HomeMy WebLinkAbout1997-07-08; City Council; 14257 Exhibit 2; Carlsbad Ranch Assessment District- kmfrsir 3 h3lrf,ds7 T-8-97
Initial Draft 6/S/97
Bond Indenture
entered into by the
City of Carlshad
as of
July 1, 1997
regarding
Assessment District No. 95-1
(Cnrlsbad Ranch)
Limited Obligation improvement Bonds
Initial Draft 6/S/97
Table of Contents
SECTION 1. Issuance. Designation and Amount. ................................ 3
SECTION 2. UnDaid Assessments. ......................................... 3
SECTION 3. General Provisions. .......................................... 3
SECTION 4. Registered Bonds and Denominations. .............................. 3
SECTION 5. Date of Bonds. ............................................. 3
SECTION6.Maturity. ................................................ 3
SECTION 7. Interest .................................................. 3
SECTION 8. Payment. ................................................ 4
SECTION 9. RedemDtion. .............................................. 4
SECTION 10. Transfer of Registered Bonds. .................................. 7
SECTION 11. Exchange of Bonds. ......................................... 7
SECTION 12. Books of Registration. ....................................... 7
SECTION 13. Execution of Bonds. ......................................... 8
SECTION 14. Authentication. ............................................ 8
SECTION 15. Ownershio of Bonds. ........................................ 8
SECTION 16. Mutilated. Destroved. Stolen or Lost Bonds. ......................... 9
SECTION 17. Cancellation of Bonds. ....................................... 9
SECTION 18. Book-Entrv Program. ........................................ 9
SECTION 19. Creation of Funds. .......................................... 9
SECTION 20. Investments. ............................................. 12
SECTION 21. No Issuer Liability. ........................................ 12
Initial Draft 6/S/97
SECTION 22. Covenant to Foreclose. ...................................... 12
SECTION 23. Order to Print and Authenticate Bonds. ............................ 13
SECTION 24. Paving Agent. ........................................... 13
SECTION 25. Liabilitv of Paving Agent. .................................... 13
SECTION 26. Defeasance. ............................................. 14
SECTION 27. Provisions Constitute Contract. ................................. 14
SECTION 28. Unclaimed Funds. ......................................... 15
SECTION 29. Amendments or Sunolements. ................................... 15
SECTION 30. Severabilitv of Invalid Provisions. ............................... 16
SECTION 31. Notices ................................................ 16
SECTION 32. Continuing Disclosure. ...................................... 16
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BOND INDENTURE
This Bond Indenture (the “Indenture”) dated as of July 1, 1997, entered into and approved by the City
of Carlsbad, California, (the “Issuer”), a municipal corporation duly organized and existing pursuant to
the Constitution and the laws of the State of California, to establish the terms and conditions pertaining
to the issuance of bonds in a special assessment district known and designated as Assessment District No.
95-l (Carlsbad Ranch) (the “Assessment District”).
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
SECTION 7.
Issuance. Designation and Amount. Pursuant to the provisions of the “Improvement
Bond Act of 1915” (the “Act”), being Division 10 of the Streets and Highways Code of
the State of California, the Issuer does hereby authorize the issuance of bonds to
represent unpaid assessments within the Assessment District in principal amount of
$15590,803, and designated as the City of Carlsbad Assessment District No. 95-l
(Carlsbad Ranch) Limited Obligation Improvement Bonds (the “Bonds”).
Unoaid Assessments. The Issuer shall, immediately upon the completion of the 30day
cash collection period, determine the assessments which are unpaid and the aggregate
amount thereof as authorized by Section 8621 of the Streets and Highways Code of the
State of California.
General Provisions. Bonds to represent the unpaid assessments, will be issued in the
manner provided in the “Improvement Bond Act of 1915”, being Division 10 of the
Streets and Highways Code of the State of California (the “Bond Act”). The provisions
of Part 11.1 of said Act, providing an alternative procedure for the advance payment of
assessments and the calling of Bonds shall apply.
Registered Bonds and Denominations. Bonds shall be issuable only in denominations of
$5,000, or any integral multiple thereof.
Date of Bonds. All of said Bonds shall be dated July 2, 1997, and interest shall accrue
from that date.
Maturity. The Bonds shall be issued in serial and term form with maturities on
September 2nd, commencing September 2, 1998. The amounts and years of maturity
shall be the principal amounts maturing in the respective years of maturity as shown on
Exhibit “A” attached hereto and incorporated herein by this reference.
Interest. Each Bond shall be of a single maturity and shall bear interest at the rate as set
forth in Exhibit “A” attached hereto for said Bonds from the interest payment date next
preceding the date on which it is authenticated and registered, unless said Bond is
authenticated and registered as of an interest payment date, in which case it shall bear
interest from said interest payment date, or unless said Bond is authenticated and
registered prior to the first interest payment date, in which case it shall bear interest from
its date, or unless a prior interest payment is in default on such date, in which case it
shall bear interest from the last day on which interest was paid in full or from its dated
date if no interest has been paid, until payment of its principal sum has been discharged.
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Interest shall be calculated on the basis of a 360 day year consisting of twelve months of
30 days each.
SECTION 8. Pavment. The principal on the Bonds shall be payable in lawful money of the United
States of America upon surrender of the Bond at the principal oftice of [Paying Agent],
Los Angeles, CA, the designated registrar, transfer agent, and paying agent of the Issuer
(the “Paying Agent”), or such other registrar, transfer agent, or paying agent as may be
designated by supplemental Indenture of the Issuer.
Interest on said Bonds shall be paid on March 2 and September 2 of each year,
commencing March 2, 1998, by check mailed by tirst class mail postage prepaid to the
registered owner thereof at the owner’s address as it appears on the books of registration
as of the 15th day of the month immediately preceding said interest payment date (each
a “Record Date”). Interest may also be paid by wire transfer made on each Interest
Payment Date to any owner of $l,OOO,OOO or more in aggregate principal amount of the
Bonds who shall have requested such transfer pursuant to written notice filed with the
Paying Agent on or before the preceding Record Date.
If any payment is due on a day which is a Saturday, Sunday or legal holiday or
a day on which the Paying Agent and the New York Stock Exchange is closed, payment
shall be made the next succeeding business day.
SECTION 9. Redemotion.
(4 Ootional Redemetion. All Bonds are subject to redemption prior to
maturity at the option of the Issuer, in whole or in part, on any March 2 or September
2 upon payment of the principal balance thereof, plus accrued interest to the date of
redemption, together with a premium (computed upon the principal amount of the Bonds
to be redeemed) as set forth in the following table.
Redemntion Dates (March 2 and Sentember 2) Redemption Premium
March 2, 1998 through September 2, 2002 3.0%
March 2, 2003 and September 2, 2003 2.5%
March 2, 2004 and September 2, 2004 2.0%
March 2, 2005 and September 2, 2005 1.5%
March 2, 2006 and September 2, 2006 1.0%
March 2, 2007 and September 2. 2007 0.5%
March 2. 2008 and thereafter 0.0%
(b) Mandatorv Redemption of Term Bonds. The Bonds maturing on
September 2, 2022 (the “Term Bonds”) are subject to mandatory redemption in part prior
to their stated maturity on September 2 in the following years and in the following
principal amounts, together with interest accrued on such amounts to the date tixed for
redemption, without premium:
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Year Princinal Amount
2017 $
2018
2019
2020
202 1
2022
2013
2014
2015
If any Term Bonds are redeemed in part pursuant to paragraph (a) above, then
the principal of the Term Bonds to be redeemed on each of the mandatory redemption
dates set forth above shall be reduced pro rum in $5,000 increments by an amount equal
to the aggregate principal of the Term Bonds redeemed pursuant to paragraph (a) above.
cc> Selection of Bonds for Redemption. If less than all of the outstanding
bonds are to be redeemed pursuant to paragraph (a) above, the Paying Agent shall select
the Bonds to be redeemed pro-rata among maturities and by lot within maturities in
authorized denominations; provided, however, that the Paying Agent shall treat each
Bond as representing that number of Bonds of $5,000 denominations which is obtained
by dividing the principal amount of such Bond by $5,000. The Paying Agent shall
promptly notify the Issuer in writing of the Bonds, or portions thereof, selected for
redemption.
