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HomeMy WebLinkAbout1994-09-06; Housing & Redevelopment Commission; 258 Exhibit 8; Family Housing Revenue Refunding BondsEXHIBIT 8 i I i !’ ! I Draft Date: July 25, 1994 I INTERCREDITOR AGREEMENT among FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, As Trustee Under An Indenture Dated As Of [DATE], 1994 and CARL~BAD HOUSING AND REDEVELOPMENT COMMISSION and CONTINENTAL CASUALTY COMPANY Dated As Of [DATE], 1994 Pertaining To $15,030,000 CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION Multifamily Housing Revenue Refunding Bonds, Series 1994- (Seascape Apartments Project) 260471.01.04 1088145iJAB 7/25/94 SECITON HEADING PAGE Parties .*.....*............*..................*..........................................................*..........*......**.. 1 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SECTION 1. SECTION 2. SECTIONS. SECTIONS. SECTION 5. SECTION 6. SECTIONS. SECTION 8. SECTION 9. SECTION 10. SECTION 11. SECTION 12. SECTION 13. SECTIONED. EXERCISE OFRIGHTS UNDER THE FINANCING DOCUMENTS .............. ...5 AMENDMENTOFDOCU~~S ............................................................ 7 ACCESSTORECORDSAND~THERINIWMATION ................................. 7 IN-I-ERCREDITORAGREEMENTFORBENEFITOFPARTIES HERETO ............................................................................................ 7 SEVERABILITY .................................................................................. 7 NOTICES .......................................................................................... 7 SUCCESSORSANDASSIGNS ............................................................... 8 COUNTERPARTS ................................................................................ 9 GOW~INGLA~ ............................................................................. 9 N~I~'AIRMENTSOF~'I'~IERRIG~S .................................................. 9 S~-RETYBONDNOTTOBE~~~ED;RJWFDIES .................................. 9 SUBROGATION .................................................................................. 9 HEADINGS ...................................................................................... 10 TERMINATION ................................................................................ 10 Signature Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 -i- This INTERCREDITOR AGREEMENT, dated as of [DATE], 1994 (herein, as amended and supplemented, this “Intercreditor Agreement”) among the CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION, a public body corporate and politic organized and existing under the laws and Constitution of the State of California (herein, together with any successor to its rights, duties and obligations under the hereinafter described Law, referred to as the “Commission”), FIRST TRUST OF CALIFORNIA, NATIONAL ASS~(XATION, a national banking association organized and existing under the laws of the United States of America, as trustee under the hereinafter defined Indenture (herein, together with any successor Trustee under the Indenture, the “Trustee”), and CONTINENTAL CASUALTY COMPANY in its capacity as issuer of its Surety Bond as hereinafter defined (herein, together with its successors and assigns, referred to as the “Surety”); RECITALS [l] Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code, as supplemented and amended (the “Law”), authorizes and empowers the Commission to issue revenue bonds and to lend the proceeds therefrom to the owner of multifamily residential rental property (as defined in the Law) for the purpose of financing such property, and vests the Commission with powers necessary to enable it to accomplish such purposes; and Article 11 of Chapter 3 of Part 1 of the Division 2 of Title 5 of the California Government Code (the ‘Refunding Bond Act”) authorizes local agencies to incur indebtedness for the purpose of refunding any revenue bonds of the local agency and provides a complete and additional method for doing the things authorized thereby. [2] Pursuant to the Law, the Commission previously issued its Multifamily Housing Revenue Bonds, Series 1985B (Seascape Village Apartments Project) in the original aggregate principal amount of $16,215,000 (the “Prior Bonds”) and used the proceeds thereof to fund a loan (the “Prior Loan”) to the Developer (as hereinafter defined), in the manner and under the terms and conditions provided in that certain (a) Indenture of Trust dated as of April 1, 1985 (the “Prior Indenture”) between the Commission and First Trust of California, National Association, as successor trustee (the “Prior Trustee”) and (b) Loan Agreement dated as of April 1, 1985 (the “Prior Loan Agreement”) by and between the Commission and Lincoln Seascape, A California Limited Partnership (the “Developer”) to assist in the financing of the costs of acquiring, constructing and equipping a certain multifamily rental housing