ATTACHMENT F

 

 
 


SECOND SUPPLEMENT TO INDENTURE OF TRUST

Dated as of June 1, 2011

by and between the

REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA

and

Union Bank, N.A. ,
as Trustee

Relating to

$[Bond Amount]

Redevelopment Agency of the City of Santa Monica
Earthquake Recovery Redevelopment Project
2011 Tax Allocation Bonds

 

 


TABLE OF CONTENTS

Page

SECTION 1.... Supplement to Bond Indenture.......................................................................... 1

SECTION 2.... Attachment of Exhibit C.................................................................................... 9

SECTION 3.... Partial Invalidity.............................................................................................. 11

SECTION 4.... Execution in Counterparts............................................................................... 11

SECTION 5.... Governing Law................................................................................................ 11

Appendix A    Exhibit C to Indenture - Form of Bond

 


SECOND SUPPLEMENT TO INDENTURE OF TRUST

This SECOND SUPPLEMENT TO INDENTURE OF TRUST (this “Second Supplement”), dated as of June 1, 2011, is by and between the REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA, a public body corporate and politic duly organized and existing under the laws of the State of California (the “Agency”), and Union Bank, N.A. (formerly known as Union Bank of California, N.A.), a national banking association organized and existing under the laws of the United States of America, as trustee under the hereinafter defined Bond Indenture (the “Trustee”);

W I T N E S S E T H:

WHEREAS, the Agency is a public body, corporate and politic, duly established and authorized to transact business and exercise powers under and pursuant to the provisions of the Community Redevelopment Law of the State of California, constituting Part 1 of Division 24 of the Health and Safety Code of the State of California (the “Redevelopment Law”), including the power to issue bonds for any of its corporate purposes; and

WHEREAS, a redevelopment plan for the Santa Monica Earthquake Recovery Redevelopment Project (the “Redevelopment Project”) has been adopted by the Agency pursuant to all applicable requirements of the Redevelopment Law; and

WHEREAS, the Agency has previously issued its Earthquake Recovery Redevelopment Project 2006 Tax Allocation Refunding Bonds, Series A and its Earthquake Recovery Redevelopment Project 2006 Taxable Tax Allocation Refunding Bonds, Series B (collectively, the “2006 Bonds”) pursuant to an Indenture of Trust and First Supplement to Indenture of Trust, each dated as of April 1, 2006 (collectively, the “Existing Indenture”) between the Agency and Union Bank of California, N.A. (now known as Union Bank, N.A.), as trustee (the “Trustee”); and

WHEREAS, in order to finance redevelopment activities of the Agency in or of benefit to the Project Area the Agency has determined to issue hereunder its Redevelopment Agency of the City of Santa Monica Earthquake Recovery Redevelopment Project 2011 Tax Allocation Bonds, in the principal amount of $[Bond Amount] (the “2011 Bonds”) on a parity with the 2006 Bonds pursuant to the Existing Indenture and this Second Supplement, all as provided herein; and

WHEREAS, the 2011 Bonds will be payable from Tax Revenues (as herein defined) on a parity with the 2006 Bonds; and

WHEREAS, the Agency has certified that all acts and proceedings required by law necessary to make the 2011 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 Second Supplement 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 Second Supplement have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto do hereby agree as follows:

SECTION 1.      Supplement to Bond Indenture.  In accordance with the provisions of Section 7.01(c) of the Bond Indenture, the Bond Indenture is hereby amended by adding a supplement thereto consisting of a new article to be designated as Article XI.  Such Article XI shall read in its entirety as follows:

ARTICLE XI

2011 Bonds

Section 11.01. Definitions.  Unless the context otherwise requires, the terms defined in this Section 11.01 shall, for all purposes of this Article but not for any other purposes of this Indenture, have the respective meanings specified in this Section 11.01.  All terms defined in Section 1.01 and not otherwise defined in this Section 11.01 shall, when used in this Article XI, have the respective meanings given to such terms in Section 1.01.

Article XI” means this Article XI which has been incorporated in and made a part of this Indenture pursuant to the Second Supplement, together with all amendments of and supplements to this Article XI entered into pursuant to the provisions of Section 7.01.

Bond Year” means the one-year period beginning on July 2 in any year and ending on the next succeeding July 1, both dates inclusive, except that the first Bond Year shall begin on the Closing Date and end on July 1, 2012.

Closing Date” means the date on which the 2011 Bonds are delivered to the Original Purchaser.

Continuing Disclosure Certificate” means that certain Continuing Disclosure Certificate relating to the 2011 Bonds executed by the Agency and dated the date of issuance and delivery of the 2011 Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof.

Costs of Issuance” means all items of expense directly or indirectly payable by or reimbursable to the Agency relating to the authorization, issuance, sale and delivery of the 2011 Bonds, including but not limited to printing expenses, rating agency fees, municipal bond insurance and surety bond premiums, filing and recording fees, initial fees, expenses and charges of the Trustee, and its counsel, including the Trustee’s first annual administrative fee, fees, charges and disbursements of attorneys, financial advisors, accounting firms, consultants and other professionals, fees and charges for preparation, execution and safekeeping of the 2011 Bonds and any other cost, charge or fee in connection with the original issuance of the 2011 Bonds.