(4 Notice of Redemntion. When the Paying Agent shall receive notice from
the Issuer of its election to redeem Bonds at least sixty (60) days prior to the applicable
redemption date, or when Bonds are otherwise to be redeemed pursuant to this Section
9, the Paying Agent shall give notice, in the name and at the expense of the Issuer, of
the redemption of such Bonds. Such notice of redemption shall (a) specify the CUSIP
numbers and the numbers of the Bonds selected for redemption, except that where all the
Bonds are subject to redemption, the numbers thereof need not be specitied; (b) state the
date tixed for redemption; (c) state the redemption price; (d) state the place or places
where the Bonds are to be redeemed; and (e) in the case of Bonds to be redeemed only
in part, state the portion of the Bond which is to be redeemed. Such notice shall further
state that on the date fixed for redemption there shall become due and payable on each
Bond, or portion thereof called for redemption, the principal thereof, together with any
premium, and interest accrued to the redemption date, and that from and after such date,
interest thereon shall cease to accrue and be payable. At least 30 days but no more than
45 days prior to the redemption date, the Paying Agent shall mail by registered or
certified mail, postage prepaid, a copy of such notice to the respective owners of the
Bonds to be redeemed at their addresses appearing on the bond register. The actual
receipt by the owner of any Bond of notice of such redemption shall not be a condition
precedent thereto, and failure to receive such notice shall not affect the validity of the
proceedings for the redemption of such Bonds, or the cessation of interest on the
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redemption date. A certiticate by the Paying Agent that notice of such redemption has
been given as herein provided shall be conclusive as against all parties, and it shall not
be open to any Bond owner to show that he or she failed to receive notice of such
redemption.
Notice of redemption shall be sent by the Paying Agent on the date the notice of
redemption is mailed to the Bond owners by facsimile transmission, registered or certified
mail or overnight delivery service to the registered securities depositories listed on
Exhibit “D” hereto which are then in the business of holding substantial amounts of
obligations of types comprising the Bonds and, on the date notice of redemption is mailed
to the Bond owners, to the national information services listed on Exhibit “D” hereto that
disseminate notice of redemption of obligations similar to the Bonds or, in accordance
with the then-current guidelines of the Securities and Exchange Commission, such other
securities depositories and services providing information on called bonds, or no such
securities depositories and services, as the Issuer may designate in written instructions
delivered to the Paying Agent.
No defect in this notice to either the above-listed depositories or information
services nor any failure to give all or any portion of such notice shall in any manner
defeat the effectiveness of a call for redemption if notice thereof is given to the Bond
owners as prescribed in the tirst paragraph of this subsection (e).
(e> Partial Redemotion of Bonds. Upon surrender of any Bond to be
redeemed in part only, the Issuer shall execute and the Paying Agent shall authenticate
and deliver to the Bond owner, at the expense of the Issuer, a new Bond or Bonds of
author&d denominations equal in aggregate principal amount to the unredeemed portion
of the Bond surrendered, with the same interest rate and the same maturity.
(0 Effect of Notice and Availabilitv of Redemotion Monev. Notice of
redemption having been duly given, as provided in this Section 9. and the amount
necessary for the redemption having been made available for that purpose and being
available therefor on the dated fixed for such redemption:
(1) The Bonds, or portions thereof. designated for redemption shall, on the
date fixed for redemption, become due and payable at the redemption price thereof as
provided in this Indenture, anything in this Indenture or in the Bonds to the contrary
notwithstanding;
(2) Upon presentation and surrender thereof at the principal corporate trust
ofrice of the Paying Agent, such Bonds shall be redeemed at the specified redemption
price;
(3) From and after the redemption date the Bonds or portions thereof so
designated for redemption shall be deemed to be no longer outstanding and such Bonds
or portions thereof shall cease to bear further interest; and
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(4) From and after the date tixed for redemption no owner of any Bond or
portion thereof so designated for redemption shall be entitled to any of the benetits of this
Indenture, or to any other rights, except with respect to payment of the redemption price
and interest accrued to the redemption date from the amounts so made available.
SECTION 10. Transfer of Registered Bonds.
Any Bond may, in accordance with its terms, be transferred, upon the books of
registration required to be kept pursuant to the provisions of Section 12, by the owner
in whose name it is registered, or by his duly authorized attorney or legal representative,
upon surrender of such Bond for registration of such transfer, accompanied by delivery
of a written instrument of transfer in a form approved by the Paying Agent and duly
executed by the owner of said Bond.
The Paying Agent 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 and such charges as provided for in the system of registration for registered debt
obligations.
No transfer of Bonds shall be required to be made during the fifteen (15) days
preceding the selection of any Bonds for redemption prior to the maturity thereof, nor
with respect to any Bond which has been selected for redemption prior to the maturity
thereof.
Upon any such registration of transfer, a new Bond or Bonds shall be
authenticated and delivered in exchange for such Bond, in the name of the transferee, of
any denomination or denominations authorized by this Indenture, and in an aggregate
principal amount equal to the principal amount of such Bond or principal amount of such
Bond or Bonds so surrendered. In all cases in which Bonds shall be exchanged or
transferred, the Paying Agent shall authenticate at the earliest practical time, Bonds in
accordance with the provisions of this Indenture. All Bonds surrendered in such
exchange or registration transfer shall forthwith be cancelled.
SECTION 11. Exchange of Bonds.
Bonds may be exchanged at the principal oftice of the Paying Agent for a like
aggregate principal amount of Bonds of the same series, interest rate and maturity,
subject to the terms and conditions provided in the system of registration for registered
debt obligations. including the payment of certain charges, if any, upon surrender and
cancellation of the Bond. Upon such transfer and exchange, a new registered Bond or Bonds of any authorized denomination or denominations of the same maturity for the
same aggregate principal amount will be issued to the transferee in exchange therefor.
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SECTION 12. Books of Registration.
There shall be kept by the Paying Agent suft’cient books for the registration and
transfer of the Bonds and, upon presentation for such purpose, the Paying Agent shall,
under such reasonable regulations as it may prescribe, register or transfer or cause to be
registered or transferred, on said register, Bonds as hereinbefore provided.
SECTION 13. Execution of Bonds.
The Bonds shall be executed substantially in the form of the Bond attached hereto
as Exhibit “B” in facsimile or manually by the Treasurer and by the City Clerk. The
Bonds shall then be delivered to the Paying Agent for authentication and registration.
In case an officer or authorized signatory who shall have signed or attested to any of the
Bonds by facsimile or otherwise shall cease to be such ofticer or authorized signatory
before the authentication, delivery and issuance of the Bonds, such Bonds nevertheless
may be authenticated, delivered and issued, and upon such authentication, delivery and
issue, shall be as binding as though those who signed and attested the same had remained
in offrce.
SECTION 14. Authentication.
Only such of the Bonds as shall bear thereon a certificate of authentication
substantially in the form below, manually executed by the Paying Agent, shall be valid
or obligatory for any purpose or entitled to the benefits of this Indenture, and such
certificate of the transfer agent and registrar shall be conclusive evidence that the Bonds
so authenticated have been duly executed, authenticated and delivered hereunder, and are
entitled to the benefits of this Indenture.
FORM OF CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is one of the Bonds described in the Indenture.
[Paying Agent],
as Paying Agent
By:
Authorized Signatory
Dated:
SECTION 15. Ownershio of Bonds.
