HomeMy WebLinkAboutSpecimen Irrevocable Standby Letter of Credit, dated April 5, 2006, issued by Ohio Saving Bank
OHIO SAVINGS BANK IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER CA 2006-012 Issue Date: April 5, 2006 Expiration Date: April 4, 2007 Letter of Credit No.: CA 2006-012 Amount: $6,679,002.00
Applicant: Beneficiary: Ashby USA, LLC U.S. Bank National Association, as fiscal c/o Fiesta Development agent 470 Harrison Street Corporate Trust Services Corona, CA 92879 633 West Fifth
Street, 24th Floor LM-CA-T247 Los Angeles, CA 90071 Dear Sirs: We hereby establish, at the request and for the account of Ashby USA, LLC, a California limited liability company (the
"Account Party"), in your favor, as "Beneficiary," this irrevocable Standby Letter of Credit Number CA 2006-012 ("Letter of Credit") in the amount of Six Million Six Hundred Seventy-Nine
Thousand Two and 00/100 Dollars ($6,679,002.00) (the "Stated Amount"), effective immediately and expiring on April 4, 2007 (the "Stated Termination Date") at the office of Citibank,
N.A., c/o Citicorp North America, Inc., 3800 Citibank Center, Building B, 3rd Floor, Tampa, FL 33610 (the "Confirming Bank"). We have been advised by the Account Party that this Letter
of Credit is issued to you as fiscal agent under that certain fiscal agent agreement (the "Fiscal Agent Agreement"), dated as of March 1, 2006, by and between you and the Temecuia Public
Financing Authority (the "Authority"). We hereby irrevocably authorize you to draw on the Confirming Bank in an aggregate amount not to exceed the Stated Amount of this Letter of Credit
set forth above and in accordance with the terms and conditions and subject to the reductions in Stated Amount as hereinafter set forth, (i) in one or more drawings by one or more of
your drafts, each accompanied by your written and completed certificate signed by you in the form of Annex "1" attached hereto (any such draft accompanied by such certificate being your
"Default Payment Draft"), or (ii) in a single drawing by your draft, accompanied by your written and completed certificate, signed by you, in the form of Annex "2" attached hereto (any
such draft accompanied by such certificate being your "Downgrade Draft"), or (iii) in a single drawing by your draft, accompanied by your written and completed certificate, signed by
you, in the form of Annex "3" attached hereto (any such draft accompanied by such certificate being your "Final Draft"). Draws may be presented by facsimile to the Confirming Bank at
(813) 604-7175 followed by a mailed original, provided that receipt of such original is not condition for presentation and payment hereunder. Funds under this Letter of Credit are available
to you against (i) your Default Payment Draft referring thereon to the number of this Letter of Credit and accompanied by your written and completed certificate signed by you in the
form of Annex "1" attached hereto, or (ii) your Downgrade Draft referring thereon to the number of this Letter of Credit and accompanied by your written and completed certificate signed
by you in the form of Annex "2" attached hereto, or (iii) your Final Draft referring thereon to the number of this Letter of Credit and accompanied by your written and completed certificate
signed by you in the form of Annex "3" attached hereto. Each such draft and certificate shall be dated the date of its presentation, and shall be presented at the office of the Confirming
Bank stated above, Attn: Standby Letter of Credit unit or at any other office in the continental U.S.A., which may be designated by the Confirming Bank by written notice. If Confirming
Bank receives any of your drafts and certificates at such office, all in strict conformity with the terms OHIO SAVINGS PLAZA « 1801 EAST NINTH STREET • SUITE 200 « CLEVELAND * OHIO «
44114 • (216) 622-4100
Irrevocable Standby Letter of Credit No. CA 2006-012 April 5, 2006 Page 2 and conditions of this Letter of Credit, not later than 9:00 a.m. (New York, New York time) on a banking day
prior to the termination hereof, the Confirming Bank will honor the same on the next succeeding banking day in accordance with your payment instructions. If the Confirming Bank receives
any of your drafts and certificates at such office, all in strict conformity with the terms and conditions of this Letter of Credit, after 9:00 a.m. (New York, New York time) on a banking
day prior to the termination hereof, the confirming Bank will honor the same on the second banking day thereafter in accordance with your payment instructions. The phrase "banking day"
shall mean any day other than a Saturday, Sunday or a day which shall be in the State of New York a legal holiday or a day on which banks are authorized or obligated by law or executive
order to close. The Stated Amount of this Letter of Credit shall be decreased upon (1) payment payment of each Default Payment Draft, by an amount equal to each such payment, and (2)
upon the Confirming Bank's receipt of your written and completed certificate signed by you in substantially the form of Annex "4" attached hereto to the new Stated Amount in said certificate.
