HomeMy WebLinkAbout1994-09-06; Housing & Redevelopment Commission; 258 Exhibit 6; Family Housing Revenue Refunding BondsEXHIBIT 6
AGREEMENT REGARDING REDEMPTION, DEFEASANCE AND PAYMENT
OF PRIOR BONDS
among
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
as Prior Trustee and as Trustee
and
CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION
and
SEASCAPE APARTMENTS, INC., an Illinois corporation
September -, 1994
AGREEMENT REGARDING
REDEMPTION, DEFEASANCE AND PAYMENT OF PRIOR BONDS
THIS AGREEMENT REGARDING REDEMPTION, DEFEASANCE AND PAYMENT
OF PRIOR BONDS, dated as of September -, 1994 (this “Escrow Agreement”), among the
Carlsbad Housing and Redevelopment Commission (the “Commission”), First Trust of
California, National Association, as Prior Trustee and as Trustee, and Seascape Apartments, Inc.,
an Illinois corporation (the “Owner”);
WHEREAS, the Commission has previously issued its $16,215,000 Multifamily Housing
Revenue Bonds, Series 1985B (Seascape Village Project), of which $ of principal and
Accreted Value are outstanding (the “Prior Bonds”), pursuant to an Indenture of Trust dated as of
April 1, 1985, between the Commission and the Prior Trustee (the “Prior Indenture”); and
WHEREAS, simultaneously with the execution of this Escrow Agreement, the
Commission is issuing its Multifamily Housing Revenue Refunding Bonds, Series A of 1994
(Seascape Village Project) (the “Bonds”), in the aggregate principal amount of $
pursuant to an Indenture of Trust dated as of September 1, 1994 (the “Indenture”), by and
between the Commission and the Trustee, for the purpose of making a new loan (the “Loan”) to
the Owner pursuant to a Loan Agreement dated as of September 1, 1994, between the
Commission and the Owner (the “Loan Agreement”); and
WHEREAS, by notice dated 1994, Continental Casualty Company (the
“Surety”) has notified the Prior Trustee of the okurrence and continuance of an event of default
under the Reimbursement Agreement dated as of April 1, 1985, between the Surety and Lincoln
Seascape, A California Limited Partnership, the prior owner and developer of the project
financed by the Prior Bonds, and has directed the Prior Trustee to cause the redemption of the
Prior Bonds on , 1994 pursuant to Section 601(C)(3) of the Prior Indenture; and
WHEREAS, the parties hereto are desirous of specifying the means by which the
$ in principal and Accreted Value and the $ in interest due on the Prior
Bonds on the Redemption Date, shall be paid; and
WHEREAS, the parties hereto are desirous of undertaking the actions required by Article
XIII of the Prior Indenture in order to discharge the lien of the Prior Indenture and release all of
the Prior Trustee’s right, title and interest in and to the rights and property assigned and pledged
to the Prior Trustee under the terms of the Prior Indenture except for the Prior Trustee’s right to
the moneys and securities to be applied to the payment of the principal and interest due on the
Prior Bonds on the Redemption Date and the right of the Prior Trustee and its counsel to receive
all necessary and proper fees and expenses pertaining to the Prior Bonds;
NOW, THEREFORE, in consideration of the premises and in order to provide for the
coordination of the aforesaid arrangements, the parties hereby agree as follows:
Section 1. The following actions are being taken simultaneously with or prior to the
issuance of the Bonds:
(a) The Trustee has received the $ purchase price of the Bonds from
A. G. Edwards & Sons, Inc. (the “Underwriter”) in the form of a federal funds wire (the
“Bond Proceeds”).
0) The Prior Trustee has established , 1994 as the date on which
the Prior Bonds will be redeemed in accordance with Section 601(C)(3) of the Prior
Indenture (the “Redemption Date”).