The person in whose name any Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes, and payment of or on account
of the principal and redemption premium, if any, of any such Bond, and the interest on
any such Bond, shall be made only to or upon the order of the registered owner thereof
or his legal representative. All such payments shall be valid and effectual to satisfy and
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discharge the liability upon such Bond, including the redemption premium, if any, and
interest thereon, to the extent of the sum or sums so paid.
SECTION 16. Mutilated. Destroved. Stolen or Lost Bonds.
In case any Bond secured hereby shall become mutilated or be destroyed, stolen
or lost, the Issuer shall cause to be executed and authenticated a new Bond of like date
and tenor in exchange and substitution for and upon the cancellation of such mutilated
Bond or in lieu of and in substitution for such Bond mutilated, destroyed, stolen or lost,
upon the owner’s paying the reasonable expenses and charges in connection therewith,
and, in the case of a Bond destroyed, stolen or lost, his tiling with the Paying Agent and
Issuer of evidence satisfactory to them that such Bond was destroyed, stolen or lost, and
of his ownership thereof, and furnishing the Paying Agent and Issuer with indemnity
satisfactory to them.
SECTION 17. Cancellation of Bonds.
All Bonds paid or redeemed, either at or before maturity, shall be cancelled upon
the payment or redemption of such Bonds, and shall be delivered to the Paying Agent
when such payment or redemption is made. All Bonds cancelled under any of the
provisions of this Indenture shall be destroyed by the Paying Agent, which shall execute
a certificate in duplicate describing the Bonds so destroyed, and shall retain said executed
certificate in its permanent tiles for the issue.
SECTION 18. Book-Entrv Program.
Notwithstanding any provision of this Indenture to the contrary, the Bonds shall
initially be delivered in book-entry form and shall be governed by the provisions in
Exhibit D attached hereto and incorporated herein by this reference.
SECTION 19. Creation of Funds.
The Issuer shall establish and maintain the following Funds for purposes of
making payment for the costs and expenses for the works of improvement and payment
of principal and interest on the Bonds. The Funds to be created are designated as
follows:
IMPROVEMENT FUND: The proceeds from the sale of the Bonds (after
, deposit of required amounts in the Reserve Fund and ,Redemption Fund), the amount
representing the good faith security deposit, if any, and the proceeds of the prepayment
of assessments collected prior to
hereby created, pursuant to the Act, which shill
1997, if any, shall be placed in the Fund
be designated the “Improvement Fund”,
and the monies in said Fund shall be used only for Project Costs as that term is defined
hereinafter. “Project Costs” shall mean the costs of acquisition or construction of the
works of improvement as authorized in the assessment proceedings and all incidental
costs related thereto, all as more particular described in the Engineer’s Report for
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Assessment District No. 95-1 (Carlsbad Ranch) on file in the Oftice of the City Clerk
of the Issuer.
Any surplus in the Improvement Fund after payment of all Project Costs shall
remain in the Improvement Fund for a period of not less than two (2) nor more than
three (3) years from the receipt of Bond proceeds and thereafter shall be utilized or
distributed as determined by the Issuer and authorized by the Bond Act.
REDEMPTION FUND: The Issuer shall establish and maintain a Redemption
Fund designated by the name of the proceedings, into which shall be placed (i) initially,
an amount from proceeds of the Bonds which represents accrued interest, if any, on the
Bonds, (ii) all sums received by the Issuer representing the collection of the assessments
and (iii) any surplus in the Improvement Fund authorized by the Issuer pursuant to
Streets and Highways Code Section 10427.1 to be credited against unpaid assessments.
The Issuer shall transfer or cause to be transferred sufficient sums from the
Redemption Fund to the Paying Agent within five (5) business days of each interest
payment date. Principal of and interest on said Bonds shall be paid by the Paying Agent
to the registered owners out of funds transferred from the Redemption Fund to the extent
funds on deposit in said Redemption Fund are available therefor. In all respects not
recited herein, the Bonds and the payment of the Bonds shall be governed by the
provisions of the Act. Under no circumstances shall the Bonds or interest thereon be
paid out of any other fund except as provided by law.
Prior to the first redemption date there shall be established by the Issuer a
prepayment subaccount within the Redemption Fund to be known as the Prepayment
Account (“Prepayment Account”). The Issuer shall deposit in the Prepayment Account
all monies received representing the principal of and redemption premium on any prepaid
assessments. Such monies shall be applied solely to the payment of principal of and
premium on Bonds to be redeemed prior to maturity pursuant to the provisions of Section
9 of this Indenture.
RESERVE FUND: Pursuant to the Act there shall be created and maintained by
the Issuer a special reserve fund for the Bonds to be designated by the name of the
Assessment District and specified as the “Reserve Fund”. An amount equal to
$165,558.50 shall be deposited in the Reserve Fund out of the Bond proceeds.
Monies in the Reserve Fund shall be applied as follows:
A. Whenever there are insufticient funds in the Redemption Fund to pay the
next maturing installment of principal of or interest on the Bonds on the business day
preceding such date of payment, the Issuer shall transfer the amount necessary to make
up such deficiency from the Reserve Fund to the Redemption Fund. The amounts so
advanced shall be reimbursed upon receipt thereof by the Issuer and transfer thereof to
the Issuer for deposit into the Reserve Fund from the proceeds of redemption or sale of
the parcels for which payment of delinquent installments of assessments and interest
thereon have been made from the Reserve Fund.
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B. In the event an unpaid assessment is paid in cash in advance of the final
Bond maturity date, the Issuer shall credit such prepaid assessment with a proportionate
share of the Reserve Fund, thus reducing the total amount of the Reserve Fund. The
amount to be so credited shall be the pro-rata share of the original amount deposited in
the Reserve Fund, less any amount previously credited to the parcel with respect to a
prior prepayment and less any amount previously transferred from the Reserve Fund to
the Redemption Fund as a result of the delinquency in the payment of assessment
installments for the parcel for which the assessment is being prepaid. The Issuer shall
transfer the amount representing ruch credit from the Reserve Fund to the Redemption
Fund.
C. Interest earned on permitted investments of Reserve Fund monies shall
remain in the Reserve Fund so that the amount therein may accumulate to and
subsequently be maintained at the “Reserve Requirement”. “Reserve Requirement”
means an amount equal to the least of (1) the principal amount of the Bonds outstanding
at any time, (2) the maximum principal of and interest on the Bonds payable in any year,
or (3) 125% of the average principal of and interest on the Bonds payable each year.
D. Prior to each interest payment date, any interest earned on the investment
of monies on deposit in the Reserve Fund which would cause the amount therein to
exceed the Reserve Requirement shall be transferred to the Redemption Fund and shall
be credited towards unpaid assessments each year during which part of the Bonds remain
outstanding. The Auditor’s Record prepared by the Issuer pursuant to Section 8682 of
the Act shall reflect credits against each of the unpaid assessments in the manner provided
in Section 10427.1 therein in amounts equal to each assessment parcels’ proportionate
share of any such Reserve Fund disbursement.
E. All sums remaining in the Reserve Fund in the year in which the last
installments of the assessments become due and payable shall be credited toward the
assessments as follows:
Prior to June 30th of the Fiscal Year next preceding the Fiscal Year in which the
last unpaid assessment installment becomes due and payable, the Issuer shall determine
the amount remaining in the Reserve Fund, if any, after all sums advanced and interest
thereon have been reimbursed, and shall order the same to be distributed and/or credited
pursuant to its written direction in the manner set forth in Section 10427.1 of the Act,
provided only that where all or any part of such assessments remain unpaid and are
payable installments, the amount apportioned to each parcel shall be credited against the
last unpaid assessment installment. then such excess shall be credited against the next to
last unpaid assessment installment.
Whenever the balance in the Reserve Fund is sufticient to retire all remaining
outstanding Bonds, whether by advance retirement or otherwise. collection of the
principal of and interest on the assessments shall be discontinued and the Reserve Fund
shall be liquidated by the Issuer and utilized in the retirement of the Bonds.