Second Supplement” means the Second Supplement to Indenture of Trust, dated as of June 1, 2011, by and between the Agency and the Trustee, as the same may be amended from time to time in accordance with the terms of the Bond Indenture.

Interest Payment Date” means January 1, 2012, and each July 1 and June 1 thereafter so long as any of the Bonds remain unpaid.

Original Purchaser” means collectively E.J. De La Rosa & Co., Inc., and on behalf of itself and Wells Fargo Bank National Association, as the initial underwriters of the 2011 Bonds.

Participating Underwriter” has the meaning ascribed thereto in the Continuing Disclosure Certificate.

Bond Indenture” means the Indenture of Trust, dated as of April 1, 2006, by and between the Agency and the Trustee as amended to date and, as the same may be amended from time to time in accordance with the terms thereof, including, without limitation, as amended and supplemented by the Second Supplement.

2011 Bondsmeans the Bonds which are authorized and issued under Section 11.02.

2011 Bonds Costs of Issuance Fund” means the fund by that name established and held by the Trustee pursuant to Section 11.07.

2011 Bonds Redevelopment Account” means the account by that name established and held by the Trustee in the Redevelopment Fund pursuant to Section 11.07.

2011 Bonds Reserve Account Subaccount” means the subaccount, by that name established and held by the Trustee pursuant to Section 11.14.

Section 11.02. Authorization of 2011 Bonds.  The 2011 Bonds are issued as Parity Debt in the aggregate principal amount of ________________________ Dollars ($[Bond Amount]) under and subject to the terms of this Indenture and the Redevelopment Law, for the purpose of providing funds to finance redevelopment activities with respect to the Redevelopment Projects.  This Indenture constitutes a continuing agreement with the Owners of all of the 2011 Bonds issued hereunder and at any time Outstanding to secure the full and final payment of principal of and premium, if any, and interest on all 2011 Bonds which may from time to time be executed and delivered hereunder, subject to the covenants, agreements, provisions and conditions herein contained.  The 2011 Bonds shall be designated the “Redevelopment Agency of the City of Santa Monica Earthquake Recovery Redevelopment Project 2011 Tax Allocation Bonds”.  Upon the execution and delivery of the Second Supplement, the Agency shall execute and deliver 2011 Bonds in the aggregate principal amount of $[Bond Amount] to the Trustee and the Trustee shall authenticate and deliver the 2011 Bonds to the Original Purchaser upon receipt of a Request of the Agency therefor.

Section 11.03. Terms of 2011 Bonds.  The 2011 Bonds shall be dated as of the Closing Date, and shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof and shall be subject to the book entry system provisions of Section 2.11.  The 2011 Bonds shall mature on July 1 in each of the years and in the respective principal amounts, and shall bear interest (calculated on the basis of a 360-day year comprised of twelve 30-day months) which is payable on each Interest Payment Date in the respective amounts, as set forth in the following table:

Maturity
(July 1)

 

 

 

 

 

 

Principal
Amount

 

 

 

 

 

Interest
Rate

 

 

 

 

 

Interest on the 2011 Bonds shall be payable from the Interest Payment Date next preceding the date of authentication thereof unless (i) a 2011 Bond is authenticated on or before an Interest Payment Date and after the close of business on the preceding Record Date, in which event it shall bear interest from such Interest Payment Date, (ii) a 2011 Bond is authenticated on or before the first Record Date with respect to the 2011 Bonds, in which event interest thereon shall be payable from the Closing Date, or (iii) interest on any 2011 Bond is in default as of the date of authentication thereof, in which event interest thereon shall be payable from the date to which interest has been paid in full, payable on each Interest Payment Date.  Interest shall be paid on each Interest Payment Date to the persons in whose names the ownership of the 2011 Bonds is registered on the Registration Books at the close of business on the immediately preceding Record Date.  Interest on any 2011 Bond which is not punctually paid or duly provided for on any Interest Payment Date shall be payable to the person in whose name the ownership of such 2011 Bond is registered on the Registration Books at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee, notice of which shall be given to such Owner not less than ten (10) days prior to such special record date.

Interest on the 2011 Bonds shall be paid by check of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Owners of the 2011 Bonds at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date; provided, however, that at the written request of the Owner of 2011 Bonds in an aggregate principal amount of at least $1,000,000, which written request is on file with the Trustee prior to any Record Date, interest on such 2011 Bonds shall be paid on each succeeding Interest Payment Date by wire transfer in immediately available funds to such account at a financial institution within the United States of America as shall be specified in such written request.  The principal of the 2011 Bonds and any redemption premium shall be payable in lawful money of the United States of America by check of the Trustee upon presentation and surrender thereof to the Trustee.

Section 11.04. Redemption.  The 2011 Bonds are subject to optional redemption or mandatory sinking account redemption by the Agency’s set forth below:

(i)               Optional Redemption. 

The 2011 Bonds maturing on or before July 1, 20__, shall not be subject to optional redemption prior to maturity.  The 2011 Bonds maturing on or after July 1, 20__, shall be subject to redemption in whole, or in part among such maturities as shall be determined by the Agency, and in any case by lot within a maturity, at the option of the Agency, on any date on or after July 1, 20__, from any available source of funds, at a redemption price equal to the principal amount of the 2011 Bonds to be redeemed, plus accrued interest thereon to the redemption date, without premium. 