(cl Upon telephonic confirmation from the title company of the recordation of
the Amended and Restated Regulatory Agreement and Declaration of Restrictive
Covenants dated as of September 1, 1994, among the Commission, the Owner and the
Trustee, and the First Deed of Trust and Security Agreement, with Assignment of Leases
and Rents dated as of September 1, 1994 from the Owner to the Commission and the
Surety, the Trustee shall transfer the Bond Proceeds to the Prior Trustee for deposit to the
Bond Fund held by the Prior Trustee under the Prior Indenture (the “Prior Bond Fund”),
and the Prior Trustee shall transfer to the Trustee $ from amounts held in the
Funds for the Prior Bonds as follows:
Cd) On the date of this Escrow Agreement, the Bond Proceeds, together with
$ held by the Prior Trustee, shall be invested by the Prior Trustee pursuant to
Exhibit C attached hereto and used to pay the principal of and interest accruing on the
Prior Bonds in the amount of $ on the Redemption Date. Any amounts
remaining on deposit under this Escrow Agreement subsequent to the Redemption Date
shall, after payment of final expenses of the Prior Trustee not to exceed $ , be
transferred by the Prior Trustee to the Owner. The Commission hereby irrevocably
instructs the Prior Trustee to invest the amounts in the Prior Bond Fund as specified in
Exhibit C.
With respect to the transfers set forth in paragraphs (a) and (c) above:
(1) The Trustee acknowledges that its receipt of the federal funds wire from
the Underwriter shall constitute the receipt of the Bond Proceeds.
(2) The Owner acknowledges that the Trustee’s payment of the Bond Proceeds
to the Prior Trustee constitutes a full funding of the Loan discharging all obligations of
the Trustee and the Commission under the Loan Agreement and the Indenture in regard to
the funding of the Loan.
Section 2. The Prior Trustee acknowledges that, upon receipt of $ , the Prior Trustee shall be in possession of moneys which are sufficient to defease all outstanding
PUBL:17735-1 I109jB2062.14 2
Prior Bonds and discharge the Prior Indenture in accordance with the requirements of Article
XIII of the Prior Indenture. The Prior Trustee acknowledges that it has received payment in full
for all fees and expenses of the Prior Trustee under the Prior Indenture. Accordingly, the Prior
Trustee shall take such actions and execute such documents as are necessary to relinquish and
release the Prior Trustee’s right, title and interest in and to the estate pledged and assigned to it
under the Prior Indenture; and to evidence the defeasance of the Prior Bonds and the discharge of
the lien of the Prior Indenture, the Prior Trustee shall execute the Certification of Defeasance of
Bonds and Discharge of Indenture in the form attached hereto as Exhibit B, all as contemplated
by Article XIII of the Prior Indenture. The Prior Trustee shall execute and deliver such other
documents, and take such further actions, reasonably required by the Commission to carry out
the purposes of this paragraph. The Owner shall pay all fees and expenses (including attorneys
fees) incurred by the Prior Trustee in connection with the execution of such documents or the
undertaking of such actions, and the Prior Trustee shall not be obligated to expend any of its own
funds in connection with the execution of such documents or the undertaking of such actions. All
moneys remaining in all funds and accounts under the Prior Indenture shall be remitted to the
Owner.
Section 3. The Prior Trustee shall have no responsibility or liability in respect of the
validity or sufficiency of this Escrow Agreement. The Prior Trustee shall not be liable or
responsible because of the failure of any of the other parties to this Escrow Agreement to
perform any act required of each of them hereunder or because of the loss of any moneys arising
through the insolvency or the act or default or omission of any depository, other than itself, in
which such moneys shall have been deposited. The obligation of the Prior Trustee hereunder to
make payments due and payable with respect to the Prior Bonds as provided herein is limited to
the availability of amounts on deposit in the Prior Bond Fund. The Prior Trustee is entering into
this Escrow Agreement solely in its capacity as Prior Trustee and shall be entitled to the
protections, immunities, indemnities and limitations from liability afforded it under the Prior
Indenture, which are incorporated herein by reference.
Section 4. Upon payment in full of the principal and interest on the Prior Bonds, all
obligations of the Prior Trustee under this Escrow Agreement shall cease and terminate.
Section 5. This Escrow Agreement may be executed in any number of counterparts,
each of which shall constitute but one and the same instrument.
PUBL:17735-1(109(B2062.14 3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement Regarding
Redemption, Defeasance and Payment of Prior Bonds to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date hereof.