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In the event that the balance in the Reserve Fund at the time of liquidation
exceeds the amount required to retire all outstanding Bonds in the issue, the excess shall
be apportioned by the Issuer to each parcel upon which the individual assessment
remained unpaid at the time the balance in the Reserve Fund was sutiicient to retire all
outstanding Bonds in the issue. The payments shall be made in cash by the Issuer to the
respective owners of the parcels except that, if the excess is not greater than one thousand
dollars ($l,OOO), the excess may be transferred to the general tind of the issuer.
SECTION 20. Investments.
All funds held under this Indenture may be invested from time to time in
Author&d Investments (as hereinafter defined). Obligations purchased as investments
of monies in any of the funds and accounts in which investments are authorized shall be
deemed at all times to be part of such funds and accounts. Except as provided in Section
19 hereof with respect to the Reserve Fund, all investment earnings on monies held under
this Indenture shall be deposited into the Redemption Fund.
The Issuer shall sell at the best price reasonably obtainable or present for
redemption any obligations so purchased whenever it may be necessary to do so in order
to provide monies to meet any payment or transfer for such funds and accounts or from
such funds and accounts. For the purpose of determining at any given time the balance
in any such funds or accounts, any such investments constituting a part of such funds and
accounts shall be valued at their market value. Notwithstanding anything herein to the
contrary, the Issuer shall not be responsible for any loss from any investments pursuant
to this Indenture.
“Authorized Investments” means any of the investments described in Exhibit C
attached hereto and incorporated herein by this reference.
SECTION 21. No Issuer Liabilitv.
It is hereby further determined and declared that the Issuer will not obligate itself
to advance any available funds from its Treasury to cure any deficiency or delinquency
which may occur in the Redemption Fund by failure of property owners to pay annual
special assessments. This determination shall be clearly set forth and stated in the title
of the Bonds to be issued pursuant to these proceedings as authorized and required by
Section 8769 of the Streets and Highways Code of the State of California.
SECTION 22. Covenant to Foreclose.
The legislative body hereby covenants that it will determine from time to time
those parcels for which the assessment installments due and payable during the preceding
fiscal year are delinquent and that it will initiate proceedings to foreclose the assessment
lien on such parcels in Superior Court no later than 150 days following any such
delinquency and thereafter diligently prosecute to completion such proceedings; provided,
however, that the commencement of any foreclosure may he deferred in the sole
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discretion of the Issuer if, and so long as, the Reserve Fund is maintained at an amount
at least equal to the Reserve Requirement.
SECTION 23. Order to Print and Authenticate Bonds.
The City Manager is hereby instructed to cause Bonds. as set forth above, to be
printed, and to proceed to cause said Bonds to be authenticated and delivered to an
authorized representative of the purchaser, upon payment of the purchase price as set
forth in the accepted proposal for the sale of Bonds.
SECTION 24. Paving Agent.
The Issuer hereby appoints [Paying Agent] as Paying Agent for the Bonds. The
Paying Agent is hereby authorized to and shall mail interest payments to the Bond
owners, select Bonds for redemption, give notice of redemption of Bonds; and maintain
the Bond register as provided in this Indenture. The Paying Agent is hereby authorized
to pay the principal of and premium, if any, on the Bonds when the same are duly
presented to it for payment at maturity or on call and redemption, to provide for the
registration of transfer and exchange of Bonds presented to it for such purposes, to
provide for the cancellation of Bonds, all as provided in this Indenture, and to provide
for the authentication of Bonds, and shall perform all other duties assigned to or imposed
on it as provided in this Indenture. The Paying Agent shall keep accurate records of all
funds administered by it and all Bonds paid and discharged by it. The Paying Agent
initially appointed, and any successor thereto, may be removed by the Issuer and a
successor or successors may be appointed. So long as any Bonds are outstanding and
unpaid the Paying Agent and any successor or successors thereto designated by the Issuer
shall continue to be Paying Agent of the Issuer for all of said purposes until the
designation by the Issuer of a successor or successors as Paying Agent. The Issuer shall
compensate the Paying Agent for the performance of its services hereunder pursuant to
the Paying Agent Agreement.
A Paying Agent appointed hereunder may resign at any time upon 90 days
written notice and after appointment by the Issuer of a successor. Upon merger,
consolidation or reorganization of a Paying Agent, the Issuer will appoint a new Paying
Agent. which may be the corporation resulting from such reorganization.
SECTION 25. Liabilitv of Paving Agent.
The recitals of fact and all promises, covenants and agreements contained herein
and in the Bonds shall be taken as statements, promises. covenants and agreements of the
Issuer, and the Paying Agent assumes no responsibility for the correctness of the same
and makes no representations as to the validity or sufficiency of this Indenture or of the
Bonds, and shall incur no responsibility in respect thereof other than in connection with
its duties or obligations herein. or in the Bonds or in the certificate of authorization
assigned to or imposed upon the Paying Agent. The Paying Agent shall be under no
responsibility or duty with respect to the issuance of the Bonds for value. The Paying
Agent shall not be liable in connection with the performance of its duties hereunder,
II
Initial Draft 6/S/97
except for its own gross negligence or willfui misconduct. The Paying Agent shall be
protected in acting on any notice, resolution, request, consent, certiticate or other
document believed by it to be genuine and to have been signed or presented by the proper
Party.
SECTION 26. Defeasance.
If all outstanding Bonds shall be paid and discharged in any one or more of the
following ways:
(a> by paying or causing to be paid the principal of and interest with respect
to all Bonds outstanding, as and when the same become due and payable;
@I by depositing with an escrow agent, in trust, at or before maturity, money
which, together with the amounts then on deposit in the Redemption. Fund and the
Reserve Fund, is fully sufficient to pay the principal of and interest on all Bonds
outstanding as and when the same shall become due and payable; or
(cl by depositing with an escrow agent, in trust, direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of America,
in which the Issuer may lawfilly invest its money, in such amount as a firm of certitied
public accountants selected by the Issuer shall determine, at the expense of the Issuer,
will, together with the interest to accrue thereon and monies then on deposit in the
Redemption Fund and the Reserve Fund together with the interest to accrue thereon, be
fully suffkient to pay and discharge the principal of and interest on all Bonds outstanding
as and when the same shall become due and payable;
then, at the election of the Issuer, and notwithstanding that any Bonds shall not have been
surrendered for payment, all obligations of the Issuer under this Indenture shall cease and
terminate, except for the obligation to pay the fees and expenses of the Paying Agent and
any indemnitications which by their terms survive the termination of this Indenture, and
with respect to all outstanding Bonds shall cease and terminate, except for the obligation
of the Paying Agent to pay or cause to be paid to the owners of the Bonds not so
surrendered and paid, all sums due thereon. Notice of such election shall be tiled with
the Paying Agent. Any funds held by the Paying Agent, at the time of receipt of such
notice from the Issuer, which are not required for the purpose above mentioned, shall be
paid over to the Issuer.
SECTION 27. Provisions Constitute Contract.
The provisions of this Indenture and the Bonds shall constitute a contract between
the Issuer and the Bond owners and the provisions hereof and thereof shall be enforceable
by any Bond owner for the equal benefit and protection of all Bond owners similarity
situated by mandamus. accounting, mandatory injunction or any other suit, action or
proceeding at law or in equity that is now or may hereafter be authorized under the laws
of the State of California in any court of competent jurisdiction. Said contract is made
under and is to be construed in accordance with the laws of the State of California.
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Initial Draft 6/5/!V
After the issuance and delivery of the Bonds this Indenture shall not be subject
to recession, but shall be subject to modification to the extent and in the manner provided
in this Indenture, but to no greater extent and in other manner.
SECTION 28. Unclaimed Funds.