The Agency shall be required to give the Trustee written notice of its intention to redeem 2011 Bonds and of the annual maturities determined to be redeemed under this subsection (a) at least forty-five (45) days prior to the date fixed for such redemption (or such lesser number of days as the Trustee may accept).

(ii)             Sinking Account Redemption.

(A)            The 2011 Bonds maturing July 1 in each of the years ______, and ______ shall be subject to mandatory sinking fund redemption in part by lot on July 1_____and July 1, ______, respectively and on July 1 in each year thereafter, from Sinking Account payments made by the Agency pursuant to this Section 11.04(b), at a redemption price equal to the principal amount thereof to be redeemed together with accrued interest thereon to the redemption date, without premium, or in lieu thereof shall be purchased pursuant to paragraph (ii) of this subsection (b), in the aggregate respective principal amounts and on the dates as set forth in the following table (provided, however, that if some but not all of such 2011 Bonds have been redeemed, the total amount of all future Sinking Account payments attributable to such 2011 Bonds shall be reduced by the aggregate principal amount of such 2011 Bonds so redeemed, to be allocated among such Sinking Account payments on a pro rata basis, or on such other basis, in integral multiples of $5,000 as determined by the Agency (written notice of which determination shall be given by the Agency to the Trustee)):

Term Bond Maturing on July 1, 20__

 

Sinking Account
Redemption Date

(July 1)

Principal Amount To Be
Redeemed or Purchased

20__

                   $  _______

20__

                     ________

 

 

                                            

  Maturity.

 

Term Bond Maturing on July 1, 20__

 

Sinking Account
Redemption Date

(July 1)

Principal Amount To Be
Redeemed or Purchased

20__

                   $ __________

20__

                       _______

 

 

                                            

  Maturity.

 

                                            

  Maturity.

 

(B)            In lieu of redemption of any 2011 Bonds pursuant to the preceding paragraph (i) of this subsection (b), amounts on deposit in the Special Fund may also be used and withdrawn by the Agency at any time for the purchase of such 2011 Bonds at public or private sale as and when and at such prices (including brokerage and other charges and including accrued interest) as the Agency may in its discretion determine.  The par amount of any of the 2011 Bonds so purchased by the Agency in any twelve-month period ending on January 1 in any year shall be credited towards and shall reduce the par amount of such 2011 Bonds required to be redeemed pursuant to this subsection (b) on July 1 in such year.

(iii)           Notice of Redemption.  The Trustee on behalf and at the expense of the Agency shall mail (by first class mail) notice of any redemption to the respective Owners of any 2011 Bonds designated for redemption at their respective addresses appearing on the Registration Books, at least thirty (30) but not more than sixty (60) days prior to the date fixed for redemption; provided, however, that neither failure to receive any such notice so mailed nor any defect therein shall affect the validity of the proceedings for the redemption of such 2011 Bonds or the cessation of the accrual of interest thereon.  Such notice shall state the date of the notice, the redemption date, the redemption place and the redemption price and shall designate the CUSIP numbers, the individual number of each 2011 Bond to be redeemed or state that all 2011 Bonds between two stated numbers (both inclusive) have been called unless all 2011 Bonds within a maturity have been called, or will state that all of the 2011 Bonds Outstanding of one or more maturities and Series are to be redeemed, and shall require that such 2011 Bonds be then surrendered at the office of the Trustee for redemption at the redemption price, giving notice also that further interest on such 2011 Bonds will not accrue from and after the redemption date.

Additionally, on the date on which the notice of redemption is mailed to the Owners of the 2011 Bonds pursuant to the provisions above, such notice of redemption shall be given by (i) first class mail, postage prepaid, (ii) confirmed facsimile transmission, or (iii) overnight delivery service to the Agency, to each of the Securities Depositories and to one or more of the Information Services as shall be designated in writing by the Agency to the Trustee.

(iv)           Manner of Redemption.  Whenever provision is made in this Section 11.4 for the redemption of less than all of the 2011 Bonds of any maturity, the Trustee shall select the 2011 Bonds of such maturity to be redeemed by lot in any manner which the Trustee in its sole discretion shall deem appropriate.  For purposes of such selection, all 2011 Bonds shall be deemed to be comprised of separate $5,000 denominations and such separate denominations shall be treated as separate 2011 Bonds which may be separately redeemed.

(v)             Partial Redemption of 2011 Bonds.  In the event only a portion of any 2011 Bond is called for redemption, then upon surrender of such 2011 Bond the Agency shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Agency, a new 2011 Bond or 2011 Bonds of the same maturity date, of authorized denominations in aggregate principal amount equal to the unredeemed portion of the 2011 Bond to be redeemed.

(vi)           Effect of Redemption.  From and after the date fixed for redemption, if funds available for the payment of the principal of and interest (and premium, if any) on the 2011 Bonds so called for redemption shall have been duly provided, such 2011 Bonds so called shall cease to be entitled to any benefit under this Indenture other than the right to receive payment of the redemption price, and no interest shall accrue thereon from and after the redemption date specified in such notice.  All 2011 Bonds redeemed pursuant to this Section 10.4 shall be canceled and destroyed.