CARLSBAD HOUSING AND
REDEVELOPMENT COMMISSION
By:
Chairman
ATTEST:
Secretary
FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION, as Prior Trustee and as Trustee
By:
Authorized Signatory
SEASCAPE APARTMENTS, INC., an Illinois
corporation
By:
Vice President
PUBL:17735-1 I1091B2062.14 4
EXHIBIT A
NOTICE OF FULL REDEMPTION
CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION
MULTIFAMILY HOUSING REVENUE BONDS
SERIES 1985B (SEASCAPE VILLAGE PROJECT)
TYPE RATE MATURITY CUSIP
NOTICE IS HEREBY GIVEN that First Trust of California, National Association (the
“Trustee”), under the Indenture of Trust dated as of April 1, 1985, between the Trustee and the
Carlsbad Housing and Redevelopment Commission, as Issuer, will fully redeem on
(the “Redemption Date”) ALL of the above-designated Bonds pursuant to Section 601(C)(3) of
the Indenture. The Current Interest Bonds will be redeemed at a Redemption Price equal to
100% of the principal amount thereof plus interest accrued to the Redemption Date. The
Compound Interest Bonds will be redeemed at a Redemption Price of $ per $5,000
maturity amount, which reflects the accreted value to the Redemption Date.
On said Redemption Date, there shall become due and payable, upon each Current Interest Bond
called for redemption, the full principal amount thereof, plus interest accrued from June 1, 1994
to the Redemption Date. On said Redemption Date, there shall become due and payable upon
each Compound Interest Bond called for redemption the initial principal amount thereof, plus
interest compounded to the Redemption Date. FROM AND AFTER THE REDEMPTION
DATE, INTEREST ON ALL BONDS SHALL CEASE TO ACCRUE AND BE PAYABLE.
The Bonds will be redeemed and paid upon presentation accompanied with the completed Internal
Revenue Service Form W-9. Failure to submit a completed form W-9 will result in 31% backup
withholding to bondholder pursuant to the Interest and Dividend Tax Compliance Act of 1983.
Present or mail Bond(s) and W-9 to:
PUBL:17735-1 I1091B2062.14 EXHIBIT A-l
First Trust of California, National Association
180 East 5th Street, 3rd Floor
Bond Drop Window
P.O. Box 64111
St. Paul, Minnesota 55164-0111
Bondholder Relations: (6 12) 223-7900
FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION, as Trustee
By:
Dated: September -, 1994
** The Trustee shall not be responsible for the selection or use of the CUSIP number nor is
any representation made as to its correctness indicated in the redemption notice. It is solely
included for the convenience of the holders.
PUB~:17735-1 I109jB2062.14 EXHIBIT A-2
EXHIBIT B
CERTIFICATION OF DEFEASANCE OF BONDS AND
DISCHARGE OF INDENTURE
First Trust of California, National Association, as Trustee (the “Trustee”) under that
certain Indenture of Trust, dated as of April 1, 1985 (the “Indenture”), by and between the
Carlsbad Housing and Redevelopment Commission (the “Commission”) and the Trustee, pursuant
to which the Commission’s $16,215,000 Multifamily Housing Revenue Bonds, Series 1985B
(Seascape Village Project) (the “Bonds”) were issued, hereby certifies that it has on deposit an
amount that is fully sufficient to pay and discharge the principal of, accreted value and interest on
all outstanding Bonds on the redemption date of , 1994, and that the Commission has
also caused to be paid all other sums payable under the Indenture. Said redemption date has been
established pursuant to Section 601(C)(3) of the Indenture and notice of redemption has been
given to the holders of the Bonds by the Trustee in accordance with Section 602 of the Indenture.
On the basis of the foregoing and in accordance with Article XIII of the Indenture, the Bonds
have been defeased and the Indenture has been discharged (except for any surviving rights
described thereunder).
Dated: September -, 1994 FIRST TRUST OF CALIFORNIA, NATIONAL
ASSOCIATION, as Trustee
By:
Title: Authorized Signatory
PUBL:17735-1 I1091 B2062.14 EXHIBIT B-l
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PUBL:17735-1 I109~B2062.14
EXHIBIT C
Purchase Price
EXHIBIT C-l
Maturitv Date Maturitv Value