Notwithstanding any provisions of this Indenture, subject to applicable state
escheat laws, any monies held by the Paying Agent in trust for the payment of the
principal or premium, if any, or interest on, any Bonds and remaining unclaimed for one
year after the principal of all of the Bonds has become due and payable (whether at
maturity or upon call for redemption or by declaration as provided in this Indenture), if
such monies were held at such date, or one year after the date of deposit of such monies
if deposited after said date when all of the Bonds became due and payable, shall be repaid
to the Issuer free from the lien created by this Indenture, and all liability of the Paying
Agent with respect to such monies shall thereupon cease and the Bond owners shall, upon
such payment, look only to the Issuer for payment; provided, however, that before the
repayment of such monies to the Issuer as aforesaid, the Paying Agent may (at the cost
of the Issuer) tirst publish at least once in a nationally recognized financial publication
published in New York, New York, and Los Angeles, California, a notice, in such form
as may be deemed appropriate by the Paying Agent, with respect to the provisions
relating to the repayment to the Issuer of the monies held for the payment thereof.
SECTION 29. Amendments or Suoulements.
The Issuer may, by adoption of a resolution from time to time, and at any time,
without notice to or consent of any of the Bond owners, approve an amendment or
supplemental indenture hereto for any of the following purposes:
(a> to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provision with respect to matters or questions arising under this Indenture or in any
supplemental indenture, provided that such action shall not materially adversely effect the
interests of the Bondholders;
0) to add to the covenants and agreements of and the limitations and the
restrictions upon the Issuer contained in this Indenture, other covenants, agreements,
limitations and restrictions to be observed by the Issuer which are not contrary to or
inconsistent with this Indenture as theretofore in effect; or
cc> to modify, alter, amend or supplement this Indenture in any other respect
which is not materially adverse to the interests of the Bond owners.
Exclusive of the supplemental indentures hereto provided for in the first
paragraph of this Section 29, the Owners of not less than 60% in aggregate principal
amount of the Bonds then Outstanding shall have the right to consent to and approve the
adoption by the Issuer of such supplemental indentures as shall be deemed necessary or
desirable by the Issuer for the purpose of waiving, modifying, altering, amending, adding
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Initial Draft 6/5/97
to or rescinding, in any particular, any of the terms or provisions contained in this
Indenture, provided, however, that nothing herein shall permit, or be construed as
permitting, (a) an extension of the maturity date of the principal of, or the payment date
of interest on, any Bond, (b) a reduction in the principal amount of, or redemption
premium on, any Bond or the rate of interest thereon, (c) a preference or priority of any
Bond or Bonds over any other Bond or Bonds, or (d) a reduction in the aggregate
principal amount of the Bonds the owners of which are required to consent to such
resolution or order, without the consent of the Owners of all Bonds then outstanding.
SECTION 30. Severabilitv of Invalid Provisions. 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 this Indenture shall be
construed as if such valid or illegal or unenforceable provision had never been contained
herein. The Issuer hereby declares that it would have entered into this‘Indenture and
each and every other Section, paragraph, sentence, clause or phrase hereof and
authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one
or more Sections, paragraphs, sentences, clauses or phrases of this Indenture may be held
illegal, invalid or unenforceable.
SECTION 31. Notices. All notices or communications herein required or permitted to be given to the
Issuer or the Paying Agent shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes by being delivered or sent by telecopy or by
being deposited, postage prepaid, in a post oftice letter box, addressed as follows:
If to the Issuer: City of Carlsbad
211 Eighth Street
Carlsbad, CA 90740
Attn: Finance Manager
If to the Paying Agent: [Paying Agent]
Los Angeles, CA 900
Attn: Corporate TrustDepartment
SECTION 32. Continuing Disclosure. The Issuer hereby covenants and agrees that it will comply with
and carry out all of the provisions of that certain Continuing Disclosure Certificate
attached hereto as Exhibit “F” (the “Continuing Disclosure Certiticate”). Notwithstanding
any other provision of this Indenture, failure of the Issuer to comply with the Continuing
Disclosure Certiticate shall not be considered an Event of Default; however, any Bond
owner may take such actions as may be necessary and appropriate, including seeking
mandate or specitic performance by court order, to cause the Issuer to comply with its
obligations under this Section.
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IN WITNESS WHEREOF, the Issuer has executed and entered into this Bond Indenture effective the date
first written hereinabove.
CITY OF CARLSBAD
By:
City Manager
I5
YEAR
1998
1999
2ooo
2001
2002
2003
2004
2005
2006
Initial Draft 615197
EXHIBIT “A”
MATURITY SCHEDULE
PRINCIPAL INTEREST RATE
2022
Initial Draft 6/5/97
EXHIBIT “B”
[FORM OF BOND]
United States of America
State of California
No. R-l !§
CITY OF CARLSBAD
ASSESSMENT DISTRICT NO. 95-l
(Carlshad Ranch)
LIMITED OBLIGATION IMPROVEMENT BOND
INTEREST RATE: MATURITY DATE: BOND DATE: CUSIP:
5% September 2, 1998 July 2, 1997
REGISTERED OWNER: Cede & Co.
PRINCIPAL AMOUNT:
Under and by virtue of the Improvement Bond Act of 1915, being Division 10 of the Streets and
Highways Code of the State of California (the “Act”), the City of Carlsbad, California (the “Issuer”) will,
out of the redemption fund for the payment of the bonds issued upon the assessments made for the
construction of certain public works of improvement in the Assessment District, being Assessment District
No. 95-1 (Carlsbad Ranch), pay to the registered owner or registered assigns, on the maturity date stated
above, the principal sum stated above in lawful money of the United States of America upon presentation
at the corporate trust oflice of the designated paying agent of the Issuer, with interest thereon at the rate
per annum stated above from the interest payment date next preceding the date on which this bond is
authenticated and registered, unless this bond is authenticated and registered as of an interest payment
date, in which case it shall bear interest from said interest payment date, or unless this bond is
authenticated and registered prior to the first interest payment date, in which case it shall bear interest
from its date or unless interest is in default on this bond on such date, in which case it shall bear interest
from the last date on which interest was paid in full or from its dated date if no interest has been paid,
until payment of the principal sum has been discharged, all as is hereinafter specified.
This bond is one of a series of bonds of like date. tenor and effect. but differing in amounts, interest rates
and maturities. issued by the Issuer under the Act for the purpose of providing means for paying for the
work and improvements described in said Resolution of Intention. is secured by the monies in said
redemption fund and by the unpaid assessments made for the payment of said work. and, including
principal and interest, is payable exclusively out of the redemption fund. Further terms and conditions
of the bonds are provided for by a Bond Indenture of the Issuer (the “indenture”) dated as of July 2, 1997
and this reference incorporates the Indenture herein and by acceptance hereof the owner of this bond
assents to the terms and conditions of the Indenture.
The interest is payable semiannually on the second day of March and September in each year,
commencing March 2, 1998. to the registered owner hereof hy check mailed to the owner at the owner’s
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Initial Draft 6/5/97
owner of at least $1 ,OOO,OOO principal amount of the Bonds (exercised by written request of such owner
to the paying agent on or before the Record Date) by wire transfer to a bank account within the United
States of America. This bond will continue to bear interest after maturity at the rate above stated,
provided, it is presented at maturity and payment thereof is refused upon the sole ground that there are
not sufficient monies in the redemption iimd with which to pay same. If this bond is not presented at
maturity, interest thereon will cease to accrue at maturity.
The bonds are issuable only as fully registered bonds in denominations of $5,000.00 or any integral
multiple thereof, except for one bond maturing in the first year of maturity which includes the amount
by which the total issue exceeds the maximum integral multiple of $S,OOO.OO contained therein.
This bond is transferable by the registered owner hereof in person or by the owner’s attorney duly
authorized in writing at the office of the paying agent of the Issuer, subject to the payment of any tax or
governmental charges, if any, upon surrender and cancellation of this bond. Upon such transfer a new
registered bond or bonds of any author&d denomination or denominations of the same maturity, for the
same aggregate principal amount, will be issued to the transferee in exchange therefor.