(vii)          Rescission.  The Agency shall have the right to rescind any optional redemption by written notice to the Trustee on or prior to the dated fixed for redemption. Any notice of optional redemption shall be cancelled and annulled if for any reason funds will not or are not available on the date fixed for redemption for the payment in full of the 2011 Bonds then called for redemption, and such cancellation shall not constitute an Event of Default under the Indenture.  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.

.

Section 11.05. Form and Execution of 2011 Bonds, CUSIP Numbers.  The 2011 Bonds, the form of Trustee’s Certificate of Authentication, and the form of Assignment to appear thereon, shall be substantially in the respective forms set forth in Exhibit C attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture.

The 2011 Bonds shall be executed on behalf of the Agency by the signature of its Chair and the signature of its Secretary who are in office on the date of execution and delivery of the Second Supplement or at any time thereafter, and the seal of the Agency shall be impressed, imprinted or reproduced by facsimile signature thereon.  Either or both of such signatures may be made manually or may be affixed by facsimile thereof.  If any officer whose signature appears on any 2011 Bond ceases to be such officer before delivery of the 2011 Bonds to the purchaser, such signature shall nevertheless be as effective as if the officer had remained in office until the delivery of the 2011 Bonds to the purchaser.  Any 2011 Bond may be signed and attested on behalf of the Agency by such persons as at the actual date of the execution of such 2011 Bond shall be the proper officers of the Agency although on the date of such 2011 Bond any such person shall not have been such officer of the Agency.

Only such of the 2011 Bonds as shall bear thereon a Certificate of Authentication in the form set forth in Exhibit C, executed and dated by the Trustee, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such Certificate of the Trustee shall be conclusive evidence that such 2011 Bonds have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.

The Trustee and the Agency shall not be liable for any omission, defect or inaccuracy in the CUSIP number that appears on any 2011 Bond or in any redemption notice.  The Trustee may, in its discretion, include in any redemption notice a statement to the effect that the CUSIP numbers on the 2011 Bonds have been assigned by an independent service and are included in such notice solely for the convenience of the Owners and that neither the Trustee nor the Agency shall be liable for any inaccuracies in such numbers.

Section 11.06. Application of Proceeds of Sale of 2011 Bonds.  Upon the receipt of payment of the purchase price for the 2011 Bonds ($______________) on the Closing Date (representing $__________ principal amount issue premium of $__________ and less original issue discount of $_____________), the proceeds thereof shall be paid to the Trustee and deposited in a temporary fund (if required by the Trustee to make the following transfers and deposits, which temporary fund shall be closed after such transfers and deposits have been made), all of the amounts on deposit in which shall be transferred on the Closing Date as follows:

(a)        The Trustee shall deposit to the 2011 Bonds Costs of Issuance Fund the amount of $__________.

(b)        The Trustee shall transfer to the Agency for deposit in the 2011 Bonds Redevelopment Account of the Redevelopment Fund created pursuant to Section 3.04(a) of the Indenture the amount of $_________________ for application in accordance with Section 3.04(a) and Section 11.07(b).

(c)        The Trustee shall deposit to the 2011 Bonds Subaccount of the Reserve Account the amount of $__________which shall, together with the credit of the Reserve Account Surety Bond to the 2006 Series A Bonds Reserve Account Subaccount with respect to the 2006 Series A Bonds and the 2006 Series B Bonds Reserve Account Subaccount with respect to the 2006 Series B Bonds, represents the full amount of the Reserve Requirement upon delivery of the 2011 Bonds.

Section 11.07. 2011 Bonds Costs of Issuance Fund and 2011 Bonds Redevelopment Account.  (a) There is hereby established a separate fund to be known as the “2011 Bonds Costs of Issuance Fund”, which shall be held by the Trustee in trust.  The moneys in the 2011 Bonds Costs of Issuance Fund shall be used and withdrawn by the Trustee from time to time to pay the Costs of Issuance upon submission of a Written Request of the Agency stating (a) the person to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge against the 2011 Bonds Costs of Issuance Fund, and (e) that such amounts have not been the subject of a prior Written Request of the Agency; in each case together with a statement or invoice for each amount requested thereunder.  On the earlier of (i) [November] 1, 2011, or (ii) the date of receipt by the Trustee of a Request of the Agency therefor, all amounts (if any) remaining in the 2011 Bonds Costs of Issuance Fund shall be withdrawn therefrom by the Trustee and deposited in the Interest Account.

(b).  There is hereby established a separate account in the Redevelopment Fund to be known as the “2011 Bonds Redevelopment Account”, which shall be held by the Agency.  The moneys in the 2011 Bonds Redevelopment Account shall be used and withdrawn by the Agency from time to time to pay authorized costs upon submission (and retention in the records of the Agency) of a Written Request of the Agency stating (a) the person to whom payment is to be made, (b) the amount to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge against the 2011 Bonds Redevelopment Account and the Redevelopment Fund, and (e) that such amounts have not been the subject of a prior Written Request of the Agency; in each case together with a statement or invoice for each amount requested thereunder.  On the the date of the Agency’s certification (and retention in the records of the Agency) that it has completed the expenditure of all amounts to be expended from the 2011 Bonds Redevelopment Account, all amounts (if any) remaining in the 2011 Bonds Redevelopment Account shall be withdrawn therefrom and transferred to the Trustee for deposit in the Interest Account.