complex on a certain parcel of real estate (the “Land”) located in Carlsbad, California (the “Project”), all as more fully described in the Prior Loan Agreement. [3] To evidence the obligation of the Developer to repay the Prior Loan under the Prior Loan Agreement, the Developer executed and delivered its Secured Note A and Secured Note B both dated as of May 21, 1985 (collectively, the “Prior Note”) payable to the order of the Commission which Prior Note was endorsed, assigned and delivered by the Commission to the Prior Trustee. [4] As security, inter alia, for payment of the principal of, premium, if any, and interest on the Prior Note and for the payment and performance by the Developer of its obligations under the Prior Loan Agreement and the Prior Reimbursement Agreement (as hereinafter defined), the Developer executed and delivered for the benefit of the Commission and the Surety, a Deed of Trust, Assignment of Rents and Security Agreement dated as of April 1, 1985 (the “Prior First Deed of Trust”) from the Developer to First American Title Insurance Company, as trustee for the benefit of the Commission and the Surety (the Prior First Deed of Trust, the Prior Note, the Prior Loan Agreement, the Prior Assignment [as hereinafter defined] and all financing statements filed under the Uniform Commercial Code with respect thereto are collectively referred to herein as the “Prior First Deed of Trust Documents” and together with the Regulatory Agreement and Declaration of Restrictive Covenants dated as of April 1, 1985 (the “Prior Regulatory Agreement”) by and among the Commission, the Developer and the Prior Trustee are collectively referred to herein as the “Prior Loan Documents”). [SJ Pursuant to the Prior Indenture and an Assignment of Deed of Trust dated as of April 1, 1985 (the “Prior Assignment”), the Commission assigned its interest in the Prior Loan Agreement (except the Commission’s right to receive certain administrative fees, indemnification and expense payments), the Prior Note and all security therefor, to the Prior Trustee. [SJ In order to enhance the marketability of the Prior Bonds, the Surety issued its Surety Bond No. 1667165 (said Surety Bond, together with all renewals, replacements, amendments and reissuances thereof, hereinafter collectively referred to as the “Prior Surety Bond”). In connection with the issuance of the Prior Surety Bond, the Developer and the Surety entered into a Reimbursement Agreement dated as of April 1, 1985 (the “Prior Reimbursement Agreement”) pursuant to which, inter alia, the Developer agreed to reimburse the Surety for any payments made by the Surety under the Prior Surety Bond. [7J The obligations of the Developer under the Prior Reimbursement Agreement were also secured by a separate second lien of the Project created by that certain Second Deed of Trust, Assignment of Rents and Security Agreement dated as of April 1, 1985 (the “Prior Second Deed of Trust”) from the Developer to the Security Trustee for the benefit of the Surety. [S] The Commission has been advised that the Developer has defaulted on its payment obligations under the Prior Note, the Prior Loan Agreement and the Prior Reimbursement Agreement resulting in the occurrence of an Event of Default under each of the Prior Note, the Prior Loan Agreement, the Prior First Deed of Trust, the Prior Second Deed of Trust and the Prior Reimbursement Agreement (collectively, the “Continuing Defaults”). [9] As a consequence of the Continuing Defaults the Surety (as the credit instrument obligor under the Prior Indenture) and the Prior Trustee filed an action on December 19, 1990 in the Superior Court of the State of California for the County of San Diego (the “Court”), Case No. N49743, entitled Continental Casualty Company, et al. v. Lincoln -2- Seascape, A California Limited Partnership, et al. (the “‘Litigation”), seeking to foreclose the Prior First Deed of Trust and the Prior Second Deed of Trust. [lo] On October 7, 199 1, pursuant to a joint “Stipulation and Order Thereon,” the Court ordered James R. Kent to be appointed as receiver for the Project. [l l] On December 30, 1993, the Owner (as hereinafter defined) acquired the Project after the foreclosure sale. [12] Prior to the acquisition of the Project by Seascape Apartments, Inc., an Illinois corporation (herein, together with its successors and assigns, the “Owner”), the Surety gave notice to the Prior Trustee to call the Prior Bonds for redemption pursuant to its rights under Section 601(c)(3) of the Prior Indenture. [13] In order to pay a portion of the redemption price of the Prior Bonds the Commission has agreed to issue its Multifamily Housing Revenue Refunding Bonds, Series 1994- (S eascape Apartments Project) in the aggregate principal amount of $15,030,000 (the “Bonds”). The Bonds have been issued under and are entitled to the security of the Indenture of Trust dated as of [DATE], 1994 (as supplemented and