All Bonds are subject to redemption prior to maturity at the option of the Issuer, in whole or in part, on
any March 2 or September 2 upon payment of the principal balance thereof, plus accrued interest to the
date of redemption, together with a premium (computed upon the principal amount of the Bonds to be
redeemed) as set forth in the following table.
Redemotion Dates (March 2 and Sentember 2) Redemption Premium
March 2, 1998 through September 2, 2002 3.0%
March 2, 2003 and September 2, 2003 2.5%
March 2, 2004 and September 2, 2004 2.0%
March 2, 2005 and September 2, 2005 1.5%
March 2, 2006 and September 2, 2006 1.0%
March 2, 2007 and September 2, 2007 0.5%
March 2, 2008 and thereafter 0.0%
The Bonds maturing on September 2, 2022 (the “Term Bonds”) are subject to mandatory redemption in
part prior to their stated maturity on September 2 in the following years and in the following principal
amounts, together with interest accrued on such amounts to the date fixed for redemption, without
premium:
Year Principal Amount
2017 $
2018
2019
2020
202 1
2022
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Initial Draft 6/5/97
If any Term Bonds are redeemed in part pursuant to an optional redemption, then the principal of the
Term Bonds to be redeemed on each of the mandatory redemption dates stat forth above shall be reduced
pro rufu in $5,000 increments by an amount equal to the aggregate principal of the Term Bonds redeemed
pursuant to the optional redemption.
At least 30 days but no more than 45 days prior to the redemption date, the Paying Agent shall mail by
first class mail, postage prepaid, a notice of redemption to the respective owners of the bonds to be
redeemed at their addresses appearing on the bond register. The actual receipt by the owner of any bond
of notice of such redemption shall not be a condition precedent thereto, and failure to receive such notice
shall not affect the validity of the proceedings for the redemption of such bonds or the cessation of
interest on the redemption date.
This bond is subject to refunding pursuant to the procedures of Division I 1.5 (commencing with Section
9500) of the Streets and Highways Code
THE ISSUER DECLARED AND DETERMINED THAT THE ISSUER WILL NOT OBLIGATE
ITSELF TO ADVANCE AVAILABLE FUNDS FROM ITS TREASURY TO CURE ANY
DEFICIENCY WHICH MAY OCCUR IN THE REDEMPTION FUND.
This bond shall not be entitled to any benefit under the Act or the proceedings or become valid or
obligatory for any purpose, until the Certificate of Authentication hereon shall have been dated and signed
by the transfer agent, registrar and paying agent.
IN WITNESS WHEREOF, the Issuer has caused this bond to be signed by the Treasurer of the City of
Carlsbad, California, and by the City Clerk of the City of Carlsbad, all as of August 30, 1995.
CERTIFICATE OF AUTHENTICATION CITY OF Carlsbad, CALIFORNIA
Date:
This is one of the Bonds described in
in the Indenture. Treasurer
[Paying Agent], as
Transfer Agent, Registrar and Paying Agent
City Clerk
By:
Authorized Signatory
I9
Initial Draft 6/5/97
LEGAL OPINION
The attached is a true and correct copy of the opinion rendered by Brown, Diven & Hentschke in connection with the issuance of, and dated as of the date of the original delivery of, the Bonds. A signed
copy is on file in my oftice.
City Clerk
ASSIGNMENT
For value received hereby sells, assigns and transfers unto
[include federal tax identification number]
the within-mentioned Bond and hereby
irrevocably constitutes and appoints attorney, to transfer the same on
the books of the Paying Agent with full power of substitution in the premises.
Dated:
Signature Guaranteed:
whatsoever.
NOTE: The signature to this assignment must
correspond with the name as written on the face
of the within Bond in every particular, without
alternation or enlargement or any change
NOTE: Signature must be
guaranteed by a qualified
guarantor.
20
Initial Draft 6/5/97
Exhibit C
Authorized Investments
“Author&d Investments” means an investment in any of the following to the extent such
securities are otherwise eligible for the legal investment of funds of the District:
(1) United States Treasury notes, bonds, bills or certificates of indebtedness, or those for
which the faith and credit of the United States is pledged for the payment of principal and interest;
(2) Time certificates of deposit or negotiable certificates of deposit issued by a state or
nationally chartered bank or trust company, including the Paying Agent, or a state or federal savings and
loan association; provided, that such certificates of deposit shall be (i) continuously and fully insured by
the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or
(ii) issued by any bank or trust company organized under the laws of any state of the United States of
America or any national banking association (including the Paying Agent) having a combined capital and
.surplus of at least one hundred million dollars ($100,000,000), and such certiticates shall have maturities
of six (6)months or less, or (iii) continuously and fully secured by such securities as are described in
clause (1) above, which securities shall have a market value (as determined on a marked-to-market basis
calculated at least weekly, and exclusive of accrued interest) of not less than the principal amount of such
certificates of deposit;
(3) Bills of exchange or time drafts drawn on and accepted by a commercial bank (including
the Paying Agent), otherwise known as bankers’ acceptances, which are eligible for purchase by members
of the Federal Reserve System; provided, that purchases of eligible bankers’ acceptances may not exceed
two hundred seventy (270) days’ maturity;
(4) Commercial paper of “prime” quality of the highest ranking or of the highest ‘letter and
numerical rating as provided by either Moody’s or Standard & Poor’s, which commercial paper is limited
to issuing corporations that are organized and operating within the United States of America and that have
total assets in excess of tive hundred million dollars ($500,000,000) and that have an “A” or higher rating
for the issuer’s debentures, other than commercial paper, as provided by either Moody’s or Standard &
Poor’s; provided, that purchases of eligible commercial paper may not exceed one hundred eighty (180)
days’ maturity nor represent more than ten percent (10%) of the outstanding commercial paper of an
issuing corporation;
(5) Any repurchase agreement with any bank or trust company organized under the laws of
any state of the United States of America (including the Paying Agent) or any national banking association
or government bond dealer reporting to, trading with and recognized as a primary dealer by, the Federal
Reserve Bank of New York, which agreement is secured by any one or more of the securities described
in clause (1) above; provided, that the underlying securities are (i) required by the repurchase agreement
to be held by any such bank, trust company or primary dealer havin g a combined capital and surplus of
at least one hundred million dollars ($100.000.000) and hein g independent of the issuer of such
21
Initial Draft 6/5/97
repurchase agreement, and (ii) maintained at a market value (as determined on a marked-to-market basis
calculated at least weekly) of not less than 103% of the amount so invested;
(6) Bonds, notes, warrants or other evidence of indebtedness of the State of California or of
any political subdivision or public agency thereof which are rated in one of the two highest short-term
or long-term rating categories by either Moody’s or Standard & Poor’s;
(7) Units of a taxable government money market portfolio restricted to obligations issued or
guaranteed as to payment of principal and interest by the full faith and credit of the United States
government or repurchase agreements collateralized by such obligations; and
(8) The Local Agency Investment Fund established pursuant to Section 16429.1 of the
Government Code of the State of California.
D-l
Initial Draft 6/S/97
Exhibit D
Book-Entrv Provisions
The Bonds (other than the first maturity bonds) shall be initially issued in the form of a single,
fully registered Bond for each maturity (which may be typewritten). Upon initial issuance, the ownership
of such Bonds shall be registered in the name of the Nominee identified below as nominee of The
Depository Trust Company, New York, and its successors and assigns (the “Depository” or “OTC”).
Except as hereinafter provided, all of the Bonds shall be registered in the name of the nominee of the
Depository, which may be the Depository, as determined from time to time pursuant to this Section (the
“Nominee”).
With respect to the Bonds registered in the name of the Nominee, neither the Issuer nor the
Paying Agent shall have any responsibility or obligation to any broker-dealers, banks and other financial
institutions from time to time for which the Depository holds Bonds as securities depository (the
“Participant”) or to any person on behalf of which such a Participant holds an interest in the Bonds.