Section 11.08  Security for 2011 Bonds.  The 2011 Bonds shall be Parity Debt within the meaning of such term in Section 1.02 and shall be secured in the manner and to the extent set forth in Article IV.  As provided in Section 4.01, the 2011 Bonds shall be secured on a parity with all other Bonds issued under this Indenture, including the 2006 Bonds, by a first pledge of and lien on all of the Tax Revenues in the Special Fund and the moneys in the Reserve Account.  [Without limiting any other provision of this Indenture, the Agency hereby covenants and agrees to pay all amounts due under the Indenture with respect to the 2011 Bonds maturing July 1, 2042 on or before the last day for the Agency to repay indebtedness pursuant to the Redevelopment Plan and the Redevelopment Law.]

Section 11.09  Continuing Disclosure.  The Agency hereby covenants and agrees that it will 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; however, any Participating Underwriter or any holder or beneficial owner of the 2011 Bonds may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Agency to comply with its obligations under this Section 11.09.

Section 11.10  Benefits Limited to Parties.  Nothing in this Article XI, expressed or implied, is intended to give to any person other than the Agency, the Trustee, and the Owners of the 2011 Bonds, any right, remedy, claim under or by reason of this Article XI.  Any covenants, stipulations, promises or agreements in this Article XI contained by and on behalf of the Agency shall be for the sole and exclusive benefit of the Trustee, and the Owners of the 2011 Bonds.

Section 11.11. Federal Tax Covenants.  The provisions of Section 5.11 and the further provisions of this Indenture relating to the Tax Code shall apply to the 2011 Bonds as if restated in full herein.

Section 11.12. 2011 Bonds Reserve Subaccount.  The 2011 Bonds Reserve Subaccount is hereby created as a subaccount of the Reserve Account.  The portion of the Reserve Requirement allocable to the 2011 Bonds shall be satisfied initially by the deposit of a portion of the proceeds of the 2011 Bonds to the 2011 Bonds Reserve Subaccount pursuant to Section 11. 06 hereof.  [Notwithstanding any other provision of this Indenture to the contrary, amounts on deposit therein shall be applied exclusively to the payment of 2011 Bonds [as further set forth below].

Section 11.13. Effect of this Article XI.  Except as in this Article XI expressly provided or except to the extent inconsistent with any provision of this Article XI, the 2011 Bonds shall be deemed to be Bonds under and within the meaning of Section 1.02, and every term and condition contained in the other provisions of this Indenture shall apply to the 2011 Bonds with full force and effect, with such omissions, variations and modifications thereof as may be appropriate to make the same conform to this Article XI.  In addition, Section 9.03(b) relating to the 2006 Insurer shall apply to the defeasance of the 2011 Bonds.

Section 11.14. [Reserved]

Section 11.15. Further Assurances.  The Agency will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture, and for the better assuring and confirming unto the Owners of the 2011 Bonds and the rights and benefits provided in this Indenture.

SECTION 2.      Attachment of Exhibit C.  The Bond Indenture is also hereby further amended by attaching thereto and incorporating therein an Exhibit C setting forth the form of the 2011 Bonds, which shall read substantially as set forth in Appendix A which is attached hereto and by this reference incorporated herein.

SECTION 3.    Amendment of Existing Indenture.  (a) Section 1.01 is hereby amended to restate in full the definition of Reserve Requirement as follows:

Reserve Requirement means, as of the date of any calculation, [(a) with respect to the Series 2006A Bonds and the Series 2006B Bonds], the lesser of (1) Maximum Annual Debt Service [with respect to the Series 2006A Bonds and the Series 2006B Bonds], or (2) the maximum amount permitted to be deposited in the Reserve Account under the Tax Code [from the proceeds of the Series 2006A Bonds and the Series 2006B Bonds], as certified to the Trustee by the Agency; [(b) with respect to the Series 2011 Bonds], the lesser of (1) Maximum Annual Debt Service [with respect to the Series 2011 Bonds], or (2) the maximum amount permitted to be deposited in the Reserve Account under the Tax Code without yield restriction [from the proceeds of the Series 2011 Bonds], as certified to the Trustee by the Agency and [(c) with respect to any other Parity Debt authorized pursuant to a Parity Debt Instrument, the lesser of (a) Maximum Annual Debt Service [with respect to the Parity Debt authorized pursuant to such Parity Debt Instrument], or (b) the maximum amount permitted to be deposited in the Reserve Account under the Tax Code without yield restriction [from the proceeds of such Parity Debt], as certified to the Trustee by the Agency, in each case computed and maintained separately for each issue or series of Parity Debt.