amended, the “Indenture”) between the Commission and the Trustee. _L [14] To evidence the Owner’s obligation to make payments sufficient to pay the principal of, premium, if any, and interest when due on the Bonds, the Owner will execute and deliver the Loan Agreement dated as of [DATE], 1994 (as amended and supplemented, the “Loan Agreement”) to the Commission and the Trustee and its Secured Note in the principal amount of $15,030,000 payable to the order of the Commission (as supplemented and amended, the “Note”), which will contemporaneously be assigned, endorsed and delivered, without recourse, by the Commission to the Trustee. [15] Contemporaneously with the issuance of the Bonds, and as security for its payments under the Loan Agreement, the Note and the hereinafter described Reimbursement Agreement, the Owner will execute and record the First Deed of Trust, Assignment of Rents and Security Agreement dated as of [DATE], 1994 (as supplemented and amended, the “First Deed of Trust”) to a trustee for the benefit of the Commission and the Surety, creating a first priority lien and security interest encumbering the Project and the other rights and properties described therein (the “Granted Property”). The First Deed of Trust will be assigned by the Commission to the Trustee pursuant to the Indenture and that certain Assignment of First Deed of Trust Documents dated as of [DATE], 1994 (as supplemented and amended, the ‘Assignment”). -- [16] Contemporaneously with the issuance of the Bonds, the Surety (together with the provider of any Alternate Security pursuant to Section 2.11 of the Indenture and Section 4.05 of the Loan Agreement, referred to herein as the “Credit Facility Issuer”) will issue its Surety Bond No. 1667165-A (the “Surety Bond” and, together with all extensions, renewals and replacements thereof and together with any Alternate Security, the “Credit Facility”) to the Trustee, under which the Surety will insure to the Trustee, as obligee of the -3- Surety Bond, the payment of any Deficiency (as defined in the Surety Bond, but subject to the terms and conditions thereof including receipt of a proper notice of claim) in the amount required (i) to pay any deficiency in the amounts held by the Trustee and the Paying Agent (as defined in the Indenture) of the principal of and interest becoming due on the Bonds outstanding under the Indenture on or prior to the termination of the Surety Bond pursuant to its terms, whether at stated maturity, upon redemption or upon acceleration, but, unless amended to include such optional redemption, not upon optional redemption pursuant to Section 4.01(a) or 4.01(d)(4), of the Indenture; (ii) except as provided in Section 2.1 l(b) of the Indenture, to pay any “Preferential Payments” as defined in Section 6.01 of the Indenture; (iii) to pay the Purchase Price of Bonds tendered for purchase pursuant to Section 4.05(b) of the Indenture becoming due on or prior to the termination of the Surety Bond pursuant to its terms; and (iv) to pay the Purchase Price of Bonds purchased in lieu of redemption in accordance with Section 4.05(c) of the Indenture. The Surety Bond constitutes a Credit Facility under the Indenture. [17] To evidence the obligation of the Owner to repay, inter alia, the amounts paid by the Surety under the Surety Bond, the Surety and the Owner entered into that certain Reimbursement Agreement dated as of [DATE], 1994 (as amended and supplemented, the “Reimbursement Agreement”). The obligations of the Owner under the Reimbursement Agreement are secured by the First Deed of Trust and by a Second Deed of Trust, Assignment of Rents and Security Agreement dated as of [DATE], 1994 (as amended and supplemented, the “Second Deed of Trust”) from the Owner to a trustee for the benefit of the Surety. [18] Contemporaneously with the issuance of the Bonds, the Surety (together with its successors and assigns and the provider of any Alternate Liquidity Facility, the “Liquidity Provider”) will issue its Surety Bond No. 1667165-B (the “Liquidity Surety Bond” and, together will all extensions, renewals and replacements thereof and together with any Alternate Liquidity Facility, the “Liquidity Facility”) to the Trustee, under which the Liquidity Provider will insure to the Trustee, as obligee of the Liquidity Surety Bond, for the benefit of the Holders of Bonds tendered pursuant to the terms thereof and not remarketed, the payment of any Deficiency (as defined in the Liquidity Surety Bond, but subject to the terms and conditions thereof, including receipt of a proper notice of claim) in the amount required to pay the Purchase Price of Bonds tendered for purchase pursuant to Section 4.05(a) of the Indenture becoming due on or prior to the termination of the Liquidity Surety Bond pursuant to its terms. [19] To evidence the obligation to repay, inter alia, the Liquidity Provider for amounts paid by the Surety under the Liquidity Surety Bond, the