Without limiting the immediately preceding sentence, neither the Issuer nor the Paying Agent shall have
any responsibility or obligation (unless the Issuer is at such time the Depository) with respect to (i) the
accuracy of the records of the Depository, the Nominee, or any Participant with respect to any ownership
interest in the Bonds, (ii) the delivery to any Participant or any other person, her than an owner of a
Bond as shown in the register, of any notice with respect to the Bonds, including any notice of
redemption, (iii) the selection by the Depository and its Participants of the beneficial interests in the
Bonds to be redeemed in the event the Issuer redeems the Bonds in part, or (iv) the payment to any
Participant or any other person, other than an owner of a Bond as shown in the register, of any amount
with respect to principal of or interest on the Bonds. The Issuer and the Paying Agent may treat and
consider the person in whose name each Bond is registered as the holder and absolute owner of such
Bond for the purpose of payment of principal and interest with respect to such Bond, for the purpose of
giving notices of prepayment if applicable, 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 Paying
Agent shall pay all principal of and interest on the Bonds only to or upon the order of the respective
owner of a Bond, as shown in the register, or his respective attorney duly authorized in writing, and all
such payments shall be valid and effective to fully satisfy and discharge the Issuer’s and the Paying
Agent’s obligations with respect to payment of principal of and interest on the Bonds to the extent of the
sum or sums so paid. No person other than an owner of a Bond, as shown in the register, shall receive
a Bond evidencing the obligation of the Issuer to make payments of principal and interest pursuant to this
Indenture. Upon delivery by the Depository to the owners of the Bonds, and the Issuer 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.
In order to qualify the Bonds for the Depository’s book-entry system, the Issuer is executing and
delivering to the Depository a Representations Letter. The execution and delivery of the Representations
Letter shall not in any other way limit the provisions of this Section or in any other way impose upon
the Issuer any obligation whatsoever with respect to persons having interests in the Bonds other than the
owners of the Bonds, as shown on the register. In addition to the execution and delivery of the
D-2
Initial Draft 6/5/97
Representations Letter, the Issuer shall take such other actions, not inconsistent with this Indenture, as
are reasonably necessary to qualify the Bonds for the Depository’s book-entry program.
In the event (i) the Depository determines not to continue to act as securities depository for the
Bonds, or (ii) the Depository shall no longer so act and gives notice to the Issuer of such determination,
then the Issuer will discontinue the book-entry system with the Depository. If the Issuer determines to
replace the Depository with another qualified securities depository, the Issuer shall prepare or direct the
preparation of a new, single, separate, fully registered Bond, per maturity, registered in the name of such
successor or substitute qualified securities depository or its nominee. If the Issuer fails to identify another
qualified securities depository to replace the Depository, then the Bonds shall no longer be restricted to
being registered in the register in the name of the Nominee, but shall be registered in whatever name or
names owners of the Bonds transferring or exchanging Bonds shall designate, in accordance with the
provisions of this Indenture, and the Issuer shall prepare and deliver Bonds to the owners thereof for such
purpose.
In the event of a reduction in aggregate principal amount of Bonds or an advance refunding of
part of the Bonds, DTC, in its discretion, (a) may request the Issuer to prepare and issue a new Bond or
(b) may make an appropriate notation on the Bond indicating the date and amounts of such reduction in
principal, but in such event the Issuer records maintained by the Paying Agent shall be conclusive as to
what amounts are on the Bond, except in the case of final maturity, in which case the Bond must be
presented to the Paying Agent prior to payment.
Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is
registered in the name of the Nominee, all payments of principal and interest with respect to such Bond
and all notices with respect to such Bonds shall be made and given, respectively, as provided in the
Representation Letter or as otherwise instructed by the Depository and acceptable to the Issuer.
The initial Nominee shall be Cede & Co., as Nominee of DTC.
D-3
Initinl Draft W/97
Exhihi t “E”
Repistered Securities Deoositories
Muni Reorganization Manager
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530
Facsimile transmission: (516) 227-4039 or 4190
Midwest Securities Trust Company
Capital Structures-Call Notitication
440 South LaSalle Street
Chicago, Illinois 60605
Facsimile transmission: (3 12) 663-2343
Philadelphia Depository Trust Company
Reorganization Division
1900 Market Street
Philadelphia, Pennsylvania 19103
Facsimile transmission: 2 15) 496-5058
National Information Services
Financial Information, Inc.‘s
Financial Daily Called Bond Service
30 Montgomery Street, 10th Floor
Jersey City, New Jersey 07302
Attention: Editor
Kenny Information Service’s
“Called Bond Service”
65 Broadway, 16th Floor
New York, New York 10006
Moody’s Investors Service
“Municipal and Government”
5250 77 Center Dr, #150
Charlotte, North Carol ina 282 17
Attention: Called Bonds Dept.
Standard & Poor’s Corporation
“Called Bond Record”
25 Broadway, 3rd Floor
New York, New York 10004
D-4
Initial Draft 6/S/97
EXHIBIT “F”
FORM OF CONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certiticate (the “Disclosure Certiticate”) is executed and delivered by the City
of Carlsbad (the “Issuer”) in connection with the issuance of$ City of Carlsbad Assessment
District No. 95-l (Carlsbad Ranch) Limited Ohligation Improvement Bonds (the “Bonds”). The Bonds
are being issued pursuant to a Bond Indenture dated as of July 1, 1997 (the “Indenture”) between the
Issuer and [Paying Agent], the Paying Agent. The issuer covenants and agrees as follows:
Section 1. Put-nose of the Disclosure Certiticate. This Disclosure Certificate is being executed and
delivered by the Issuer for the benetit of the holders of the Bonds and in order to assist the Participating
Underwriters in complying with S.E.C. Rule 15c2-12(b)(5).
Section 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any
capital&d term used in this Disclosure Certiticate unless otherwise detined in this Section, the following
capital&d terms shall have the following meanings:
“AMu~ Report” shall mean any Annual Report provided by the Issuer pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Certiticate.
“Dissemination Agent” shall mean the Issuer, acting in its capacity as Dissemination Agent
hereunder, or any successor Dissemination Agent designated in writing by the Issuer and which has filed
with the Issuer a written acceptance of such designation.
“Listed Events” shall mean any of the events listed in Section 5(a) of this Disclosure
Certificate.
“National Repository” shall mean any Nationally Recognized Municipal Securities Information
Repository for purposes of the Rule.
“Participating Underwriter” shall mean any of the original underwriters of the Bonds required
to comply with the Rule in connection with offering of the Bonds.
“Repository” shall mean each National Repository and each State Repository.
“Rule” shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as the same may be amended from time to time.
“State Repository” shall mean any public or private repository or entity designated by the State
as a state repository for the purpose of the Rule. As of the date of this Certiticate, there is no State
Repository.
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Initial Draft 6/S/97
Section 3. Provision of Annual Reports.
(a) The Issuer shall, or shall cause the Dissemination Agent to, not later than October 1
of each year, commencing October 1, 1998, provide to each Repository an Annual Report which is
consistent with the requirements of Section 4 of this Disclosure Certiticate. Not later than tifteen (15)
Business Days prior to said date, the Issuer shall provide the Annual Report to the Dissemination Agent
and the Paying Agent (if the Paying Agent is not the Dissemination Agent). In each case, the Annual
Report may be submitted as a single document or as separate documents comprising a package, and may
cross reference other information as provided in Section 4 of this Disclosure Certiticate. The Paying
Agent shall have no duty to review or approve the content of the Annual Report.
(b> If the Issuer is unable to provide an Annual Report to Repositories by the date required
in subsection (a), the Issuer shall send a notice to the Municipal Securities Rulemaking Board in
substantially the form attached as Exhibit “A”.
cc> The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report the name
and address of each National Repository and each State Repository, if any; and
(ii) if the Dissemination Agent is not the Issuer, tile a report with the Issuer certifying
that the AMU~ Report has been provided pursuant to this Disclosure Certificate, stating the date it was
provided and listing all the Repositories to which it was provided.