(b) Section 4.02(d) of the Bond Indenture is hereby amended to read in full as follows:

(d) Reserve Account.  In addition to the Reserve Account, the Trustee shall establish within the Reserve Account the 2006 Series A Bonds Reserve Account Subaccount.  In the event that the Trustee has actual knowledge that the amount on deposit in the Reserve Account at any time becomes less than the Reserve Requirement, the Trustee shall promptly notify the Agency of such fact.  Promptly upon receipt of such notice, the Agency shall transfer to the Trustee for deposit in the applicable subaccount to which the deficiency relates (pro rata in the event a deficiency exists in more than one subaccount and Tax Revenues are insufficient to fund the entire deficiency) an amount of available Tax Revenues sufficient to maintain the Reserve Requirement on deposit in the Reserve Account.  Amounts in the Reserve Account shall be used and withdrawn by the Trustee solely for the purpose of making transfers pursuant to any applicable Parity Debt Instrument in the applicable order of priority and to the Interest account, the Principal Account and the Sinking Account, in such order of priority, on any date which the principal of or interest on the Bonds becomes due and payable hereunder, in the event of any deficiency at any time in any of the applicable accounts.  In the event there shall be insufficient amounts in the Reserve Account to make all of the transfers required by this Section 4.02(d) and any applicable Parity Debt Instrument, then such transfers shall be made from the applicable subaccount for the benefit of the Bonds to which the applicable subaccount relates.  So long as no Event of Default shall have occurred and be continuing, any amount in the Reserve Account in excess of the Reserve Requirement on the fourth (4th) Business Day preceding each Interest Payment Date shall be withdrawn from the Reserve Account by the Trustee and deposited in the Interest Account and the Interest Account established by any Parity Debt Instrument, for deposit to the applicable Bonds and/or Parity Debt to which the subaccount relates.

The Agency shall have the right at any time to direct the Trustee to release funds from the Reserve Account, in whole or in part, by tendering to the Trustee: (i) a Qualified Reserve Account Credit Instrument, and (ii) an opinion of Bond Counsel stating that neither the release of such funds not the acceptance of such Qualified Reserve Account Credit Instrument will cause interest on the Bonds to become includable in gross income for purposes of federal income taxation.  Upon tender of such items to the Trustee, and upon delivery by the Agency to the Trustee of written calculation of the amount permitted to be released from the Reserve Account (upon which calculation the Trustee may conclusively rely), the Trustee shall transfer such funds from the Reserve Account and deposit such funds in the Redevelopment Fund to be used solely as provided in Section 3.04(a).  The Trustee shall comply with all documentation relating to a Qualified Reserve Account Credit Instrument as shall reasonably be required to maintain such Qualified Reserve Account Credit Instrument in full force and effect and as shall reasonably be required to receive payments thereunder in the event and to the extent required to make any payment when and as required under this subsection (d).  Upon the expiration or any default with respect to any Qualified Reserve Account Credit Instrument, the Agency shall be obligated either (i) to replace such Qualified Reserve Account Cr3edit Instrument, or (ii) to deposit or cause to be deposited with the Trustee an amount of funds equal to the Reserve Requirement, to be derived from the first available Tax Revenues.

The Reserve Account shall be maintained in the form of one or more separate subaccounts which are established at the direction of the Agency for the purpose of holding the proceeds of separate issues of the bonds in conformity with applicable provisions of the Tax Code.

The portion of the Reserve Requirement allocable to the 2006 Series A Bonds shall be satisfied initially by the credit to the 2006 Series A Bonds Reserve Account Subaccount of the Bond Reserve Fund Policy.  As long as the Bond Reserve Fund Policy shall be in full force and effect, the Trustee and the agency, if applicable, agree to comply with the provisions of Section 4.08 relating to the Bond Reserve Fund Policy Agreement.  Amounts in the subaccount of the Reserve Account shall be available only for the payment of the Bonds, including any Parity Debt to which the subaccount relates, except as may be otherwise set forth in any Parity Debt Instrument, as to amounts in the subaccount created thereunder.

(c) Section 8.08 of the Existing Indenture is hereby amended as follows:  All references to the Bonds in Section 8.08 shall mean and refer to the 2006 Series A Bonds and the 2006 Series B Bonds, and no others.

SECTION 3.      Partial Invalidity.  If any Section, paragraph, sentence, clause or phrase of this Second Supplement shall for any reason be held illegal, invalid or unenforceable, such holding shall not affect the validity of the remaining portions of this Second Supplement.  The Agency hereby declares that it would have entered into this Second Supplement and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issue of the 2011 Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses, or phrases of this Second Supplement may be held illegal, invalid or unenforceable.

SECTION 4.      Execution in Counterparts.  This Second Supplement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

SECTION 5.      Governing Law.  This Second Supplement shall be construed and governed in accordance with the laws of the State of California.

 


IN WITNESS WHEREOF, the REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA has caused this Second Supplement to be signed in its name by its Executive Director and attested by its Secretary, and Union Bank, N.A. , in token of its acceptance of the trusts created hereunder, has caused this Second Supplement to be signed in its corporate name by its officers thereunto duly authorized, all as of the day and year first above written.

REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA

By:                                                                       

Executive Director

(S E A L)

ATTEST:

                                                                    

                             Secretary

APPROVED AS TO FORM

By:                                                              

                 Agency General Counsel

Union Bank, N.A. , as Trustee

By:                                                                       

Authorized Officer

 


APPENDIX A

EXHIBIT C TO INDENTURE

(FORM OF 2011 BOND)

No. _____                                                                                                               $__________

UNITED STATES OF AMERICA

STATE OF CALIFORNIA

REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA

EARTHQUAKE RECOVERY REDEVELOPMENT PROJECT

2011 TAX ALLOCATION BOND

INTEREST RATE:

MATURITY DATE:

DATED DATE:

CUSIP:

%

July 1,

[Closing Date]

 

 

REGISTERED OWNER:  CEDE & CO.