Owner and the Liquidity Provider have entered into that certain Liquidity Facility Agreement dated as of [DATE], 1994 (as amended and supplemented the “‘Liquidity Facility Agreement”). [20] Contemporaneously with the issuance of the Bonds, the Trustee, the Commission and the Surety agree to enter into this Intercreditor Agreement with respect to the exercise of certain rights, remedies and options by the respective parties hereto under the Financing Documents (as defined in the Indenture). -4- NOW, THEREFORE, the parties hereto covenant and agree as follows (all capitalized terms which are not defined in this Intercreditor Agreement shall take their definitions as set forth in the Indenture): SECTION 1. EXERCISE OF RIGHTS UNDER THE FINANCING DOCUMENTS. So long as (a) the Surety Bond shall be in effect and (b) no Event of Default under Section 9.01 of the Indenture shall have occurred and be continuing, the following provisions shall be applicable (otherwise, the parties hereto shall be governed by the provisions of the respective Financing Documents with respect to their rights and remedies): A. Upon the occurrence of an Event of Default under the Reimbursement Agreement, the Loan Agreement or under any of the other Financing Documents, the Surety shall be permitted and is hereby authorized to take any and all actions and to exercise any and all rights, remedies and options which it or the Trustee or the Commission may have under the Financing Documents, including the right to direct the Trustee to accelerate the Bonds or to call the Bonds for redemption, to accelerate the Owner’s obligations under the Note and/or the Loan Agreement and/or the Reimbursement Agreement and/or to exercise other rights and remedies under the First Deed of Trust Documents and/or the Second Deed of Trust Documents, to foreclose the First Deed of Trust and/or the Second Deed of Trust (or accept a deed in lieu of foreclosure) and to sell or otherwise realize upon the property mortgaged, pledged and assigned to the Surety under the First Deed of Trust and/or the Second Deed of Trust without objection or interference by the Commission or the Trustee. B. The Commission and the Trustee shall not take any action to declare the outstanding balance of the Bonds or the Note to be due pursuant to Section 9.02 of the Indenture or Section 7.02 of the Loan Agreement or to foreclose the lien of the First Deed of Trust or sell the Granted Property (or any portion thereof) described therein, or to exercise any other rights or enforce any other remedies provided for in the First Deed of Trust or any other First Deed of Trust Document against any property described therein, without the prior written consent of the Surety. This provision shall not restrict or limit (i) the application by the Trustee of any funds held under the Indenture in accordance with the terms thereof, or (ii) the submission of any claim and the collection and application of moneys paid under the Surety Bond in accordance with the terms of the Surety Bond and the Indenture, or (iii) the taking by the Trustee and/or the Commission of any action to enforce the provisions of the Regulatory Agreement or (iv) making demand upon the Owner for payment of fees of the Trustee and/or the Commission and taking such action under the Loan Agreement to collect such fees, subject to the provisions of this Intercreditor Agreement and the First Deed of Trust Documents provided that (1) the Trustee shall have given the Surety at least 60 days’ prior written notice of the Owner’s noncompliance with the Regulatory Agreement of which a Responsible Officer (as defined in the Indenture) has actual knowledge (unless immediate action is otherwise required to respond to a temporary injunction or other emergency proceeding or to avoid entry of a default judgment) and the actions required to cure such noncompliance, (2) the Surety shall -5- not have undertaken appropriate actions or proceedings to effect such compliance and (3) any action taken by the Trustee or the Commission shall not cause or result in any acceleration of the Bonds or of the indebtedness evidenced by the Note or any foreclosure sale or a discharge or impairment of any lien and security interest on the Granted Property securing the obligations of the Owner under the First Deed of Trust Documents or the Second Deed of Trust Documents. C. In the event the Surety or its designee shall become the legal or beneficial owner of the Project by foreclosure, purchase or deed in lieu of foreclosure, the Surety or its designee shall execute and deliver to the Commission and the Trustee an instrument in writing assuming and agreeing to perform the obligations of the Owner under the Regulatory Agreement, the Loan Agreement and the Note effective from and after the date of such acquisition, with the benefit, however, of the nonrecourse provisions contained therein. D. The Commission and the Trustee agree that they