Section 4. Content of Annual Renorts. The Issuer’s Annual Report shall contain or incorporate
by reference the following:
A. The principal amount of the Bonds outstanding.
B. The balances of all funds and accounts established by the Bond Indenture as of the end
of the preceding fiscal year.
C. The status of the construction of the public improvements financed from the proceeds
of the Bonds. This status shall include a statement as to the estimated sufficiency of the timds on deposit
in the improvement fund to complete the Bond tinanced improvements. This status need not be reported
in any AMU~ Report following the Annual Report in which the City reports that such improvements have
been substantially completed.
D. The assessed values of each of the properties within the Assessment District for which
the assessment liens remain unpaid based upon the most current available information from the Assessor’s
Office of the County of Orange.
E. The number of parcels delinquent in the payment of assessment installments:
F. The aggregate amount of the delinquent assessment installments:
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G. As to any parcel for which the delinquent assessment installment represents more than
10% of the aggregate assessment installments within the Assessment District:
a. the identity of the parcel;
b. the identity of the owner(s) of such parcel; and
c. the aggregate amount of delinquent property taxes, assessments (both fixed lien and
annual) and special taxes and the accrued penalties and interest on such aggregate amount.
H. The assessment delinquency rate.
I. The status of any judicial foreclosure proceedings initiated by the City as a result of the
delinquency in the payment of assessment installments and the summary of the results of foreclosure
sales, if available.
J. As to any parcel for which the annual assessment installment represents more than 10% of
the aggregate assessment installments within the Assessment District:
(i) Significant amendments to applicable land use entitlements;
(ii) Status of any signiticant governmentally imposed conditions of approval of development
as to any undeveloped parcel;
(iii) Status of any significant legislative, administrative or judicial challenges to the
development of any undeveloped parcels or to the use or continuing use of any parcel;
(iv) the names of the owner(s) of any such parcel; and
(v) the use of any such parcel.
Any or all of the items listed above may be incorporated by reference from other documents,
including offkial statements of debt issues of the Issuer or related public entities, which have been
submitted to each of the Repositories or the Securities and Exchange Commission. If the document
incorporated by reference is a tinal ofticial statement, it must be available from the Municipal Securities
Rulemaking Board. The Issuer shall clearly identify each such other document so incorporated by
reference.
Section 5. Renorting of Significant Events.
(a) This Section 5 shall govern the giving of notices of the occurrence of any of the
following events:
1. Delinquency in payment when due of any principal of or interest on the Bonds.
2. Amendment to the Indenture or this Disclosure Certificate modifying the rights of
the holders of the Bonds.
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3. Giving of a notice of optional or unscheduled redemption of any Bonds.
4. Defeasance of the Bonds or any portion thereof.
5. Any change in the rating, if any, on the Bonds.
6. Ifapplicable, the acquisition or substitution of credit or liquidity providers, or their
failure to perform.
difficulties.
7. If applicable, any unscheduled draws on credit enhancements reflecting financial
8 Any unscheduled draw on the Reserve Fund retlecting tinancial difticulties.
(b) Whenever the Issuer obtains knowledge of the occurrence of a Listed Event, the Issuer
shall as soon as possible determine if such event would constitute material information under applicable
Federal securities law.
(c) If the Issuer has determined that knowledge of the occurrence of a Listed Event would
be material under applicable Federal securities law, the Issuer shall promptly notify each Repository.
Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(3) and (4) need not
be given under this subsection any earlier than the notice (if any) of the underlying event is given to
holders of affected Bonds pursuant to the Indenture.
Notice of a Listed Event is only required under this Section 5 following the occurrence of
the Listed Event.
Section 6. Termination of Renortine Obligation. The Issuer’s obligations under this Disclosure
Certificate shall terminate upon the defeasance, prior redemption or payment in Ml of all of the Bonds.
If such termination occurs prior to the tinal maturity of the Bonds, the Issuer shall give notice of such
termination in the same manner as for a Listed Event under Section 5.
Section 7. Dissemination Agent. The Issuer may, from time to time, appoint or engage a Dissemination
Agent to assist it in carrying out its obligations under this Disclosure Certiticate, and may discharge any
such Agent, with or without appointing a successor Dissemination Agent. If at any time there is not any
other designated Dissemination Agent, the Issuer shall be the Dissemination Agent.
Section 8. Amendment: Waiver. Notwithstanding any other provision of this Disclosure Certificate,
the Issuer may amend this Disclosure Certificate and any provision of this Disclosure Certiticate may be
waived, provided the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Sections 3.(a).. 4 or 5.(a), it may
only be made in connection with a change in circumstances that arise from a change in legal
requirements, change in law, or change in the identity, nature? or status of an obligated person with
respect to the Bonds;
(b) if such amendment or waiver is supported by an opinion of counsel expert in federal
securities laws to the effect that such amendment or waiver would not, in and of itself, cause the
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undertakings herein to violate the Rule if such amendment or waiver had been effective on the date hereof
but taking into account any subsequent change in or official interpretation of the Rule; and
(c) the proposed amendment or waiver either (i) is approved by the holders of the Bonds
in the manner provided in the Bond Indenture for amendments to the Bond Indenture with the consent
of the holders of the Bonds, or (ii) does not, in the opinion of counsel expert in federal securities laws
materially impair the interests of the holders of the Bonds or beneficial owners of the Bonds.
Trustee may rely on an opinion of counsel that the amendment or waiver complies with the
requirements of the Rule.
Section 9. Additional Information. Nothing in this Disclosure Certificate shall be deemed to prevent
the Issuer from disseminating any other information, using the means of dissemination set forth in this
Disclosure Certificate or any other means of communication, or including any other information in any
AMU~ Report or notice of occurrence of a Listed Event, in addition to that which is required by this
Disclosure Certificate. If the Issuer chooses to include any information in any Annual Report or notice
of occurrence of a Listed Event in addition to that which is specifically required by this Disclosure
Certificate, the Issuer shall have no obligation under this Certificate to update such information or include
it in any future AMU~ Report or notice of occurrence of a Listed Event.
Section 10. Default. In the event of a failure of the Issuer to comply with any provision of this
Disclosure Certificate, any Bondholder may take such actions as may be necessary and appropriate,
including seeking mandate or specific performance by court order, to cause the Issuer or Trustee, as the
case may be, to comply with its obligations under this Disclosure Certiticate. A default under this
Disclosure Certificate shall not be deemed an Event of Default under the Indenture, and the sole remedy
under this Disclosure Certificate in the event of any failure of the Issuer to comply with this Disclosure
Certificate shall be an action to compel performance.
Section 11. Duties. Immunities and Liabilities of Trustee and Dissemination Agent. The Dissemination
Agent shall have only such duties as are specifically set forth in this Disclosure Certificate, and the Issuer
agrees to indemnify and save the Dissemination Agent, its officers, directors, employees and agents,
harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise or
performance of its powers and duties hereunder, including the costs and expenses (including attorney’s
fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent’s
negligence or willful misconduct. The obligations of the Issuer under this Section shall survive
resignation or removal of the Dissemination Agent and payment of the Bonds.
Section 12. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the Issuer, the
Paying Agent, the Dissemination Agent. the Participating Underwriters and holders from time to time
of the Bonds, and shall create no rights in any other person or entity.
Date: July 2, 1997 City of Carlsbad
By:
City Manager
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EXHIBIT A
NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD OF FAILURE TO
FILE ANNUAL REPORT
Name of Issuer:
Name of Bond Issue:
Date of Issuance:
NOTICE IS HEREBY GIVEN that the [Issuer] has not provided an Annual Report with respect
to the above-named Bonds as required by Section of the Indenture of Trust dated
between the Issuer and [Trustee]. [The Issuer anticipates that the Annual Report will be filed by
Dated:
[ISSUER]
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