PRINCIPAL AMOUNT:

The Redevelopment Agency of the City of Santa Monica, a public body, corporate and politic, duly organized and existing under the laws of the State of California (the “Agency”), for value received, hereby promises to pay (but only out of the Tax Revenues and other moneys and securities hereinafter referred to) to the Registered Owner specified above or registered assigns (the “Registered Owner”), on the Maturity Date specified above (subject to any right of prior redemption hereinafter provided for), the Principal Amount specified above in lawful money of the United States of America, and to pay interest thereon at the Interest Rate specified above in like lawful money from the Interest Payment Date (as hereinafter defined) next preceding the date of authentication of this Bond (unless this Bond is authenticated on or before an Interest Payment Date and after the fifteenth (15th) calendar day of the month preceding such Interest Payment Date (a “Record Date”), in which event it shall bear interest from such Interest Payment Date, or unless this Bond is authenticated on or prior to [December 15, 2011], in which event it shall bear interest from the Dated Date specified above; provided, however, that if, at the time of authentication of this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been paid or made available for payment), payable semiannually on January 1 and July 1 in each year, commencing [January 1, 2012] (the “Interest Payment Dates”), until payment of such Principal Amount in full.  The Principal Amount hereof is payable upon presentation hereof at the principal corporate trust office of Union Bank, N.A.  in Los Angeles, (the “Trustee”), or such other office of the Trustee as the Trustee may designate (the “Principal Corporate Trust Office”).  Interest hereon is payable by check of the Trustee mailed by first class mail on each Interest Payment Date to the Registered Owner hereof at the address of such Registered Owner as it appears on the registration books of the Trustee as of the preceding Record Date; provided that at the written request of the owner of at least $1,000,000 aggregate principal amount of Bonds, which written request is on file with the Trustee prior to the Record Date immediately preceding the applicable Interest Payment Date, interest on such Bonds shall be paid on such Interest Payment Date by wire transfer to such account within the United States of America as shall be specified in such written request.

This Bond is one of a duly authorized issue of bonds of the Agency designated as the “Redevelopment Agency of the City of Santa Monica Earthquake Recovery Redevelopment Project 2011 Tax Allocation Bonds” (the “Bonds”) of an aggregate principal amount of ____________________Dollars ($[Bond Amount]), all of like tenor and date (except for such variation, if any, as may be required to designate varying numbers, maturities or interest rates) and all issued pursuant to the provisions of the Community Redevelopment Law of the State of California, constituting Part 1 of Division 24 of the Health and Safety Code of the State of California (the “Redevelopment Law”), and pursuant to an Indenture of Trust, dated as of April 1, 2006, by and between the Agency and the Trustee as supplemented and amended by a First Supplement to Indenture of Trust, dated as of April 1, 2006 and a Second Supplement to Indenture of Trust, dated as of June 1, 2011, in each case by and between the Agency and the Trustee (as so amended and supplemented, the “Indenture”).  The Bonds have been issued on a parity with the Redevelopment Agency of the City of Santa Monica Earthquake Recovery Redevelopment Project 2006 Tax Allocation Refunding Bonds, Series A, issued in the original principal amount of $49,945,000 (the “2006 Series A Bonds”) and the Redevelopment Agency of the City of Santa Monica Earthquake Recovery Redevelopment Project 2006 Taxable Tax Allocation Refunding Bonds, Series B”), issued in the original principal amount of $14,775,000 (the “2006 Series B Bonds” and, together with the 2006 Series A Bonds, the “2006 Bonds”).  The Agency may issue or incur additional obligations on a parity with the 2006 Bonds and the Bonds, but only subject to the terms of the Indenture.  Reference is hereby made to the Indenture (copies of which are on file at the office of the Agency) and all supplements thereto and to the Redevelopment Law for a description of the terms on which the Bonds are issued, the provisions with regard to the nature and extent of the Tax Revenues, as that term is defined in the Indenture, and the rights thereunder of the owners of the Bonds and the rights, duties and immunities of the Trustee and the rights and obligations of the Agency thereunder, to all of the provisions of which the Registered Owner of this Bond, by acceptance hereof, assents and agrees.

The Bonds have been issued by the Agency for the purpose of providing funds to finance redevelopment activities with respect to its Earthquake Recovery Redevelopment Project (the “Project Area”).

In accordance with the Indenture, this Bond and the interest hereon, together with all other Bonds, all 2006 Bonds and all other Parity Debt (as defined in the Indenture) and the interest thereon (to the extent set forth in the Indenture), are payable from, and are secured by a pledge of and lien on the Tax Revenues derived by the Agency from the Project Area.  As and to the extent set forth in the Indenture, all of the Tax Revenues are exclusively and irrevocably pledged in accordance with the terms and provisions of the Indenture and the Redevelopment Law, to the payment of the principal of and interest on the Bonds, the 2006 Bonds and any additional Parity Debt.  Notwithstanding the foregoing, certain Tax Revenues may be applied for other purposes as provided in the Indenture.