will cooperate with the Surety and take or refrain from taking any and all action, including joining in such proceedings at law or in equity and executing such documents as the Surety may request and direct to enforce the obligations of the Owner under the Financing Documents and the Regulatory Agreement, and in order to assure that the rents and other revenues, profits and proceeds from the Project (including without limitation any proceeds of insurance), which are pledged and assigned to the Trustee and Surety jointly under the First Deed of Trust Documents and secondarily to the Surety alone under the Second Deed of Trust Documents (the “Pledged Revenues”), shall be available, after the payment of any and all costs and expenses incurred in the collection thereof, to pay and perform any outstanding and unpaid obligations of the Owner under the Loan Agreement and the other Financing Documents, subject to the Surety’s rights of subrogation, and in such order and manner as the Surety shall determine subject to Section 2.07 of the Indenture. E. The Surety, in consideration for the agreements by the Commission and the Trustee to cooperate with the Surety and to exercise, or refrain from exercising, certain rights, remedies and options under the Financing Documents at the request and direction of the Surety, hereby covenants and agrees to pay for any and all reasonable costs, liabilities, fees and expenses of the Trustee and the Commission (including reasonable attorneys’ fees and expenses) which may be incurred in connection therewith, provided, however, that the Surety shall not be obligated under this Intercreditor Agreement (i) to pay any costs, fees or expenses, which the Commission or the Trustee may suffer or incur, by reason of their respective negligence or willful failure to perform the undertakings, trusts and duties imposed upon the Commission and the Trustee, respectively, under the Indenture and the Financing Documents or (ii) to pay any costs, fees or expenses which the Commission or the Trustee may incur by reason of the exercise or failure to exercise any power or discretion (other than at the Surety’s direction). -6- SECTION 2. AMENDMENTOFDOCUMENTS. The parties hereto agree that they will not enter into any amendment, change or modification of any of the documents referred to in this Intercreditor Agreement without the express prior written consent to such amendment, change or modification by the Surety. If any of the Financing Documents require the consent to any amendment, change or modification by either or both of the Commission or the Trustee, the Commission and the Trustee each agree that it will not withhold its consent to any such amendment, change or modification requested by the Surety or the Owner if their interests are not adversely affected thereby in any material way. The Surety at its expense may at any reasonable time examine or copy any non- privileged letter, account, or other documentation or information in the possession or control of the Commission or the Trustee relating to or connected with the Project, the Bonds and collections under the Note and the Loan Agreement. The Commission and the Trustee shall, at the request and expense of the Surety, take reasonable steps to obtain for the Surety any information or documents in the possession of any third party relating to or in connection with the Project or the Bonds. SECTIONS. INTER~REDITORAGREJZMENTFORBENEFITOFPARTIESHERET~. Nothing in this Intercreditor Agreement, express or implied, is intended or shall be construed to confer upon, or to give to, any person other than the parties hereto and their respective successors and assigns, any right, remedy or claim under or by reason of this Intercreditor Agreement or any covenant, condition or stipulation hereof; and the covenants, stipulations and agreements contained in this Intercreditor Agreement are and shall be for the sole and exclusive benefit of the parties hereto and their respective successors and assigns, including without limitation, any successor trustee under the Indenture. Neither the Owner nor any Bondholder shall acquire any right or claim under or by virtue of this Intercreditor Agreement or under any circumstances be deemed to be a third party beneficiary hereunder. SECTIONS. SEVERABILITY. In case any one or more of the provisions contained in this Intercreditor Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. SECTION 6. NoncEs. All notices, demands, certificates or other communications hereunder shall be in writing and shall be deemed sufficiently given or served for all purposes when presented personally or -7- sent by certified or registered mail, postage prepaid, return receipt requested, or sent by private courier service, with proper address as indicated below. Each party may, by written notice given to the other parties, designate any other address or addresses to which notices, certificates or other communications to them shall be sent when required as contemplated by this Intercreditor Agreement. Notices sent by private courier service shall be deemed to have been given if and when received (unless the addressee refuses to accept delivery, in which case it shall be deemed to have been given when first presented to the addressee for acceptance) and any notice sent by registered or certified mail shall be deemed given or served three Business Days after the date of mailing thereof. Until otherwise so provided by the respective parties, all notices, certificates and communications to each of them shall be addressed as follows: To the Surety: Continental Casualty Company CNA Plaza Chicago, Illinois 60685 Attention: Senior Vice President and General Counsel with a copy to: Continental Casualty Company CNA Plaza Chicago, Illinois 60685 Attention: Corporate Secretary To the Commission: Carlsbad Housing and Redevelopment Commission Carlsbad, California Attention: To the Trustee: First Trust of California, National Association 101 California Street Suite 1150 San Francisco, California 94 111 Attention: Multi-Family Housing SECTION 7. SUCCESSORS AND ASSIGNS. Whenever in this Intercreditor Agreement any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included and all covenants, promises and agreements in this Intercreditor Agreement contained by or on behalf of the respective parties hereto shall bind and inure to the benefit of the respective successors and assigns of such parties, whether so expressed or not. -8- SECTION 8. COUNTERPARTS. This Intercreditor Agreement may be executed in any number of counterparts, each executed counterpart constituting an original but all counterparts together constituting only one instrument. SECTION 9. GOVERNINGLAW. It is the intention of the parties hereto that this Intercreditor Agreement and the rights and obligations of the parties hereunder shall be governed by and construed and enforced in accordance with the laws of the State of California without reference to conflict of laws principles of such State. SECTION 10. N~IMPAIRMENTSOFC~-HERRIGHTS. Nothing in this Intercreditor Agreement is intended or shall be construed to impair, diminish or otherwise adversely affect any other rights the Surety may have or may obtain against the Owner, including, but not limited to, the Surety’s rights under the First Deed of Trust Documents and Second Deed of Trust Documents or as a Holder of Bonds (in the event it shall be or become a Holder thereof), or the Surety’s rights of subrogation; and nothing in this Intercreditor Agreement shall in any way impair, limit, or restrict the obligations of the Owner to the Commission, the Trustee and the Surety. SECTION 11. S~RETYBONDN~TTOBEIMMIRED;REMEDIES. No failure of the Trustee or the Commission to perform any undertakings or honor any covenants or agreements hereunder shall affect the obligation of the Surety on the Surety Bond after the issuance thereof, but the Surety and the other parties hereto shall have full right and power to enforce said undertakings, covenants and agreements directly against the parties hereto by suit for specific performance or claims for damages or a combination of the foregoing. SECTION 12. SUBROGATION. The Commission and the Trustee agree that the Surety shall be subrogated to their rights and remedies under the First Deed of Trust Documents upon and to the extent of the Surety’s payment of the principal of, or Purchase Price for, or interest on the Bonds, or the payment or performance of any obligation under the First Deed of Trust Documents. At the request and expense of the Surety, the Commission and Trustee agree to cooperate with the Surety in connection with Surety’s enforcing any of such rights and remedies and agree not to take any actions that would prejudice the exercise of such right of subrogation. -9- SECTION 13. HEADINGS. Headings herein are for convenience only and shall not be relied upon in interpreting or enforcing this Intercreditor Agreement. SECTION 14. TERMINATION. This Intercreditor Agreement shall terminate when (i) the Surety Bond has been returned to the Surety marked “canceled and released” by the Trustee and (ii) all amounts owed to the Surety by the Owner under the Financing Documents have been paid; it being understood by the parties hereto that this Intercreditor Agreement shall remain in full force and effect so long as the Surety is the Holder of any of the Bonds. -lO- IN WITNESS WHEREOF, the Trustee, the Surety and Commission have caused this Intercreditor Agreement to be executed in their respective corporate names, all as of the date first above written. FIRSTTRUSTOFCALIFORNIA,NATIONAL ASSOCIATION, as Trustee under the within-mentioned Trust Indenture By: Printed Name: Its: Author&d Signatory -ll- CONTINENTAL CASUALTY COMPANY, as Surety By: Its Attorney-in-Fact -12- w=) ATTEST: By: Secretary URLSBAD HOU~INO MD REDEVELOPMENT COMMISSION BY Chairman -13-