This Letter of Credit shall automatically terminate upon the earliest of (i) the Stated Termination Date, (ii) honoring of a Default Payment Draft which has the effect of reducing the
Stated Amount to zero dollars ($0.00), (iii) honoring of a Downgrade Draft or a Final Draft, (iv) the Confirming Bank's receipt of your written and completed certificate signed by you
in substantially the form of Annex "5" attached hereto (such certificate being your "Termination Certificate"), or (v) the date on which the Confirming Bank receives written notice from
you that an alternate letter of credit has been substituted for this Letter of Credit in accordance with the Fiscal Agent Agreement, accompanied by this original Letter of Credit and
any subsequent amendments. It is a condition of this Letter of Credit that it is transferable and may be transferred in its entirety, but not in part, and may be successively transferred
by you only to a successor Fiscal Agent appointed pursuant to the terms of the Fiscal Agent Agreement. Transfer under this Letter of Credit to such transferee shall be effected by the
Confirming Bank upon presentation of the original of this Letter of Credit and any amendments hereto accompanied by a request designating the transferee in the form of Annex 6 attached
hereto. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING, AND SUCH UNDERTAKING SHALL NOT BE IN ANY WAY MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT,
INSTRUMENT OR AGREEMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED TO OR TO WHICH THIS LETTER OF CREDIT RELATES, ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE
HEREIN BY REFERENCE ANY DOCUMENT, INSTRUMENT OR AGREEMENT. All payments hereunder shall be made from our own funds, but not from funds of the Account Party. This Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision, International Chamber of Commerce Publication No. 500). All communications with respect to this Letter
of Credit shall be in writing specifically referencing the designated number of
Irrevocable Standby Letter of Credit No. CA 2006-012 April 5, 2006 PageS this Letter of Credit and shall be addressed to us at, Ohio Savings Bank, Attn: Sharlyna K. McQueen, Paralegal,
200 Ohio Savings Plaza, (Mail Code: OH99-0205) 1801 East Ninth Street, Cleveland, Ohio 44114, referencing Letter of Credit No. CA 2006-012, with a copy thereof to the Confirming Bank
c/o its servicer, Citicorp North America, Inc., 3800 Citibank Center, Bldg B, 3rd Fl., Tampa FL 33610, attention Standby LC unit. By: And Very truly yours, =lio Savings Bank Steven S.
Swartz, Vice President
Annex "1" CERTIFICATE FOR DRAWING UPON ACCOUNTS PARTY'S DEFAULT IN PAYMENT OF SPECIAL TAXES Irrevocable Standby Letter of Credit No. CA 2006-012 Citibank, N.A. c/o Citicorp North America,
Inc. 3800 Citibank Center Building B, 3rd Floor Tampa, FL 33610 The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies, with reference to Irrevocable
Standby Letter of Credit No. CA 2006-012 (the "Letter of Credit") issued by Ohio Savings Bank (the "Bank") in favor of the Beneficiary, that: (A) The undersigned is the duly authorized
officer of the Beneficiary for the purposes of submitting this Certificate. (B) As of the date of this Certificate, the Beneficiary has been advised by the Treasurer of the Authority
that there has been a default in the payment of special taxes imposed on the property within the boundaries of the Temecula Public Financing Authority Community Facilities District No.
03-02 (Roripaugh Ranch) to which the Letter of Credit pertains, in the total amount of $ (the ""Default Amount"). (C) The Beneficiary hereby requests payment of the Default Amount and
acknowledges that upon your payment of this draft the stated amount of the Letter of Credit shall be automatically reduced by the Default Amount to a new stated amount calculated as
follows: Existing Stated Amount $ Default Amount ( ) New Stated Amount $ (D) The Beneficiary hereby certifies that all amounts drawn hereunder shall be deposited to the Special Tax Fund
established under the Fiscal Agent Agreement. The capitalized terms not otherwise defined herein shall be as defined in the Letter of Credit. IN WITNESS WHEREOF, the Beneficiary has
executed and delivered this Certificate as of the day of , . U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By:.[Name and Title]
Annex "2" CERTIFICATE FOR DRAWING UPON DOWNGRADE OF LETTER OF CREDIT PROVIDER Irrevocable Standby Letter of Credit No. CA 2006-012 Citibank, N.A. c/o Citicorp North America, Inc. 3800
Citibank Center Building B, 3rd Floor Tampa, FL 33610 The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies, with reference to the Irrevocable Standby
Letter of Credit No. CA 2006-012 (the "Letter of Credit") issued by Ohio Savings Bank (the "Bank") in favor of the Beneficiary, that: (A) The undersigned is the duly authorized officer
of the Beneficiary for the purposes of submitting this Certificate. (B) As of the date of this Certificate, the Beneficiary has actual knowledge that the rating of the Confirming Bank's
unsecured debt obligations has been reduced to BBB (or its equivalent) or lower by Moody's or S&P (as such terms are defined in the Fiscal Agent Agreement). (C) The Beneficiary hereby
requests payment of the entire Stated Amount of $ pursuant to Section 4.04(H)(ii)(b)(x) of the the Fiscal Agent Agreement. (D) The Beneficiary hereby certifies that all amounts drawn
hereunder shall be deposited to an account within the Reserve Fund established under the Fiscal Agent Agreement. The capitalized terms not otherwise defined herein shall be as defined
in the Letter of Credit.' IN WITNESS WHEREOF, the Beneficiary has executed and delivered this Certificate as of the day of , . U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By:,[Name
and Title]
Annex "3" CERTIFICATE FOR FINAL DRAWING UPON FAILURE OF ACCOUNT PARTY TO EXTEND Irrevocable Standby Letter of Credit No.CA 2006-012 Ohio Savings Bank Citibank, N.A. c/o Citicorp North
America, Inc. 3800 Citibank Center Building B, 3rd Floor Tampa, FL 33610 The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies, with reference to
the Irrevocable Letter of Credit No. CA 2006-012 (the "Letter of Credit") issued by Ohio Savings Bank (the "Bank") in favor of the Beneficiary, that: (A) The undersigned is the duly
authorized officer of the Beneficiary for the purposes of submitting this Certificate. (B) It is less than 10 (ten) days prior to the Stated Termination Date and as of the date hereof
Account Party has failed to extend the Letter of Credit or provide a substitute letter of credit. The Stated Termination Date of the Letter of Credit is , 20 . (C) The Beneficiary hereby
requests payment of the entire Stated Amount of $ pursuant to Section 4.04(H)(ii)(b)(y) of the Fiscal Fiscal Agent Agreement. (D) Beneficiary hereby certifies that all amounts drawn
hereunder shall be deposited to an account within the Reserve Fund established under the Fiscal Agent Agreement. The capitalized terms not otherwise defined herein shall be as defined
in the Letter of Credit. IN WITNESS WHEREOF, the Beneficiary has executed and delivered this Certificate as of the day of __, . U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By: [Name
and Title]
Annex "4" CERTIFICATE FOR REDUCTION OF AMOUNTS AVAILABLE UNDER IRREVOCABLE STANDBY LETTER OF CREDIT NO. CA 2006-012 DATED , 20__ Citibank, N.A. c/o Citicorp North America, Inc. 3800
Citibank Center Building B, 3rd Floor Tampa, FL 33610 The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies, with reference to the irrevocable Standby
Letter of Credit No. CA 2006-012 (the "Letter of Credit") issued by Ohio Savings Bank (the "Bank") in favor of the Beneficiary, that: (A) The undersigned is the duly authorized officer
of the Beneficiary for the purposes of submitting this Certificate. (B) Either (i) the conditions for the reduction of the Letter of Credit described in Section 4.04(H)(iii) of the Fiscal
Agent Agreement have been satisfied; or (ii) the Account Party has provided, or caused to be provided, a letter of credit in partial or full substitution for this Letter of Credit; or
(iii) the conditions for the reduction of the Letter of Credit described in Section 4.04(H)(iv)(b) of the Fiscal Agent Agreement have been satisfied, and, in any such case the Temecula
Public Financing Authority has provided the Beneficiary with a recalculation of the Stated Amount of the Letter of Credit. (C) The Stated Amount of the Letter of Credit is automatically
reduced upon receipt by the Confirming Bank of this Certificate to an amount equal to $ . The capitalized terms not otherwise defined herein shall be as defined in the Letter of Credit.
IN WITNESS WHEREOF, the Beneficiary has executed and delivered this Certificate as of the day of , . U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By: [Name and Title]
Annex "5" CERTIFICATE FOR TERMINATION OF IRREVOCABLE STANDBY LETTER OF CREDIT NO. CA 2006-012 DATED 20__ Citibank, N.A. c/o Citicorp North America, Inc. 3800 Citibank Center Building
B, 3rd Floor Tampa, FL 33610 The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies, with reference to the Irrevocable Standby Letter of Credit No.
CA 2006-012 (the "Letter of Credit") issued by Ohio Savings Bank (the "Bank") in favor of the Beneficiary, that: (A) The undersigned is the duly authorized officer of the Beneficiary
for the purposes of submitting this Certificate. (B) The undersigned has received written directions from the Treasurer of the Temecula Public Financing Authority to the effect that
Account Party has met the terms for termination of the Letter of Credit as set forth in Section 4.04(H)(iii) of the Fiscal Agent Agreement. (C) The Beneficiary hereby requests the Letter
of Credit be automatically terminated upon delivery of this Certificate to the Bank. (D) The original of this Letter of Credit and any subsequent amendments are attached hereto and are
hereby returned for immediate termination. The capitalized terms not otherwise defined herein shall be as defined in the Letter of Credit. IN WITNESS WHEREOF, the Beneficiary has executed
and delivered this Certificate as of the day of , ,. U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By: [Name and Title]
Annex "6" TRANSFER FORM 200 Citibank, N.A. c/o Citicorp North America, Inc. 3800 Citibank Center Building B, 3rd Floor Tampa, FL 33610 RE: Irrevocable Standby Letter of Credit No. CA
2006-012 We request you to transfer all of our rights as beneficiary under the Letter of Credit referenced above to the transferee named below: Name of Transferee Address By this transfer,
all our rights as the transferor, including all rights to make drawings under the Letter of Credit, go to the transferee. The transferee shall have sole rights as Beneficiary, whether
existing now or in the future, including sole rights to agree to any amendments, including increases or extensions or other changes. All amendments will be sent directly to the transferee
without the necessity of consent by or notice to us. We enclose the original Letter of Credit and any amendments. Please indicate your acceptance of our request for the transfer by endorsing
the Letter of Credit and sending it to the transferee with your customary notice of transfer. You are hereby advised that the transferee named above has succeeded U.S. Bank National
Association as Fiscal Agent, as defined in and pursuant to the terms of the Fiscal Agent Agreement. The capitalized terms not otherwise defined herein shall be as defined in the Letter
of Credit. Name of Transferor Name of Authorized Signer and Title