This Bond is not a debt, liability or obligation 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 hereon, nor in any event shall this Bond be payable out of any funds or properties other than the Tax Revenues.

The rights and obligations of the Agency and the owners of the Bonds may be modified or amended at any time in the manner, to the extent and upon the terms provided in the Indenture, but no such modification or amendment shall permit a change in the terms of maturity of the principal of any outstanding Bond or of any installment of interest thereon or a reduction in the rate of interest thereon without the consent of the owner of such Bond, or shall reduce the percentages of the owners required to effect any such modification or amendment.

The 2011 Bonds maturing on or before July 1, 20__, are not subject to redemption prior to their respective stated maturities.  The 2011 Bonds maturing on or after July 1, 20__, are subject to redemption in whole, or in part among such maturities as shall be determined by the Agency and by lot within a maturity, at the option of the Agency, on any date on or after July 1, 20__ from any available source of funds, at a redemption price equal to the principal amount thereof to be redeemed together with accrued interest thereon to the redemption date, without premium.

The 2011 Bonds maturing on July 1 in each of the years, 20__ and 20__, are subject to redemption from sinking account payments made by the Agency, in part by lot, on July 1, 20__ and 20__ respectively, and on July 1 in each year thereafter, at a redemption price equal to the principal amount thereof to be redeemed together with accrued interest thereon to the redemption date, without premium, as set forth in the following table (provided, however, that if some but not all of such 2011 Bonds have been redeemed, the total amount of all future Sinking Account payments attributable to such 2011 Bonds shall be reduced by the aggregate principal amount of such 2011 Bonds so redeemed, to be allocated among such Sinking Account payments on a pro rata basis in integral multiples of $5,000 as determined by the Agency (written notice of which determination shall be given by the Agency to the Trustee)):

2011 Bonds Maturing on July 1, 20__

 

Sinking Account
Redemption Date

(July 1)

Principal Amount To Be
Redeemed or Purchased

20__

                   $  _______

20__

                     ________

 

 

                                            

  Maturity.

 

2011 Bonds Maturing on July 1, 20__

 

Sinking Account
Redemption Date

(July 1)

Principal Amount To Be
Redeemed or Purchased

20__

$

20__

                       _______

 

 

                                            

  Maturity.

 

 

 

As provided in the Indenture and subject to rescission to the extent provided in the Indenture, notice of redemption shall be mailed by first class mail, postage prepaid, not less than thirty (30) nor more than sixty (60) days prior to the redemption date to the respective owners of any 2011 Bonds designated for redemption at their addresses appearing on the 2011 Bond registration books of the Trustee, but neither failure to receive such notice nor any defect in the notice so mailed shall effect the sufficiency of the proceedings for redemption..

If this Bond is called for redemption and payment is duly provided therefor as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.

If an Event of Default, as defined in the Indenture, shall occur, the Trustee may, and if requested by a majority in aggregate principal amount of the Bonds then outstanding shall, exercise any remedies available to the Trustee in law or in equity.

This Bond is transferable by the Registered Owner hereof, in person or by an attorney duly authorized in writing by such person, at said Principal Corporate Trust Office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond.  Upon registration of such transfer a new Bond or Bonds, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange herefor.

Unless this Bond is presented by an authorized representative of The Depository Trust Company, a New York Corporation (“DTC”), to the Trustee for registration of transfer, exchange or payment, and any Bond issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

The Agency and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Agency and the Trustee shall not be affected by any notice to the contrary.

IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all of the things, conditions and acts required to exist, to have happened or to have been performed precedent to and in the issuance of this Bond do exist, have happened or have been performed in due and regular time, form and manner as required by the Redevelopment Law and the laws of the State of California and that the amount of this Bond, together with all other indebtedness of the Agency, does not exceed any limit prescribed by the Redevelopment Law or any laws of the State of California, and is not in excess of the amount of Bonds permitted to be issued under the Indenture.

This Bond shall not be entitled to any benefit under the Indenture or become valid or obligatory for any purpose until the Certificate of Authentication hereon endorsed shall have been manually signed by the Trustee.


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 with the facsimile signature of its Chair and its seal to be reproduced hereon and attested to by the facsimile signature of its Secretary, all as of the Dated Date set forth above.

REDEVELOPMENT AGENCY OF THE CITY OF SANTA MONICA

By:                                                                       

Chair

(S E A L)

ATTEST:

By:                                                              

                             Secretary

 


CERTIFICATE OF AUTHENTICATION

This is one of the Bonds described in the within-mentioned Indenture.

Dated:  __________

Union Bank, N.A.  as Trustee

By:                                                                       

Authorized Signatory

 

 


ASSIGNMENT

For value received the undersigned hereby sells, assigns and transfers unto _______________________________________ whose address and social security or other tax identifying number is ___________________________, the within-mentioned Bond and hereby irrevocably constitute(s) and appoint(s) ______________________________________________ attorney, to transfer the same on the registration books of the Trustee with full power of substitution in the premises.

Dated:  __________

Signature Guaranteed:

                                                                          

Note:  Signature(s) must be guaranteed by an eligible guarantor institution.

                                                                          

Note:  The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever.