax
allocation bonds payable from the Tax Revenues may be issued which will rank equally as to
security with the Bonds, but only subject to terms and conditions set forth in the Indenture.
The Agency hereby covenants and warrants that, for the payment of the interest on and
principal of and redemption premium, if any, on this Bond and all other Bonds issued under the
Indenture when due, there has been created and will be maintained by the Trustee a special fund
into which all Tax Revenues shall be deposited, and as an irrevocable charge the Agency has
allocated the Tax Revenues solely to the payment of the interest on and principal of and
redemption premiums, if any, on the Bonds, and the Agency will pay promptly when due the
interest on and principal of and redemption premium, if any, on this Bond and all other Bonds of
this issue and all additional tax allocation bonds authorized by the Indenture out of said special
fund, all in accordance with the terms and provisions set forth in the Indenture.
Bonds due on or before July 1, _____ are not subject to redemption prior to their
respective stated maturities. Bonds maturing on or after July 1, _____ are subject to redemption,
as a whole or in part, as designated by the Agency, or, absent such designation, pro rata among
maturities, and by lot within any one maturity if less than all of the Bonds of such maturity are to
be redeemed, prior to their respective maturity dates, at the option of the Agency, on any date on
or after July 1, _____, from funds derived by the Agency from any source, at the following
redemption prices (expressed as a percentage of the principal amount of the Bonds to be
redeemed), together with interest accrued thereon to the date fixed for redemption.
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Redemption Dates Redemption Price
July 1, _____ through June 30, _____ 101%
July 1, _____ 100
As provided in the Indenture, notice of redemption of this Bond shall be mailed not less
than 30 days nor more than 60 days before the redemption date to the registered owner hereof,
but failure to receive such notice shall not affect the sufficiency of such proceedings for
redemption. If notice of redemption has been duly given as aforesaid and money for payment of
the above-described redemption price is held by the Trustee, then such Bonds shall, on the
redemption date designated in such notice, become due and payable at the above-described
redemption price; and from and after the date so designated interest on the Bonds so called for
redemption shall cease to accrue and registered owners of such Bonds shall have no rights in
respect thereof except to receive payment of such redemption price thereof.
Bonds maturing on July 1, _____, July 1, _____, and July 1, _____ are subject to
redemption prior to their stated maturity, in part by lot, from minimum sinking fund payments, as
provided in the Indenture.
In lieu of redemption of any term Bond, amounts on deposit in the Revenue Fund or in
the Sinking Account therein may also be used and withdrawn by the Trustee at any time, for the
purchase of such term Bonds upon the terms and conditions set forth in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur, the principal of all Bonds
may be declared due and payable upon the conditions, in the manner and with the effect provided
in the Indenture; except that the Indenture provides that in certain events such declaration and its
consequences may be rescinded by the registered owners of at least twenty-five per cent (25%)
in aggregate principal amount of the Bonds then outstanding.
The Bonds are issuable only in the form of fully registered Bonds in the denomination of
$5,000 and any integral multiple of $5,000 (not exceeding the principal amount of Bonds
maturing at any one time). The owner of any Bond or Bonds may surrender the same at the
above-mentioned office of the Trustee in exchange for an equal aggregate principal amount of
fully registered Bonds of any other authorized denominations, in the manner, subject to the
conditions and upon the payment of the charges provided in the Indenture.
This Bond is transferable, as provided in the Indenture, only upon a register to be kept for
that purpose at the above-mentioned office of the Trustee by the registered owner hereof in
person, or by his duly authorized attorney, upon surrender of this Bond together with a written
instrument of transfer satisfactory to the Trustee duly executed by the registered owner or his
duly authorized attorney, and thereupon a new fully registered Bond or Bonds, in the same
aggregate principal amount, shall be issued to the transferee in exchange therefor as provided in
the Indenture, and upon payment of the charges therein prescribed. The Agency and the Trustee
may deem and treat the person in whose name this Bond is registered as the absolute owner
hereof for the purpose of receiving payment of, or on account of, the interest hereon and
principal hereof and redemption premium, if any, hereon and for all other purposes.
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The Trustee shall not be required to register the transfer of or exchange any Bond during
the period established by the Trustee for selection of Bonds for redemption or any Bonds which
have been selected for redemption.
The rights and obligations of the Agency and of the registered owners of the Bonds may
be amended at any time in the manner, to the extent and upon the terms provided in the
Indenture, but no such amendment shall (a) extend the maturity of this Bond, or reduce the
interest rate hereon, or otherwise alter or impair the obligation of the Agency to pay the interest
hereon or principal hereof or any premium payable on the redemption hereof at the time and
place and at the rate and in the currency provided herein, without the express written consent of
the registered owner of this Bond, (b) permit the creation by the Agency of any mortgage, pledge
or lien upon the Tax Revenues superior to or on a parity with the pledge and lien created in the
Indenture for the benefit of the Bonds and all additional tax allocation bonds authorized by the
Indenture, (c) reduce the percentage of Bonds required for the written consent to an amendment
of the Indenture, or (d) modify any rights or obligations of the Trustee without its prior written
assent thereto; all as more fully set forth in the Indenture.
The Indenture contains provisions permitting the Agency to make provision for the
payment of the interest on, and the principal and premium, if any, of any of the Bonds so that
such Bonds shall no longer be deemed to be outstanding under the terms of the Indenture.
This Bond is not a debt of the City of Santa Monica, the State of California or any of its
political subdivisions, and neither said City, and State nor any of its political subdivisions is
liable hereon, nor in any event shall this Bond or any interest hereon or any redemption premium
hereon be payable out of any funds or properties other than those of the Agency. The Bonds do
not constitute an indebtedness within the meaning of any constitutional or statutory debt
limitation or restriction, and neither the members of the Agency nor any persons executing the
Bonds shall be personally liable on the Bonds by reason of their issuance.
This Bond shall not be entitled to any benefits under the Indenture or become valid or
obligatory for any purpose until the certificate of authentication and registration hereon endorsed
shall have been signed by the Trustee.
It is hereby certified that all of the acts, conditions and things required to exist, to have
happened or to have been performed precedent to and in the issuance of this Bond do exist, have
happened and have been performed in due time, form and manner as required by law and that the
amount of this Bond, together with all other indebtedness of the Agency, does not exceed any
limit prescribed by the Constitution or laws of the State of California, and is not in excess of the
amount of Bonds permitted to be issued under the Indenture.
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IN WITNESS WHEREOF,
the Redevelopment Agency of the City of Santa Monica has
caused this Bond to be executed in its name and on its behalf by its Chairperson and attested by
its Secretary, and has caused this Bond to be dated as of the Dated Date stated above.
REDEVELOPMENT AGENCY OF THE
CITY OF SANTA MONICA
By:_________________________________
Chairperson
Attest:
______________________________
Secretary
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This is one of the Bonds described in the within mentioned Indenture which has
been authenticated and registered on __________, ____.
BNY WESTERN TRUST COMPANY, as
Trustee
By:_________________________________
Authorized Signatory
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