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HomeMy WebLinkAboutMINUTES - 09131994 - 1.137 1 . 137 - Contra Costa TO: BOARD OF SUPERVISORS County T� cur FROM: Harvey E. Bragdon Director of Community Development DATE : September 13, 1994---,-_ SUBJECT: Multifamily Mortgage Revenue Bonds - Rivershore Apartments, Bay Point SPECIFIC REQUEST(S) OR RECOMMENDATIONS (S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS ADOPT resolution authorizing the execution and delivery of an Amendment to the Indenture, a Financing Agreement, First Amendment to the Regulatory Agreement, and related documents for the restructuring of the Contra Costa County Multifamily Mortgage Revenue Refunding Bonds (Rivershore Apartments, Bay Point) , 1992 Issue B. FISCAL IMPACT None. All County costs of the transaction will be paid by the private participants . No General Funds are involved. The bonds previously sold are secured entirely by revenues pledged under the Indenture. No obligation, moral or otherwise, exists . The amendments would not alter this . CONTINUED ON ATTACHMENT: XX YES SIGNATURE : le6uw,2et"��� " RECOMMENDATION OF COUNTY ADMINISTRATOR RECON ATION OF BOARD COMMI EE APPROVE OTHER SIGNATURE (S) : ACTION OF BOARD ON September 13 , 1994 APPROVED AS RECOMMENDED x OTHER Resolution 94/438 is ADOPTED. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A x UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF . SUPERVISORS ON THE DATE SHOWN. Source: .James Kennedy 646-4208 cc: Community Development ATTESTED September 13 , 1994 via Community Development PHIL BATCHELOR, CLERK OF Orrick Herrington & Sutcliffe THE BOARD OF SUPERVISORS First Nationwide Bank AND COUNTY ADMINISTRATOR Rivershore Apartments, Inc. L 0 BY__(: , DEPUTY JK:1h sralW riversh.bos BACKGROUND/REASONS FOR RECOMMENDATIONS In 1992 the County of Contra Costa issued its 1992 Series B Multifamily Mortgage Revenue Refunding Bonds in the amount of $10, 900, 000 . The proceeds of this 1992 bond sale were used to refinance a mortgage for the Rivershore Apartments, a 245 unit apartment project in Bay Point. Twenty percent (20%) of the units (49 units) are reserved for Lower Income Households for ten (10) years. The 1992 Bonds were a refunding of bonds originally issued by the County in 1985 (1985 Series H) . The 1992 Bonds were secured and credit enhanced by a Letter of Credit issued by First Nationwide Bank (FNB) . By virtue of a sale of a portion of its assets, FNB is being required to substitute alternate credit enhancement for FNB' s existing Letter of Credit. FNB has reached an agreement with the Federal National Mortgage Association (FNMA) to provide alternate credit enhancement in the form of a collateral pledge. The substitute credit enhancement of FNMA will result in the bonds being rated AAA. Due to some mechanical differences in the way the former credit enhancement - FNB' s Letter of Credit - and the alternate credit enhancement - FNMA - operate, the Bond Documents must be amended. r COUNTY OF CONTRA COSTA RESOLUTION NO. 94/438 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDMENT TO THE INDENTURE, AN AMENDMENT TO THE REGULATORY AGREEMENT, A FINANCING AGREEMENT AND OTHER DOCUMENTS RELATING TO THE COUNTY OF CONTRA COSTA VARIABLE RATE DEMAND MULTIFAMILY MORTGAGE REVENUE REFUNDING BONDS (RIVERSHORE APARTMENTS) , 1992 ISSUE B WHEREAS, the County of Contra Costa (the "Issuer") has heretofore determined to engage in a program (the "Program") of financing the construction of multifamily rental housing developments and in order to do so previously issued its County of Contra Costa Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds (Rivershore Apartments) , 1992 Issue B (the "Bonds") pursuant to Article 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California, and entered into an Indenture dated as of November 1, 1992 (the "Indenture") , between the Issuer and First Trust of California, National Association, as trustee (the "Trustee") ; and WHEREAS, the Issuer and Rivershore Apartments, Inc. (the "Borrower") , entered into a Loan Agreement dated as of November 1, 1992 (the "Loan Agreement") , providing for the loan of the proceeds of the Bonds to the Borrower and providing for repayment of such loan to secure the Bonds; and WHEREAS, the Bonds are further secured by, among other things, a letter of credit issued by First Nationwide Bank, A Federal Savings Bank (the "Existing Credit Facility") ; and WHEREAS, in order to provide for the replacement of such Existing Credit Facility with a collateral arrangement provided by the Federal National Mortgage Association (the "New Credit Facility") the providers of the Existing Credit Facility and the New Credit Facility have requested that the Issuer and the Borrower terminate the Loan Agreement and that the Issuer enter into an amended and restated indenture of trust and a financing agreement in the respective forms of the Amended and Restated Indenture of Trust and the Financing Agreement before this meeting; and WHEREAS, the Issuer desires to accommodate such request; NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of the Issuer, as follows: 1. The Amended and Restated Indenture of Trust in the form before this meeting is hereby approved, and the Chair of this Board of Supervisors or any Authorized Officer (as defined in the Amended and Restated Indenture of Trust) is hereby SF2-34610.2 authorized and directed to execute, and the County Administrator and Clerk of this Board of Supervisors or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Trustee, for and in the name and on behalf of the Issuer, an amended and restated indenture of trust in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with the County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said amended and restated indenture with such additions, changes or corrections. 2. The Financing Agreement in the form before this meeting is hereby approved, and the Chair of this Board of Supervisors or any Authorized Officer is hereby authorized and directed to execute, and the County Administrator and Clerk of this Board of Supervisors or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Borrower and other parties thereto, for and in the name and on behalf of the Issuer, a financing agreement in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said financing agreement with such additions, changes or corrections. 3 . The First Amendment to Regulatory Agreement in the form before this meeting is hereby approved, and the Chair of this Board of Supervisors or any Authorized Officer is hereby authorized and directed to execute, and the County Administrator and Clerk of this Board of Supervisors or any deputy thereof is hereby authorized to attest to such signature, and such officers are authorized and directed to deliver to the Borrower and other parties thereto, for and in the name and on behalf of the Issuer, a financing agreement in substantially such form, with such additions, changes and corrections either of them may approve upon consultation with County Counsel and Bond Counsel to the Issuer, such approval to be conclusively evidenced by the execution by such officers of said financing agreement with such additions, changes or corrections. 4. If the Chair of the Board of Supervisors is unavailable to execute the documents hereinabove mentioned, any Authorized Officer shall be entitled to sign in the place of the Chair of the Board. S. This Board of Supervisors hereby appoints the Deputy Director-Redevelopment as administrator/manager of the Program (the "Administrator") . 6. All actions heretofore taken by the officers and agents of the Issuer with respect to the amendment of the Indenture and the execution of the Financing Agreement are hereby s82-3"10.2 2 approved, confirmed and ratified, and the proper officers of the Issuer are hereby authorized and directed, for and in the name and on behalf of the Issuer, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements and other documents, including but not limited to those described in the Indenture, the Loan Agreement, the Amended and Restated Indenture of Trust and the Financing Agreement, which they, or any of them, may deem necessary or advisable in order to consummate the amendment of the Indenture, the execution and delivery of the Financing Agreement, and the termination of the Loan Agreement in accordance with this resolution and any resolution heretofore adopted by the Issuer and in order to carry out the transactions contemplated by the Indenture and the Loan Agreement, the Amended and Restated Indenture of Trust and the Financing Agreement. 7. All further consents, approvals, notices, orders, requests and other actions permitted or required by the Amended and Restated Indenture of Trust or the Financing Agreement, including without limitation any of the foregoing which may be necessary or desirable in connection with any default under or further amendment of such documents, any transfer or other disposition of the Project, any substitution of credit enhancement for the Bonds or any redemption of the Bonds, may be given or taken by the Administrator without further authorization by this Board, and the Administrator is hereby authorized and directed to give any such consent, approval, notice, order or request and to take any such action which such officer may deem necessary or desirable to further the purposes of this resolution, the Amended and Restated Indenture of Trust and the Financing Agreement. S. All resolutions or parts thereof in conflict herewith are, to the extent of such conflict, hereby repealed. sF2-3MI0.2 3 1, 9 . This Resolution shall take effect immediately upon its passage and adoption. ADOPTED this 13th day of September 1994, by the following vote: AYES: Supervisors Smith, Bishop, DeSaulnier, Torlakson and Powers NOES: None ABSTAINING: None ABSENT: None Chair of the Board of Supervisors ATTEST: Phil Batchelor, County Administrator and Clerk of the Board of Supervisors By: 1puty M-301o.z 4 i AMENDED AND RESTATED INDENTURE OF TRUST between s COUNTY OF CONTRA COSTA and FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee Relating to $10,800,000 VARIABLE RATE DEMAND MULTIFAAMY MORTGAGE REVENUE REFUNDING BONDS (RIVERSHORE APARTMENTS), 1992 SERIES B September 1, 1994 SF2-34519.2 TABLE OF CONTENTS Page Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I Definitions and Interpretation Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Section 102. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 10 Section 103. Content of Certificates and Opinions . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 10 Section 104. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE H The Bonds Section 201. Authorized Amount of Bonds . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 11 Section 202. Issuance of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 203. Weekly Variable Rate Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 204. Reset Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 205. Fixed Rate Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 206. Execution; Limited Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 207. Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 208. Form of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 209. Temporary Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . 16 Section 210. Mutilated, Lost, Stolen or Destroyed Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 211. Exchangeability and Transfer of Bonds; Persons Treated as the Bondholders . . . . . . . . . . . 16 Section 212. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 213. Ratably Secured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 214. Redemption of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 215. Notice of Redemption; Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . 20 Section 216. Book-Entry Only System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 217. Successor Securities Depository;Transfers,Outside Book-Entry Only System . . . . . . . . . . 22 ARTICLE III Security Section 301. Security and Pledge of Security . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 302. Payment of Bonds and Performance of Covenants 23 Section 303. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 304. No Other Encumbrances . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . 23 Section 305. Possession and Inspection of the Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 306. Acknowledgements With Respect to Financing Agreement . . . . . . . . . . . . . . . . . . . . . . 24 Section 307. No Disposition of Mortgage Loan; Substitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 308. No Disposition of Credit Facility or Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 309. Accounts and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 310. Enforcement of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Section 311. Maintenance of Lien on Trust Estate . . . . . . . . . . 25 Section 312. No Modification of Security; No Additional Indebtedness.. .. . . . . . . . . . . . . . . . . . . . . . 26 SF2-34519.2 i 41108-14-MS1-09/10/94 Page ARTICLE IV Funds Section 401. General Receipts Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 402. Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 403. Bond Purchase Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 404. Principal Payment Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 405. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 406. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 407. General Tax Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Section 408. Compliance with Tax Certificate; Rebate Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Section 409. Nonpresentment of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ARTICLE V Discharge of Lien Section 501. Discharge of Lien and Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 502. Provision for Payment of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 503. Discharge of this Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE VI Default Provisions and Remedies Section 601. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Section 602. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Section 603. Other Remedies; Rights of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 604. Right of Bondholders and the Credit Facility Provider to Direct Proceedings . . . . . . . . . . . 34 Section 605. Discontinuance of Default Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 606. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 607. Application of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 608. Preservation of Security and Remedies if Payment Under Credit Facility is Not Made or is Insufficient;Rights of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ARTICLE VII Credit Facility; Alternate Credit Facility Section 701. Payment Under the Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 702. Transfer of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 703. Alternate Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 39 Section 704. Rights of the Credit Facility Provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ARTICLE Vffi The Trustee, Remarketing Agent and Tender Agent Section 801. Appointment of Trustee; Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Section 802. Fees; Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 803. Intervention in Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section 804. Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section805. Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 806. Appointment of Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 807. Resignation of Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Section 808. Removal of Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Section 809. Instruments of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 S]F2-34519.2 11 41108-24-MSl-09/10194 Page Section 810. Power to Appoint Co-Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 44 Section 811. Filing of Financing Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Section 812. Tender Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 ARTICLE IX Supplemental Indentures; Amendments Section 901. Supplemental Indentures Not Requiring Bondholder Consent . . . . . . . . . . . . . . . . . . . . 46 Section 902. Amendments to Indenture Requiring Bondholder Consent . . . . . . . . . . . . . . . . . . . . . . 47 Section 903. Amendments to Financing Agreement Not Requiring Bondholder Consent . . . . . . . . . . . . 48 Section 904. Amendments to Financing Agreement Requiring Bondholder Consent . . . . . . . . . . . . . . . 48 Section 905. Amendments, Changes and Modifications to the Credit Facility . . . . . . . . . . . . . . . . . . . 49 Section 906. Notice to and Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section907. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 908. Required Approvals . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 909. Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Section 910. Certificate of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Section 911. Notation of Modification on Bonds; Preparation of New Bonds . . . . . . . . . . . . . . . . . . . 50 Section 912. Modification of the Tax Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ARTICLE X Purchase and Remarketing of Bonds Section 1001. Purchase of Bonds on Any Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Section 1002. Mandatory Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Section 1003. Remarketing of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 1004. Creation and Remarketing of Purchased Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Section 1005. No Sales After Default; No Purchase After Acceleration . . . . . . . . . . . . . . . . . . . . . . 55 Section 1006. Tender Agent Acting for Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 ARTICLE XI Miscellaneous Section 1101. Limitation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 1102. Severability . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 1103. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Section 1104. Payments Due on Days That Are Not Business Days . . . . . . . . . . . . . . . . . . . . . . . . 57 Section 1105. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Section1106. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . 57 Section 1107. No Personal Liability;No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Section 1108. Assignment of Certain Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Exhibit A Bond Form . . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1 S'-F234519.2 111 41108-24-MSI.09/10/94 AMENDED AND RESTATED INDENTURE OF TRUST This AMENDED AND RESTATED INDENTURE OF TRUST, dated as of September 1, 1994 (the ":Indenture"), is made and entered into by and between the COUNTY OF CONTRA COSTA, a legal subdivision and body corporate and politic, duly organized and existing under the laws of the State of California (the "Issuer"); and FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States of America and duly authorized to accept and exercise trust powers hereunder (the "Trustee"). RECITALS WHEREAS, pursuant to that certain Indenture dated as of November 1, 1992(as amended and supplemented to the date hereof, the "Original Indenture"), the Issuer has previously issued its Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds (Rivershore Apartments), 1992 Series B (the "Bonds"), and Bonds in an aggregate principal amount of$10,800,000 remain outstanding on the effective date hereof; WHEREAS, the proceeds of the Bonds were used by the Issuer to refund a loan(the "Mortgage Loan") to provide financing with respect to a multifamily rental housing development owned by Rivershore Apartments, Inc., a California corporation(the "Borrower") pursuant to that certain Loan Agreement dated as of November 1, 1992(said loan agreement, as amended and supplemented to the date hereof, being the "Loan Agreement") by and between the Issuer and the Borrower; WHEREAS, the obligations of the Borrower under the Loan Agreement are secured by that certain Deed of Trust and Security Agreement and Fixture Filing dated as of November 1, 1992 (as amended and supplemented to the date hereof, the "Prior Mortgage"); WHEREAS, subject to certain limited exceptions, the Issuer's rights under the Loan Agreement and the Prior Mortgage were assigned to the Trustee pursuant to the Original Indenture; WHEREAS, the Federal National Mortgage Association("Fannie Mae") has agreed, subject to the satisfaction of certain conditions, to provide credit enhancement and liquidity for the Bonds by pledging and granting to the Trustee a security interest in certain mortgage loans and other collateral owned by Fannie Mae ("Pledged Collateral")pursuant to that certain Collateral Agreement of even date herewith between Fannie Mae and the Trustee (said collateral agreement, as amended, supplemented or otherwise modified from time to time, being the "Collateral Agreement"), in substitution for the existing credit enhancement and liquidity in effect with respect to the Bonds; WBEREAS, in connection with the provision by Fannie Mae of credit enhancement and liquidity for the Bonds, the Issuer and the Trustee have agreed, with the consent of the Borrower and upon satisfaction of the other conditions set forth in the Original Indenture, to amend and restate the Original Indenture on the terms and conditions provided herein; WHEREAS, concurrently herewith the Issuer, the Trustee and the Borrower are entering into that certain Financing Agreement of even date,herewith(said financing agreement, as amended, supplemented or otherwise modified from time to time, being the "Financing Agreement"), and the Borrower is executing a new Mortgage Note and a new Mortgage, each as defined herein; WHEREAS, in connection with the amendment and restatement of the Original Indenture and the execution of the Financing Agreement, the Issuer and the.Borrower have agreed to release and reconvey the Prior Mortgage and terminate the Loan Agreement; and Sr2-34519.2 41108-24-MSI-MIO/94 WHEREAS, the Trustee has the power and authority to enter into this Indenture, to accept trusts and to execute the trusts hereby created, and has accepted the trusts so created, and in evidence thereof has joined in the execution hereof, NOW, THEREFORE, in consideration of the premises, the acceptance by the Trustee of its obligations hereunder, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, in order to secure the payment of the principal of and interest on, and the purchase price of, the Bonds according to their tenor and effect, to secure all obligations owed to the Credit Facility Provider (as hereinafter defined)under the Financing Agreement and the Credit Facility Agreement (as hereinafter defined), if any, and the performance and observance by the Issuer of all the covenants expressed or implied herein and in the Bonds, the Issuer does hereby bargain, sell, convey, pledge, assign and grant a security interest unto the Trustee in and to the following, subject only to the provisions of this Indenture permitting the application thereof to the purposes and on the terms and conditions set forth herein(said property, together with the Mortgage Loan Documents (as hereinafter defined) to be delivered to the Trustee by the Issuer, being herein referred to as the "Trust Estate"), to wit: GRANTING CLAUSES I. All right, title and interest of the Issuer in the Financing Agreement, the Mortgage Loan and the Mortgage Loan Documents, including but not limited to all rights to receive payments on the Mortgage Note and under the Mortgage Loan Documents, including all proceeds of insurance or condemnation awards (but subject to the rights of any Credit Facility Provider to direct the Trustee to assign to such Credit Facility Provider the Mortgage Loan and the Financing Agreement, as provided in the Credit Facility Agreement or the Financing Agreement), and all amendments, modifications and renewals of the foregoing, reserving, however, the Reserved Rights(as hereinafter defined); II. All right, title and interest of the Issuer in and to the proceeds of the Bonds and the interest,profits and other income derived from the investment thereof, and all funds and accounts under this Indenture, except as otherwise provided herein, but excluding all moneys in the Rebate Fund and the Bond Purchase Fund(each as hereinafter defined); and M. All funds, moneys and securities and any and all other rights and interests in property, whether tangible or intangible, from time to time hereafter by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned or transferred as and for additional security hereunder for the Bonds by the Issuer, or by anyone on its behalf, or with its written consent, to the Trustee, which is hereby authorized to receive any and all such property at any and all times, and to hold and apply the same subject to the terms hereof; TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended so to be, to the Trustee and its successors in said trust and to them and their assigns forever; IN TRUST,NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit, security and protection(subject to the terms hereof) of(a) all registered owners of the Bonds, without privilege, priority or distinction as to the lien or otherwise of any of the Bonds over any of the others of the Bonds, and, (b) for the payment of all amounts owed to the Credit Facility Provider under the Financing Agreement and the Credit Facility Agreement; SIF7,34519.2 2 41108-24-MS1-09110/94 PROVIDED, HOWEVER, that if the Issuer or its successors or assigns shall pay or cause to be paid to the registered owners of the Bonds the principal and interest to become due thereon at the times and in the manner provided in Article V hereof, and if no amount shall be owing by the Borrower to the Credit Facility Provider under the Financing Agreement or the Credit Facility Agreement, if any, and if the Issuer shall keep, perform and observe, or cause to be kept, performed and observed, all of its covenants, warranties and agreements contained herein, this Indenture and the estate and rights hereby granted shall, at the option of the Issuer, cease and be void, and thereupon the Trustee shall cancel and discharge the lien of this Indenture and execute and deliver to the Issuer such instruments in writing as shall be requisite to satisfy the lien hereof, and, subject to Section 502 hereof, reconvey to the Issuer any property at the time subject to the lien of this Indenture which may then be in its possession, except amounts held by the Trustee for the payment of interest on and principal of the Bonds, or moneys held in the Rebate Fund for payment to the United States Government; otherwise this Indenture shall be and remain in full force and effect, and upon the trusts and subject to the covenants and conditions hereinafter set forth. ARTICLE I Definitions and Interpretation Section 101. Definitions. In addition to terms elsewhere defined in this Indenture, the following words and terms as used in this Indenture and the preambles hereto and in the Financing Agreement shall have the following meanings unless the context or use clearly indicates another or different meaning or intent. All capitalized terms not otherwise defined herein shall have the meaning provided for them in the Financing Agreement. "Act of Bankruptcy" means the filing of a petition in bankruptcy under the Bankruptcy Code or other applicable insolvency law by or against the Issuer. "Adjustment Date" means any date on which the interest rate on the Bonds is adjusted to a different Mode or a different Reset Rate, including any Reset Date and the Conversion Date. An Adjustment Date may occur on any Business Day during the Weekly Variable Rate Period and shall be the day immediately following any Reset Period. "Alternate Credit Facility" means a Credit Facility(other than the Collateral Agreement) provided in accordance with Section 3.5 of the Financing Agreement. "Applicable Law" means Article 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California, as in effect on the Effective Date, and Chapter 7 of Part 5 of Division 31 of the Health and Safety Code of the State of California, as in effect on the Initial Closing Date. "Authorized Denomination" means, during the Weekly Variable Rate Period, $100,000 or any integral multiple thereof rovided that one Bond may be in a denomination that is an integral multiple of $5,000 in excess of$100,000); and, during the Reset Period or the Fixed Rate Period, $5,000 or any integral multiple thereof. "Authorized Officer" means Chair of the Board of Supervisors, the Vice-Chair of the Board of Supervisors, the Director of Community Development of the County of Contra Costa, the County of Contra Costa Administrator, the Director of the Growth Management and Economic Development Agency, the Deputy Director-Redevelopment of the County of Contra Costa and any other officer or employee of the Issuer designated by certificate of any of the foregoing as authorized by the Issuer to perform the act or sign the document in question. SF2-34519.2 3 41108-24-MSI-09/10/94 "Available Moneys" meanswithrespect to any date of determination(a)proceeds of other bonds or obligations deposited for the purpose of refunding or making payment on the Bonds, (b)proceeds received pursuant to the Credit Facility, (c)proceeds from the investment or reinvestment of moneys described in clauses (a) and (b)above, and/or(d) any other amounts for which, in each case, the Trustee has received, at the time such amounts are deposited with the Trustee, an Opinion of Counsel experienced in bankruptcy matters to the effect that the use of such amounts to make payments on the Bonds would not be voidable as preferential payments under Section 547 of the Bankruptcy Code should the Issuer, the Borrower, any joint venturer in or general partner of the Borrower, or any general partner in any joint venturer in or general partner of the Borrower, become a debtor in proceedings commenced thereunder. "Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy," as now and hereafter in effect, or any successor statute. "Beneficial Owner" means the beneficial owner of Bonds held in book-entry form or the registered owner of Bonds held in certificated form. "Bond" or "Bonds means any of the Bonds as defined in the recitals to this Indenture. "Bond Counsel" means any attorney at law or firm of attorneys of nationally recognized standing in matters pertaining to the exclusion from gross income of interest on bonds for federal income tax purposes issued by states and political subdivisions selected by the Issuer. An "opinion of Bond Counsel" means a written opinion of Bond Counsel addressed to the Issuer and acceptable to the Trustee. "Bond Docwnents" means the Financing Agreement, the Regulatory Agreement, the Tax Certificate, this Indenture and the Credit Facility Agreement. ."Bondholder," "holder," "owner" or "registered owner" means the registered owner of any Bonds. "Bondholder Tender Notice" means a written notice meeting the requirements of Section 1001 of this Indenture. "Bond Pledge Agreement" means that certain Pledge, Security and Custody Agreement dated as of the date hereof by and between the Borrower and First Trust of California, National Association, as collateral agent for Fannie Mae, as such agreement may be amended, supplemented or otherwise modified from time to time. "Bond Purchase Fund" means the fund so designated which is created and established pursuant to Section 403 hereof. "Borrower" has the meaning assigned that term in the recitals to this Indenture. "Business Day" means a day other than a Saturday, a Sunday or any day on which banking institutions located in the city of New York, New York, or the city in which the Principal Office of the Trustee is located are required or authorized by law to close, or upon which the New York Stock Exchange or the Credit Facility Provider is closed. "Code" means the 1954 Code and the 1986 Code,.in each case to the extent made applicable to matters relating to the Bonds and the Project by Section 1313(a)of the Tax Reform Act of 1986, the Internal Revenue Code of 1986, and with respect to a specific section thereof such reference shall be deemed to include(a) the applicable regulations promulgated or proposed under such section or any previous corresponding section, (l�) any successor provision of similar import hereafter enacted, (c) any corresponding provision of any subsequent Internal Revenue Code and(d) the applicable regulations promulgated or proposed under the provisions described in(b) and(c). "1954 Code" means the Internal Revenue Code of 1954,as amended prior to the enactment of the Tax Reform Act of 1986. "1986 Code" means the Internal Revenue Code of 1986. S1M-34519.2 4 41108-24MS1-09/30/94 "Collateral Agreement" has the meaning assigned that term in the recitals to this Indenture. "Conversion Date" means the date on which the interest rate on the Bonds converts from the Weekly Variable Rate or a Reset Rate to the Fixed Interest Rate pursuant to Section 205 hereof. "Conversion Option" means the option granted to the Borrower in Section 205 hereof pursuant to which the interest rate on the Bonds is converted to the Fixed Interest Rate on the Conversion Date. "Credit Facility" means the Collateral Agreement or any Alternate Credit Facility at the time in effect. "Credit Facility Account" means the account of that name within the General Receipts Fund created by Section 401 of this Indenture. "Credit Facility Agreement" means the Collateral Agreement and, to the extent applicable, the Financing Agreement and the Bond Pledge Agreement or, at the time that any Alternate Credit Facility is in effect, the agreement or agreements pursuant to which the Credit Facility Provider agrees to issue the Alternate Credit Facility and/or the Borrower agrees to reimburse payments thereunder, as any such agreement may be amended, modified or supplemented from time to time. "Credit Facility Provider" means Fannie Mae for the period during which the Collateral Agreement is in effect, or at the time that any Alternate Credit Facility is in effect, means the Credit Facility Provider then obligated under the Alternate Credit Facility. "DTC" means The Depository Trust Company and any successor thereto or any nominee thereof. "DTC Participant" and "DTC System" have the meanings assigned thereto in Section 216 of this Indenture. "Effective Date" means the date this Indenture and the Financing Agreement become effective in accordance with their respective terms, which shall be (i) September [22], 1994, in the case of the provisions of Section 1002(d)hereof only, and(ii) September [24], 1994, in the case of all other provisions of this Indenture and the Financing Agreement. "Event of Default" means any of the events specified in Section 601 hereof. "Extension Date" means, with respect to any Alternate Credit Facility, the date which is five(5) days prior to the expiration date of the Alternate Credit Facility then in effect if no commitment to extend the existing Alternate Credit Facility has been delivered to the Trustee. "Fannie Mae" means the Federal National Mortgage Association, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C., § 1716 et M., and its successors and assigns. "Financing Agreement" has the meaning assigned to that term in the recitals to this Indenture. "Fixed Interest Rate" means a fixed,nonvariable annual interest rate on the Bonds determined in accordance with Section 205(c)hereof. "Fixed Rate Period" means the period of time commencing with the Conversion Date and ending on the Maturity Date. During the Fixed Rats Period, interest will accrue on the Bonds from, and including, the Conversion Date to, but excluding, the Maturity Date. "General Receipts Fund" means the fund created by Section 401 of this Indenture. SF2-34519.2 5 41108-24-MSI-09/10/94 "Government Obligations" means bonds,notes, certificates of indebtedness, treasury bills or other securities now or hereafter issued, which are guaranteed, directly or indirectly, by the full faith and credit of the United States of America as to principal and interest, including stripped securities. "Improvements" means the improvements made upon the Land. "Indenture" means this Amended and Restated Indenture of Trust, as amended, supplemented or otherwise modified from time to time as permitted hereby. "Initial Closing Date" means November 25, 1992, the date the Bonds were issued and delivered. "Interest Account" means the interest account within the General Receipts Fund created pursuant to Section 401 hereof. "Interest Payment Date" means (a) during the Weekly Variable Rate Period, the fifteenth(15th)day of each calendar month; (b)during any Reset Period each June 1 and December 1 following the Adjustment Date; (c) during the Fixed Rate Period, each June 1 and December 1 following the Conversion Date; (d) each Adjustment Date; and(e) the Maturity Date. "Interest Requirement" means (a) during the Weekly Variable Rate Period, 35 days' interest on the Bonds at the Maximum Rate, and(b) during a Reset Period and the Fixed Rate Period, 210 days' interest at, respectively, the Reset Rate or the Fixed Interest Rate; or, in each case, such lesser number of days as may be acceptable to each Rating Agency. "Investment Income" means the earnings, profits and accreted value derived from the investment of moneys in the General Receipts Fund pursuant to Section 406 hereof. "Issuer" means County of Contra Costa, and its successors under the laws of the State. "Land" means the parcel or parcels of real property described in the Mortgage. "Loan Agreement" has the meaning assigned to that term in the recitals to this Indenture. "Mandatory Tender Date" means any date on which Bonds are required to be tendered pursuant to Section 1002 hereof, including the Effective Date and any Adjustment Date, Substitution Date, Extension Date or date specified by the Trustee as provided in Section 1002(c). "Maturity Date" means December 1, 2022. "Maximum Rate" means twelve percent (12%)per annum, unless and to the extent that there shall have been delivered to the Trustee the consent of the Issuevand the Credit Facility Provider to a specified higher Maximum Rate, an opinion of Bond Counsel to the effect that such higher Maximum Rate will not adversely affect either the validity of the Bonds or the exclusion of interest on the Bonds from gross income for federal income tax purposes, and a Credit Facility in an amount equal to the then outstanding principal amount of the Bonds plus the new Interest Requirement calculated using the new Maximum Rate; provided that the Maximum Rate shall never exceed the maximum rate permitted by law to be paid on the Bonds or to be charged on the Mortgage Loan. "Minimum Reserve Amount" means, as of any date of determination, an amount equal to the amount of interest payable on the aggregate principal amount.of Bonds then Outstanding calculated at the Maximum Rate for a period of fifteen(15) days, plus $5,000. "Mode" means, with respect to the Bonds, any interest mode permitted by this Indenture, specifically the Weekly Variable Rate, the Reset Rate and the Fixed Interest Rate. SF2-34519.2 6 41108-24-MS1.09/10/94 "Mortgage" means that certain Multifamily Deed of Trust, Assignment of Rents and Security Agreement (together with all riders thereto) of even date herewith, executed by the Borrower, as the same may be amended, supplemented or otherwise modified from time to time to the extent permitted herein. "Mortgage Loan" has the meaning assigned to that term in the recitals to this Indenture. "Mortgage Loan Documents" has the meaning assigned to that term in the Financing Agreement. "Mortgage Note" means that certain Multifamily Note(together with all addenda thereto) dated as of the Effective Date, executed by the Borrower in favor of the Trustee, as the same may be amended, supplemented or otherwise modified from time to time to the extent permitted herein. "Opinion of Counsel" means a written opinion of legal counsel, acceptable to,the recipient(s)of such opinion. "Outstanding" means, when used with reference to the Bonds at any date as of which the amount of Outstanding Bonds is to be determined, all Bonds which have been authenticated and delivered hereunder except: (a) Bonds cancelled or delivered for cancellation at or prior to such date; (b) Bonds deemed to be paid in accordance with Section 502 hereof, and (c) Bonds in lieu of which others have been authenticated under Sections 210, 211 and 212 hereof. In determining whether the owners of a requisite aggregate principal amount of Outstanding Bonds have concurred in any request, demand, authorization, direction,notice, consent or waiver under the provisions of this Indenture, Bonds which are owned or held by the Borrower and Purchased Bonds shall be disregarded and deemed not to be Outstanding under this Indenture for the purpose of any such determination. In determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which are (i)registered in the name of the Borrower and(ii)Purchased Bonds shall be disregarded. "Permitted Investments" means, to the extent authorized by law for investment of moneys of the Issuer, (a) Government Obligations; (b)interest-bearing savings accounts, interest-bearing certificates of deposit or interest-bearing time deposits or any other investments constituting direct obligations of any bank(as defined in the Banking Act of the State)which deposits are fully insured by the Federal Deposit Insurance Corporation or its successor, including any such deposits in the Trustee or any of its affiliates; (c) money market mutual fiends(including those of the Trustee and its affiliates)registered under the Investment Company Act of 1940 rated AAAm.or AAAm-G by Standard&Poor's Rating Group, as from time to time amended, provided that the portfolio of such money market mutual fund is limited to obligations described in clause (a) above and to agreements to repurchase such obligations; (d) short-term discount obligations of Fannie Mae(excluding any strip mortgage securities which are purchased at prices exceeding their principal amount or any interest only strips); (e) shares or other forms of securities legally issuable by savings and loan associations incorporated under the laws of the State or any other state or under the laws of the United States of America, if such shares or securities are fully insured by the Federal Deposit Insurance Corporation or its successor, if any; (f) any other investment authorized by the laws of the State, if such investments are approved by the Credit Facility Provider and each Rating Agency. "Person" means any natural person, firm, partnership, association, corporation or public body. "Principal Amount" means $10,900,000,the original principal amount of the Bonds as of the Initial Closing Date. S]F2-34519.2 7 41109-24-MS1-09/10/94 "Principal Office" of the Trustee or the Tender Agent, respectively, means the office of the Trustee or the Tender Agent at the respective address set forth in Section 1103 (except for payment, exchange and surrender of the Bonds, in which event the Principal Office shall be c/o First Trust, National Association, 180 East Fifth Street, St. Paul, Minnesota 55101) or at such other address as may be specified by the Trustee or the Tender Agent, as applicable, as provided in said Section. "Principal Payment Date" means each mandatory bond sinking fund redemption date as provided in Section 204(f) or 205(f)hereof. "Principal Payment Fund" means the Principal Payment Fund created pursuant to Section 404 of this Indenture. "Project" means the Land and the Improvements. "Purchased Bond" means any Bond during the period from and including the date of its purchase by the Trustee on behalf of and as agent for the Borrower with amounts on deposit in the Principal Payment Fund and available to the Trustee or with amounts provided by the Credit Facility Provider under the Credit Facility, to, but excluding, the date on which such Bond is remarketed to any person other than the Credit Facility Provider, the Borrower, any partner of the Borrower or the Issuer. "Rate Determination Date" means (a)with respect to the Weekly Variable Rate, Tuesday of each week,or the immediately succeeding Business Day if such Tuesday is not a Business Day; provided that upon any adjustment to the Weekly Variable Rate Mode from a Reset Rate, the first Rate Determination Date shall mean the Adjustment Date, and(b)with respect to any Reset Rate and the Fixed Interest Rate, the date selected by the Remarketing Agent which date shall be not less than seven(7)days prior to the Adjustment Date. "Rate Period" means any period of time during which the interest rate with respect to the Bonds is determined by the Remarketing Agent. "Rating Agency" means each national rating agency then maintaining a rating on the Bonds. "Rating Category" means one of the generic rating categories of the Rating Agency. "Rebate Fund" means the fund created by Section 408 of this Indenture. "Record Date" means the close of business on the second Business Day preceding an Interest Payment Date. "Redemption Account" means the redemption account within the General Receipts Fund created by Section 401 hereof. "Redemption Date" means any date upon which Bonds are to be redeemed pursuant to this Indenture (including without limitation any optional redemption pursuant to Section 214(a) of this Indenture). "Register" means the bond register maintained by the Trustee pursuant to Section 211 hereof. "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants relating to the Project, dated as of November 1, 1992, by and among the Issuer, the Trustee and the Borrower, as heretofore amended and supplemented and as hereafter amended, supplemented or otherwise modified from time to time to the extent permitted herein. "Remarketing Agent" means PaineWebber Incorporated or any successor as Remarketing Agent . hereunder in accordance with Article VIII of this Indenture. SF2-34519.2 8 41108-14-MS1-09/10/94 "Remarketing Agreement" means that certain Remarketing Agreement, dated as of the Effective Date, by and among the Remarketing Agent, the Trustee and the Borrower, as.amended, supplemented or otherwise modified from time to time to the extent permitted herein, or any agreement entered into in substitution therefor. "Reserved Rights" means those certain rights of the Issuer under the Financing Agreement to indemnification and to payment or reimbursement of fees and expenses of the Issuer, public liability insurance proceeds and indemnity payments, its right to enforce notice and reporting requirements and restrictions on transfer of ownership, its right to inspect and audit the books, records and premises of the Borrower and of the Project, its right to collect attorneys' fees and related expenses, its right to enforce the Borrower's covenant to comply with applicable federal tax law and State law (including the Applicable Law and the rules of the Issuer), and its right to receive notices thereunder. "Reset Date" means any date upon which the Bonds begin to bear interest at a Reset Rate for the succeeding Reset Period. "Reset Period" means each period of six months or more during which the Bonds bear interest at a Reset Rate. "Reset Rate" means the rate of interest borne by the Bonds as determined in accordance with Section 204. "Responsible Officer" means any officer of the Trustee assigned to administer the duties hereunder. "Security" means the Trust Estate and the Credit Facility. "Servicer" means First Nationwide Bank, a Federal Savings Bank, the initial Servicer under the Servicing Agreement identified in the Financing Agreement, and any successor appointed in accordance with the provisions of Section 6.3 of the Financing Agreement. "Specified Fees" means fees to be paid from the proceeds of the Fixed Rate, as set forth in the definition thereof in Section 4.3(ii)of the Financing Agreement, other than the Facility Fee. "State" means the State of California. "Substitution Date" means the date upon which an Alternate Credit Facility is to be substituted for the Credit Facility then in effect, which date must be a Business Day and which Business Day must be a date on which the Credit Facility for which substitution is being made is available to be accessed or drawn upon. With respect to any Reset Period, a Substitution Date may only occur on the Adjustment Date which immediately follows such Reset Period. "Tax Certificate" means the Tax Certificate and Agreement dated the Initial Closing Date, executed and delivered by the Issuer and the Borrower, as amended, supplemented or otherwise modified from time to time. "Tender Agent" means the Tender Agent named in Section 812 of this Indenture or its successor as Tender Agent hereunder in accordance with said Section. "Tender Agent Time" means local time in the city in which the Principal Office of the Tender Agent is located. "Tendered Bonds" means Bonds which have been tendered to the Tender Agent for purchase pursuant to Sections 1001 or 1002 of this Indenture. M-W19.2 9 41109-24-MSI-09110194 L "Trust Estate" means the property, rights, money, securities and other amounts pledged and assigned pursuant to the Granting Clauses of this Indenture. "Trustee" means First Trust of California, National Association, or its successor as Trustee hereunder in accordance with Article VIII hereof. "Trustee Time" means local time in the city where the Principal Office of the Trustee is located. "U.C.C." means the Uniform Commercial Code of the State as now or hereafter amended, whether or not such Uniform Commercial Code is applicable to the parties or the transactions. "Weekly Variable Rate" means the variable_interest rate per annum for the Bonds determined, for each Weekly Variable Rate Period, in accordance with Section 203 hereof. "Weekly Variable Rate Period" means the period of time commencing on the Effective Date or the Adjustment Date on which the interest rate on the Bonds is adjusted from a Reset Rate to the Weekly Variable Rate and ending on the day preceding the next succeeding Adjustment Date or the Maturity Date. Section 102: Rules of Construction. (a) The singular form of any word used herein, including the terms defined in Section 101, shall include the plural, and vice versa, unless the context otherwise requires. The use herein of a pronoun of any gender shall include correlative words of the other genders. (b) All references herein to "Articles," "Sections" and other subdivisions hereof are to the corresponding Articles, Sections or subdivisions of this Indenture as originally executed; and the words "]herein," "hereof," "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof. (c) The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not limit or otherwise affect the meaning, construction or effect'of this Indenture or describe the scope or intent of any provisions hereof. (d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with applicable generally accepted accounting principles as in effect from time to time. (e) Every "request," "order," "demand," application," "appointment," "notice," "statement," "certificate,." "consent," or similar action hereunder by any party shall,unless the form thereof is specifically provided, be in writing signed by a duly authorized representative of such party with a duly authorized signature. Section 103. Content of Certificates and Opinions. Every certificate or opinion with respect to compliance by or on behalf of the Issuer with a condition or covenant provided for in this Indenture or the Financing Agreement shall include(a) a statement that the person or persons making or giving such certificate or opinion have read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the,opinion of the signers, they have made or caused to be made such examination or investigation as is necessary to enable them to express an informed opinion as to.whether or not such covenant or condition has been complied with;and(d)a statement as to whether, in the opinion of the signers, such condition or covenant has been complied with. Any such.certificate or opinion made or given by an officer of any party may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his or her certificate or SR2-34519:2 10 41108-24-MSI-09/10/94 opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Any such certificate or opinion made or given by counsel may be based, insofar as it relates to factual matters (with respect to which information is in the possession of a party), upon the certificate or opinion of or representations by an officer of such party, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his or her opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Section 104. Effective Date. The provisions of Section 1002(d)of this Indenture shall be effective on and as of the date in clause (i) of the definition of"Effective Date" in Section 101; and all other provisions of this Indenture shall be effective on and as of the date in clause (ii)of the definition of"Effective Date" in Section 101, upon execution and delivery of the Collateral Agreement, and as of such date shall amend and restate the Original Indenture. ARTICLE II The Bonds Section 201. Authorized Amount of Bonds. No Bonds may be issued under the provisions of this Indenture except in accordance with this Article. The total principal amount of Bonds that may be issued and outstanding hereunder is expressly limited to the Principal Amount, subject to the provisions of Section 214 of flus Indenture. Section 202. Issuance of Bonds. The Bonds(a) are designated Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds(Rivershore Apartments), 1992 Series B, and were issued in the amount of the Principal Amount, (b) are dated the Initial Closing Date, (c) shall bear interest for the period up to and including the day before the Effective Date at the rate or rates provided by the Original Indenture, and thereafter at the rates determined as provided in Sections 203, 204 and 205 of this Indenture, payable on each Interest Payment Date and upon redemption, tender or acceleration of the Bonds, and(d) shall mature, subject to prior redemption as set forth therein, on the Maturity Date, on which date all unpaid principal and interest on the Bonds shall be due and payable. The Bonds were and shall be issued as registered bonds without coupons in Authorized Denominations. The Bonds shall be numbered consecutively from 1 upwards, bearing numbers not then contemporaneously outstanding(in order of issuance) according to the Register. The principal of and the interest on the Bonds shall be payable in lawful money of the United States of America. The principal of-all Bonds shall be payable by check at the Principal Office of the Trustee upon the presentation and surrender of the Bonds as the same become due and payable. Regularly scheduled interest on the Bonds shall be paid by check drawn upon the Trustee and mailed on the Interest Payment Date to the persons in whose names the Bonds are registered on the registration books maintained by the Trustee at the close of business on the Record Date, except that if a Bondholder holds Bonds in the aggregate principal amount of at least$1,000,000, any regularly scheduled interest payment on a Bond owned by such Bondholder shall be made by wire transfer of federal reserve funds to any account'in the United States of America designated by such Bondholder if such holder(a) so directs by written notice delivered to the Trustee at least five(5)Business Days before the date upon which such wire transfer or other arrangement is to be made and(b)otherwise complies with the reasonable requirements of the Trustee. Section 203. Weekly Variable Rate Period. {a) As of the Effective Date, the Bonds shall bear interest at the Weekly Variable Rate. If the interest rate on the Bonds is adjusted to a Reset Rate, the interest rate on the Bonds may later be readjusted from the Reset Rate to the Weekly Variable Rate as described in paragraph (e) of this Section 203. The Weekly Variable Rate Period shall consist of seven-day periods each beginning on Wednesday of the calendar week for SM-34519.2 11 41109-24-Msi-09n0194 which the Weekly Variable Rate is to be determined to and including Tuesday of the next succeeding calendar week, as well as the period from the Effective Date or any Adjustment Date to and including Tuesday,of the next succeeding week. During the Weekly Variable Rate Period, the Bonds shall bear interest at the Weekly Variable Rate, payable monthly on each Interest Payment Date (commencing on the fifteenth(15th)day of the first month after the Effective Date) to and including the earlier of the first Adjustment Date or the Maturity Date. The Weekly Variable Rate shall be that rate, not exceeding the Maximum Rate, determined by the Remarketing Agent to be the minimum rate of interest necessary, in the best professional judgment of the Remarketing Agent, taking into consideration prevailing market conditions, to enable the Remarketing Agent to sell all of the Bonds on the Rate Determination Date at par plus accrued interest thereon. Interest on the Bonds during the Weekly Variable Rate Period shall be computed on the basis of a 365-or 366-day year, as applicable, for the actual number of days elapsed. (b) With respect to the period from the Effective Date through Tuesday of the succeeding week, the Weekly Variable Rate shall be determined in accordance with Section 203(a)hereof on the Business Day next preceding the Effective Date. Thereafter, and during any other Weekly Variable Rate Period, the Weekly Variable Rate shall be determined in accordance with Section 203(a)hereof on each Rate Determination Date, and shall be effective for the seven(7) day period commencing on the immediately succeeding Wednesday; provided that if a new Weekly Variable Rate is scheduled to become effective on a Record Date or on any date succeeding such Record Date but preceding the related Interest Payment Date, the existing Weekly Variable Rate shall remain effective to but excluding the applicable Interest Payment Date and the new Weekly Variable Rate shall become effective upon such Interest Payment Date. The Remarketing Agent shall announce the Weekly Variable Rate by telephonic or telegraphic notice to the Trustee and the Servicer on each date on which such Weekly Variable Rate is determined, and shall confirm such notice promptly in writing. (c) The determination of the Weekly Variable Rate in accordance with the provisions hereof shall be conclusive and binding upon the Issuer, the Credit Facility Provider, the Borrower, the Trustee, the Tender Agent, the Remarketing Agent and the holders of the Bonds. (d) In the event that the Remarketing Agent shall fail or refuse to determine'the Weekly Variable Rate applicable for any seven-day period during the Weekly Variable Rate Period, the interest rate to be borne by the Bonds during such seven-day period shall be the same rate as for the preceding seven-day period. (e) If the Bonds bear interest at the Reset Rate and, upon the termination of the applicable Reset Period, neither the conditions to adjust to a Reset Rate as provided in Section 204(a)nor the conditions to convert to a Fixed Rate as provided in Section 205(a)are satisfied, then(i) the Bonds shall be subject to mandatory tender, (ii) the Bondholders shall have no right to.retain such Bonds, and(iii)the interest rate on the Bonds shall be adjusted automatically to the Weekly Variable Rate on the Adjustment Date immediately following such Reset Period, without any further action by any party, and the Remarketing Agent shall remarket the Bonds on such basis. (f) At all times while the Bonds bear interest at a Weekly Variable Rate, one or more Credit Facilities providing credit support and liquidity support must be in effect with respect to the Bonds. (g) The Bonds shall not be subject to mandatory bond sinking fund redemption during the Weekly Variable Rate Period,but shall be subject to redemption pursuant to Section 214(b)(iii). Upon an adjustment to a Reset Rate or a conversion to the Fixed Rate, the Bonds shall be subject to mandatory bond sinking fund redemption as provided in Sections 204(f) and 205(f), respectively. Section 204. Reset Period. (a) The interest rate on all Outstanding Bonds may be adjusted to a Reset Rate (i) from a Weekly Variable Rate on any Business Day designated by the Borrower with the prior written consent of the Issuer and the Credit Facility'Provider; or(ii) on the day after any preceding Reset Period. Sr2-34519.2 12 41108-14-MS1-09/10/94 To exercise the option to adjust the interest rate on the Bonds to a Reset Rate, the Borrower shall(i) at least forty-five(45)days before the proposed Reset Date, deliver written notice thereof to the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider and the Remarketing Agent, designating the Reset Date, together with the form of the notice to be given to Bondholders pursuant to subsection(b) of this Section, if any; and(ii) at least ten(10) days before the proposed Reset Date, deliver(1) to the Issuer, the Trustee, the Tender Agent and the Remarketing Agent written notice stating the duration of the Reset Period to commence on the Reset Date, which shall be a period of six months or more; (2)to the Trustee, either(A)written notice from the Credit Facility Provider consenting to such adjustment to a Reset Rate, together with confirmation that the Credit Facility is sufficient in amount and term to satisfy the requirements of Section 3.5(b)of the Financing Agreement, or(B) an Alternate Credit Facility to be in effect during the Reset Period, or an unconditional commitment satisfactory to the Trustee to provide such Alternate Credit Facility; yrovided that any Credit Facility then in effect shall remain in effect for mandatory tender of the Bonds on the Reset Date; and(3) to the Trustee, the Issuer and the Credit Facility Provider(or if applicable, the provider of the Alternate Credit Facility), an opinion of Bond Counsel (such opinion to be confirmed on the Adjustment Date), to the effect that the adjustment of the interest rate on the Bonds to the Reset Rate is authorized and permitted by this Indenture acid the laws of the State(including the Applicable Law), and will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes. If the foregoing conditions to adjustment to a Reset Rate are not satisfied, and if the Bonds then bear interest at a Reset Rate, or if a notice has been given pursuant to Section 204(b)below, the Bonds shall be subject to mandatory tender and the rate on the Bonds shall be adjusted automatically to a Weekly Variable Rate as provided in Section 203(e) or shall remain at a Weekly Variable Rate, and the Remarketing Agent shall remarket the Bonds on such basis. (b) If at the time of any proposed adjustment to.a Reset Rate the Bonds bear interest at a Weekly Variable Rate, the Trustee shall, not later than thirty(30)days before the Adjustment Date,'give notice thereof to the Bondholders, in the same manner'as notices of redemption are to be given, which shall be conclusively presumed to have been duly given when given in such manner, whether or not any holder actually receives the notice, and which shall state in substance the following: (i) the proposed Reset Date; (ii) that from and after the Reset Date the Bonds will bear interest at a Reset Rate(which rate need not be stated); and(iii)that all Bonds are subject to mandatory tender and purchase on the proposed Reset Date and the holders thereof shall not have the right to elect to retain such Bonds. (c) The Bonds shall bear interest at the Reset Rate from(and including)the Adjustment Date which is the first day of the Reset Period to (but excluding)the next succeeding Adjustment Date. The Reset Rate shall be that rate, not exceeding the Maximum Rate, determined by the Remarketing Agent on the applicable Rate Determination Date to be the minimum rate of interest necessary, in the best professional judgment of the Remarketing Agent, taking into consideration prevailing market conditions, to enable the Remarketing Agent to sell all of the Bonds on such Rate Determination Date at par plus accrued interest thereon. The Remarketing Agent shall promptly notify the Borrower, the Trustee, the Credit Facility Provider, the Tender Agent and the Issuer of the date selected as the Rate Determination Date and shall, upon determining the Reset Rate, promptly notify the Borrower, the Trustee, the Credit Facility Provider, the Tender Agent and the Issuer of such Reset Rate by wire, telegram; telecopy, overnight courier, mailgram or other similar means of communication,sent not later than the day following the Rate Determination Date. (d) Upon adjustment of the interest rate on the Bonds to a Reset Rate under this Section, the Bonds shall be subject to mandatory tender and purchase pursuant to Section 1002 hereof on the Adjustment Date which is the first day of the Reset Period, and Bondholders,shall not have the right'to elect to retain such Bonds. (e) During the Reset Period, the Bonds shall bear interest at the Reset Rate, payable on each Interest Payment Date (commencing on the first.Interest Payment Date after the Adjustment Date) to and including the next succeeding Adjustment Date. During the Reset Period, interest on the Bonds shall be computed on the basis of a year of three hundred and sixty (360)days of twelve (12) thirty(30) day months. SP-2-34519.2 13 41108-24-MSI-09/10/94 (f) During a Reset Period, the Bonds shall be subject to mandatory bond sinking fiord redemption on each Interest Payment Date occurring during such Reset Period. The amount of the mandatory bond sinking fiend redemption on an applicable Interest Payment Date shall be an amount(rounded downward to the nearest multiple of$100,000)equal to the sum of(i)the aggregate amount of principal payments required to be made by the Borrower on the Mortgage Loan during the period from and including the first day of such Reset Period (or, if applicable, the immediately preceding Interest Payment Date occurring during such Reset Period) to but excluding the applicable Interest Payment Datel�us(ii)the aggregate amount, if any, of principal payments made by the Borrower under the Mortgage Loan which have not previously been used to redeem Bonds; provided that all then Outstanding Bonds shall be payable on the Maturity Date. Section 205. Fixed Rate Period. (a) The interest rate on all Outstanding Bonds may be converted to the Fixed Interest Rate (i) from a Weekly Variable Rate on any Business Day designated by the Borrower with the prior written consent of the Issuer and the Credit Facility Provider; or(ii)on the day after any Reset Period or on any Interest Payment Date during a Reset Period on which the Bonds would be subject to redemption at par pursuant to Section 214(a)(ii)hereof. To exercise the Conversion Option, the Borrower shall(i)at least forty-five(45)days before the proposed Conversion Date, deliver written notice thereof to the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider and the Remarketing Agent, designating the Conversion Date, together with the form of the notice to be given to Bondholders pursuant to subsection(b) of this Section, if any; and(ii) at least ten(10) days before the proposed Conversion Date, deliver(1) to the Issuer, the Trustee, the Tender Agent and the Remarketing Agent written notice confirming such Conversion Date; (2) to the Trustee, either(A)written notice fibm the Credit Facility Provider consenting to such adjustment to a Fixed Interest Rate, together with confirmation that the Credit Facility is sufficient in amount and term to satisfy the requirements of Section 3.5(b) of the Financing Agreement, or(B) an Alternate Credit Facility to be in effect from and after the Conversion Date, or an unconditional commitment satisfactory to the Trustee from the provider of an Alternate Credit Facility to provide such Alternate Credit Facility, or(C) a written waiver from the Issuer of the requirement for a Credit Facility during the Fixed Rate Period; provided that any Credit Facility then in effect shall remain in effect for the mandatory tender on the Conversion Date; and(3) to the Trustee, the Issuer and the Credit Facility Provider(or, if applicable, the provider of the Alternate Credit Facility), an opinion of Bond Counsel (such opinion to be confirmed on the Conversion Date), to the effect that the conversion of the interest rate on the Bonds to the Fixed Interest Rate is authorized and permitted by this Indenture and the laws of the State(including the Applicable Law), and will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income tax purposes. In the event the foregoing conditions to adjustment to the Fixed Interest Rate are not satisfied, and if a notice has been given pursuant to Section 205(b)below, the Bonds will be subject to mandatory tender and the rate on the Bonds shall be automatically adjusted to a Weekly Variable Rate on the proposed Conversion Date, as provided in Section 203(e). (b) If at the time of any proposed conversion to a Fixed Interest Rate the Bonds bear interest at a Weekly Variable Rate, or if the proposed Conversion Date is during a Reset Period, the Trustee shall, not later than thirty(30) days before the Conversion Date, give notice thereof to the Bondholders, in the same manner as notices of redemption are to be given, which shall be conclusively presumed to have been duly given when given in such manner, whether or not any holder actually receives the notice, and which shall state in substance the following: (i) the proposed Conversion Date;(ii) that from and after the Conversion Date the Bonds will bear interest at the Fixed Interest Rate (which rate need not be stated); and(iii)that all Bonds are subject to mandatory tender and purchase on the proposed Conversion Date and the holders thereof shall not have the right to elect to retain such Bonds. (c) The Bonds shall bear interest at the Fixed Interest Rate from(and including)the Conversion Date to(but excluding)the Maturity Date. The Fixed Interest Rate shall be that rate, not exceeding the srz34519.2 14 41108-24-MS1-09n0i94 Maximum Rate, determined by the Remarketing Agent on the Rate Determination Date to be the minimum rate of interest necessary, in the best professional judgment of the Remarketing Agent, taking into consideration prevailing market conditions, to enable the Remarketing Agent to sell all of the Bonds on the Rate Determination Date at par plus accrued interest thereon. The Remarketing Agent shall promptly notify the Borrower, the Trustee, the Tender Agent, the Credit Facility Provider and the Issuer of the date selected as the Pate Determination Date and shall, upon determining the Fixed Interest Rate, promptly notify the Borrower, the Trustee, the Tender Agent, the Credit Facility Provider and the Issuer of such Fixed Interest Rate by wire, telegram, telecopy, overnight courier, mailgram or other similar means of communication, sent not later than the day following the Rate Determination Date. (d) Upon conversion to the Fixed Interest Rate under this Section, the Bonds shall be subject to mandatory tender and purchase pursuant to Section 1002 hereof on the Conversion Date and Bondholders shall not have the right to elect to retain such Bonds. (e) During the Fixed Rate Period, the Bonds shall bear interest at the Fixed Interest Rate, payable on each Interest Payment Date (commencing on the first Interest Payment Date after the Conversion Date) to and including the Maturity Date. Following the Conversion Date interest on the Bonds shall be computed on the basis of a year of three hundred sixty (360) days of twelve(12) thirty(30) day months. (f) During the Fixed Rate Period, the Bonds shall be subject to mandatory bond sinking fund redemption on each Interest Payment Date occurring during such Fixed Rate Period. The amount of the mandatory bond sinking fund redemption on an applicable Interest Payment Date shall be an amount(rounded downward to the nearest multiple of$100,000)equal to the sum of(i) the aggregate amount of principal payments required to be made by the Borrower on the Mortgage Loan during the period from and including the first day of the Fixed Rate Period (or, if applicable, the immediately preceding Interest Payment Date occurring during such Fixed Rate Period)to but excluding the applicable Interest Payment Datel�us(ii) the aggregate amount, if any, of principal payments made by the Borrower under the Mortgage Loan which have not previously been used to redeem Bonds; provided that all then Outstanding Bonds shall be payable on the Maturity Date. Section 206. Execution: Limited Obligations. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signature of its Chair of the Board of Supervisors of the County of Contra Costa and attested by the manual or facsimile signature of its County Administrator and Clerk of the Board of Supervisors of the County of Contra Costa under the official seal, or a facsimile thereof, of the Issuer. Any facsimile signatures shall have the same force and effect as if said officers had manually signed the Bonds. Any reproduction of the official seal of the Issuer on the Bonds shall have the same force and effect as if the official seal of the Issuer had been manually impressed on the Bonds. In case any officer whose signature or a facsimile of whose signature shall appear on any Bonds shall cease to be such officer before the delivery of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes as if such officer had remained in office until delivery. The Bonds are limited obligations of the Issuer, payable solely out of the revenues, receipts and security pledged or derived therefor hereunder. No Bondholder has the right to compel any exercise of the taxing power of the Issuer to pay the Bonds, the interest or redemption premium, if any, thereon, and the Bonds shall not constitute an indebtedness of the Issuer or a loan of the credit thereof with in the meaning of any constitutional or statutory provision,nor shall the Bonds be construed to create any moral obligation on the part of the Issuer or any agency or political subdivision thereof with respect to the payment of the Bonds, and the Bonds shall contain on their face a statement to that effect. Section 207. Authentication. Only such Bonds as shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit A hereto duly executed by the Trustee or the Tender Agent shall be entitled to any right or benefit under this Indenture. No Bond shall be valid or obligatory for any purpose unless and until such certificate of authentication shall have been duly executed by the Trustee or SI-2-34519.2 '15 41108-74-MS1-09/10/94 the Tender Agent; and such executed certificate upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Indenture. The Trustee's or Tender Agent's certificate of authentication on any Bond shall be deemed to have been executed by it if signed by an authorized representative of the Trustee or the Tender Agent, but it shall not be necessary that the same person sign the certificates of authentication on all of the Bonds. Section 208. Form of Bonds. The Bonds, the certificate of authentication and the form of assignment shall be in substantially the forms hereinafter set forth in Exhibit A hereto with such appropriate variations, omissions, substitutions and insertions as are permitted or required hereby or are required by law, and may have such letters, numbers or other marks of identification and such legends and endorsements placed thereon as may be required to comply with any applicable laws or rules or regulations, or as may, consistently herewith, be determined by the officers executing such Bonds, as evidenced by their execution of the Bonds. Any portion of the text of any Bond may be set forth on the reverse thereof, with an appropriate reference thereto on the face of such Bond. Bonds may be typewritten,printed, engraved, lithographed or otherwise reproduced. Section 209. Temporary Bonds. Until definitive Bonds are ready for delivery, there may be executed, and upon the request of the Issuer, the Trustee shall authenticate and deliver, in lieu of definitive Bonds, one or more temporary typewritten,printed, engraved or lithographed Bonds, in any appropriate denomination, in fully registered form,.and in substantially the tenor hereinabove set forth and with such appropriate omissions, insertions and variations as may be required. If temporary Bonds shall be issued, the Issuer shall cause the definitive Bonds to be prepared and to be executed and delivered to the Trustee or the Tender Agent, and the Trustee or the Tender Agent, upon presentation to it of any temporary Bond, shall cancel the same and authenticate and deliver in exchange therefor, without charge to the owner thereof, a definitive Bond or Bonds of an equal aggregate principal amount, of the same maturity, and bearing interest at the same rate as the temporary Bond surrendered. Until so exchanged, the temporary Bonds shall in all respects be entitled to the same benefit and security of this Indenture as the definitive Bonds to be issued and authenticated hereunder. Interest on temporary Bonds, when due and payable, if the definitive.Bonds shall not be ready for exchange, shall be paid on presentation of such temporary Bonds for notation of such payment thereon by the Trustee. Section 210. Mutilated, Lost. Stolen or Destroyed Bonds. If any Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate and deliver a new Bond of the same maturity, interest rate, principal amount and tenor in lieu of and in substitution for the Bond mutilated, lost, stolen or destroyed;"yrovided that in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the Trustee, and in the case of any lost, stolen or destroyed Bond, there shall be first furnished to the Trustee evidence satisfactory to it of the ownership of such Bond, and of such loss, theft or destruction, together with indemnity satisfactory to the Trustee and the Issuer and compliance with such other reasonable regulations as the Issuer and Trustee may prescribe. If any such Bond shall have matured or be about to mature, or if such Bond shall have been called for redemption or a redemption date pertaining thereto shall have passed, instead of issuing a new Bond the Trustee may pay the same without surrender thereof. The Issuer and the Trustee may charge the holder of such Bond with their reasonable fees and expenses in this connection. Section 211. Exchangeability and Transfer of Bonds: Persons Treated as the Bondholders. The Issuer shall cause books for the registration of the Bonds and for the registration of transfer of the Bonds as provided herein to be kept by the Trustee, which is hereby constituted and appointed the bond registrar for the Bonds. Except during the periods described below and subject to the express limitations contained in this Section 211,any holder of a Bond or its duly authorized attorney may transfer title to such Bond on the Register kept by the Trustee, upon surrender thereof at the Principal.Office of the Trustee, together with a written instrument of transfer (in substantially the form of assignment, including signature guarantee, attached to the Bond) executed by the holder or its duly authorized attorney, and'upon surrender for registration of transfer of any Bond, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or SIi-2-34519.2 16 41108-24MS1-09/10/94 transferees a new Bond or Bonds of the same aggregate principal amount, rate, maturity and tenor as the Bond surrendered and of any Authorized Denomination;provided that any purported transfer to Fannie Mae shall be accompanied by the written consent of the General Counsel and Controller of Fannie Mae. Bonds may be exchanged upon surrender thereof at the Principal Office of the Trustee with a written instrument of transfer, including a signature guarantee satisfactory to the Trustee, executed by the Bondholder or its attorney duly authorized in writing, for an equal aggregate principal amount of Bonds of the same aggregate principal amount, rate, maturity and tenor as the Bonds being exchanged and of any Authorized Denomination. The Issuer shall execute and the Trustee shall authenticate and deliver Bonds which the Bondholder making the exchange is entitled to receive, bearing numbers not contemporaneously then outstanding. Such registrations of transfers or exchanges of Bonds shall be without charge to the holders of such Bonds, but any taxes or other governmental charges required to be paid with respect to the same shall be paid by the holder of the Bond requesting such registration of transfer or exchange as a condition precedent to the exercise of such privilege. Any service charge made by the Trustee for any such registration, transfer or exchange shall be paid by the Borrower. Except as provided in Section 1001 hereof, the Trustee shall not be required to register any transfer or exchange of any Bond(or portion thereof) during the fifteen-day period next preceding the selection of Bonds for redemption, and from and after notice calling such Bonds (or portion thereof) for redemption or partial mdemption has been given and prior to such redemption, or during the period inclusively between the Record Date and the following Interest Payment Date. 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 either principal or interest shall be made only to or upon the order of the registered owner thereof or its duly authorized attorney, but such registration may be changed as hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. Notwithstanding anything to the contrary contained in this Indenture(including without limitation the purchase of Bonds from the proceeds of the repurchase of Pledged Collateral under the Collateral Agreement), in no event shall Fannie Mae be deemed to be the owner'of any Bonds unless such Bonds have been transferred to, and registered in the name of, Fannie Mae in accordance with the provisions of this Section 211 (including without limitation the provision requiring the written consent of the General Counsel and Controller of Fannie Mae). All Bonds issued upon any transfer or exchange of Bonds shall be legal, valid and binding limited obligations of the Issuer, evidencing the same debt, and entitled to the same security and benefits under this Indenture, as the Bonds surrendered upon such transfer or exchange. In executing any Bond upon any exchange or transfer provided for in this Section, the Issuer may rely conclusively on a representation of the Trustee that such execution is required. Section 212. Cancellation. All Bonds which have been surrendered pursuant to Section 202 or 214 of this Indenture for payment upon maturity or redemption prior to maturity shall be cancelled by the Trustee and shall not be reissued. Cancelled Bonds may be destroyed by the Trustee unless instructions to the contrary are received from the Issuer. Section 213. Ratably Secured. Except as otherwise provided herein with respect to Purchased Bonds, all Bonds issued hereunder are and are to be, to the extent provided in this Indenture, equally and ratably secured by this Indenture without preference, priority or distinction on account of the actual time or times of the authentication or delivery or maturity of the Bonds so that, except as aforesaid, all Bonds at any time outstanding hereunder shall have the same right, lien and preference under and by virtue of this Indenture and shall all be equally and ratably secured hereby with like effect as if they had all been executed, authenticated SF2-34519.2 17 41108-94-MSI.09110194 and delivered simultaneously on the date hereof, whether the same, or any of them, shall actually be disposed of at. such date, or whether they, or any of them, shall be disposed of at some future date. Section 214. Redemption of Bonds. (a) OQgtional Redemption. The Bonds shall be subject to redemption in whole or in part upon optional prepayment by the Borrower of the Mortgage Loan, and with the consent of the Credit Facility Provider rovided that the consent of the Credit Facility Provider shall not be required if all of the Outstanding Bonds are redeemed and the Credit Facility Provider has no further obligation under the Credit Facility or Section 701(c) of this Indenture), at the following times and at the following prices: (i) On any Interest Payment Date during the Weekly Variable Rate Period and on the day after any Reset Period, at a redemption price equal to one hundred percent (100%)of the principal amount redeemed plus accrued interest to the redemption date; (ii) During any Reset Period, on any date during the periods set forth below and at the respective redemption prices set forth below expressed as percentages of the principal amounts of the Bonds called for redemption, such redemption prices declining .5% each year until such redemption price equals 100% of the principal amount of the Bonds. Term of Reset Period No-Call Period Redemption Price No Premium 7 or more years First 5 years after 101.5% 9th year and thereafter Reset Date 5 years or more First 3 years after 101.0% 6th year and thereafter (but less than 7) Reset Date More than 2 years Period up to 2nd 100.5% Final year (but less than 5) year preceding end of Reset Period 2 years or less Up to one year before 100% Final year end of Reset Period Notwithstanding the foregoing, the Borrower and the Remarketing Agent may, not later than ten(10) days before any Reset Date, give notice to the Issuer and the Trustee setting forth a redemption schedule different from that set forth in this paragraph, accompanied by (1) the consent of the provider of the Credit Facility,if any, to be in effect for the ensuing Rate Period, and(2)an opinion of Bond Counsel to the effect that such change will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes; and upon'such notice such redemption schedule shall apply to.any redemption pursuant to this paragraph for such Rate Period, without further action by any party. (iii) During the Fixed Rate Period, on any date during the periods set forth below and at the respective redemption prices set forth below expressed as percentages of the principal amounts of the Bonds called for redemption, such redemption prices declining .5% each year until such redemption price equals 100% of the principal amount of the Bonds. SF2-M19.2 18 41108-24-Msl-09110/94 Term of Fixed Rate Period No-Call Period Redemption Price No Premium 7 or more years First 5 years after 101.5% 9th year and thereafter Conversion Date 5 years or more First 3 years after 101.0% 6th year and thereafter (but less than 7) Conversion Date More than 2 years Period up to 2nd 100.5% Final year (but less than 5) year before Maturity Date 2 years or less Up to one year before 100% Final year Maturity Date Notwithstanding the foregoing, the Borrower and the Remarketing Agent may, not later than ten(10) days before the Conversion Date, give notice to the Issuer and the Trustee setting forth a redemption schedule different from that set forth in this paragraph, accompanied by (1) the consent of the provider of the Credit Facility, if any, to be in effect for the ensuing Rate Period, and(2)an opinion of Bond Counsel to the effect that such change will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes; and upon such notice such redemption schedule shall apply to any redemption pursuant to this paragraph for such Rate Period, without further action by any Ply• (b) Mandatory Redemption. The Bonds are subject to mandatory redemption at any time on the earliest practicable date at a redemption price equal to one hundred percent (100%) of the principal amount of the Bonds to be redeemed plus accrued interest thereon to the redemption date, in accordance with the following: (i) The Bonds shall be subject to mandatory redemption, in whole or in part, to the extent proceeds of insurance or condemnation of the Project are not applied in accordance with Section 9.5 of the Financing Agreement to the rebuilding or restoration or replacement of the Project; provided that, upon a complete destruction or condemnation of the Project(or the destruction of a portion of the Project which is essential to the Borrower's use or possession of the Project or its compliance with the provisions of the Regulatory Agreement), the Bonds shall be redeemed in full and the Trustee shall draw on the Credit Facility to the extent the insurance or condemnation proceeds, as applicable, are insufficient to redeem the Bonds in full. (ii) . During a Reset Period or a Fixed Rate Period, the Bonds shall be subject to mandatory bond sinking fund redemption as provided in Sections 204(f) and 205(f), respectively. (iii) ' During a Weekly Variable Rate Period, the Bonds shall be subject to redemption on any Interest Payment Date from principal payments on the Mortgage Note which have been transferred to the Redemption Account pursuant to Section 404(c) of this Indenture; provided that in no event shall funds be advanced under the Collateral Agreement to redeem Bonds pursuant to this Section 214(b)(iii). (iv) The Bonds shall be subject to redemption in whole or in part in an amount specified by the Credit Facility Provider at the request or with the consent of the Credit Facility Provider following any Event of Default under the Financing Agreement. (v) If Fannie Mae has become the owner of the Project, the Bonds shall be subject to redemption as provided in Section 1002 of this Indenture. se2-34519.2 19 41IM24-MSI-M/10/94 (c) If less than all the outstanding Bonds shall be called for redemption, the Trustee shall select by lot, in such manner as it shall in its discretion determine, the Bonds, or portions thereof in Authorized Denominations, to be redeemed. If there shall be called for redemption less than the entire principal amount of a Bond, the Issuer shall execute and the Trustee shall authenticate and deliver, upon surrender of such Bond, without charge to the holder thereof, in exchange for the unredeemed principal amount of such Bond, at the option of such holder, Bonds of the same maturity, interest rate, principal amount and tenor in any Authorized Denomination. Section 215. Notice of Redemption: Cancellation. Except as provided below, notice of redemption shall be given by the Trustee not less than thirty(30)nor more than forty-five(45) days prior to the date fixed for redemption by first class mail, postage prepaid, to the registered owner of each Bond to be redeemed, at the address of such registered owner shown on the Register; and a second notice of redemption shall be sent by registered or certified mail, at such address, to any Bondholder who has not submitted its Bond to the Trustee for payment on or before the date sixty (60) days following the date fixed for redemption of such Bond, in each case stating: (a) the numbers of the Bonds to be redeemed, by giving the individual certificate number of each Bond to be redeemed (or stating that all Bonds between two stated certificate numbers, both inclusive, are to be rAeemed, or that all of the Bonds of one or more maturities have been called for redemption); (b) the CUSIP numbers of all Bonds being redeemed; (c) in the case of a partial redemption of Bonds, the principal amount of each Bond being redeemed; (d) the date of issue of the Bond as originally issued and the complete official name of the Bonds, including the series designation; (e) the rate or rates of interest borne by each Bond being redeemed; (f) the maturity date of each Bond being redeemed; (g)the place or places where amounts due upon such redemption will be payable; (h) the redemption date and redemption price; and(i) the name, address, telephone number and contact person at the office of the Trustee with respect to such redemption. The notice shall require that such Bonds be surrendered at the Principal Office of the Trustee for redemption at the redemption price and shall state that interest on such Bonds will not accrue from and after the redemption date. C:USIP number identification with appropriate dollar amounts for each C`.USIP number also shall accompany all redemption payments. Notice of such redemption also'shall be sent by the Trustee by first class mail, overnight delivery service or other secure means, postage prepaid, to any registered owner of$1,000,000 or more in aggregate principal amount of Bonds to be redeemed, to certain municipal registered Securities Depositories (described below)which are known to the Trustee to be holding Bonds and to at least two(2) of the national Information Services (described below) that disseminate securities redemption notices, when possible, not later than the mailing of notices required by the first paragraph above. Neither failure to receive notice, as described in either of the two preceding paragraphs, nor any defect in any notice so mailed shall affect the sufficiency of the proceedings for the redemption of such Bonds. Anything to the contrary herein notwithstanding,in the case of a redemption of the Bonds pursuant to Section 214(a), theTrustee shall not give notice of redemption of the Bonds unless and until the Trustee has received either(i) Available Moneys, from a source'other than the Credit Facility, sufficient to pay'the redemption price of the Bonds to be redeemed, or(ii)an agreement by the Credit Facility Provider to make payments under the Credit Facility sufficient to pay such redemption price, or(iii)a combination of the foregoing. Any prepayments received for the redemption of Bonds shall be held in the Redemption Account exclusively for the payment of the redemption price of the Bonds to be redeemed. Moneys on deposit in the Redemption Account shall be invested only in Government Obligations with a term not exceeding the earlier of thirty(30) days from the date of investment of such moneys or the date or dates that moneys therefrom are anticipated to be required. Securities Depositories include: The Depository Trust Company, 711 Stewart Avenue, Garden City, New York 11530, Fax-(516) 227-4039 or 4190; Midwest Securities Trust Company, Capital Structures-Call Notification,440 South LaSalle Street, Chicago, Illinois 60605, Fax-(312)663-2343; Pacific Securities Depository Trust Company, Pacific and Company, P.O. Box 7041, San Francisco, California 94120, Fax-(415) 393-4128; Philadelphia Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia, SF'2-34519.2 20 41108-21-MS1-09/10/94 Pennsylvania 19103, Attention: Bond Department, Fax-(215)496-5058; or, in accordance with the then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories or any such other depositories as the Issuer may designate in writing to the Trustee. Information Services include: Financial Information,Inc. "Daily Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey prior to the notice date, 07302, Attention: Editor; Kenny Information Services, "Called Bond Service," 65 Broadway, 16th Floor, New York, New York 10004; 1Moody's Investors Service "Municipal and Government," 99 Church Street, 8th Floor, New York, New York 10007, Attention: Municipal News Reports; and Standard and Poor's Ratings Group "Called Bond Record," 25 Broadway, New York, New York 10004; or, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other services providing information with respect to called bonds, or any other such services as the Issuer may designate in writing to the Trustee. Notice of redemption having been given in the manner provided above, and money sufficient for the mdemption being held by the Trustee for that purpose, the Bonds so called for redemption shall become due and payable on the redemption date, and interest thereon shall thereafter cease to accrue; and the holders of the Elonds so called for redemption shall thereafter no longer have any security or benefit under this Indenture except to receive paymentof the redemption price for such.Bonds. Notwithstanding notice having been given as aforesaid, any redemption of Bonds pursuant to Section 214(a)may be cancelled if as of the date fixed for redemption the Trustee does not have Available Moneys on deposit hereunder sufficient and available to pay the redemption price of such Bonds. Section 216. Book-Entry Only System. It is intended that the Bonds, other than Purchased Bonds, be registered so as to participate in a securities depository system with DTC (the "DTC System"), as set forth herein. The Bonds shall be delivered on the Effective Date in the form of a separate single fully registered Bond. The Issuer and the Trustee are authorized to execute and deliver such letters to or agreements with DTC as shall be necessary to effectuate the DTC System, including a representation letter in the form required by DTC (the "Representation Letter"). In the event of any conflict between the terms of any such letter or agreement, including the Representation Letter, and the terms of'this Indenture, the terms of this Indenture shall control. DTC may exercise the rights of a Bondholder only in accordance with the terms hereof applicable to the exercise of such rights. With respect to Bonds registered in the Register in.the name of Cede & Co., as nominee of DTC, the Issuer, the Trustee, the Credit Facility Provider, the Tender Agent and the Borrower shall have no responsibility or obligation to any broker-dealer, bank or other financial institution for which DTC holds Bonds from time to time as securities depository (each such broker-dealer, bank or other financial institution being referred to herein as a "DTC Participant") or to any person on behalf of whom such a DTC Participant directly or indirectly holds an interest in the Bonds(each such person being herein referred to as an "Indirect Participant"). Without limiting the immediately preceding-sentence, the Issuer, the Trustee, the Credit Facility Provider, the Tender Agent and the Borrower shall have no responsibility or obligation with respect to (a) the accuracy. of the records of DTC, Cede &Co. or any DTC Participant with respect to any ownership interest in the Bonds, (b) the delivery to any DTC Participant or any Indirect Participant or any other person, other than a Bondholder, as shown in the Register, of any notice with respect to the Bonds, including any notice of redemption, (c) the payment to any DTC Participant or Indirect Participant or any other Person, other than a Bondholder, as shown in the Register, of any amount with respect to principal of, premium, if any, or interest o:a, the Bonds or(d)any consent given by DTC as registered owner.. So long as certificates for the Bonds are not issued pursuant to Section 217, the Issuer, the Borrower, the Credit Facility Provider, the Tender Agent and the Trustee may treat DTC or any successor securities depository as, and deem DTC or any successor securities depository to be, the absolute owner of the Bonds for all purposes whatsoever, including without limitation (1) the payment of principal and interest on the Bonds, (2)giving notice of redemption and other matters with respect to the Bonds, (3)registering transfers with respect to the Bonds and.(4)the selection of Bonds for redemption. While in the DTC System, no person other than Cede& Co., or any successor thereto, as nominee for DTC, shall receive a Bond certificate with respect to any Bond. Notwithstanding any other SM-34519.2' 21 41108-24-MS1-09/10/94 provision of this Indenture to the contrary, so long as any of the Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Bonds and all notices with respect to such Bonds shall be made and given, respectively, in the manner provided in the Representation Letter. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Indenture with respect to interest checks being mailed to the registered owner at the close of business on the Record Date applicable to any Interest Payment Date, the name "Cede& Co." in this Indenture shall refer to such new nominee of DTC. Section 217. Successor Securities Depository: Transfers Outside Book-Entry Only System. DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving written notice to the Issuer, the Remarketing Agent, the Tender Agent and the Trustee and discharging its msponsibilities with respect thereto under applicable law. The Issuer or the Borrower, with the consent of the other, but without the consent of any other person, may terminate the services of DTC with respect to the Bonds. Without the consent of or other action by the Issuer, the Borrower may terminate the services of DTC if the Tender Agent ceases to be a DTC Participant and is not replaced by a Tender Agent which is a Participant. Upon the discontinuance or termination of the services of DTC with respect to the Bonds pursuant to the foregoing provisions,unless a substitute securities depository is appointed to undertake the functions of DTC hereunder, the Issuer, at the expense of the Borrower, is obligated to deliver Bond certificates to the Beneficial Owners of the Bonds, as described in this Indenture, and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of Cede & Co. as nominee of DTC, but may be registered in whatever name or names Registered Owners transferring or exchanging Bonds shall designate to the Trustee in writing, in accordance with the provisions of this Indenture. The Issuer may determine that the Bonds shall be registered in the name of and deposited with a successor depository operating a securities depository system, qualified to act as such under Section 17(a) of the Securities Exchange Act of 1934, as amended, as may be acceptable to the Issuer, or such depository's agent or designee. Purchased Bonds shall not be held in the Book-Entry System, but shall be registered and held as provided in Section 1004 hereof. ARTICLE III Seeuri Section 301. Security and Pledge of Security. The Bonds and the interest thereon shall be special, limited obligations of the Issuer as provided in Section 206 of this Indenture,and shall be secured by and payable only from the Security, which is hereby pledged(i) to the Trustee for the benefit of the Bondholders for the payment of the principal of and interest on the Bonds in accordance with the terms and provisions of this Indenture, and, (ii)except for the Credit Faciliy, for the benefit of the Credit Facility Provider for the payment of all amounts owing to it under the Financing Agreement and the Credit Facility,Agreement, to the extent the Credit Facility Provider has made payment with respect to the Bonds, jrovided, however, that the Credit Facility and the proceeds thereof shall not secure or provide liquidity for Bonds during any period they are Purchased Bonds, and provided further that the Mortgage Loan, including the Principal Payment Fund, is, as set forth in the Collateral Agreement, subject to assignment to, and at the direction of, Fannie Mae. This pledge shall be valid and binding from and after the date of execution of this Indenture and the Security hereby pledged shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act and the lien of such pledge shall be valid and binding as against all parties having claims of any kind in tort, aontract or otherwise against the Issuer, irrespective of whether such parties have notice thereof. Upon assignment and delivery of the Mortgage Loan to the Trustee and at all times during which such assignment is effective, the Trustee shall receive and hold the original Mortgage Note, duly endorsed to the SF'2-34519.2 22 41109-24-MSI-09/10/94 Trustee, an executed copy of the recorded Mortgage and the originals(or, where recorded, executed copies) of all other Mortgage Loan Documents. Section 302. Payment of Bonds and Performance of Covenants. The Issuer shall promptly pay or cause to be paid, but only out of the Security, the principal of and interest on the Bonds at the place, on the dates and in the manner provided in the Bonds. The Issuer shall promptly perform and observe all covenants, undertakings and obligations set forth herein, in the Financing Agreement or in the Bonds on its part to be performed or observed. The Issuer agrees that the Trustee in its name or in the name of the Issuer may enforce against the Borrower or any Person any rights of the Issuer under or arising from the Bonds or the Bond Documents whether or not the Issuer is in default hereunder or under the Financing Agreement, but the Trustee shall not be deemed to have hereby assumed the obligations of the Issuer under the Financing Agreement, but rather shall have no obligations under the Financing Agreement except as specifically provided therein. The Issuer shall fully cooperate with the Trustee in the enforcement by the Trustee of any such rights. At the request of the Trustee, the Issuer, upon being indemnified to its reasonable satisfaction against all liability, costs and expenses which may be incurred in connection therewith, shall in its name commence legal action or take such other actions as the Trustee shall reasonably request to enforce the rights of the Issuer or the Trustee under or arising from the Bonds or the Bond Documents. Notwithstanding any provision contained in this Indenture, the Bonds, the Mortgage Loan Documents, the Financing Agreement or any related document, the Issuer shall not be required to advance any moneys derived from any source other than the Security for any of the purposes of this Indenture, the Bonds, the Mortgage Loan, the Financing Agreement or any such related document, whether for the payment of the principal or redemption or purchase price of, or interest on, the Bonds,the payment of administrative expenses (including Trustee's fees and expenses) or for any other purpose of this Indenture, the Bonds, the Mortgage Loan, the Financing Agreement or any such related document. Section 303. Further Assurances. The Issuer covenants that it will,at the sole expense of the Borrower, cooperate to the extent necessary with the Borrower, the Trustee and the Credit Facility Provider (subject to Section 704 hereof) in their defenses of the Security against the claims and demands of all Persons, mad will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, financing statements, documents,instruments and transfers as the Trustee or the Credit Facility Provider may reasonably request to perfect and maintain perfected the security interest in the Security. The Issuer shall not agree to any amendment, modification, supplement, waiver or consent with respect to the Financing Agreement without the prior written consent of the Trustee and the Credit Facility Provider(subject to Section 704 hereof), which consent shall be governed by Article VIII of this Indenture. Notwithstanding anything contained herein to the contrary, (a) the Issuer expressly reserves its right to exercise its Reserved Rights without obtaining the,consent or approval of the Borrower, the Trustee or the Credit Facility Provider, and (b)nothing herein contained shall be construed as a waiver or relinquishment of the Issuer's Reserved Rights. The Issuer shall execute and the Trustee shall do, execute, acknowledge and deliver, such indentures supplemental hereto, and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, conveying,pledging, assigning and confirming unto the Trustee all of its interest in the property herein described and the revenues, receipts and other amounts pledged hereby to the payment of the principal of, premium, if any, and interest on the Bonds. Any and all interest in property hereafter acquired which is of any kind or nature herein provided to be and become subject to the lien hereof, including, without limitation, the Mortgage Loan, shall and without any further conveyance, assignment or act on the part of the Issuer or the Trustee, become and be subject to the lien of this Indenture as fully and a*mpletely as though specifically described herein, but nothing contained in this sentence shall be deemed to modify or change the obligations of the Issuer under this Section. Section 304. No Other Encumbrances. The Issuer covenants that, except as otherwise provided herein and in the Financing Agreement, it will not sell, convey, mortgage, encumber or otherwise dispose of may portion of the Security. SF234519.2 23 41108-24-MSl-09/10/94 Section 305. Possession and Inspection of the Mortgage Loan. (a) The Trustee shall hold the Mortgage Loan for the benefit of the Bondholders and the Credit Facility Provider. The Trustee covenants and agrees that all books and documents in its possession relating to the Mortgage Loan and all records regarding the receipt and distribution of payments on the Mortgage Loan shall be open to inspection at reasonable times and upon reasonable notice by the Issuer, the Borrower and the Credit Facility Provider or by such accountants or other agents as the Issuer, the Borrower or the Credit Facility Provider may from time to time designate. (b) The Issuer, the Trustee and the Credit Facility Provider(so long as the Credit Facility is in effect and the Credit Facility Provider is not in default thereunder) shall have the right, at any time and from time to time, during business hours, and upon five (5)day's notice to the Borrower, to examine and audit any and all of the Borrower's records or accounts pertaining to the Project, the Mortgage Loan, the Financing Agreement, the Regulatory Agreement and this Indenture and the Borrower's compliance with the terms and conditions of the Mortgage Loan, the Financing Agreement, the Regulatory Agreement and this Indenture. The Issuer, the Trustee and the Credit Facility Provider(so long as the Credit Facility is in effect and the Credit Facility Provider is not in default thereunder) shall have the right to require the Borrower to furnish such documents to the Issuer, the Trustee and the Credit Facility Provider at the Borrower's expense, as the Issuer, the Trustee or the Credit Facility Provider, as the case may be, from time to time, deems reasonably necessary in order to determine that the provisions of the Mortgage Loan, the Financing Agreement, the Regulatory Agreement and this Indenture have been complied with, and, in the case of the Issuer, to satisfy any statutory record-keeping requirements of the Issuer. Section 306. Acknowledgements With Respect to Financing Agreement. The Issuer and the Trustee acknowledge and agree to the matters set forth in Sections 11.2(c)and (d) and 11.3(b) of the Financing Agreement. Section 307. No Disposition of Mortgage Loan, Substitution. (a) The Trustee shall not, without the prior written consent of the Credit Facility Provider, dispose of the Mortgage Loan other'than to the Credit Facility Provider as provided in the Credit Facility Agreement. (b) Upon receipt of written notice from the Credit Facility Provider and the approval of the Issuer, the Trustee shall exchange the Mortgage Loan for a new mortgage loan on the Project which may be executed by a person other than the Borrower (the "New Borrower"); provided that if the Credit Facility Provider or its nominee has acquired the Project through foreclosure, by accepting a deed in lieu of foreclosure or by comparable conversion of the Project, no approval from the Issuer shall be required. Except in the event of a transfer of the Project to Fannie Mae in accordance with Section 3.13 of the Collateral Agreement, prior to accepting a new mortgage loan, the Trustee shall have (i)received written evidence that the New Borrower shall have executed and recorded a document substantially in the form of the Regulatory Agreement (or executed and recorded an assumption of all of the Borrower's obligations under the Regulatory Agreement) and that the Credit Facility Agreement and the Credit Facility, if required, have been modified to be applicable to the new mortgage loan, (ii)received from each Rating Agency written confirmation that the rating to be in effect with respect to the Bonds from and after delivery to the Trustee of the new mortgage loan and the modified Credit Facility Agreement and the Credit Facility will not be lower than the rating then in effect for the Bonds, (iii)received an opinion of Bond Counsel, to the effect that such exchange and modification, in and of itself, shall not affect the exclusion of interest payable on the Bonds from gross income for federal income tax purposes and(iv) from the Issuer, the consent(if any)required by the Regulatory Agreement or the Financing Agreement. In addition, if the substitution has resulted in an amendment of(or other modification to) the Credit Facility Agreement or the Credit Facility, the Trustee shall receive from the Credit Facility Provider an opinion of counsel to the Credit Facility Provider, who may be an employee of the Credit Facility Provider, to the effect that the modified Credit Facility Agreement and Credit Facility are valid and binding obligations of the Credit Facility Provider, subject to any applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors' generally, and general equitable principles. SIF2-34519.2' 24 41108-24-MS1-09/10/94 Section 308. No Disposition of Credit Facility or Collateral. (a) The Trustee shall not, without the prior written consent of the owners of all of the Bonds then Outstanding, transfer, assign or release the Credit Facility except(i) to a successor Trustee, or(ii) to the Credit Facility Provider either(1)upon receipt of an Alternate Credit Facility, or(2)upon expiration or other termination of the Credit Facility in accordance with its terms, including termination on its stated expiration date or upon payment thereunder of the full amount payable thereunder. Except as aforesaid, the Trustee shall not mlease or discharge the Credit Facility from the lien of this Indenture until the principal of and interest on the Bonds shall have been paid or duly provided for in accordance with the terms of this Indenture. (b) Except as expressly provided in the Collateral Agreement, the Trustee shall not dispose of any of its interest in the Pledged Collateral (as defined in the Collateral Agreement) unless Fannie Mae shall have defaulted in payment under the Collateral Agreement. Section 309. Accounts and Reports. (a) The Trustee, on behalf of the Issuer, shall keep, or cause to be kept, proper books of record and account in which complete and accurate entries shall be made of all of its transactions relating to the Bonds, the Mortgage Loan, the Credit Facility and all Permitted Investments, including without limitation,payments made under the Mortgage Loan and all funds and accounts established by or held pursuant to this Indenture, which shall at all reasonable times be subject to the inspection of the Issuer, the Credit Facility Provider, the Borrower, the Servicer (as to the Mortgage Loan only)or Bondholders holding an aggregate principal amount of not less than ten percent (10%) of Bonds then Outstanding or their representatives duly authorized in writing. (b) The Trustee shall comply with any reasonable request in writing by a Rating Agency for information in its possession regarding the Bonds which such Rating Agency requests in order to review its rating on the Bonds. Further, the Trustee shall comply with any reasonable request by Bondholders holding not less than ten percent (10%)of the principal amount of the Bonds then Outstanding for information in its possession regarding the Bonds, the Mortgage Loan, the Credit Facility or the Project. Section 310. Enforcement of Obligations. (a) Subject to the provisions of Section 306 of this Indenture, the Trustee, on behalf of the Issuer, if the same is in the best interests of the Bondholders, or on behalf of the Bondholders, shall diligently enforce any and all rights and take all reasonable steps, actions and proceedings as the Trustee in its sole judgment shall deem necessary and reasonable to enforce the terms, covenants and conditions of the Credit Facility, the Regulatory Agreement and the Financing Agreement. All affidavits,notices, certificates and schedules received by the Trustee from the Borrower may in good faith be relied upon by the Trustee and shall be maintained in its possession subject at all times during normal business hours to inspection by the Issuer and the Credit Facility Provider. (b) In the event that the Trustee shall fail to receive a Required Mortgage Payment (as defined in the Collateral Agreement) under.the Mortgage Loan by 3:00 p.m. Trustee Time on the Business Day following the date on which the Required ortgage Payment is due, the Trustee shall notify Fannie Mae, as provided in the Collateral Agreement, and shall proceed in accordance with the terms of the Collateral Agreement. Section 311. Maintenance of Lien on Trust Estate. To the extent possible under applicable law, as ns effect in the jurisdiction(s)in which the Trust Estate is located, the Issuer will maintain the priority of the security interest herein created in the Trust Estate as a fust lien thereon, and warrant, protect, preserve and defend its interest in the Trust Estate and the security interest of the Trustee therein and all rights of the Trustee under this Indenture against all actions, proceedings, claims and demands of all Persons, all paid for solely from the Trust Estate. Notwithstanding the foregoing, to the extent that Fannie Mae is not in default under the Collateral Agreement, the Trustee shall not take any further action with respect to its interest in the Pledged Collateral'(as defined in the Collateral Agreement) pursuant to this Section. S:F2-34519.2 25 41108-24-MS1-09/10/94 Section 312. No Modification of Security; No Additional Indebtedness. The Issuer expressly reserves the right to adopt one or more general or special bond resolutions or to enter into one or more other indentures for any of its purposes including the issuance of bonds for other multifamily rental housing developments similar to the Project and reserves the right to issue other obligations so long as any such resolution, indenture or obligation is not a charge or lien prohibited by this Indenture. The Issuer shall not, without the prior written consent of the Trustee and the Credit Facility Provider(so long as the Credit Facility is in effect and the Credit Facility Provider is not in default thereunder), alter, modify or cancel, or agree to consent to alter, modify or cancel any agreement which relates to or affects the security for the Bonds. The Issuer shall not incur any additional indebtedness having a lien on the Security prior to or on a parity with the Bonds. ARTICLE IV Funds Section 401. General Receipts Fund. There is hereby created and established with the Trustee a special fund to be designated the "General Receipts Fund." There are hereby established and created within the General Receipts Fund four(4) separate accounts,designated the "Credit Facility Account," the "Interest Account", the "Redemption Account" and the "Fees Account". There are hereby established and created within the Credit Facility Account three(3) separate subaccounts, designated the "Principal Subaccount," "Pass- Through Rate Subaccount" and the "Specified Fees Subaccount." Except as provided in Section 403 hereof, all amounts derived from the Credit Facility(A) in respect of principal payments on the Mortgage Loan shall be deposited in the Principal Subaccount, (B) in respect of payments'of the Pass-Through Rate shall be deposited in the Pass-Through Rate Subaccount and(C) in respect of payments of the Fixed Rate shall be deposited in the Specified Fees Subaccount. No other moneys shall be deposited in the Credit Facility Account. There shall be deposited into the Interest Account any interest earned on or profits realized from Permitted Investments(except for Permitted Investments with respect to the Rebate Fund and the Principal Payment Fund), the portion of the interest payments on the Mortgage Loan representing the Pass-Through Rate, and any other moneys made available for deposit in such account from any other source (including any amounts deposited in respect of the Minimum Reserve Amount). Prepayments on the Mortgage Loan and all transfers from the Principal Payment Fund in accordance with Section 404(c)shall be deposited into the Redemption Account. There shall be deposited into the Fees Account the portion of the interest payments on the Mortgage Loan representing the Specified Fees. Moneys in the General Receipts Fund shall be applied in the following manner and order of priority: (a) On each Interest Payment Date, the Trustee shall withdraw from the Interest Account an amount equal to the amount of interest due on the Bonds on such date, and shall cause such amount to be applied to the payment of such interest so due. On each Redemption Date, date of acceleration of the Bonds and Maturity Date, the Trustee shall withdraw from the Redemption Account an amount equal to the amount of principal due on the Bonds on such date(other than as a result of a mandatory bond sinking fund redemption pursuant to Section 204(f) or 205(f)hereof), and shall cause such amount to be applied to the payment of such principal so due. Should the amount in the Interest Account or the Redemption Account, as the case may be, be insufficient to pay the amount due on the Bonds, the Trustee shall first apply amounts in the Principal Payment Fund and second shall apply amounts in the Pass-Through Rate Subaccount or the Principal Subaccount, as applicable, of the Credit Facility Account for such purpose; provided, that if there are any Purchased Bonds, amounts in the Interest Account and Principal Payment Fund shall be applied first to the Bonds other than the Purchased Bonds and thereafter to the Purchased Bonds; provided further that in no event shall amounts in the Credit Facility Account (or any subaccount thereof)be applied to the payment of principal of, or interest on, any Purchased Bonds. SF2-34519.2 26 41105-94-MS1-09/10/94 (b) Ch1 any date on which any amounts are required by applicable federal tax law to be rebated to the federal government, amounts shall be withdrawn by the Trustee from the Interest Account and deposited into the Rebate Fund for such purpose. (c) From time to time on each date on which the applicable Specified Fees are required to be paid, the Trustee shall withdraw from the Fees Account the amounts required to be paid by the Trustee pursuant to Sections 4.9 of the Financing Agreement in respect of the Specified Fees and cause such amounts to be applied to the payment of such Specified Fees. Should.the amount in the Fees Account be insufficient to pay the Specified Fees, the Trustee shall apply amounts in the Specified Fees Subaccount of the Credit Facility Account for such purpose and, to the extent the sum of the amounts in the Fees Account and the Specified Fees Subaccount are insufficient to pay the Specified Fees, the Trustee shall send notice to the Borrower of such insufficiency and the Borrower shall promptly pay the amount of such insufficiency for application to the Specified Fees. (d) On the last scheduled Interest Payment Date of each calendar year (but prior to making the interest payment required on such Interest Payment Date), the Trustee shall transfer to the Servicer, for application in accordance with the provisions of the Servicing Agreement, an amount equal to the difference between(i) the aggregate amount on deposit in the Interest Account on such date and(ii)the sum of the Minimum Reserve Amount plus the amount of the interest payment required to be made on such Interest Payment Date in respect of the period from and including the immediately preceding Interest Payment Date to and including the last day of the month immediately preceding the applicable Interest Payment Date. Provided that the rebate requirements referenced in the Tax Certificate are first satisfied, any amounts mmaining in the General Receipts Fund or the Principal Payment Fund after payment in full of the principal and interest on the Bonds shall be applied to pay (i) first to the Credit Facility Provider any amounts certified by the Credit Facility Provider to be due and owing to the Credit Facility Provider and unpaid under the Credit Facility Agreement or the Financing Agreement, (ii) second to the person entitled thereto, all'other amounts required to be paid under this Indenture or the Financing Agreement, and(iii)third to the Borrower the balance upon the expiration or sooner cancellation or termination of the term of the Financing Agreement as provided in the Financing Agreement. With respect to amounts required to be paid to the Credit Facility Provider under the Credit Facility Agreement or the Financing Agreement, amounts remaining in the General Receipts Fund shall be paid to the Credit Facility Provider up to an amount equal to the amount set forth in a written certification firom the Credit Facility Provider to the Trustee stating the amount owing to the Credit Facility Provider under the Credit Facility Agreement or the Financing Agreement. Section 402. Reserved. Section 403. Bond Purchase Fund. The Trustee shall cause the Tender Agent to establish and maintain, so long as any Bonds are Outstanding and have not been converted to the Fixed Interest Rate, a separate fund to be known as the "Bond Purchase Fund". Subject to the provisions of Sections 404 and 1004, there shall be deposited into the Bond Purchase Fund from time to time the following: (a) remarketing proceeds received upon the remarketing pursuant to the Remarketing Agreement of Tendered Bonds to any person other than the Borrower, any partner of the Borrower or the Issuer; (b) remarketing proceeds received from the Remarketing Agent or purchaser (other than . the Borrower, any partner of the Borrower or the Issuer) of Tendered Bonds upon the adjustment to a Reset Rate or the conversion of the interest rate thereon to the Fixed Interest Rate; (c) amounts transferred from the Principal Payment Fund to the extent that moneys obtained pursuant to (a) or(b) above are insufficient on any date to pay the purchase price of Tendered Bonds; SI?2-34519.2 27 41108-24-MSI-09/10/94 (d) moneys obtained by the Trustee pursuant to the Credit Facility then in effect to enable the Trustee to pay the purchase price of Tendered Bonds to the extent that moneys obtained pursuant to (a), (b) or (c) above are insufficient on any date to pay the purchase price of Tendered Bonds; and (e) Available Moneys from the Borrower to the extent that moneys obtained pursuant to (a), (b), (c) or(d)above are insufficient on any date to pay the purchase price of Tendered Bonds. Subject to the provisions of Section 701(e) of this Indenture permitting reimbursement of amounts owed to the Credit Facility Provider, moneys in the Bond Purchase Fund shall be held exclusively for the payment of the purchase price of Tendered Bonds or Bonds to be redeemed pursuant to Section 1002 hereof Moneys on deposit in the Bond Purchase Fund shall be invested only in Government Obligations with a term not exceeding the earlier of(i)30 days from the date of investment of such moneys or(ii) the date or dates that moneys therefrom are anticipated to be required. Amounts held to pay the purchase price for more than two (2)years shall be applied in the same manner as provided under Section 409 hereof with respect to unclaimed payments of principal and interest. Section 404. Principal Payment Fund. (a) There is hereby created and established a special fund to be designated the "Principal Payment Fund". The.Trustee hereby accepts the assignment of the Principal Payment Fund as part of the Mortgage Loan. The Principal Payment Fund shall be held by the Trustee unless and until such fund is assigned to Fannie Mae as set forth below. There shall be deposited into the Principal Payment Fund all of the monthly payments made in accordance with the Principal Payment Schedule attached to the Financing Agreement and designated for deposit to the Principal Payment Fund as required by Section 4.7 of the Financing Agreement and any interest earned on or profits realized from amounts on deposit in the Principal Payment Fund. In addition, remarketing proceeds shall be deposited into the Principal Payment Fund xi described in Section 1004 hereof, in the event amounts are withdrawn from the Principal Payment Fund to purchase Bonds on any optional or mandatory tender date and such Bonds are subsequently remarketed. (b) Subject to the provisions of Section 404(c)of this Indenture, amounts in the Principal Payment Fund shall be used to pay, in the following order of priority: (1) the principal of the Bonds due on any Principal Payment Date in connection with a mandatory bond sinking fund redemption; (2) principal of and interest on the Bonds in the event there is an insufficient amount on deposit in the Interest Account or the Redemption Account, as applicable, to pay principal of and interest due on the Bonds on any Interest Payment Date, Redemption Date, date of acceleration or Maturity Date; (3) the purchase price of Tendered Bonds or Bonds to be redeemed pursuant to Section 1002 hereof to the extent that remarketing proceeds pursuant to(a) or(b) of Section 403 of this Indenture are insufficient for such purpose; provided that if the Trustee shall obtain moneys pursuant to the Credit Facility to pay the purchase price of Tendered Bonds or Bonds to be redeemed pursuant to Section 1002 hereof, any amounts then or thereafter on deposit in the Principal Payment Fund shall be withdrawn from the Principal Payment Fund by the Trustee and paid to the Credit Facility Provider to reimburse the Credit Facility Provider for moneys made available under the Credit Facility; and provided further that the Principal Payment Fund shall be assigned to Fannie Mae, at any time, upon assignment of the Mortgage Loan to Fannie Mae, as set forth in the Collateral Agreement. (c) If the aggregate amount on deposit in the Principal Payment Fund on any date (which date occurs during a Weekly Variable Rate Period and which is not less than 35 nor more than 45 days prior to any Interest Payment Date) equals or exceeds $100,000, the Trustee shall, unless the Credit Facility Provider has notified the Trustee in writing not to take action pursuant to this Section 404(c), (i) transfer to the Redemption Account an amount equal to the amount on deposit in the Principal Payment Fund(rounded downward to the nearest integral multiple of$100,000)and (ii) give notice pursuant to Section 215 of this Indenture of a S1F2-34519.2 28 41108-2-MS1-09/10/94 nAemption pursuant to Section 214(b)(iii)in an amount equal to the aggregate amount so transferred to the Redemption Account. (d) During a Reset Period or a Fixed Rate Period, any amount earned as interest which is on deposit in the Principal Payment Fund on the last Principal Payment Date of a year (after giving effect to the payments of principal and interest required to be made on such date) shall be retained in the Principal Payment Fund and credited against the next principal payment required to be made by the Borrower on the Mortgage Loan as provided in Section 4.6 of the Financing Agreement. Section 405. Records. The Trustee, with respect to the General Receipts Fund, including the Interest Account, the Fees Account, the Redemption Account and the Credit Facility Account, the Bond Purchase Fund, die Principal Payment Fund and the Rebate Fund, shall cause to be kept and maintained adequate records pertaining thereto and all disbursements therefrom. The Trustee shall file at least an annual accounting thereof with the Issuer, the Credit Facility Provider and the Borrower. Subject to reasonable notice, the Issuer, the Borrower, the Credit Facility Provider and their duly authorized agents shall have the right at all reasonable times to enter the offices of the Trustee to inspect and audit the books of the Trustee as they relate to the duties and trusts imposed under this Indenture, and the Issuer, the Borrower and the Credit Facility Provider and their duly authorized agents may make copies of any such records. No such statement need be rendered pursuant to the provisions hereof if no activity occurred in the fund or account during such preceding month. Section 406. Investments. Moneys held as part of the General Receipts Fund, the Principal Payment Fund and the Rebate Fund shall be invested and reinvested in Permitted Investments (subject to the limitations set forth in the Financing Agreement); provided, that such investments shall have maturities equal to the lesser of six(6)months or the date upon which such moneys will be needed;and provided, further, that amounts derived from the Credit Facility and moneys on deposit in the Bond Purchase Fund must be held uninvested or invested in Government Obligations with maturities equal to the lesser of thirty(30)days or the dates upon which such moneys will be needed. The Permitted Investments shall be held by or under the control of the Trustee. All interest accruing thereon and any income realized from Permitted Investments (except for Permitted Investments with respect to the Rebate Fund and the Principal Payment Fund) shall be deposited in file Interest Account of the General Receipts Fund as provided in Section 401 hereof. The Trustee is authorized to cause to be sold and reduced to cash a sufficient amount of Permitted Investments whenever the cash balance is or will be insufficient to make a requested or required disbursement. The Trustee shall not be accountable for any depreciation in the value of any Permitted Investment or for any loss resulting from such sale. The Trustee, when authorized by the Borrower, may trade with itself and its affiliates in the purchase and sale of securities for such investments. The Trustee and its affiliates may act as principal, agent, sponsor, advisor or depository with respect to any investments. All Permitted Investments shall be made by the Trustee, at the written direction of the Borrower, subject to the limitations contained herein. All amounts on deposit in the Principal Payment Fund shall be invested in Permitted Investments at the written direction of the Credit Facility Provider subject to the restrictions of the Tax Certificate. If no direction is provided to the Trustee, the Trustee will invest such moneys (other than moneys on deposit in the Principal Payment Fund which shall be invested as set forth in the Tax Certificate)in investments described in clause (c) of the definition of Permitted Investments, subject to the limitations contained herein(including,without limitation, the requirements contained in the proviso to the first sentence of this paragraph). In computing the amount in any fund or account held by the Trustee under the provisions of this vndenture, Permitted Investments if purchased at par shall be valued at principal cost plus accrued interest, or, if purchased at other than par, at principal cost plus amortized discount or less amortized premium_(amortization to be on a straight-line basis to the date of stated maturity without regard to redemptions or repayments of principal which may occur prior thereto)plus accrued interest. Notwithstanding the foregoing, if a Permitted Lnvestment is scheduled to mature, or if it can be redeemed or otherwise reduced to cash at the option of the Trustee, within one hundred eighty-five(185) days from the date of valuation, it shall be valued at principal cost plus accrued interest. SF2-34519.2 29 41109-94-MS1-09/10194 Section 407. General Tax Covenant. (a) The Issuer shall at all times do and perform all acts and things necessary or desirable in order to assure that interest paid on the Bonds shall, for the purposes of federal income taxation,be excluded from the gross income of the owners thereof pursuant to Section 103 of the Code, except in the event where such owner of the Bonds is a "substantial user" of the facilities financed with the Bonds or a "related person" within the meaning of the Code. (b) The Issuer shall not take any action which if taken, or fail to take any action which if not taken, would cause the Bonds to violate any of the restrictions contained in the Code which could affect the exclusion of the interest on the Bonds from the gross income of the owners thereof for purposes of federal income taxation pursuant to Section 103 of the Code. (c) The Issuer shall not use, or permit to be used, any proceeds of the Bonds or any other moneys of the Issuer, directly or indirectly, to acquire any securities, obligations or other investment property, the acquisition of which would cause any Bond to be an "arbitrage bond" as defined in Section 148(a) of the Code. (d) The Issuer agrees that the Tax Certificate will require the Borrower not to commit any act or not to make any use of the proceeds of the Bonds, or any other moneys which may be deemed to be proceeds of the Bonds pursuant to the Code, which would cause the Bonds to be "arbitrage bonds" within the meaning of the Code, and to comply with the requirements of the Code throughout the term of the Bonds. The Issuer agrees that the Tax Certificate will require the Borrower not to commit any act that would cause the Bonds to be "arbitrage bonds" within the meaning of the Code. The Trustee covenants that, while recognizing that moneys on deposit in the Principal Payment Fund will be invested at the direction of the Credit Facility Provider, should the Issuer file with the Trustee, or should the Trustee receive, an opinion of Bond Counsel to the effect that any proposed investment or other use of proceeds of the Bonds would cause the Bonds to become "arbitrage bonds," then the Trustee will comply with any instructions of the Issuer or the Issuer's counsel regarding such investment or use so as to prevent the Bonds from becoming "arbitrage bonds," and the Trustee will bear no liability to the Borrower, the Bondholders or the Credit Facility Provider for investments made in accordance with such instructions. Section 408. Compliance with Tax Certificate: Rebate Fund. (a) The Issuer and the Trustee hereby agree to comply with the requirements of the Tax Certificate, which is incorporated herein and made a part hereof as if fully set forth herein, and by its acceptance of this Indenture the Trustee acknowledges receipt of the Tax Certificate and acknowledges its incorporation herein by reference and agrees to comply with the provisions hereof and thereof. This covenant shall survive payment in full or defeasance of the Bonds. (b) There is hereby established and created a special fund designated as the "Rebate Fund" to be held and applied as provided in the Tax Certificate. Within thirty(30) days after the end of every fifth Bond Year (as defined in the Tax Certificate), and within fifty-five(55) days after the date on which no Bonds are outstanding, the Trustee shall request,the Borrower to deliver,to the Trustee and the Issuer a certificate stating whether any rebate payment is required to be made, as set forth in the Tax Certificate, and to deliver to the Trustee any amount so required to be paid. Section 409. Nonpresentment of Bonds. In the event any Bonds shall not be presented for payment when the principal thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise, if amounts sufficient to pay such Bonds shall have been made available to the Trustee for the benefit of the holder thereof and shall have remained unclaimed for two(2)'years after,such principal has become due and payable, such amounts shall be paid to the Issuer; and all liability of the Issuer to the holder thereof for the payment of such Bond shall forthwith cease, determine and be completely discharged; Provided, however, that the Trustee, before being required to make any such payment to the Issuer, may cause to be published once in a financial newspaper or journal of general circulation in New York, New York, notice that such moneys remain SF2-34519.2 30 41108-24-MSl-09/10/94 unclaimed and that, after a date specified therein, which shall not be less than thirty(30)days from the date of such publication,any unclaimed balance of such moneys then remaining will be paid to the Issuer. The cost of such publication shall be paid from the unclaimed amounts so held by the Trustee. The obligation of the Trustee under this Section to pay any such amounts to the Issuer shall be subject to any provisions of law applicable to the Trustee or to such amounts providing other requirements for disposition of unclaimed property. ARTICLE V Discharge of Lien Section 501. Discharge of Lien and Security Interest. Upon payment in full of the Bonds, and mceipt by the Trustee of a statement from the Credit Facility Provider stating that all amounts owed to the Credit Facility Provider pursuant to the Credit Facility Agreement and the Financing Agreement have been paid, this Indenture and the pledge and assignment hereunder shall cease, and thereupon the Trustee, upon receipt by the Trustee of an Opinion of Counsel stating that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with, shall cancel and discharge this Indenture and the pledge and assignment hereunder, and shall execute and deliver to the Issuer such instruments in writing as shall be required to cancel and discharge this Indenture and the pledge and assignment hereunder and reconvey to the Issuer the Security, other than the Credit Facility which shall be delivered to the Credit Facility Provider, and assign and deliver to the Issuer so much of the Security as may be in its possession or subject to its control, except for(a) moneys and Government Obligations held in the General Receipts Fund for the purpose of paying Bonds and(b)moneys and Permitted Investments held in the Rebate Fund pursuant to the Tax Certificate for payment to the United States Government; provided, however, that in the event that the obligations to the Credit Facility Provider pursuant to the Credit Facility Agreement and the Financing Agreement have not been fully satisfied, paid and discharged at the time this Indenture is to be discharged as confirmed by the Credit Facility Provider upon inquiry of the Trustee, the Trustee shall assign and deliver the Security to the Credit Facility Provider, subject to and effective upon the cancellation and discharge of this Indenture'in accordance with the foregoing provisions; and provided, further, that the Trustee agrees to take all action necessary, as promptly as possible sifter the payment in full of all the Bonds and satisfaction,payment and discharge of all amounts due the Credit Facility Provider under the Credit Facility Agreement and the Financing Agreement (which amounts have not been paid to the Credit Facility Provider), to forgive or cause to be forgiven the outstanding balance of the Mortgage Loan. Notwithstanding the foregoing, the cancellation and discharge of this Indenture shall not(i)reconvey the Security to the Borrower to the extent amounts are owed to the Issuer or the Credit Facility Provider remains obligated pursuant to Section 701(c) of this Indenture, or (ii)terminate the powers and rights granted to the Trustee with respect to the payment, transfer and exchange of the Bonds; and provided further that the Reserved Rights of the Issuer shall survive discharge of this Indenture. Notwithstanding anything contained in this Indenture to the contrary, so long as the Credit Facility Provider is obligated under the Credit Facility, the Trustee shall not transfer the Mortgage Loan or any interest therein or release the Mortgage Loan from the lien of this Indenture without the Credit Facility Provider's prior written consent. Section 502. Provision for Payment of Bonds. During any period while the interest rate on the Bonds is not subject to.change and the Bonds are not subject to tender for purchase, Bonds shall be deemed to have been paid within the meaning of Section 501 hereof if: (a) there shall have been irrevocably deposited with the Trustee either: (i) sufficient Available Moneys, or S172�34519.2 31 41109-94-MSI-0911194 (ii) Government Obligations,which are not subject to early redemption and . which are purchased with Available Moneys, of such maturities and interest payment dates and bearing such interest as will,without further investment or reinvestment of either the principal amount thereof or the interest earnings thereon(said earnings to be held in trust also), be sufficient, together with any moneys referred to in subsection(i)above, as verified by a written report of an independent certified public accountant, for the payment on their respective maturity dates, or redemption dates prior to maturity, of the principal of such Bonds and redemption premium, if any, and interest to accrue thereon to such maturity or redemption dates; provided, however, that the Trustee shall obtain(1)an opinion from bankruptcy counsel that such Available Moneys or Government Obligations purchased with Available Moneys are not subject to avoidance under Section 547 or 544 and are not subject to an automatic stay pursuant to Section 362 of the Bankruptcy Code or any successor statute, and, as such, are not recoverable under Section 550(a)of the Bankruptcy Code or other applicable insolvency law, should there be a petition by or against the Borrower, any general partner of the Borrower or the Issuer under any bankruptcy act; and(2) an opinion of Bond Counsel to the effect that such deposit with the Trustee and consequent defeasance of the Bonds does not adversely effect the exclusion of the interest on the Bonds from gross income for federal income tax purposes; (b) there shall have been paid all fees and expenses of the Trustee due or to become due or there shall be irrevocably deposited with the Trustee sufficient additional moneys to make said payments; (c) for any such Bonds to be redeemed on any date prior to their maturity, the Trustee shall have received in form satisfactory to it instructions to redeem such Bonds on a date on which the Bonds are subject to redemption, and either evidence satisfactory to the Trustee that all redemption notices required by this Indenture have been given or irrevocable power authorizing the Trustee to give such redemption notices; and (d) the Trustee shall have received from each Rating Agency written evidence that the defeasance of the Bonds will not result in a reduction of the ratings on the Bonds. The Trustee shall redeem the Bonds specified by such irrevocable instructions on the date specified by such irrevocable instructions. Limitations elsewhere specified herein regarding the investment of moneys held by the Trustee, other than with respect to the Tax Certificate, shall not be construed to prevent the depositing and holding of the obligations described in the preceding subparagraph (a)(ii) for the purpose of providing for the defeasance of the lien of this Indenture as to Bonds which have not yet become due and payable. In addition, all moneys so deposited with the Trustee as provided in this Section 502 may also be invested, at the direction of the Borrower, in Government Obligations,maturing in the amounts and times as hereinbefore set forth,but in any event prior to the date the Bonds are to be redeemed, and all income from all Government Obligations in the hands of the Trustee pursuant to this Section 502 which has been identified by an independent certified public accountant as not required for the payment of the Bonds and interest thereon with respect to which such moneys shall have been so deposited shall be deposited with the Trustee as and when realized and collected for use and application as are other moneys deposited with the Trustee. Section 503. Discharge of this Indenture. Notwithstanding the fact that the lien of this Indenture upon the Security may have been discharged and cancelled in accordance with Section 501, this Indenture and the rights granted and duties imposed hereby, to the extent not inconsistent with the fact that the lien upon the Security may.have been discharged and cancelled, shall nevertheless continue and subsist after payment in full of the Bonds until the Trustee shall, subject to the rebate requirements of the Tax Certificate, have returned to the Borrower, the Issuer or the Credit Facility Provider, as appropriate, all amounts,if any, held by the Trustee in the General Receipts Fund and the Principal Payment Fund. SF234519.2 32 41108-24-MS1-09/10/94 ARTICLE VI Default Provisions and Remedies Section 601. Events of Default. Any one of the following shall constitute an Event of Default hereunder: (a) Default in the payment of any interest due on any Bond(other than Purchased Bonds) on any Interest Payment Date or any other date when and as the same shall have become due. (b)' Default in the payment of(i) the principal of any Bond(other than Purchased Bonds) when and as the same shall become due, whether at the stated maturity thereof or upon any redemption of the Bonds, or(ii):the purchase price of any Bond in event of the tender of such Bond(other than Purchased Bonds). (c) Default in the observance or performance of any other of the covenants, agreements or conditions on the part of the Issuer included in this Indenture or in the Bonds(other than an Event of Default set forth in paragraph (a) or(b)above) and the continuance thereof for a period of thirty(30) days after receipt of written notice to the Issuer, the Credit Facility Provider and the Borrower given by the Trustee; provided that the Credit Facility Provider shall have consented in writing to the same constituting an Event of Default. (d) The occurrence of an Act of Bankruptcy of the Issuer. Upon the occurrence of any Event of Default, the Trustee shall immediately give written notice of the Event of Default, describing the paragraph in this Section 601 under which the Event of Default has occurred, to the Credit Facility Provider, the Borrower and the Issuer. Section 602. Acceleration. By notice in writing sent to the Issuer, the Borrower and the Credit Facility Provider, the Trustee shall, (a) upon the occurrence of any Event of Default described in Section 601(a)or(b) hereof; or (b) upon the occurrence of any Event of Default described in Section 601(c) or(d)hereof of which a Responsible Officer has actual notice rovided that the Trustee shall have received(i)the Credit Facility Provider's written consent to the same constituting an Event of Default and to the acceleration of the Bonds and(ii) the Credit Facility Provider's acknowledgement of its obligations under the Credit Facility with respect to such acceleration), give immediate notice to the Credit Facility Provider and demand payment under the Credit Facility pursuant to Section 701(a)(ii)hereof or, with respect to the Collateral Agreement, give immediate notice to Fannie Mae, pursuant to Section 3.8(b)(ii)of the Collateral Agreement, and require Fannie Mae to repurchase the Trustee's interest in the Pledged Collateral pursuant to such Section, and declare the principal of all Bonds then Outstanding(if not then due and payable) and the interest accrued to be due and payable immediately, and, upon said declaration, such principal and interest shall become and be immediately due and payable. Upon any declaration of acceleration hereunder, the Trustee shall immediately(i) exercise such rights as it may have under the Financing Agreement to declare all payments thereunder to be immediately due and payable, and(ii)notify the Bondholders of the.declaration of acceleration, that interest on their Bonds ceased to accrue upon such declaration, that the Trustee holds moneys for the payment of such Bonds, and that payment of such Bonds will be made upon presentment thereof at the principal corporate trust office of the Trustee (such notice shall be sent by registered mail, overnight delivery service or other secure means, postage prepaid, or, at the Trustee's option, may be given by telephone, telegram or other immediate means). SF2-34519.2 33 41108-24-MS1.09/10/94 If at any time after a declaration of acceleration, and before the payment of any money due to the Bondholders, the Borrower shall pay to or deposit with the Trustee a sum sufficient to pay all principal of the Bonds then due (other than solely by reason of such declaration) and all unpaid installments of interest(if any) upon all the Bonds then due, with interest at the rate borne by the Bonds on such overdue principal and(to the extent legally enforceable) on such overdue installments of interest, and the reasonable expenses of the Trustee shall have been made good or cured or adequate provision shall have been made therefor, and all other defaults hereunder shall have been cured or waived in writing by holders of a majority in aggregate principal amount of the Bonds then Outstanding, then and in every case, the Trustee on behalf of the Bondholders of all the Bonds then Outstanding shall, but only with the prior written consent of the Credit Facility Provider, rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default, nor shall it impair or exhaust any right or power consequent thereon. Section 603. Other Remedies: Rights of Bondholders. Upon the occurrence and continuance of an Event of Default, the Trustee may, with or without taking action under Section 602 hereof, but only with the prior written consent of the Credit Facility Provider if the Event of Default occurs under Section 601(c)or(d) hereof, pursue any available remedy to enforce the performance of or compliance with any other obligation or rcnuirement of this Indenture, the Financing Agreement, the Mortgage Loan or the Credit Facility. Subject to the provisions of Sections 604(b)and 606 and the requirement, if any, that the Credit Facility Provider consent in writing to the exercise by the Trustee of any such available remedy, upon the occurrence and continuance of an Event of Default(or if requested to do so by the holders of at least twenty- five percent (25%)in aggregate principal amount of Bonds Outstanding)and provided that the Trustee is indemnified as provided in Section 801(i)hereof, the Trustee shall exercise such of the rights and powers 63nferred by this Section and by Section 602 hereof as the Trustee, being advised by counsel, shall deem most effective to enforce and protect the interests of the Bondholders. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or acquiescence therein; and every such right and power may be exercised from time to time and as often as may be deemed expedient. No waiver of any Event of Default, whether by the Trustee or by the Bondholders, shall extend to'or shall affect any subsequent Event of Default or shall impair any rights or remedies consequent thereon. The Trustee shall be empowered to enforce each and every right(except for the Reserved Rights) granted to the Issuer under the Financing Agreement, which enforcement shall be limited as provided therein, and particularly but without limitation as provided in Section i 1.2(d)thereof. Section 604. Right of Bondholders and the Credit Facility Provider to Direct Proceedings. (a) Anything in this Indenture to the contrary notwithstanding,but subject to the rights of the Credit Facility Provider herein so long as the Credit Facility Agreement is in effect and the Credit Facility Provider is not in default thereunder, the holders of at least a majority in aggregate principal amount of Bonds Outstanding shall have the right at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture or any other proceedings hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture, and provided that the Trustee shall be indemnified to its satisfaction(except for actions required under Section 602 hereof). No Bondholder shall have the right to institute any proceeding for the enforcement of this Indenture upon an Event of Default unless (i) such Event of Default is an Event of Default described in(a) or(b) of Section 601, (ii) such Bondholder has given the Trustee, the Issuer, the Credit Facility Provider and the Borrower written notice of the Event,of Default, (iii)the holders of a majority in aggregate principal amount of S1'2-34519.2 34 41108-04-MSl-09/10/94 the Bonds Outstanding shall have requested the Trustee in writing to institute such proceeding, (iv) the Trustee shall have been afforded a reasonable opportunity to exercise its powers or to institute such proceeding, and there shall have been offered to the Trustee indemnity, where required, and (v)the Trustee shall have thereafter failed or refused to exercise such powers or to institute such proceeding within a reasonable time. Nothing in this Indenture shall affect or impair any right of enforcement conferred on any Bondholder by Applicable Law or other laws of the State to enforce (1)the payment of the principal'of and interest on Bonds at and after the maturity thereof, or(2) the obligation of the Issuer to pay the principal of and interest.on Bonds to such Bondholder at the time and place, from the source and in the manner as provided in this Indenture. No Bondholder shall individually have the right to seek to enforce, collect amounts available under, or otherwise realize on, the Credit Facility. (b) Notwithstanding any other provision of this Indenture to the contrary, so long as the Credit Facility is in effect and the Credit Facility Provider is not in default of its obligations thereunder neither the Issuer, the Trustee nor any person under their control shall, without the prior written consent of the Credit Facility Provider, (i) initiate or take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal, interest and other amounts due under the Mortgage Loan, (ii)upon the occurrence of an event of default under the Mortgage Loan, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan or(iii)interfere with or attempt to influence the exercise by the Credit Facility Provider of any of its rights under the Bond Documents; provided that this Section 604(b) shall neither be construed to limit the rights or obligations of the Issuer and the Trustee to seek specific performance of the Regulatory Agreement and Section 11.3 of the Financing Agreement; provided that(1)exercise and enforcement of such rights shall be subject to the provisions of this Section 604(b)and, (2)under no circumstances shall the Issuer or the Trustee seek monetary damages under the Regulatory Agreement or under this Article VI. Section 605. Discontinuance of Default Proceedings.' Prior to a demand for payment under the Credit Facility pursuant to Section 602 hereof, in case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case the Issuer, the Credit Facility Provider and the Trustee shall be restored to their former positions and rights hereunder, and all rights, remedies, powers, duties and obligations of the Issuer, the Trustee and the Credit Facility Provider shall continue as if no such proceedings had been taken, subject to the limits of any adverse determination. Section 606. Waiver. To the extent not precluded by law, Section 11.3 of the Financing Agreement or Section 601 hereof, the Trustee, upon notice to and with the prior written consent of the Credit Facility Provider, may waive any Event of Default, except for an Event of Default under Section 601(a)or(b)hereof, and its consequences, and rescind any declaration of acceleration of maturity of principal and shall do so upon the written request of the Credit Facility Provider; provided, however, that there shall be no such waiver or rescission unless the principal and interest on the Bonds in arrears, together with interest thereon (to the extent permitted by law) at the applicable rate or rates of interest borne by the Bonds and all fees and expenses of the Trustee, shall have been paid or provided for by the Borrower or the Credit Facility Provider. Unless (a) any Rating Agency then rating the Bonds is notified, (b)Bondholders are advised by the Trustee that ratings on the Bonds may be reduced or withdrawn upon the occurrence of such waiver, and (c) one hundred percent (100%) of the Bondholders otherwise approve, the Trustee may not waive any Event of Default hereunder unless the Credit Facility remains fully in effect in an amount equal to the aggregate principal amount of the Bonds Outstanding(other than Purchased Bonds)plus the Interest Requirement. Section 607. Application of Moneys. Provided that amounts derived from payments under the Credit Facility shall be deposited in the Credit Facility Account and applied solely to pay the principal of and interest on the Bonds and shall not be applied to pay any fees or expenses or advances of the Trustee or the Issuer (except to the extent such fees are payable from the Specified Fees Subaccount), all other moneys received by the Trustee pursuant to any action taken under this Article VI shall be deposited into the Interest Account and SF2-34519.2 35 41108-24-MS1-09/10/94 the Fees Account of the General Receipts Fund and the Principal Payment Fund, as applicable, and applied to the payment of the unpaid fees and expenses of the Trustee, including expenses incurred in taking such action. The balance of such moneys, less such amounts as the Trustee shall determine may be needed for possible use irk paying future fees and expenses and for the preservation and management of the Project, shall be applied as follows: (a) Unless the principal on all Bonds shall have become or been declared due and payable, all such moneys shall be applied: First -- To the payment of amounts, if any, payable to the United States pursuant to the Tax Certificate; Second -- To the payment of all installments of interest then due on the Bonds and, if the amount available shall not be sufficient to pay in full any particular installment, then to the ratable payment of the amounts due on such installment; Third -- To the payment of the unpaid principal of any of the Bonds which shall have become due (other than Bonds called for redemption for payment of which moneys are held pursuant to the provisions of this Indenture), with interest on such Bonds from the respective dates upon which they became due(at the rate or rates borne by the Bonds, to the extent permitted by law) and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the ratable payment of the amounts due on such date; and Fourth -- To the payment of amounts owed to the Credit Facility Provider under the Credit Facility Agreement and the Financing Agreement, including amounts to reimburse the Credit Facility Provider to the extent it has made payments under the Credit Facility. (b) If the principal of all the Bonds shall have become or been declared due and payable, all such moneys shall be applied first to the payment of amounts, if any, payable to the United States pursuant to the Tax Certificate; second to the payment of the principal and interest then due and unpaid upon the Bonds, without preference.or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably according to the amounts due respectively for principal and interest to the persons entitled thereto, until all such principal and interest has been paid; and third to pay the Credit Facility Provider amounts owed to it under the Credit Facility and the Financing Agreement, including reimbursement to the extent it has made payments under the Credit Facility. (c) If the principal on all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded under this Article, then, in the event that the principal of all the Bonds shall later become or be declared due and payable, the moneys shall be applied in accordance with paragraph (b)of this Section. Whenever moneys'are to be'applied pursuant to this Section 607, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard for the amount of such moneys available for application, the likelihood of additional moneys becoming available for such application in the future, and potential expenses relating to the exercise,of any remedy or right conferred on the Trustee by this Indenture. Whenever the Trustee shall apply such moneys, it shall fix the date (which shall be an Interest Payment Date unless it shall deem an earlier date more suitable)upon which such application is to be made, and upon such date interest on the amounts of principal to be paid on such date shall cease to accrue. Section 608. Preservation of Security and Remedies if Payment Under Credit Facility is Not Made or is Insufficient: Rights of Bondholders. Subject always to the provisions of Sections 603 and 701 hereof, upon the occurrence and during the continuance of an Event of Default, the Trustee may, upon failure of the Credit Facility Provider to make payment under the Credit Facility,proceed to pursue any available SITZ-34519.2 36 41108-21-MSI-09/10/94 comedy to enforce the payment of the principal of and interest on the Bonds Outstanding, including, without limitation, mandamus; further, upon the occurrence and during the continuance of any Event of Default, then and in every case the Trustee may proceed, and upon the written request of the holders of not less than twenty- five percent (25%)of the aggregate principal amount of the Bonds Outstanding shall proceed, to protect and enforce its rights and the rights of the Bondholders under the Applicable Law and under this Indenture forthwith by such suits, actions or special proceedings in equity or at law, or by proceedings in the office of any board or officer having jurisdiction,whether for the specific performance of any covenant or agreement contained in this Indenture or the Financing Agreement, or in aid of the execution of any power granted herein, or in the Financing Agreement or in the Applicable Law, or for the enforcement of any legal or equitable right or remedy, as the Trustee, being advised by counsel, shall deem most effective to protect and enforce such rights or to perform any of its duties under this Indenture. Subject always to the provisions of Sections 603, 604(b)and 701 hereof, no remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or the Bondholders)is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given to the Trustee or to the Bondholders hereunder or now or hereafter existing by law. Upon the occurrence and during the continuance of an Event of Default, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bondholders, the Trustee shall be entitled, as a matter of right(in addition to any other rights available to it under the other Bond Documents or Mortgage Loan Documents), to the appointment of a receiver or receivers of the purchase payments derived from the sale of the Project, together with such other powers as the court making such appointments shall confer. ARTICLE VII Credit Facility; Alternate Credit Facility Section 701. Payment Under the Credit Facility. (a) The Trustee shall request payment under the Credit Facilityfor the benefit of the Bondholders, in accordance with its terms (or take such other steps as shall be necessary to realize amounts thereunder) and to the extent permitted thereby, to receive moneys from the Credit Facility Provider on each Interest Payment Date, mandatory redemption date (including each Principal Payment Date), date of acceleration of the Bonds and Maturity Date in the amounts and for the'purposes specified in subparagraphs (i) through(iii)below, provided that with respect to the Collateral Agreement, the Trustee shall, if it shall not have received a Required Mortgage Payment(as defined in the Collateral Agreement) by the time specified in the Collateral Agreement, give notice to Fannie Mae pursuant to Section 3.7(a)of the Collateral Agreement that the Borrower has failed to make a Required Mortgage Payment. The Trustee shall cause such amounts to be applied to the purpose for which they were requested when due on each of the events described below: (i) On each Interest Payment Date, for the payment of interest, in an amount calculated by the Trustee to be equal to the interest due on the Bonds (other than Purchased Bonds), less any amounts on deposit in the Interest Account (other than the Minimum Reserve Amount)of the General Receipts Fund and, if necessary, the Principal Payment Fund and available to pay interest on the Bonds, on such Interest Payment Date. (ii) On each mandatory redemption date (including each Principal Payment Date), or date of acceleration of the Bonds (other than Purchased Bonds), or the Maturity Date for the payment of principal and interest on the Bonds to be redeemed or paid(other than Purchased Bonds), in an amount calculated by the Trustee to be equal to the principal of and interest on the Bonds(other than Purchased Bonds)to be redeemed or all Bonds (other than Purchased Bonds)in the event of an acceleration, less any amounts on deposit in the Interest Account(other than the Minimum Reserve Amount)or the SF-34519.2 37 41108-24-MS1-09/10/94 Redemption Account and, if necessary, the Principal Payment Fund and available to pay principal of and interest on the Bonds; provided that in the event of a mandatory redemption of the Bonds any such redemption and demand for payment shall occur prior to the fifth day next preceding the expiration of the Credit Facility. (iii) On each date on which Specified Fees are due, for transfer to the Fees Account for application to the payment of such Specified Fees, in an amount calculated by the Trustee to be equal to the amount of the Specified Fees which are due less any amounts then on deposit in the Fees Account and available to pay such Specified Fees. (b) The Trustee shall request payment under the Credit Facility for the benefit of the Bondholders, in accordance with its terms (or take such other steps as shall be necessary to realize amounts thereunder) and to the extent permitted thereby, to receive moneys from the Credit Facility Provider on each Mandatory Tender Date, and on each purchase date in the amounts and for the purposes'specified in subparagraphs (i)and (ii) below, provided that with respect to the Collateral Agreement, the Trustee shall give the notices to Fannie Mae nnuired by Section 3.9 of the Collateral Agreement at such time as required therein in order to obligate Fannie Mae to repurchase Pledged Collateral at the Purchase Price, as such terms are defined in the Collateral Agreement. The Trustee shall cause such amounts to be deposited to the Bond Purchase Fund and applied to the purpose for which they were requested when due on each of the events described: (i) On each Mandatory Tender Date, for the payment of principal of and accrued interest on the Bonds (other than Purchased Bonds)which have been tendered and not remarketed by the Remarketing Agent, in an amount calculated by the Trustee to be equal to the principal of and accrued interest on all such Bonds less any amounts on deposit in the Principal Payment.Fund. (ii) On any date on which Weekly Variable Rate Bonds are subject to purchase on demand by any Bondholder pursuant to Section 1001 hereof, in an amount equal to the principal of and interest due on the Bonds so tendered which have not been remarketed by the Remarketing Agent less any amounts on deposit in the Principal Payment Fund. (c) In the event of an Act of Bankruptcy, or in the event of an Event of Default under Section 11.1(a)(vi)of the Financing Agreement of which a Responsible Officer has actual notice, the Trustee shall request payment under the Credit Facility in accordance with its terms in an amount equal to the amount of any payments made by the Borrower under the Mortgage Note or payments made by the Trustee to Bondholders from moneys on deposit in the Principal Payment Fund which are subsequently recovered from the Trustee or any Bondholder, in whole or in part,pursuant to the Bankruptcy Code or under the banking laws of the United States. In addition, if the Trustee is prevented from paying any amount(including any moneys on deposit in the Principal Payment Fund but excluding any amounts in respect of an optional redemption to which the Credit Facility Provider has not consented in writing)due to the Bondholders as a result of the automatic stay imposed by*a bankruptcy court under Section 362 of the Bankruptcy Code in a proceeding against the Borrower or any other person making a payment under the Mortgage Note or a deposit to the Principal Payment Fund from a source other than the Credit Facility or Available Moneys held by the Trustee under this Indenture, the Trustee shall request payment under,the Credit Facility in an amount equal to the amount due and unpaid. (d) AlYnioneys derived from the Credit Facility pursuant to paragraphs (a), (b)and (c) above shall be deposited in the Credit Facility Account of the General Receipts Fund pending their application by the Trustee. (e) In the event that the Trustee shall have received any payment from the Credit Facility Provider under or pursuant to the Credit Facility, and thereafter amounts shall be received by the Trustee from the Borrower, the Remarketing Agent or other sources, which later received amounts were in payment of amounts s<3tisfied by the payment under or pursuant to the Credit Facility, then such later received amounts shall be promptly reimbursed by the Trustee to the Credit Facility Provider to the extent of the amount so paid by the Credit Facility Provider. SF2,W19.2 38 41109-24-MS1-09/10/94 I (f) The Trustee shall hold the Credit Facility and shall in its name enforce all rights of the Trustee and all obligations of the Credit Facility Provider under the Credit Facility for the benefit of the Bondholders. Section 702. Transfer of Credit Facility:Extension. The Trustee shall not assign or transfer the Credit Facility except to any successor Trustee under this Indenture. If at any time during the term of the Credit Facility, a successor Trustee shall be appointed and qualified under this Indenture and the Credit Facility is not assignable or transferable to the successor Trustee, the resigning Trustee shall request that the Credit Facility Provider enter into a new Credit Facility, identical to the prior Credit Facility, with the successor Trustee for the benefit of the holders of the Bonds, and the resigning Trustee shall continue to serve as Trustee hereunder until such time as the new Credit Facility is delivered to the successor Trustee. If the resigning Trustee fails to make this request, the successor Trustee shall do so before accepting its appointment. Upon issuance of the new Credit Facility to the successor Trustee, the Credit Facility shall be returned to the Credit Facility Provider and cancelled, and the new Credit Facility shall thereafter be subject to all of the provisions hereof relating to the prior Credit Facility, and shall be deemed for all purposes hereof to be the Credit Facility. In the event the term of the Credit Facility is extended, the Trustee must receive, not later than the Extension Date, (i) the commitment relating to such extension of the Credit Facility; and(ii) an Opinion of Counsel for the Credit Facility Provider, in substantially the form of the Opinion of Counsel delivered to the Trustee upon the issuance of such Credit Facility. Upon request of any holder of the Bonds, the Trustee shall promptly furnish such holder with a copy of any commitment to extend or extension of the Credit Facility received by the Trustee. Upon the failure of the Borrower to furnish the Trustee with either a satisfactory commitment to extend the Credit Facility or an Alternate Credit Facility pursuant to Section 703 hereof and the at:companying Opinion of Counsel on or prior to each Extension Date hereunder, the Bonds shall be subject to mandatory purchase as described in Section 1002 of this Indenture. Section 703. Alternate Credit Facility. The Trustee shall accept any Alternate Credit Facility delivered to the Trustee in accordance with the provisions of Section 3.5 of the Financing Agreement, in substitution for the Credit Facility then in effect, subject to the terms of the Credit Facility Agreement. Not later than the tenth day next preceding any Substitution Date the Trustee shall give notice to each Bondholder of the substitution of such Alternate Credit Facility for the Credit Facility then in effect and that on the Substitution Date the Bonds shall be subject to mandatory purchase as provided in Section 1002 of this Indenture. Section 704. Rights of the Credit Facility Provider. Notwithstanding anything contained herein to the contrary, all provisions hereof regarding consents, approvals, directions, waivers, appointments, requests or other actions by the Credit Facility Provider shall be deemed not to require or permit such consents, approvals, directions, waivers, appointments, requests or other actions and shall be read as if the Credit Facility Provider were not mentioned therein (a) during any period during which there is a payment default under the Credit Facility, or (b)after the Credit Facility shall at any time for any reason cease to be valid and binding on the Credit Facility Provider, or shall be declared to be null and void by final judgment of a court of competent jurisdiction, or after the Credit Facility Provider has rescinded, repudiated or terminated the Credit Facility; provided, however, that the payment of amounts due to the Credit Facility Provider pursuant to the terms hereof shall continue in full force and effect. The foregoing shall not affect any other rights of the Credit Facility Provider. All provisions herein relating to the rights of the Credit Facility Provider shall be of no force and effect i1F there is no Credit Facility in effect and there are no Purchased Bonds or Bonds in which the Credit Facility Provider has a security interest pursuant to the Bond Pledge Agreement and all amounts owing to the Credit Facility Provider under the Credit Facility Agreement have been paid. In such event, all references to the Credit Facility Provider shall have no force or effect. SF2,34519.2 39 41108-044-MS1-09/10/94 ARTICLE VIII The Trustee, Remarketing Agent and Tender Agent Section 801. Appointment of Trustee: Duties. The Trustee is hereby appointed, and does hereby agree to act in such capacity and to perform the duties of the Trustee under the Financing Agreement and this Indenture, but only upon and subject to the following express terms and conditions(and no implied covenants or other obligations shall be read into this Indenture against the Trustee): (a) The Trustee may execute any of its trusts or powers hereunder and perform any of its duties by or through attorneys, agents or receivers, and shall be entitled to advice of counsel concerning all matters of trust hereunder and the duties hereunder, and may in all cases pay such reasonable compensation and shall be entitled to reimbursement for all such compensation paid to such attorneys, agents and receivers. The Trustee may act upon the opinion or advice of counsel, accountants, engineers, surveyors or such other professionals as the Trustee deems necessary and selected by it in the exercise of reasonable care or, if the same are selected by the.Issuer, approved by the Trustee in the exercise of reasonable care. The Trustee shall not be responsible for any loss or damage resulting from any action or nonaction based on its good faith reliance upon such opinion or advice. (b) Except as otherwise specifically provided elsewhere in this Indenture, the Trustee shall not be responsible for any recital herein or in the Bonds(other than in the certificates of authentication appearing thereon), or for the recording, rerecording, filing or refiling of this Indenture, or for insuring the Security or the Project or collecting any insurance moneys, or for the validity of this Indenture or of any supplements thereto or instruments of further assurance, or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, or for the value or title of the Project or otherwise as to the maintenance of the Security, but the Trustee may require (but shall be under no duty to require) of the Issuer or the Borrower full information and advice as to the performance of the covenants, conditions and agreements aforesaid as to the condition of the Project. Except as otherwise provided in Section 602 hereof, the Trustee shall have no obligation to perform any of the duties of the Issuer under the Financing Agreement, and the Trustee shall not be liable for any loss suffered in connection with any investment of amounts made by it in accordance with this Indenture. (c) 'The Trustee shall not be accountable for the use of any Bonds authenticated or delivered hereunder after such Bonds shall have been delivered in accordance with instructions of the Issuer, or for the use by the Borrower of the proceeds of the Mortgage Loan, or for the use or application of any moneys received by the Trustee, except to the extent that the Trustee is obligated to invest moneys under and in the manner provided in Section 406 hereof and to invest moneys in the Bond Purchase Fund under and in the manner provided in Section 403 hereof. The Trustee may become the owner of Bonds secured hereby with the same rights as any other Bondholder. (d) The Trustee shall be protected in acting upon Opinions of Counsel and upon any notice, request, consent, certificate, order,affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Bond as shown on the Register shall be conclusive and binding upon all future owners or holders of the same Bonds and upon Bonds issued in exchange therefor or in place thereof. (e) The permissive right of the Trustee to do things enumerated in this Indenture"or the Financing Agreement shall not be construed as duties until specifically undertaken by the Trustee. The Trustee shall only be responsible for the performance of the duties expressly set forth herein and in the S.F2-34519.2 40 41108.24-MS1-09/10/94 n other Bond Documents and shall not be answerable for other than its negligence or bad faith in the performance of those express duties. (f) The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or nonfulfillment of contracts, relating to the Project. (g) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trust and powers or otherwise in respect of the premises. (h) Before taking any action requested by any party which is not specifically required hereunder (except for acceleration of the Bonds as required by Section 602, or a payment pursuant to Section 701), the Trustee may require satisfactory security or an indemnity bond for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its own negligence or bad faith by reason of any action so taken. (i) Before taking any action requested by a Bondholder or Bondholders under or pursuant to Article VI or VIII hereof, the Trustee may require satisfactory security or an indemnity bond from such Bondholder or Bondholders for the reimbursement of all expenses to which it may be put and to protect it against all liability,except liability which is adjudicated to have resulted from its own negligence or bad faith by reason of any such action so taken. 0) All moneys received by the Trustee, until used or applied or invested as herein provided, shall be held as special trust funds for the purposes specified in this Indenture and for the benefit and security of the holders of the Bonds and the Persons to whom the Specified Fees are owed as herein provided. Such moneys need not be segregated from other moneys except to the extent required by law or as herein provided. The Trustee shall not otherwise be under liability for interest on any moneys received hereunder except such as'may be agreed upon. (k) The Trustee shall not be bound to ascertain or inquire as to the performance of the obligations of the Borrower under the Financing Agreement or the Issuer under this Indenture, and shall not be deemed to have, or required to take, notice of default under this Indenture except any default under Section 601(a)or(b)hereof or in the event of written notification of such default by, the Credit Facility Provider, any party to the Financing Agreement or the holders of not less than twenty- five percent (25%)of the principal amount of Bonds Outstanding, and in the absence of such notice the Trustee may conclusively presume there is no default except as aforesaid. The Trustee may nevertheless require the Issuer and the Borrower to furnish information regarding performance of their obligations under the Financing Agreement and this Indenture, but is not obligated to do so. (1) The Trustee shall be obligated to perform such duties and only such duties of the Trustee as are specifically set forth in this Indenture and the Financing Agreement. The Trustee shall, during the existence of any Event of Default(which has not been cured), exercise such of the rights vested in it by this Indenture and the Financing Agreement, and use the same degree of care and skill in their exercise, as a reasonable person would exercise or use under the circumstances in the conduct of his own affairs. The foregoing shall not limit the Trustee's obligations under Section 602 hereof. (m) The Trustee shall,if the Bonds are then rated by a Rating Agency, give notice by mail to that Rating Agency at its address promptly upon the occurrence of any of the following: (i) any change in the Trustee serving under this Indenture; (ii) any modifications, amendments, supplements or revisions to this Indenture, the Financing Agreement, the Credit Facility or any Mortgage Loan Document; SF234519.2 41' 41108-24-MSI.09/10/94 (iii) the termination of the Credit Facility; (iv) an Event of Default hereunder; (v) any Adjustment Date or any revocation thereof, (vi) a.redemption or defeasance of the Bonds in whole; (vii) any resignation, removal or replacement of the Remarketing Agent; or (viii) any mandatory tender of the Bonds. Notwithstanding the foregoing, it is expressly understood and agreed that failure to provide any such notice to any Rating Agency or any defect therein will not affect the validity of any action with respect to which notice is to be given or the effectiveness of any such action. The Trustee hereby represents and warrants to the Issuer that it is a bank or trust company organized under the laws of the United States of America, having a combined capital stock, surplus and undivided profits aggregating at least $50,000,000. Section 802. Fees, Expenses. Each of the Trustee and the Tender Agent shall be entitled to payment and/or reimbursement for reasonable fees for its ordinary services rendered hereunder and all advances, counsel fees and other ordinary expenses reasonably made or incurred by the Trustee or the Tender Agent, as applicable, in connection with such ordinary services, and, in the event that it should become necessary that the Trustee or the Tender Agent, as applicable, perform extraordinary services, it shall be entitled to reasonable e:Ktra compensation therefor, and to reimbursement for reasonable extraordinary expenses in connection therewith; provided that if such extraordinary services or extraordinary expenses are occasioned by the negligence or willful misconduct of the Trustee or the Tender Agent, as applicable, it shall not be entitled to compensation or reimbursement therefor; provided, however, that the Borrower's failure to pay amounts owed to the Trustee shall not excuse the Trustee's performance of its obligations hereunder and under the other Bond Documents. Each of the Trustee and the Tender Agent shall also be indemnified by the Borrower as provided in the Financing Agreement. Each of the Trustee and the Tender Agent recognizes that all fees, charges and other compensation to which it may be entitled under the provisions of this Indenture are required to be paid by the Borrower under the terms of the Financing Agreement, and, accordingly, the Trustee and the Tender Agent each agrees that except for moneys that the Issuer may derive from the Borrower for purposes of the foregoing, the Issuer shall not be liable for any such fees, charges and other compensation to which the Trustee or the Tender Agent may be entitled. Payment of all such amounts shall, however, be secured by the Security (except the Credit Facility)as set forth in this Indenture. Any corporation or association into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, provided such corporation or association is otherwise eligible under Section 804 of this Indenture, shall be and become successor Trustee hereunder and vested with all of the title to the whole property or trust estate and all the trusts, powers, discretions,immunities,privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto (other than the provision of notice thereof to the Issuer and the Credit Facility Provider), anything herein to the contrary notwithstanding. Section 803. Intervention in Litigation. In any judicial proceedings to which the Issuer is a party the Trustee may intervene on behalf of Bondholders, and shall intervene if requested in writing by the holders of at least twenty-five percent (25%) of the aggregate principal amount of Bonds Outstanding. SF2-34519.2 42 4110824-MS1-09/10/94 Section 804. Resignation of Trustee. The Trustee and any successor Trustee may resign only upon giving sixty (60) days' prior written notice to the Issuer, the Credit Facility Provider, the Borrower and to each registered owner of Bonds then outstanding as shown on the records of the Trustee. Such resignation shall take effect only upon the appointment of a successor Trustee by the Issuer upon consultation with the Borrower and with the consent of the Credit Facility Provider. If no successor is appointed within sixty(60)days after the notice of resignation, the resigning party shall appoint a successor with the written consent of the Issuer, the Credit Facility Provider and the Borrower. Upon appointment of a successor Trustee, the resigning Trustee shall assign all of its right, title and interest in the Security, including its right, title and interest in the Credit Facility and this Indenture, to the successor Trustee. The successor Trustee shall be a bank or trust company organized under the laws of the United States of America or any state of the United States of America, having a combined capital stock, surplus and undivided profits aggregating at least$50,000,000,and shall upon approval of the Issuer accept in writing its duties and responsibilities hereunder and such writing shall be filed with the Issuer, the Credit Facility Provider and the Borrower. Section 805. Removal of Trustee. The Trustee may be removed at any time, upon thirty(30) days' prior to written notice to the Trustee, by the Issuer with the consent of the Credit Facility Provider or by an instrument or concurrent instruments in writing delivered to the Issuer, the Credit Facility Provider, the Trustee and the Borrower, signed by the owners of a majority in aggregate principal amount of Bonds then Outstanding, and approved by the Credit Facility Provider, which written instrument shall designate a successor Trustee. Upon such removal, which shall not be effective until a successor Trustee satisfying the requirements of Section 804 is appointed, the Trustee shall assign to the successor Trustee all of its right, title and interest in the Security in the same manner as provided in Section 804 hereof. Section 806. Appointment of Remarketing Agent. The Remarketing Agent is appointed pursuant to the Remarketing Agreement to act in connection with the remarketing of any Bonds tendered pursuant to Article X hereof in accordance with, and subject to, the terms of the Remarketing Agreement and this Indenture. The Remarketing Agent shall designate to the Trustee, the Issuer, the Borrower and the Credit Facility Provider its principal office and signify its acceptance of the duties and obligations imposed upon it hereunder by a written instrument of acceptance delivered to the Issuer, the Credit Facility Provider, the Trustee and the Borrower. Section 807. Resignation of Remarketing Agent. The Remarketing Agent may resign by giving no less than thirty(30) days' prior written notice to the Borrower, the Trustee, the Credit Facility Provider and the Issuer, and such resignation shall take effect upon the date a successor Remarketing Agent shall have been appointed and be serving under this Indenture and the Remarketing Agreement unless a successor shall have been previously appointed, in which event such resignation shall take effect immediately on the appointment of such successor. Any successor Remarketing Agent shall be a trust company or bank or investment bank in good standing,within or outside the State. Section 808. Removal of Remarketing Agent. The Remarketing Agent may be removed by the Borrower at any time by an instrument filed with the Trustee, the Credit Facility Provider and the Issuer, and signed by the Borrower. If the Remarketing Agent fails to perform its duties as Remarketing Agent under the Remarketing Agreement (as determined by the Credit Facility Provider), the Credit Facility Provider shall have the right to remove the Remarketing Agent by an instrument in writing filed with the Trustee, the Borrower and the Issuer. Notwithstanding anything contained herein to the contrary, no removal of the Remarketing Agent shall become effective unless the Borrower or the Credit Facility Provider shall have previously designated a successor Remarketing Agent satisfactory to the Issuer and the Credit Facility Provider. Section 809. Instruments of Bondholders. Any instrument required by this Indenture to be executed by Bondholders may be in any number of writings of similar tenor and may be executed by Bondholders in person or by agents appointed in writing. Proof of the execution of any such instrument or of the writing appointing any such agent and of the ownership of Bonds shall be sufficient for any of the purposes of this Indenture if given by a certificate of any officer in any jurisdiction who by law has power to take acknowledgements within such jurisdiction that the person signing such writing acknowledged before him the execution thereof. sM-34519.2 43 41108-24.Msi-09n0i94 The Trustee may rely on such an instrument of Bondholders unless and until the Trustee receives notice that the original of such instrument is no longer trustworthy. In the event that the Trustee shall receive conflicting directions from two groups of Bondholders, each with combined holdings of not less than twenty-five percent (25%)of the aggregate principal amount of Bonds Outstanding, the directions given by the group of Bondholders which hold the largest percentage of Bonds shall be controlling and the Trustee shall follow such directions as elsewhere required herein. Section 810. Power to Appoint Co-Trustees. At any time or times, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Project may at the time be located, the Issuer (at the,request of the Borrower and acceptable to the Issuer and the Trustee) shall have the power, subject to the approval of the Credit Facility Provider, to appoint one or more persons approved by the Trustee either to act as co-trustee or co-trustees jointly with the Trustee of all or any part of the Project, or to act as separate trustee or separate co-trustees of all or any part of the Project, and to vest in such person or persons, in such capacity, such title to the Project or any part thereof, and such rights, powers, duties, trusts or obligations as the Issuer and the Trustee may consider necessary or desirable, subject to the remaining provisions of this Section. Upon the request of the Trustee or of the holders of not less than a majority of the aggregate principal amount of the Bonds then outstanding, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effect such appointment. If the Issuer shall not have joined in such appointment within thirty(30)days after the receipt by it of a request so to do, or in case an Event of Default shall have occurred and be continuing, subject to the Credit Facility Provider's right to approve, the Trustee alone shall have the power to make such appointment. The Issuer shall execute, acknowledge and deliver all such instruments as may be required by any such co-trustee or separate trustee for more fully confirming such title, rights, powers, trusts, duties and obligations to such co-trustee or separate trustee. Every co-trustee or separate trustee shall, to the extent permitted by law or any applicable contract, be appointed subject to the following terms, namely: (a) This Indenture shall become effective once executed and delivered by the Issuer and the Trustee and the Bonds have been authenticated and delivered, and thereupon the Trustee shall have all rights, powers, trusts, duties and obligations by this Indenture conferred upon the Trustee in respect of the custody, control or management of moneys, papers, securities and other personal property. (b) All rights, powers, trusts, duties and obligations conferred or imposed upon the trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the Trustee and such co-trustee or co-trustees, or separate trustee or separate trustees,jointly, as shall be provided in the instrument appointing such co-trustee or co-trustees or separate trustee or separate trustees,'except to the extent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or separate trustees. (c) Any request in writing by the Trustee to any co-trustee or separate trustee to take or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-trustee or separate trustee. (d) Any co-trustee or separate trustee to the extent permitted by law may delegate to the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise. (e) The Trustee at any time, by an instrument in writing,with the concurrence of the Issuer evidenced by a resolution, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section, and, in case an Event of Default shall have occurred and be SF2-34519.2 44 41108-24-MS1-09/10/94 continuing,the Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Issuer. Upon the request of the Trustee, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such resignation or removal. A successor to any co-trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section. (f) No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. (g) Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing executed by any Bondholder and delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee. (h) Any moneys, papers, securities or other items of personal property received by any such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by law, be turned over to the Trustee. Upon the acceptance in writing of appointment by any such co-trustee or separate trustee, it, she or he shall be vested with the pledge and assignment of the Security and with such rights, powers, duties, trusts or obligations as shall be specified in the instrument of appointment,jointly with the Trustee (except insofar as local law makes it necessary for any such co-trustee or separate trustee to act alone), subject to all the terms of this Indenture. Every such acceptance shall be filed with the Trustee. In case any co-trustee or separate trustee shall die, become incapable of acting, resign or be removed, the pledge and assignment of the Security and all rights, powers, trusts, duties and obligations of said co-trustee or separate trustee shall, so far as permitted by law, vest in and be exercised by the Trustee unless and until a successor co-trustee or separate trustee shall be appointed in the same manner as provided for with respect to the appointment of a successor Trustee pursuant to Section 804 hereof. Notwithstanding anything else to the contraryin this Article VIII, no successor trustee or any co-trustee or separate trustee shall assume its duties hereunder without the prior written approval of the Issuer. Section 811. Filing of Financing Statements. From time to time, the Trustee, pursuant to instructions of the Borrower as described below (which the Trustee shall request from the Borrower thirty(30) days before each fifth anniversary of the Effective Date), shall file or record or cause to be filed or recorded all financing statements which are required to be filed or recorded in order fully to protect and preserve the security interests relating to the Mortgage Loan and the priority thereof and the rights and powers of the Issuer in connection therewith, including without limitation all continuation statements for the purpose of continuing without lapse the effectiveness of(a) those financing statements which shall have been filed at or prior to the issuance of the Bonds in connection with the security for the Bonds pursuant to the authority of the U.C.C., and (b) any previously filed continuation statements which shall have been filed as herein required. The Issuer shall sign, and the Borrower shall deliver to the Trustee or its designee, all such financing statements as may be required for the purposes specified in the preceding sentence. Each financing statement so delivered to the Trustee shall be accompanied by a notice from the Borrower instructing the Trustee to file such financing statement in all appropriate places, which places shall be designated in such notice. Upon the filing of any such financing statement the Trustee shall immediately notify the Issuer and the Credit Facility Provider that the same has been accomplished. Section 812. Tender Agent. The Trustee is hereby authorized, with the approval of the Borrower, the Remarketing Agent and the Credit Facility Provider, to appoint the Tender Agent for the Bonds and to i remove the Tender Agent and appoint a successor. The Trustee has initially designated, and the Borrower, the Remarketing Agent and the Credit Facility Provider have approved, First Trust of California, National Association, as Tender Agent. The Tender Agent shall designate to the Trustee, the Issuer, the Remarketing Agent and the Credit Facility Provider its principal office and signify its acceptance of the duties and obligations SF2-34519.2 45 41108-24-MSi-09/10/94 imposed upon it hereunder by a written instrument of acceptance delivered to the Trustee under which such Tender Agent will agree particularly: (a) to act as agent for the Trustee for the purpose of authenticating and delivering Bonds in accordance with the provisions of Section 211, Section 1001 or other provisions hereof relating to authentication and delivery of Bonds; (b) to forward to the Trustee immediately after completion of such authentication the names, addresses, taxpayer identification numbers or social security numbers of all persons in whose names the Bonds are to be registered; (c) to deliver authenticated and registered Bonds to or to the order of the persons in whose names such Bonds are registered; (d) as agent for the Trustee, to hold all moneys delivered to it for the purchase of Bonds in trust in the Bond Purchase Fund for the account of the person who shall have so delivered such moneys until the Bonds purchased with such moneys shall have been registered, authenticated and delivered to or to the order of such person; and (e) to hold all Bonds delivered to it for purchase in trust for the owner thereof until such owner shall have received the purchase price therefor. The Issuer shall cooperate with the Trustee, the Borrower and the Credit Facility Provider to cause the necessary arrangements to be made and to be thereafter continued whereby amounts from the sources specified herein and in the Financing Agreement will be made available for the purchase of Bonds presented at the principal office of the Tender Agent, and whereby Bonds, executed by the Issuer and to be authenticated by the Tender Agent, shall be made available to the Tender Agent to the extent necessary for delivery pursuant to Section 1001 hereof. Any moneys held by the Tender Agent hereunder shall be held uninvested and in cash. ARTICLE IX Supplemental Indentures: Amendments Section 901. Supplemental Indentures Not Requiring Bondholder Consent. The Issuer and the Trustee, without the consent of or notice to any Bondholders(but subject to the provisions of Section 908), may enter into an indenture or indentures supplemental to this Indenture for one or more of the following purposes. (a) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; (b) to make such other provisions in regard to matters or questions arising under this Indenture which shall not materially adversely affect the interests of the Bondholders; (c) to grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies,powers or authority that may lawfully be granted to or conferred upon the Bondholders or the Trustee, or to grant or pledge to the Trustee for the benefit of the Bondholders any additional security other than that granted or pledged under this Indenture; (d) to modify, amend or supplement this Indenture or any indenture supplemental hereto in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute then in effect, or to permit the qualification of the Bonds for sale under the securities laws of any of the States of the United States; SF2-34519.2 46 41108-24-MS1-09/10/94 (e) to appoint a successor trustee, separate trustee or co-trustee in the manner provided in Article VIII hereof, (f) to make any change requested by the Credit Facility Provider which is determined by the Trustee not to be adverse to the interest of the Bondholders; (g) to comply with requirements of any Rating Agency which are determined by the Trustee not to be adverse to the interests of the Bondholders; (h) to comply with regulations or rulings issued with respect to the Code, to the extent determined as necessary or desirable in the opinion of Bond Counsel; (i) to change any of the time periods for provision of notice relating to: (i)the remarketing of Bonds, (ii) the tender of Bonds pursuant to Section 1001 hereof, and (iii)the determination of the interest rate on the Bonds; 0) to change or modify any provision of this Indenture in connection with the remarketing of Bonds following any mandatory tender of the Bonds pursuant to Section 1002 hereof but only upon proper disclosure in an offering document to the potential purchasers of the Bonds to be so remarketed; (k) to permit the Borrower to enter into a modification of the Mortgage Loan on terms approved by the Issuer and the Credit Facility Provider, provided that there has first been delivered to the Trustee (1)written evidence of such approvals and the approval by the Issuer and the Credit Facility Provider of the proposed form of Supplemental Indenture and any other documents relating thereto; and (2)written evidence from each Rating Agency that such modifications and any related changes to the terms of the financing will not adversely affect the rating then in effect on the Bonds; (1) in connection with any other change in this Indenture which, in the judgment of the Trustee, is not to the prejudice of the Bondholders; or (m) to modify, alter, amend or supplement this Indenture in any other respect, including amendments which would otherwise be described in Section 902, if notice of the proposed supplemental indenture is given to Bondholders(in the same manner as notices of redemption are given)at least thirty(30) days before the effective date thereof and, on or before such effective date, the Bondholders have the right to demand purchase of their Bonds pursuant to Section 1001. When requested by the Issuer or the Borrower, and if all conditions precedent in this Section and in Sections 908 and 909 of this Indenture have been met, the Trustee shall join the Issuer in the execution of any such supplemental indenture. A copy of any such supplemental indenture shall be promptly furnished by the Trustee to the Credit Facility Provider, the Remarketing Agent, the Tender Agent and the Borrower. Section 902. Amendments to Indenture Requiring Bondholder Consent. Exclusive of supplemental indentures covered by Section 901 hereof and subject to the terms and provisions contained in this Section and in Sections 908 and 909, and not otherwise, the Issuer in its sole discretion and the Trustee may, with the consent of the holders of not less than a majority of the aggregate principal amount of the Bonds then Outstanding and affected by such indenture or indentures supplemental hereto, from time to time, anything contained elsewhere in this Indenture to the contrary notwithstanding,execute an indenture or indentures supplemental hereto for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture; provided, however, that nothing contained in this Section shall permit, or be construed as permitting, (a) an extension of the maturity of the principal of or interest on, or the mandatory redemption date of, any Bond, without the consent of the owners of all of the Bonds then Outstanding; (b) a reduction in the principal amount of, or the rate of interest on, any Bond, without the consent of the owner of such Bond; (c) a.preference or SF2-34519.2 47 41108-21-MS1-09/10/94 priority of any Bond or Bonds over any other Bond or Bonds, without the consent of the owners of all such Bonds; (d) the creation of a lien prior to or on parity with the lien of this Indenture, without the consent of the owners of all of the Bonds then Outstanding, (e) a change in the percentage of Bondholders necessary to waive an Event of Default or otherwise approve matters requiring Bondholder approval hereunder, including consent to any supplemental indenture, without the consent of the owners of all the Bonds then Outstanding, or (f) release of the Mortgage Loan, other than as permitted by this Indenture, without the consent of the owners of all of the Bonds then Outstanding. The giving of notice to and consent of the Bondholders to any such supplemental indenture shall be obtained as provided in to Section 906 hereof. When requested by the Issuer or the Borrower, and if all conditions precedent under this Section and Sections 906, 908 and 909 hereof have been met, the Trustee shall join the Issuer in the execution of any such supplemental indenture. A copy of any such supplemental indenture shall be promptly furnished to the Credit Facility Provider, the Remarketing Agent, the Tender Agent and the Borrower by the Trustee. Section 903. Amendments to Financing Agreement Not Requiring Bondholder Consent. The Issuer and the Trustee may, without the consent of or notice to any of the Bondholders, but subject to the provisions of Sections 908 and 909 hereof, enter into or permit any amendment of the Financing Agreement acceptable to the Borrower as may be required(a) to cure any ambiguity or to correct or supplement any provision which may be defective or inconsistent with any other provision thereof; (b) to make such other provisions in regard to matters or questions arising under the Financing Agreement which shall not materially adversely affect the interests of the Bondholders; (c) to grant to or confer upon the Issuer or the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authority that may lawfully be so granted or conferred, or to grant or pledge to the Issuer or the Trustee for the benefit of the Bondholders any additional security; (d) to make any change requested by the Credit Facility Provider which is determined by the Trustee not to be adverse to the interest of the Bondholders; (e) to comply with requirements of any Rating Agency which are determined by the Trustee not to be adverse to the interests of the Bondholders; (f) to comply with regulations or rulings issued with respect to the Code, to the extent determined as necessary or desirable in the opinion of Bond Counsel; (g) to change or modify any provision of the Financing Agreement in connection with the remarketing of Bonds following any mandatory tender of the Bonds pursuant to Section 1002 hereof but only upon proper disclosure in an offering document to the potential purchasers of the Bonds to be so remarketed; (h) to permit the Borrower to enter into a modification of the Mortgage Loan on terms approved by the Issuer and the Credit Facility Provider; provided that there has first been delivered to the Trustee (1)written evidence of such approvals and the approval by the Issuer and the Credit Facility Provider of the proposed form of amendment and any other documents relating thereto; and(2)written evidence from each Rating Agency that such modifications and any related changes to the terms of the financing will not adversely affect the rating then in effect on the Bonds; (i)in connection with any other change which, in the judgment of the Trustee, is not to the prejudice of the Bondholders; or 0) to modify, alter, amend or supplement the Financing Agreement in any other respect, including amendments which would otherwise be described in Section 904 hereof, if notice of the proposed amendment is given to Bondholders(in the same manner as notices of redemption are given)at least thirty(30)days before the effective date thereof and, on or before such effective date, the Bondholders have the right to demand purchase of their Bonds pursuant to Section 1001. Copies of any such amendments to the Financing Agreement shall be filed with the Trustee. Section 904. Amendments to Financing Agreement Requiring Bondholder Consent. Except as provided in Section 903 hereof, the Issuer and the Trustee shall not enter into any other modification or amendment of the Financing Agreement, nor shall any such modification or amendment become effective, without the written consent of the holders of not less than a majority of the aggregate principal amount of the Bonds at the time Outstanding, such consent to be obtained in accordance with Section 906 hereof. No such amendment may, without the consent of the owners of all the Outstanding Bonds, reduce the amounts or delay the payments on the Mortgage Loan under the Financing Agreement; provided that any such amounts may be reduced without such consent solely to the extent that such reduction represents a reduction in any fees payable from such amounts (including,but'not limited to, a reduction in the Facility Fee). M-34519.2 48 41IM24-Ms1-09/10/94 Section 905. Amendments. Changes and Modifications to the Credit Facility. Subject to the provisions of Section 908, the Trustee may, without the consent of the owners of the Bonds, but with the consent of.the Issuer and the Borrower, consent to any amendment of the Credit Facility as may be required for purposes of curing any ambiguity, formal defect or omission which, in the Trustee's judgment, does not prejudice in any material respect the interests of the Bondholders. Except for such amendments, the Credit Facility may be amended only with the consent of the Issuer, the Trustee, the Borrower and the owners of a majority in aggregate principal amount of Outstanding Bonds, except that, without the written consent of the owners of all Outstanding Bonds, no amendment may be made to the Credit Facility which would reduce the amounts required to be paid thereunder or change the time for payment of such amounts; provided that any such amounts may be reduced without such consent solely to the extent that such reduction represents a reduction in any fees payable from such amounts. Section 906. Notice to and Consent of Bondholders. If consent of the Bondholders is required under the terms of this Indenture for the amendment of this Indenture, the Financing Agreement or the Credit Facility, or for any other similar purpose, the Trustee shall cause notice of the proposed execution of the amendment or supplemental indenture to be given by first class mail to the last known holders of the Outstanding Bonds then shown on the Register. Such notice shall briefly set forth the nature of the proposed amendment, supplemental indenture or other action, and shall state that copies of any such amendment, supplemental indenture or other document are on file at the Principal Office of the Trustee for inspection by all Bondholders. If, within sixty(60) days or such longer period as shall be prescribed by the Trustee following Cie mailing of such notice, the holders of a majority of the aggregate principal amount of the Bonds Outstanding by instruments filed with the Trustee shall have consented to the amendment, supplemental indenture or other proposed action, then the Trustee may execute such amendment, supplemental indenture or other document or Like such proposed action, and the consent of the Bondholders shall thereby be conclusively presumed. The consent of the holder of any Bond shall be binding on any transferee and successor transferees of such Bond. Any other notice required to be delivered to Bondholders pursuant to'this Indenture shall be given, or caused to be given, by the Trustee by first class mail to the last known holders of the Outstanding Bonds then shown on die Register. Section 907. Waivers. The Trustee shall not waive, on its own behalf or on behalf of the Issuer, any obligation of the Borrower under the Financing Agreement without the consent of the Credit Facility Provider (subject to the provisions of Section 704 hereof). Section 908. Required Approvals. Subject to the provisions of Section 704 hereof, and notwithstanding anything herein to the contrary, no amendment, supplement, change or modification may be made to this Indenture, the Financing Agreement, the Mortgage Loan Documents or the Credit Facility without the prior written consent of the Credit Facility Provider. Anything herein to the contrary notwithstanding,a supplemental indenture, amendment or other document described under this Article IX which affects any rights or obligations of the Borrower or the Remarketing Agent shall not become effective unless and until the affected party shall have consented in writing to the execution of such supplemental indenture, amendment or other document. The Trustee shall.not be required to enter into any supplemental indenture, amendment or other document described under this Article 1X which is, in the judgment of the Trustee, to the prejudice of the Trustee. Section 909. Opinions of Counsel. Subject to the provisions of Section 801 hereof, the Trustee may obtain, and shall be fully protected in relying upon, an Opinion of Counsel as conclusive evidence that any supplemental indenture or any amendment to the Financing Agreement or the Credit Facility executed pursuant to the provisions of this Article is authorized and permitted by this Indenture. No supplemental indenture or amendment to the Financing Agreement or the Credit Facility shall be effective until the Issuer and the Trustee shall have received an opinion of Bond Counsel to the effect that such supplemental indenture or such SF2-34519.2 49 41108-24-MSl-09/10/% amendment will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes. Section 910. Certificate of Borrower. In connection with any amendment to the Indenture or any other document requested by the Borrower, the Trustee and the Issuer may obtain and shall be fully protected in relying upon a certificate of the Borrower to the effect that, as of the date of such certificate, the Borrower and the Project are in compliance with all requirements of the Financing Agreement and the Regulatory Agreement (with such exceptions as shall be acceptable to the Issuer in its sole discretion). Section 911. Notation of Modification on Bonds: Preparation of New Bonds. Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation, in form approved by the Trustee and the Issuer as to any matter provided for in such supplemental indenture, and if such supplemental indenture shall so provide, new Bonds, so modified as to conform, in the opinion of the Trustee and the Issuer, to any modification of this Indenture contained in any such supplemental indenture, may be prepared by the Issuer, authenticated by the Trustee and delivered without cost to the holders of the Bonds then outstanding,upon surrender for cancellation of such Bonds in equal aggregate principal amounts. Section 912. Modification of the Tax Certificate. The Tax Certificate may be amended or modified without the consent of or notice to the Bondholders in accordance with the Tax Certificate. ARTICLE X Purchase and Remarketing of Bonds Section 1001. Purchase of Bonds on Any Business Day. Subject to the provisions of Section 1002 of this Indenture, during the Weekly Variable Rate Period, any Bond shall be purchased by the Trustee on behalf of and as agent for the Borrower, on the demand of the Beneficial Owner thereof, on any Business Day at a purchase price equal to one hundred percent (100%)of the principal amount thereof plus accrued interest, if any, to the date of purchase, upon delivery to the Tender Agent at its principal office of a Bondholder Tender Notice which states: (a) the number and principal amount(or portion thereof in integral multiples of Authorized Denominations,provided that the portion of the Bond retained is also an integral multiple of an Authorized Denomination)of such Bond; (b) the name,address and tax identification number of the Beneficial Owner of the Bond demanding such payment; and (c) the date on which such Bond shall be purchased pursuant to this Section 1001, which date shall be a Business Day not prior to the seventh day next succeeding the date of the delivery of such notice to the Tender Agent. By delivering the Bondholder Tender Notice, subject to the last paragraph of this Section, the Beneficial Owner irrevocably agrees to deliver such Bond(with an appropriate transfer of registration form executed in blank and accompanied by a guaranty of signature satisfactory to the Tender Agent) to the principal corporate trust office of the Tender Agent or any other address designated by the Tender Agent at or prior to 10:00 a.m., Tender Agent Time, on the date of purchase specified in the Bondholder Tender Notice; provided, however, that such Bond shall be so purchased pursuant to this Section only if the Bond so delivered to the Tender Agent shall conform in all respects to the description thereof in the Bondholder Tender Notice. The determination by the Tender.Agent of compliance by a Bondholder Tender.Notice with the requirements of this Section and the delivery of the Bonds is in the sole discretion of the Tender Agent and is binding on the Borrower, the Issuer, the Remarketing Agent, the Credit Facility Provider, the Trustee, the Tender Agent and the Beneficial Owner of SR2-34519.2 50 41108-24-MSI-09 IOM the Bonds. No such Bondholder Tender Notice shall be effective unless it complies with the above-described requirements and the last paragraph of this Section and unless it is accompanied by a guaranty of signature acceptable to the Tender Agent and is received by the Tender Agent at its principal office prior to 3:00 p.m., Tender Agent Time, on a Business Day not later than the seventh day preceding the Business Day designated in such Bondholder Tender Notice as the date of purchase. Immediately upon receipt of a Bondholder Tender Notice delivered pursuant to the provisions of the preceding paragraph demanding the purchase of a Bond, the Tender Agent shall notify the Borrower, the Remarketing Agent, the Trustee and the Credit Facility Provider by telephone, promptly confirmed in writing, of such receipt, specifying the contents of such Bondholder Tender Notice. Any election by a Beneficial Owner to tender a Bond or Bonds (or portion thereof) for purchase on a Business Day in accordance with this Section shall be irrevocable and shall be binding on the Beneficial Owner rocking such election and on any transferee of such Beneficial Owner. If after delivery to the Tender Agent of a,Bondholder Tender Notice in accordance with this Section, the holder making such election shall fail to deliver such Bond or Bonds described in the Bondholder Tender Notice to the Tender Agent on the applicable tender date as required by this Section, the untendered Bond or Bonds or portion thereof(each an "Untendered Section 1001 Bond") described in such Bondholder Tender Notice shall be deemed to have been properly Uendered for purchase to the Tender Agent and, to the extent that there shall be on deposit in the Bond Purchase Fund on or before the applicable purchase date an amount sufficient to pay the purchase price thereof, such Untendered Section 1001 Bond or Bonds(or portion thereof) shall on such purchase date cease to bear interest and no longer shall be considered to be Outstanding hereunder. The Trustee shall promptly give notice by registered or certified mail to each Beneficial Owner of any Bond which has been deemed to have been purchased pursuant to this Section, which notice shall state that interest on such Bond ceased to accrue on the date of purchase and that moneys representing the purchase price of such Bond are available against delivery thereof at the principal office of the Tender Agent. If for any reason a Beneficial Owner fails to deliver such Bond to the Tender Agent on said purchase date, the Issuer shall execute and the Tender Agent shall authenticate and deliver for redelivery in accordance with Section 211 hereof a new Bond or Bonds in mplacement of the Bond not so delivered. The replacement of any such previously Outstanding Bond shall not be deemed to create new indebtedness, but such Bond as is issued in replacement shall be deemed to evidence the indebtedness previously evidenced by the Bond not so delivered. Upon surrender of any Bond for purchase in part only, the Issuer shall execute and the Tender Agent shall authenticate and deliver to the holder thereof a new Bond or Bonds of the same maturity and interest rate of Authorized Denominations,in an aggregate'principal amount equal to the unpurchased portion of the Bond surrendered. Any Tendered Bonds that have been remarketed shall be deemed to continue to be Outstanding for all purposes and shall continue to be fully secured by this Indenture until paid at maturity or redemption prior to maturity. Payment for Bonds purchased by the Trustee shall be made to the registered owner thereof at or before 3:00 p.m., Tender Agent Time, on the date specified in the Bondholder Tender Notice, first from remarketing proceeds on deposit in the Bond Purchase Fund, second, to the extent necessary, from amounts on deposit in the Principal Payment Fund, third, to the extent necessary, from proceeds of a payment under the Credit Facility, including proceeds from the repurchase of Pledged Collateral under the Collateral Agreement, and fourth, from Available Moneys from the Borrower. Notwithstanding the above, during any period that the Bonds are issued in book-entry-only form pursuant to this Indenture, (i) any Bondholder Tender Notice delivered as described in this Section must also (A) provide evidence satisfactory to the Tender Agent that the party delivering the notice is the Beneficial Owner of the Bonds referred to in the notice, and (B) if the Beneficial Owner is other than a DTC Participant, identify the DTC Participant through whom the Beneficial Owner will direct the transfer referred to in the next sentence of this paragraph; (ii)on or before the purchase date, the SM34519.2 51 41108-24-MSl-09/10/94 Beneficial Owner must direct (or if the Beneficial Owner is not a DTC Participant, cause its DTC Participant to direct) the transfer of said Bonds on the records of DTC to the account of, or as directed by, the Trustee; and (iii) it shall not be necessary for Bonds to be delivered on the date specified for purchase thereof, but such purchase shall be made as if such Bonds had been so delivered, and the purchase price thereof shall be paid to DTC. Section 1002. Mandatory Purchase. Holders of Bonds shall be required to tender their Bonds to the Tender Agent, for purchase by the Trustee on behalf of and as agent for the Borrower for a purchase price equal to par plus accrued interest to the applicable purchase date, on each Mandatory Tender Date, which shall include each Adjustment Date or proposed Adjustment Date, as set forth in paragraph (a) of this Section, each Substitution Date or Extension Date, as set forth in paragraph (b)of this Section, and any date required for such tender as set forth in paragraph(c) of this Section. In any such event, the Owners of the Bonds may not elect to retain their Bonds. (a) Not less than thirty(30)days before any Adjustment Date or proposed Adjustment Date, the Trustee shall give notice by mail to the owners of the Bonds stating(i)the Adjustment Date or proposed Adjustment Date, (ii) that the Bonds are required to be tendered for purchase on such date, (iii)that the holders thereof shall not have the right to elect to retain such Bonds, and(iv)if applicable, any additional information required by Sections 204(b)or 205(b) of this Indenture. (b) Not less than ten(10) days before any Substitution Date, the Trustee shall give notice by mail to the owners of the Bonds stating (i)the Substitution Date, (ii) that such Bonds are required to be tendered on the Substitution Date, and that(iii)the holders thereof shall not have the right to elect to retain such Bonds. Not less than ten(10) days before any Extension Date, if the Trustee has not received either a commitment to extend the Existing Credit Facility or an Alternate Credit Facility, the Trustee shall give notice by mail to the owners of the Bonds stating(i) the Extension Date and that no commitment to extend or Alternate Credit Facility has been received by the Trustee, (ii)that such Bonds are required to be tendered on the Extension Date(unless an extension of the Credit Facility or any Alternate Credit Facility is received prior to the Extension Date), and(iii)that the holders thereof shall not have the right to elect to retain such Bonds. (c) The Bonds shall be subject to mandatory tender on the earliest practicable date, as determined by the Trustee, after notice thereof may be given to Bondholders(but not less than ten(10) nor more than fifteen(15) days after the giving of such notice)upon the occurrence of any of the following events: (1) receipt by the Trustee of notice from the,Credit Facility Provider requesting or consenting to acceleration of the Mortgage Loan following an Event of Default under Section 11.1 of the Financing Agreement or this Indenture and requesting that the Bonds be subject to mandatory tender rather than mandatory redemption; (2) default by the Credit Facility Provider in the payment of any amounts due under the Credit Facility; or (3) the Credit Facility Provider shall(i) commence a proceeding under any federal or state insolvency, reorganization or similar law, or have such a proceeding commenced against it, and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for ninety(90) days; or(u)have a receiver, liquidator or trustee appointed for it or for the whole or substantially all of its property. Immediately upon receipt by the Trustee of notice or knowledge of any of the foregoing events, the Trustee shall give notice by mail to the owners of the Bonds stating (i)that such event has occurred, SF2-34519.2 52 41109-24-MS1-09/10/94 (ii) that such Bonds are required-to'be tendered on the Mandatory Tender Date specified in such notice, and (iii)that the holders thereof shall not have the right to elect to retain such Bonds. (c) The Bonds shall be subject to mandatory tender on the date set forth in clause (ii)of the definition of"Effective Date" in Section 101, if as of such date the Collateral.Agreement has been executed and delivered by the parties thereto. On the date set forth in clause (i)of said definition,the Trustee shall give notice by mail to the owners of the Bonds stating(1) that the Bonds are required to be tendered for purchase on such Mandatory Tender Date of the Collateral Agreement has been executed and delivered; (2) that the holders thereof shall not have the right to elect to retain such Bonds; and(3) that if the Collateral Agreement has not been executed and delivered as of such date, such mandator tender shall be cancelled, notice thereof.given to the Bondholders not later than the date scheduled for such tender, and all Bonds which have been delivered for purchase pursuant to this paragraph shall be returned to the Holders thereof. Any Bond which is not so tendered on a Mandatory Tender Date("Untendered Section 1002 Bond") shall be deemed to have been tendered to the Tender Agent as of such Mandatory Tender Date, and, from and after such Mandatory Tender Date, shall cease to bear interest and no longer shall be considered to be Outstanding hereunder. In the event of a failure'by holders to tender Bonds on the Mandatory Tender Date, said holders shall not be entitled to any payment(including any interest to accrue subsequent to the Mandatory Tender Date) other than the purchase price for such Untendered Section 1002 Bonds, and any Untendered Section 1002 Bonds shall no longer be entitled to the benefits of this Indenture, except for the purpose of payment of the purchase price therefor. If for any reason a holder fails to deliver such Bond to the Tender Agent on the Mandatory Tender Date, the Issuer shall execute, and the Tender Agent shall authenticate and deliver to the Remarketing Agent for redelivery to the purchaser,a new Bond or Bonds in replacement of the Bond not so delivered. The replacement off any such previously outstanding Bond shall not be deemed to create new indebtedness, but such Bond as is issued in replacement shall be deemed to evidence the indebtedness previously evidenced by the Bond not so delivered. Any Tendered Bonds that have been remarketed shall be deemed to continue to be Outstanding for all purposes and shall continue to be fully secured by this Indenture until paid at maturity or redemption prior to maturity. Payment for Bonds purchased pursuant to this Section 1002 shall be made by the Trustee at or before 3:00 p.m., Tender Agent Time on the Mandatory Tender Date, first, from remarketing proceeds on deposit in the Bond Purchase Fund, second, to the extent necessary, from amounts on deposit in the Principal Payment Fund, third, from proceeds of a payment under the Credit Facility,including proceeds from the repurchase of the Pledged Collateral under the Collateral Agreement and fourth, from Available Moneys from the Borrower. Following any Mandatory Tender (Date, moneys deposited with the Tender Agent for purchase of Bonds pursuant to this Section shall be heldl in trust in the Bond Purchase Fund and shall be paid to the former owners of such Bonds upon presentation thereof at the principal corporate trust office of the Tender Agent. The Tender Agent shall promptly give notice byj registered or certified mail to each registered owner of Bonds whose Bonds are deemed to have been purchased pursuant to this Section, which notice shall state that interest on such Bonds ceased to accrue on the date of purchase and that moneys representing the,purchase price of such Bonds are available against delivery thereof at the principal corporate trust office of the ender Agent. Notwithstanding anything,to the contrary contained in Sections 1001 or 1002, if Fannie Mae has become the owner of the Project and would be required to advance funds under the Collateral Agreement in connection with a mandatory purchase of Bonds, such Bonds shall be subject to mandatory redemption instead of purchase, unless the Controller and General Counsel of Fannie Mae shall consent in writing to a purchase of such Bonds instead of a redemption. Sln-34519.2 53 41108-24-MS1-09/10/94 Section 1003. Remarketing of Bonds. Upon delivery of the Bondholder Tender Notice to the Tender Agent, and on or prior to each Adjustment Date and Substitution Date, the Remarketing Agent shall offer for side and use its best efforts to sell (a) the Bonds identified in the Bondholder Tender Notice and(b) all Bonds which are required to be tendered pursuant to Section 1002 hereof, any such sale to be made on or before the date on which such Bonds are to be purchased, and in so doing shall sell such Bonds at a price equal to par plus accrued interest thereon. Except as otherwise provided herein, the Remarketing Agent may not resell directly to the Issuer, the Borrower or any general partner of the Borrower any Bonds so delivered to it. In its capacity as a registered broker-dealer, the Remarketing Agent may, but is not obligated to, acquire for its own account any Bonds so delivered to it, but not otherwise resold, in which case the Remarketing Agent shall resell such Bonds to itself. The Remarketing Agent may purchase and sell Bonds for its own account at any time. Notwithstanding any other provision herein, Bonds which have been tendered on an Extension Date or date specified pursuant to Section 1002(c) shall not be remarketed by the Remarketing Agent until such time as an Alternate Credit Facility meeting the requirements of Section 3.5 of the Financing Agreement shall have been delivered to the Trustee, unless waived as provided in said Section, or, in the case of an event described in Section 1002(c)(i), the Credit Facility Provider has consented to such remarketing. Not later than 4:00 p.m., Trustee Time, on the Business Day next preceding the purchase date, the Bemarketing Agent shall, to the extent such information is then available, give notice by telephone, telex or telecopy (i) to the Trustee and the Credit Facility Provider specifying the total principal amount of Bonds, if any, sold for settlement on such purchase date, and(ii) to the Trustee specifying the name, address and taxpayer identification number of each purchaser as well as the denominations of the Bonds to be issued to such purchaser. At the time of delivery of Bonds to or upon the order of the Remarketing Agent as hereinafter provided, the Remarketing Agent shall deliver to the Trustee at its Principal Office, in immediately available fiends, an amount equal to the purchase price of the total principal amount of Bonds so specified in the notice given by the Remarketing Agent pursuant to the immediately preceding sentence plus accrued interest, if any, thereon. In any event, the Remarketing Agent shall, not later than 10:00 a.m., Washington, D.C. time, on the purchase date designated in a Bondholder Tender Notice pursuant to Section 1001, or on an Adjustment Date or Substitution Date, give telephonic or telegraphic notice to the Trustee, the Borrower and the Credit Facility Provider specifying the principal amount of Bonds remarketed; the amount of remarketing proceeds on deposit with the Trustee, the amount of moneys on deposit in the Principal Payment Fund to be used to pay'the purchase price and the amount of Bonds to be purchased that have not been remarketed at the time of such notice, which notice shall be immediately confirmed in writing. With respect to any Bonds that have been n.marketed, such notice shall contain instructions to the Trustee as to the manner in which such Bonds are to be registered. The Trustee shall deliver,or cause to be delivered, at the Principal Office of the Tender Agent, Bonds remarketed by the Remarketing Agent, before 1:00 p.m., Tender Agent Time, on the purchase date designated pursuant to Sections 1001 and 1002; provided, however, that prior to delivery of the Bonds to such purchasers the amount available under the Credit Facility to secure the Bonds must equal the principal amount of the Bonds Outstanding(other than Purchased Bonds)plus the Interest Requirement. Bonds purchased by the Trustee on behalf of and as agent for the Borrower and not remarketed shall be registered as Purchased Bonds. The purchase and remarketing of the Bonds, including any purchase from amounts advanced by the Credit Facility Provider, shall not result.in the extinguishment or the reissuance of the Bonds, but shall be solely for the benefit of the Borrower and the holders of the Bonds. . Section 1004. Creation and Remarketing of Purchased Bonds. Bonds for which the purchase price is funded with moneys provided under the Credit Facility or from amounts on deposit in the Principal Payment Fund referred to in Sections 701(b)(i)and(ii)hereof and which are not remarketed in accordance with the Remarketing Agreement shall become Purchased Bonds. The Credit Facility shall not constitute security for Purchased Bonds. Purchased Bonds shall be removed from the book-entry system, shall be registered in the name of the Borrower, shall be held by the Trustee and, as to the Collateral Agreement,.shall,be pledged to S1F?,M519.2 54 41108-24-MSI.09/10/94 Fannie Mae pursuant to the Pledge, Security and Custody Agreement of even date herewith between the Borrower and the Trustee as collateral agent for Fannie Mae. Failure to pay interest on Purchased Bonds when due, or failure to pay principal and interest on Purchased Bonds upon any Redemption Date or purchase date or the Maturity Date shall not constitute an Event of Default. Upon the Maturity Date, or upon any Redemption Date (whether by reason of optional or mandatory redemption) or date of acceleration, all Purchased Bonds shall be deemed cancelled. Purchased Bonds shall also be cancelled upon direction of the Credit Facility Provider. At such time as a Purchased Bond is remarketed, the Trustee or the Tender Agent, as appropriate, shall(a) either remit the proceeds from the remarketing to the Credit Facility Provider or deposit the proceeds into the Principal Payment Fund to the extent amounts had been withdrawn from the Principal Payment Fund to purchase such Bonds, and(b) give written notice to the Remarketing Agent, the Borrower and the Credit Facility Provider that such Bond is no longer a Purchased Bond. Section 1005. No Sales After Default: No Purchase After Acceleration. Anything in this Indenture to the contrary notwithstanding,there shall be no sales of Bonds pursuant to this Article if the Trustee shall have given notice to the Remarketing Agent that there shall have occurred and be continuing an Event of Default. There shall be no purchase of Bonds pursuant to this Article-if the Trustee shall have given notice to the Remarketing Agent that there has occurred and is continuing an acceleration of Bonds pursuant to Section 602 hereof. Section 1006. Tender Agent Acting for Trustee. All purchases of Bonds and other activities of the Tender Agent under this Article are made and carried out by the Tender Agent solely as the agent of the Trustee. ARTICLE]a Miscellaneous Section 1101. Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is intended or shall be construed to give to any Person other than the parties hereto, the Bondholders, the Credit Facility Provider and the Borrower any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions herein contained; this Indenture and all of the covenants, conditions and provisions herein being intended to be and being for the sole and exclusive benefit of the parties hereto, the Bondholders, the Credit Facility Provider and the Borrower as herein provided. Section 1102. Severability. If any provision of this Indenture is held to be in conflict with any applicable statute or rule of law, or is otherwise held to be unenforceable for any reason whatsoever, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other part or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of any one or more phrases, sentences,clauses or Sections of this Indenture shall not affect the remaining portions of this Indenture, or any part hereof. Section 1103. Notices. Unless otherwise specified herein, it shall be sufficient service or giving of any notice, request, certificate, demand or other communication if the same shall be sent by registered or G-.rtified mail, return receipt requested, or by private courier service which provides evidence of delivery, postage or other charges prepaid, or sent by telecopy or other electronic means which produces evidence of transmission, confirmed by first class mail, and in each case shall be deemed to have been given on the date evidenced by the postal or courier receipt or other written evidence of delivery or electronic transmission. SF234519.2 55 41108-04-MS1-09/10/94 Unless a different address is given by any party as provided in this Section, all such communications shall be addressed as follows: To the Issuer: County of Contra Costa County Administration Building 651 Pine Street, 4th Floor North Wing Martinez, California 94553-0095 Attention: Executive Director--Redevelopment To the Trustee: First Trust of California, National Association 101 California Street Suite 1150 San Francisco, California 94111 Attention: Housing Group To the Remarketing Agent Painewebber Incorporated 1285 Avenue of the Americas, 10th Floor New York, New York 10019 Attention: Short Term Desk To the Borrower: Rivershore Apartments, Inc., a California corporation 622 Thornton Avenue Newark,California 94560 Attention:President To Fannie Mae: Federal National.Mortgage Association 3900 Wisconsin Avenue, N.W. Washington, D.C. 20016-2899 Attention: Manager of Investment Accounting with a copy to: Federal National Mortgage Association 3900 Wisconsin Avenue, N.W. Washington, D.C. 20016-2899 Attention: Manager, Multifamily Operations To the Tender Agent: First Trust of California, National Association 101 California Street Suite 1150 San Francisco, California 94111 Attention: Housing Group To the Servicer: First Nationwide Bank 135 Main Street, 9th Floor San Francisco, California 94105-1817 Attention: Commercial Real Estate Management To the Rating Agency: Standard&Poor's Ratings Group 25 Broadway New York, New York 10004 Attention:Public Finance Surveillance Group SB2-34519.2 56 41108-7A-MS1-09/10/94 r The Issuer, the Borrower, the Credit Facility Provider, the Tender Agent and the Trustee, by notice given hereunder, may designate any different addresses to which subsequent notices, certificates, requests, demands or other communications shall be sent, but no notice directed to any one such entity shall thereby be required to be sent to more than two addresses. All approvals required hereunder shall be given in writing. Section 1104. Payments Due on Days That Are Not Business Days. In any case where the date inquired for payment of principal of or interest on the Bonds or the date fixed for redemption or mandatory purchase of any Bonds shall not be a Business Day, then payment of such principal, interest or redemption or purchase price need not be made on such date but shall be made on the next succeeding Business Day, with the same force and effect as if made on the due date therefor,and, in the case of such payment, no interest shall accrue for the period from and after such due date. Section 1105. Binding Effect. This instrument shall from and after the Effective Date be binding upon the Issuer, the Trustee, the Borrower and the Credit Facility Provider and their respective successors and assigns, subject, however, to the limitations contained in this Indenture. Section 1106. Governing Law. This Indenture shall be governed by and interpreted in accordance with internal laws of the State without regard to conflicts of laws principles. Section 1107. No Personal Liability;No Recourse. No member, officer, agent, employee or attorney of the Issuer, including any person executing this Indenture or the Bonds, shall be liable personally on the Bonds or for any reason relating to the issuance of the Bonds. No recourse shall be had for the payment of the principal of or the interest on the Bonds, or for any claim based thereon, or otherwise in respect thereof, or based on or in respect of this Indenture or any indenture supplemental hereto, against any member, officer, employee or agent, as such, of the Issuer or any successor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue of the Bonds, expressly waived and released. Section 1108. Assignment of Certain Rights. Pursuant to Section 3.14(c)of the Collateral Agreement and subject to the terms of such Section, the Trustee has assigned certain of its rights ae the holder of the Mortgage Note and the Mortgage(excluding the right to receive payments in respect of principal and interest on the Mortgage Loan) to Fannie Mae. [Remainder of page intentionally left blank.]' 51234519.2 57 41108-24-MSi-09/10/94 IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed, sealed and attested in its name and on its behalf by its duly authorized officers, and the Trustee has caused this Indenture to be executed in its name by its duly authorized officer, all as of the day and year first above written. COUNTY OF CONTRA COSTA By: Deputy Director--Redevelopment FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee By: Authorized Officer (SEAL) Attest: Authorized Officer SF2-34519.2 58 41108-24-MS1-09/10/94 EXHIBIT A [FORM OF BOND] No. $ COUNTY OF CONTRA COSTA VARIABLE RATE DEMAND MULTIFAMILY MORTGAGE REVENUE REFUNDING BONDS (RIVERSHORE APARTMENTS), 1992 SERIES B Maturity Date of Date Original Issue CUSIP REGISTERED OWNER: CEDE&CO. PRINCIPAL AMOUNT: FOR VALUE RECEIVED, the COUNTY OF CONTRA COSTA (the 'Issuer"), a legal subdivision and body corporate and politic of the State of California(the "State") hereby promises to pay, but only from the sources provided herein, to the Registered Owner specified above, or registered assigns, the Principal Amount sipecified above, upon surrender hereof at the office of First Trust of California, National Association, as trustee (the "Trustee"), designated pursuant to the Indenture hereinafter identified(the "Principal Office" of the Trustee) on the Maturity Date specified above, unless redeemed prior thereto as hereinafter provided, and to pay by check or draft mailed to the Registered Owner at its registered address as shown on the registration books of the Issuer as maintained by the Trustee, on the Record Date, interest on such Principal Amount from the Date of Original Issue specified above to the Maturity Date specified above or earlier redemption of this Elond at the interest rate per annum provided for in the Indenture, payable(a) during the Weekly Variable Rate Period, on the fifteenth(15th)day of each calendar month, (b) during a Reset Period and the Fixed Rate Period, on each June 1 and December 1, (c) on each Adjustment Date and (d)on the Maturity Date (collectively, the "Interest Payment Dates"), until the Bonds have been either fully paid or retired. As used herein, (i) "Record Date" means the close of business on the second Business Day preceding an Interest Payment Date; and (iii) "Business Day,," means a day other than a Saturday, a Sunday or any day on which banking institutions located in the city of New York, New York, or the city in which the Principal Office of the Trustee is located, are required or authorized by law to close, or upon which the New York Stock Exchange or the provider of the Credit Facility is closed. The Bonds are issued pursuant to and in compliance with the Constitution and laws of the State, particularly Article 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California and Chapter 7 of Part 5 of Division 31 of the Health and Safety Code of the State of California, and resolutions duly adopted by the Issuer. THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES, RECEIPTS AND SECURITY PLEDGED OR DERIVED THEREFOR HEREUNDER. NO BONDHOLDER HAS THE RIGHT TO COMPEL ANY EXERCISE OF THE TAXING POWER OF THE ISSUER TO PAY THE BONDS, THE INTEREST OR REDEMPTION PREMIUM,IF ANY, THEREON, AND THE BONDS SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER OR.A LOAN OF 711E CREDIT THEREOF WITH IN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, NOR SHALL THE BONDS BE CONSTRUED TO CREATE ANY MORAL OBLIGATION ON THE PART OF THE ISSUER OR ANY AGENCY OR POLITICAL SUBDIVISION THEREOF WITH RESPECT TO THE PAYMENT OF THE BONDS. S'F2-34519.2 A=1 41109-74-MSl-09/10/44 This Bond is one of a duly authorized issue of bonds of the Issuer designated as "Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds(Rivershore Apartments) 1992 Series B" limited in Aggregate principal amount to$10,900,000(the "Bonds"). The Bonds are issued under and are equally and ratably secured as to principal and interest by an Indenture, dated as of November 1, 1992, as amended and restated by an Amended and Restated Trust Indenture, dated as of September 1, 1994, between the Issuer and the Trustee (the "Indenture"), to which Indenture and all indentures supplemental thereto (copies of which are on file at the Principal Office of the Trustee) reference is hereby made for a description of the trust estate under the Indenture, the nature and extent of the security and the terms and conditions upon which the Bonds are issued and secured, and the rights of the registered owners thereof. Defined terms used herein and not defined herein shall have the meanings assigned to them in the Indenture. The Bonds are initially secured by (i)a pledge of payments under a mortgage loan(the "Mortgage Loan"), to Rivershore Apartments, Inc., a California corporation(the "Borrower"), the terms of which are set firth in that certain Financing Agreement identified in the Indenture(the "Financing Agreement"); and(ii)a Collateral Agreement dated September 1, 1994 (the "Collateral Agreement") between the Federal National Mortgage Association("Fannie Mae") and the Trustee, pursuant to which Fannie Mae has agreed, subject to the terms and conditions of the Collateral Agreement, to provide credit enhancement and liquidity for the Bonds by pledging and granting to the Trustee a security interest in certain mortgage loans and other collateral owned by Fannie Mae(the "Pledged Collateral"). The proceeds of the Pledged Collateral, or other moneys of Fannie Mae, will be available to the Trustee under the Collateral Agreement to pay principal of and interest on the Mortgage Loan if any regularly scheduled payment under the Mortgage Loan is not timely received by the Trustee. Regularly scheduled payments due under the Mortgage Loan will be in amounts sufficient to pay all principal of and interest on the Bonds on the dates due for payment under the Indenture. The Collateral Agreement may be replaced by other facilities for credit or liquidity support(an "Alternate Credit Facility" or, together with the Collateral Agreement, a "Credit Facility"), in accordance with the provisions of the Indenture. The Trustee is required under the Indenture to request payment under the Credit Facility in accordance with its terms in order to xeceive payment thereunder on the dates specified in the Indenture. THE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA, BUT BY THE CREDIT OF FANNIE MAE, A FEDERALLY CHARTERED, STOCKHOLDER OWNED CORPORATION. PAYMENT OF PRINCIPAL AND INTEREST ON THE BONDS IS NOT GUARANTEED BY FANNIE MAE. FANNIE MAE'S SOLE OBLIGATION WITH RESPECT TO THE COLLATERAL AGREEMENT IS TO MAKE CERTAIN PAYMENTS UNDER THE COLLATERAL AGREEMENT IN ACCORDANCE WITH ITS TERMS, TO THE TRUSTEE. FANNIE MAE HAS NO OBLIGATION TO PAY PRINCIPAL, PREMIUM,IF ANY, OR INTEREST ON THE BONDS. FANNIE MAE HAS NO OBLIGATION TO, AND WILL NOT, PURCHASE DIRECTLY OR INDIRECTLY ANY OF THE BONDS. The Bonds are issuable as fully registered Bonds in the "Authorized Denominations" of$100,000 or integral multiples thereof during any period the Bonds bear interest at a rate determined weekly (the "Weekly Variable Rate Period"), and$5,000 or integral multiples thereof during any period that the rate of interest on the Bonds is fixed for a period of six months or more (the "Reset Period") or to the maturity of the Bonds (the "Fixed Rate Period"). This Bond, upon surrender hereof at the Principal Office of the Trustee with a written instrument of transfer satisfactory to the Trustee executed by the registered owner hereof or an attorney duly authorized in writing, may, at the option of the registered owner hereof, be.exchanged for an equal aggregate principal amount of Bonds of any other Authorized Denomination. This Bond is transferable as provided in the Indenture, subject to certain limitations therein contained, only upon the bond register kept by the Trustee, and only upon surrender of this Bond for transfer to the Trustee duly endorsed by, or accompanied by a written vnstrument.of transfer in form satisfactory to the Trustee duly executed by, the registered owner hereof or an attorney duly authorized in writing. Thereupon,one or more new Bonds of Authorized Denominations and in the same aggregate principal amount will be issued to,the designated transferee or transferees. M-34519.2 A-2 41108-24-MSl-09/10/94 Any service charge made by the Trustee for any such registration,transfer or exchange hereinbefore referred to shall be paid by the Borrower. The Trustee or the Issuer may require payment by the registered owner of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Neither the Issuer nor the Trustee shall make any such exchange or registration of transfer of any Bond after notice of redemption or partial redemption of such Bond has been given. The Trustee is not required to register the transfer or exchange of any Bond(or portion thereof) during the fifteen-day period next preceding the selection of Bonds for redemption, and from and.after notice calling such Bonds(or portion thereof) for redemption or partial redemption has been given and prior to such redemption, or during the period between a Record Date and the related Interest Payment Date. The.Issuer, the Trustee and the Tender Agent, and any agent of the Issuer, the Trustee or the Tender Agent, may treat the person in whose name this Bond is registered as the absolute owner hereof for any purpose, whether or not this Bond would be overdue, and neither the Issuer, the Trustee, the Tender Agent nor any such agent shall be affected by notice to the contrary. Weekly Variable Rate Period. From the effective date of the Indenture (the "Effective Date") to, but excluding, the earlier of the date of adjustment to a Reset Period or Fixed Rate Period(the "Adjustment Date" or the Maturity Date specifier)above, this Bond shall bear interest at the Weekly Variable Rate determined by PaineWebber Incorporated or its successor (the "Remarketing Agent"), as provided in the Indenture, for each seven-day period from Wednesday of a calendar week for which the Weekly Variable Rate is to be determined, or the Effective Date if not a Wednesday, to and including Tuesday of the next succeeding calendar week. Interest on the Bonds during the Weekly Variable Rate Period shall.be computed on the basis of a 365-or 366- day year, as applicable, for the actual number of days elapsed. Reset Period. Prior to the Fixed Rate Period the Borrower may, upon compliance with certain conditions of the Indenture, cause the adjustment of the interest rate on the Bonds to a Reset Rate, which shall be determined by the Remarketing Agent as provided in the Indenture. During the Reset Period, the Bonds shall bear interest at the Reset Rate, payable on each Interest Payment Date as defined above (commencing on the first Interest Payment Date after the Adjustment Date) to and including the next succeeding Adjustment Date. Such interest shall be computed on the basis of a year of three hundred and sixty(360)days of twelve (112) thirty(30) day months. Fixed Rate Period. On any Interest Payment Date, upon compliance with certain conditions of the Indenture, the interest rate on this Bond may be converted to the Fixed Interest Rate, which shall be determined . by the Remarketing Agent as provided in the Indenture. From such Adjustment Date to, but excluding, the Maturity Date specified above, the Bonds shall bear interest at the Fixed Interest Rate, payable on each Interest Payment Date as specified above (commencing on the first Interest Payment Date or after such Adjustment Date) to and including the Maturity Date. Such interest shall be computed on the basis of a year of three hundred and sixty (360) days of twelve (12)thirty(30) day months. Purchase of Bonds at Option of Registered Owner. During the Weekly Variable Rate Period, any Bond shall be caused to be purchased by the Trustee or its agent, First Trust of California,National Association, as the Tender Agent(the "Tender Agent"), on behalf of and as agent for the Borrower, on the demand of the beneficial owner thereof, on any Business Day at a purchase price equal to one hundred percent (100%) of the principal amount thereof plus accrued interest, if any, to the date of purchase upon delivery to the Tender Agent,at its principal office specified in the Indenture, of a notice as prescribed by the Indenture (a "]Bondholder Tender Notice"). The date stated in the Bondholder Tender Notice on which such Bonds shall be purchased shall be a Business Day not prior to the seventh day next succeeding the date of delivery of such notice to the Tender Agent. Mandatory Tender on Certain Dates. The registered owners of the Bonds shall be required to tender their Bonds to the Tender Agent who shall purchase the Bonds on behalf of and as agent for the Borrower for a purchase price equal to par plus accrued interest to the applicable purchase date on each Adjustment Date, on the date of any substitution of any Credit Facility pursuant to the Indenture, on the date five days before the SF2-34519.2 A-3 41108-24-MS1-09/10/94 expiration of any Credit Facility if the Trustee has not received either a commitment to extend the same or an Alternate Credit Facility, and on any date specified by the Trustee following certain defaults or acts of bankruptcy by the Borrower or the provider of the Credit Facility;provided that, if Fannie Mae has become the owner of the Project and would be required to advance funds under the Collateral Agreement in connection with a mandatory purchase of the Bonds, such Bonds shall be subject to mandatory redemption instead of purchase, unless the Controller and General Counsel of Fannie Mae shall consent in writing to a purchase of such Bonds instead of a redemption. Bondholders may not elect to retain their Bonds in any such event. Optional Redemption. The Bonds shall be subject to redemption in whole or in part, at the option of the Borrower, (i)on any Interest Payment Date during the Weekly Variable Rate Period, and on the day after any Reset Period at a redemption price equal to one hundred percent (100%)of the principal amount redeemed plus accrued interest to the redemption date; and(ii) during any Reset Period or the Fixed Rate Period on the nVective dates and at the respective prices determined as provided in the Indenture. Mandatory Redemption. The Bonds are subject to mandatory redemption at any time on the earliest p:racficable date at a redemption price equal to one hundred percent (100%)of the principal amount of the Bonds to be redeemed plus accrued interest thereon to the redemption date, from the amounts specified in the Indenture, (a) in part in accordance with.the mandatory sinking fund redemption provisions of the Indenture or any supplemental indenture; (b)in whole or in part, as provided in the Indenture, following involuntary destruction or loss of the Project as a result of casualty or condemnation;.(c) in whole or in part at the request or with the consent of the Credit Facility Provider following an event of default under the Financing Agreement; (d)in whole or in part on any Interest Payment Date from payments of principal of the Mortgage Loan; and(e) in whole or in part, if the Credit Facility Provider has become the owner of the Project and gives written direction to the Trustee to redeem Bonds instead of purchasing them under the Indenture. Bonds purchased pursuant to the liquidity provisions of the Credit Facility or with certain funds available under the Indenture shall be deemed to have been redeemed under the circumstances set forth in the Indenture. If less than all the.outstanding Bonds shall be called for redemption, the Trustee shall select by lot, in such manner as it shall in its discretion determine, the Bonds, or portions thereof in Authorized Denominations, to be redeemed. If there shall be called for redemption less than the entire principal amount of a Bond, the Issuer shall execute and the Trustee shall authenticate and deliver, upon surrender of such Bond, without charge to the registered owner thereof, in exchange for the unredeemed principal amount of such Bond, at the option of such registered owner, a Bond or Bonds in Authorized Denominations equal to that portion of the Bond not so redeemed. Notice of Redemption. In the event of a redemption of the Bonds for any reason, notice thereof shall be given by the Trustee to the holders of the Bonds to be so redeemed in the manner specified in this paragraph. Except as provided below, notice of redemption shall be given not less than thirty(30)nor more than forty-five (45) days prior to the date fixed for redemption by first class mail postage prepaid to the registered owner of each Bond to be redeemed, at the address of such registered owner shown on the Register, setting forth the information prescribed by the Indenture. A second notice of redemption is required to be sent by registered or certified mail, at such address, to any registered owner who has not submitted its Bond to the Trustee for payment on or before the date sixty (60) days following the date fixed for redemption of such Bond. Notice of such redemption is also required to be sent by the Trustee to certain municipal-registered securities depositories and information services, as set forth in the Indenture. Neither failure to receive any such notice nor any defect in any notice so mailed shall affect the sufficiency of the proceedings for the redemption of such Bonds. Such Bonds called for redemption must be surrendered at the Principal Office of the Trustee for redemption at the mdemption price, and interest on such Bonds will not accrue from and after the redemption date. If provision is made for the payment of principal of and interest on this Bond in accordance with the Indenture, this Bond shall no longer be deemed.Outstanding under,the Indenture, shall cease to be entitled to the benefits of the Indenture, and shall thereafter be payable solely from the amounts provided for such payment. S'F2-34519.2 A-4 41108-74-MS1-09/10/94 Under certain circumstances as described in the Indenture, the principal of all of the Bonds may be declared due and payable in the manner and with the effect provided in the Indenture. Immediately.following any such declaration of acceleration, the Trustee shall mail notice of such declaration by first class mail to each registered owner of Bonds at such registered owner's last address appearing on the bond register kept by the Trustee. Any defect in or failure to give such notice of such declaration shall not affect the validity of such declaration. The Indenture permits, with certain exceptions therein provided, the amendment thereof and of the Financing Agreement and the modification of the rights and obligations of the Issuer, the Borrower, the provider of the Credit Facility and the registered owners of the Bonds at any time with the consent of the registered owners of a majority in aggregate principal amount of the Bonds at the time outstanding which are affected by such amendment or modification. The Indenture also permits amendments and supplements to the Indenture, the Financing Agreement and other documents without requiring the consent of any Bondholders in certain specifically described instances. The Indenture also contains provisions permitting the Trustee to waive compliance by the Issuer and the Borrower with certain provisions of the Indenture and their consequences, subject to the provisions of the Indenture. Supplements and amendments to the Indenture or the Financing Agreement may be made only to the extent and in the circumstances permitted by the Indenture. The registered owner of this Bond shall have no right to enforce the provisions of the Indenture or the Financing Agreement, or to institute action to enforce thecovenants therein, or to take any action with respect to a default under the Indenture or the Financing Agreement, or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided under certain limited circumstances described in the Indenture; provided, however, that nothing contained in the Indenture shall affect or impair any right of enforcement conferred on the registered owner hereof to enforce (a) the payment of the principal of and interest on this Bond at and after the maturity hereof, or(b) the obligation of the Issuer to pay the principal of and interest on this Bond to the registered owner hereof at the time and place, from the sources and in the manner provided in the Indenture. The registered owner of this Bond, by acceptance hereof, consents to all of the terms and provisions of the Indenture and the Financing Agreement. No recourse shall be had for the payment of the principal of or the interest on this Bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against the general credit of the Issuer or against any member, officer, employee or agent, a1 such, past, present or future, of the Issuer or any successor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability.being,by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to the execution and delivery of the Indenture and the issuance of this Bond and the issue of which it is a part, do exist, have happened and have been timely . performed in regular form and manner as required by law, and the issuance of this Bond, together with all other obligations of the Issuer, does not exceed or violate any State constitutional or statutory limitation or any other limitation of the Issuer. This Bond shall not be entitled to any benefit under the Indenture or become valid or obligatory for any purpose until authenticated by the certificate of the Trustee or the Tender Agent endorsed hereon. M-34519.2 A-5 4110 8-24-MSI-09/10/94 IN WITNESS WHEREOF the Issuer has caused this Bond to be duly executed in its name by the manual or facsimile signature of its Chair of the Board of Supervisors of the County of Contra Costa under its official seal, or a facsimile thereof, and attested by the manual or facsimile signature of its County Administrator and Clerk of the Board of Supervisors of the County of Contra Costa. COUNTY OF CONTRA COSTA By: Title: (SEAL) Attest: Title: [Form of Certificate of Authentication] Certificate of Authentication This Bond is one of the Bonds described in the within mentioned Indenture. FIRST TRUST OF CALIFORNIA, NATIONAL FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee ASSOCIATION, as Tender Agent By: By: Authorized Signatory Authorized Signatory Date of Authentication: ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto (Name and Address of Assignee) Cie within Bond and does hereby irrevocably constitute and appoint ,Attorney, to transfer the said Bond on the Bond Register with full power of substitution in the premises. Dated: Signature guaranteed: SF2-34519.2 A-() 41108-21-MS1-09/10/94 NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signatures)must be guaranteed by an "eligible guarantor institution"meeting the requirements of the Trustee, which requirements include membership or participation in STAMP or such other "signature guaranty program" as may be determined by the Trustee in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. SM-34519.2 A-7 41108-24-MSI-09/10/94 FINANCING AGREEMENT among COUNTY OF CONTRA COSTA and FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee and RIVERSHORE APARTMENTS, INC., a California corporation Relating to $10,800,000 COUNTY OF CONTRA COSTA VARIABLE RATE DEMAND MULTIFAMILY MORTGAGE REVENUE REFUNDING BONDS (RIVERSHORE APARTMENTS), 1992 SERIES B Dated as of September 1, 1994 SF234509.2 41108-24-MS1-09/10/44 TABLE OF CONTENTS Pace ARTICLE I Definitions and Interpretation Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1.2. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 3 Section 1.3. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARTICLE II Representations, Warranties and Covenants Section 2.1. Representations, Warranties and Covenants by the Borrower . . . . . . . . 3 Section 2.2. Representations, Warranties and Covenants of the Issuer . . . . . . . . . . . 7 ARTICLE III The Bonds and the Proceeds Thereof Section 3.1. Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 3.2. Bond Purchase or Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 3.3. Investment of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 3.4. Tax Certificate and Regulatory Agreement . . . . . . . . . . . . . . . . . . . . 9 Section 3.5. Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARTICLE IV The Mortgage Loan Section 4.1. Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 4.2. Terms of the Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Section 4.3. Mortgage Note Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 4.4. Adjustment to Reset Rate or Fixed Interest Rate . . . . . . . . . . . . . . . . 11 Section 4.5. Adjustment to Weekly Variable Rate . . . . . . . . . . . . . . . . ... . . . . . 11 Section 4.6. Payment Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 4.7. Principal Payment Fund . . . . . . . . 12 Section 4.8. Cross Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 4.9. Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 4.10. Certain Notices From Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 4.11. Modification of Mortgage Loan Documents . . . . . . . . . . . . . . . . . . . 15 SF234509.2 41108-21-MS1-09110194 Page ARTICLE V Mortgage Loan Payments Section 5.1. Mortgage Loan Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 5.2. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARTICLE VI Certain Covenants, Undertakings and Obligations of the Issuer, Servicer and Trustee Section 6.1. Undertaking of the Servicer . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . 17 Section 6.2. Obligations Relating to Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 17 Section 6.3. Servicing and Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE VII Covenants, Undertakings and Obligations of the Borrower Section 7.1. Maintenance of Project by Borrower; Insurance . . . . . . . . . . . . . . . . 19 Section 7.2. Taxes, Other Governmental Charges and Utility Charges . . . . . . . . . . . 19 Section 7.3. Remodeling and Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.4. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.5. Maintenance of Legal Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.6. Access to Project and Records; Reports . . . . . . . . . . . . . . . . . . . . . 21 Section 7.7. Operation of Project . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . 21 Section 7.8. Tax Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 7.9. Further Assurances and Corrective Instruments . . . . . . . . . . . . . . . . . 22 Section 7.10. Compliance With Other Documents . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 7.11. Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 7.12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 7.13. Reimbursement Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 7.14. Costs Incurred By Credit Facility Provider . . . . . . . . . . . . . . . . . . . 25 Section 7.15. Right to Perform Borrower's Obligations . . . . . . . . . . . . . . . . . . . . 25 Section 7.16. Obligations of the Borrower Unconditional . . . . . . . . . . . . . . . . . . . 25 Section 7.17. Nonrecourse Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 ARTICLE VIII Mortgage Loan Documents Section 8.1. Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 8.2. Mortgage Loan to Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Section 8.3. Assignment of Certain Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 SF2-34509.2 ii 41108-24-MS1-09110194 Paize ARTICLE IX The Project Section 9.1. Reserved . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . 28 Section 9.2. Regulatory Agreement; Subordination of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 9.3. Project Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 9.4. Right to Enforce Compliance . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 28 Section 9.5. Damage, Destruction and Condemnation . . . . . . . . . . . .. . . . . . . . 28 ARTICLE X Trustee's Interest in Agreement Section 10.1. Issuer Assignment of this Agreement . . . . . . . . . . . . . . . . . . . . . . 29 Section 10.2. Rights of Trustee Hereunder; Third-Party Beneficiaries . . . . . . . . . . . 29 Section 10.3. Issuer Compliance With Indenture . . . . . . . . . . . . . . . . . . . . . . . . 30 ARTICLE XI Events of Default and Remedies Section 11.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Section 11.2. Remedies.Upon an Event of Default . . . . . . . . . . . . . . . . . . . . 32 Section 11.3. Default Under Regulatory Agreement . . . . . . . . . . . . . . . . . . . . . . 35 Section 11.4. Limitation on Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Section 11.5. Notice of Default; Credit Facility Provider's Right to Cure . . . . . . . . . 36 Section 11.6. Right to Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 11.7. Rights Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 11.8. Assignment to the Credit Facility Provider . . . . . . . . . . . . . 37 ARTICLE XII Miscellaneous Section 12.1. Amounts Remaining in Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Section 12.2. Notices . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 38 Section 12.3. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 12.4. Entire Agreement ... . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . 38 Section 12.5. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section 12.6. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Section.12.7. Execution in Counterparts . . . . . . . . _. . . . . . . '. . . . . . . . . . . . . 38 Section 12.8. Governing Law . . . . . . . . . . .. . . . . . . . . . . . ... . . . . . . . . . . . 38 Section 12.9. Limited Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SF234509.2 in 41108-24-MS1-09/10/94 Paye Section 12.10. Term of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Section 12.11. References to the Credit Facility Provider . . . . . . . . . . . . . . . . . . . 39 EXHIBITS A Permitted Encumbrances B Litigation C Principal Payment Schedule SF2-34509.2 iv 41108-2A-MS1-09/10/44 FINANCING AGREEMENT This FINANCING AGREEMENT (this "Agreement"), is dated as of September 1, 1994, and entered into by and among the COUNTY OF CONTRA COSTA (together with its successors and assigns, the "Issuer"), FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as trustee under the Indenture referred to below (together with its successors and assigns, the "Trustee"), and RIVERSHORE APARTMENTS, INC., a California Corporation (together with its successors and assigns, the "Borrower"). RECITALS: WHEREAS, as more fully set forth in the Amended and Restated Indenture of Trust, of even date herewith, between the Issuer and the Trustee (the "Indenture"), the Issuer has previously issued its Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds (Rivershore Apartments, 1992 Series B (the "Bonds"), and Bonds in an aggregate principal amount of $10,800,000 remain outstanding on the effective date hereof; and WHEREAS, the parties hereto acknowledge the matters set forth in the Recitals to the Indenture; NOW, THEREFORE, the parties hereto, in consideration of the premises and the mutual covenants and commitments of the parties set forth herein, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, hereby agree as follows: ARTICLE I Definitions and Interpretation Section 1.1. Definitions. Capitalized terms used herein without definition shall have the respective meanings set forth in the Indenture. In addition to the terms elsewhere defined in this Agreement, the following terms used in this Agreement (including the recitals) shall have the following meanings unless the context indicates another or different meaning or intent, and such definitions shall be equally applicable to both the singular and plural forms of any of the terms herein defined: "Activity Fee" has the meaning assigned that term in Section 4.9 of this Agreement. "Activity Rate" means the prime rate of interest as reported from day to day in The Nall Street Journal as the base rate on corporate loans posted by at least seventy-five percent ('75%) of the nation's thirty (30) largest banks, l�us two percent (2%) per annum, or if such rate is no longer available, then the base rate or prime rate of interest of any bank (provided that such bank is one of the nation's.twenty (20) largest banks) designated by Fannie Mae in its sole and absolute discretion. SF2-34509.2 41108-24-MSI-09/10/94 "Event of Default" means any event of default specified and defined in Section 11.1(x) of this Agreement. "Facility Fee" has the meaning assigned that term in Section 4.9 of this Agreement. "Fannie Mae Documents" means the Collateral Agreement and the Servicing Agreement. "Fixed Rate" has the meaning assigned that term in Section 4.3(ii) of this Agreement. "Immediate Notice" means personal delivery of a written notice or written notice given by telegram, telex, telecopier or other telecommunication device or by messenger service promptly followed by a duplicate or "hard copy" of such written notice sent by certified mail, return-receipt requested. "Mortgage Loan Documents" means the Mortgage Note, the Mortgage and all other documents evidencing, securing or otherwise relating to the Mortgage Loan. "Mortgage Loan Term" means the period from the Effective Date to and including the maturity date of the Mortgage Loan. "Mortgage Note Rate" shall mean a per annum rate of interest calculated in accordance with Section 4.3 of this Agreement. "Pass-Through Rate" shall have the meaning assigned that term in Section 4.3 of this Agreement. "Permitted Encumbrances" means those liens, charges and encumbrances existing on the date hereof and described in Exhibit A hereto. "Principal Payment Fund" means the principal payment fund held by the Trustee in accordance with the provisions of Section 4.7 of this Agreement and Section 404 of the Indenture. "Principal Payment Schedule" means the schedule of monthly payments set forth on Exhibit C hereto, each of which shall be applied as provided in Section 4.1 of this Agreement. "Servicer" means First Nationwide Bank, A Federal Savings Bank, the initial Servicer under the Servicing Agreement, and any successor appointed in accordance with the provisions of Section 6.3 of this Agreement. "Servicing Agreement" shall mean that certain Servicing Agreement of even date herewith, by and between the Servicer and Fannie Mae, as such servicing agreement may be amended, supplemented or otherwise modified from time to time. SF2-34509.2 2 41108-24-MSI-09/10/44 "Servicing Fee" has the meaning assigned that term in the Servicing Agreement. Section 1.2. Rules of Construction. (a) The singular form of any word used herein, including the terms defined in Section 1.1, shall include the plural, and vice versa, unless the context otherwise requires. The use herein of a pronoun of any gender shall include correlative words of the other genders. (b) All references herein to "Articles," "Sections" and other subdivisions hereof are to the corresponding Articles, Sections or subdivisions of this Agreement as originally executed; and the words "herein," "hereof," "hereunder" and other words of similar import refer to this Agreement as a.whole and not to any particular Article, Section or subdivision hereof. (c) The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not limit or otherwise affect the meaning, construction or effect of this Agreement or describe the scope or intent of any provisions hereof. (d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with applicable generally accepted accounting principles as in effect from time to time. (e) Every "request," "order," "demand," application," it appointment,It "notice," "statement," "certificate," "consent," or similar action hereunder by any party shall, unless the form thereof is specifically provided, be in writing signed by a duly authorized representative of such party with a duly authorized signature. (f) The parties hereto acknowledge that each such party and their respective counsel have participated in the drafting and revision of this Agreement and the Indenture. Accordingly, the parties agree that any rule of construction which disfavors the drafting party shall not apply in the interpretation of this Agreement or the Indenture or any amendment or supplement or exhibit hereto or thereto. Section 1.3. Effective Date. The provisions of this Agreement shall be effective on and as of the Effective Date, immediately upon the effectiveness of the Indenture, and as of such date shall supersede and replace the Loan Agreement, which shall be terminated as of such date. The Issuer, the Trustee and the Borrower hereby acknowledge and agree that the [:Prior Note] has been cancelled as of the Effective Date and hereby further acknowledge and agree that [the Credit Agreement] and [the Intercreditor Agreement] shall be terminated and discharged as of the Effective Date upon receipt of written acknowledgment by First Nationwide Bank, A Federal Savings Bank, of such termination and discharge. SF2-34509.2 3 41108-24-MSI-09/10/94 ARTICLE II Representations. Warranties and Covenants Section 2.1. Representations, Warranties and Covenants by the Borrower. The Borrower represents, warrants and covenants as follows: (a) The Borrower is a California corporation, duly formed and validly existing under the laws of the State, and is qualified to do business in the State and in every other state in which the nature of its business requires such qualification. The Borrower has full power and authority to own its properties and to carry on its business as now being conducted and as contemplated to be conducted with respect to the Project, and to enter into, and to perform and carry out the transactions provided for in this Agreement, all other Bond Documents contemplated hereby to be executed by the Borrower and the Mortgage Loan Documents. This Agreement, the other Bond Documents to which the Borrower is a party, the Mortgage Loan Documents and all other documents to which the Borrower is a party and contemplated hereby or thereby have been duly authorized, executed and delivered by the Borrower and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general equitable principles. No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, not already obtained or made, is required for the execution and delivery or approval, .as the case may be, of this Agreement, the other Bond Documents, the Mortgage Loan Documents or any other documents contemplated hereby or thereby, or the performance of the terms and provisions hereof or thereof by the Borrower. (b) Neither the execution and delivery of this Agreement, all other Bond Documents to be executed by the Borrower, the Mortgage Loan Documents or any other documents contemplated hereby or thereby, the consummation of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement, all other Bond Documents to be executed by the Borrower, the Mortgage Loan Documents or any other documents contemplated hereby or thereby, will violate any provision of law, any order of any court or other agency of government, or any of the organizational or other governing documents of the Borrower, or any indenture, agreement or other instrument to which the Borrower is now a party or by which it or any of its properties or assets is bound, or be in conflict with, result in a breach of or constitute a default (with due notice or the passage of time or both) under any such indenture, agreement or other instrument or any license, judgment, decree, law, statute, order, rule or regulation of any governmental agency or body having jurisdiction over the Borrower or any of its activities or properties, or, except as provided hereunder, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, except for Permitted Encumbrances. (c) The Borrower has and will have fee simple title to the Project, subject to the Permitted Encumbrances. The Borrower is the sole borrower under the Mortgage Loan. The Borrower has engaged Con-Am Management Corp. to manage the Project. SF2-34509.2 4 41108-24-Msi-09n0/94 (d) Except as described in Exhibit B hereto, no litigation or proceeding is pending or, to the knowledge of the Borrower, threatened against the Borrower or with respect to the Project which has a reasonable probability of having a material adverse effect on its financial condition or business, or the transactions contemplated by this Agreement, the Indenture, the other Bond Documents or the Mortgage Loan Documents, or which in any way would adversely affect the validity or enforceability of the Bonds, the Indenture, this Agreement, the other Bond Documents or the Mortgage Loan Documents, or the ability of the Borrower to perform its obligations under this Agreement, the other Bond Documents or the Mortgage Loan Documents executed by the Borrower. (e) The Project conforms in all material respects with all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction of the Project, all necessary utilities are available to the Project, and the Borrower will obtain all requisite zoning, planning, building and environmental and other permits which may become necessary with respect to the Project. The Borrower has obtained all licenses, permits and approvals necessary for the ownership, operation and management of the Project, including all approvals essential to the transactions contemplated by this Agreement, the Indenture, the other Bond Documents, the Mortgage Loan Documents and any other documents contemplated hereby or thereby. (f) The financial statements which have been furnished by or on behalf of the Borrower or the Servicer to the Issuer (which financial statements have been forwarded to Fannie Mae) are complete and accurate in all material respects and present fairly the financial condition of the Borrower as of their respective dates in accordance with generally accepted accounting methods, applied by the Borrower on a consistent basis, and since the date of the most recent of such financial statements there has not been any material adverse change, financial or otherwise, in the condition of the Borrower, and there has not been any material transaction entered into by the Borrower other than transactions in the ordinary course of business, and the Borrower does not have any material contingent obligations which are not otherwise disclosed in its financial statements. There (i) is no completed, pending or threatened bankruptcy, reorganization, receivership, insolvency or like proceeding, whether voluntary or involuntary, affecting the Project, the Borrower or any general partner of the Borrower and (ii) has been no assertion or exercise of jurisdiction over the Project, the Borrower or any general partner of the Borrower by any court empowered to exercise bankruptcy powers. (g) No event has occurred and no condition exists with respect to the Borrower or the Project that would constitute an Event of Default or which, with the lapse of time, if not cured, or with the giving of notice or both, would become an Event of Default. The Borrower is not, as of the Effective Date, in default under the Loan Agreement, the Regulatory Agreement or the Prior Mortgage. (h) The Borrower has not taken and will not take-any action, or permit any action that is within the Borrower's control.to be taken,'that would impair the exclusion from gross income for federal income tax purposes of the interest payable on the Bonds. As of the Effective Date, the Borrower is in compliance with all requirements of the Tax Certificate. The Borrower has complied and will comply with all the terms and conditions of the Tax SF2-34509.2 5 41108-21-MSI-09/10/94 Certificate, including the terms and conditions of the exhibits thereto, and the representations set forth in the Tax Certificate are true and accurate. (i) The Project is, as of the Effective Date, in compliance with all requirements of the Regulatory Agreement, including all applicable requirements of the Applicable Law and the Code. The Borrower intends to cause the residential units in the Project to be rented or available for rental on a basis which satisfies the requirements of the Regulatory Agreement, including all applicable requirements of the Applicable Law and the Code. All leases will comply with all applicable laws and the Regulatory Agreement. The Project meets the requirements of this Agreement, the Regulatory Agreement, the Applicable Law and the Code with respect to multifamily rental housing. 0) No information, statement or report furnished in writing to the Issuer, the Credit Facility Provider, the Servicer or the Trustee by the Borrower in connection with this Agreement, the other Bond Documents, the Mortgage Loan Documents or the Fannie Mae Documents or the consummation of the transactions contemplated hereby and thereby (including, without limitation, any information furnished by the Borrower in connection with the preparation of any materials related to the remarketing of the Bonds on the Effective Date) contains any material misstatement of fact or omits to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and the representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower's closing certificates, as of the Effective Date, are true, correct and complete, do not contain any untrue statement or misleading statement of a material fact, and do not omit to state a material fact required to be stated therein or necessary to make the certifications, representations, warranties, statements, information and descriptions contained therein, in the light of the circumstances under which they were made, not misleading; and the estimates and the assumptions contained herein and v1 any certificate of the Borrower delivered as of the Effective Date are reasonable and based on the best information available to the Borrower. (k) The Indenture and the Collateral Agreement have been submitted to the Borrower for its examination, and the Borrower acknowledges, by execution of this Agreement, that it has reviewed and approved the Indenture and the Collateral Agreement. (1) To the best knowledge of the Borrower, no member, officer, agent or employee of the Issuer has been or is in any manner interested, directly or indirectly, in that person's own name or in the name of any other person, in the Bonds, the Bond Documents, the Mortgage Loan Documents, the Borrower or the Project, in any contract for property or materials to be furnished or used in connection with the Project, or in any aspect of the transactions contemplated by the Bond Documents or the Mortgage Loan Documents. (m) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order. SF2-34509.2 6 41108-24-MSl-09/10/94 (n) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the transactions relating to the financing of the Project; that it is fiuniliar with the provisions of all of the documents and instruments relating to such financing to which it or the Issuer is a party or of which it is a beneficiary; that it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project; and that it has not relied on the Issuer or the Credit Facility Provider for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by this Agreement and the Indenture or otherwise relied on the Issuer or the Credit Facility Provider in any manner. Section 2.2. Representations, Warranties and Covenants of the Issuer. The Issuer represents, warrants and covenants as follows: (a) The Issuer is a legal subdivision and body corporate and politic, duly organized and existing under the Constitution and laws of the State. The Issuer has the full legal right, power and authority to execute and deliver this Agreement, the Regulatory Agreement, the Tax Certificate and the Indenture, and to carry out its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement, the Indenture, the Tax Certificate and the Regulatory Agreement (including the issuance of the Bonds) have been duly authorized by the Issuer, and each of the foregoing has been duly executed and delivered by the Issuer and each of the foregoing is a valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general equitable principles. (b) The Issuer issued the Bonds in order to refund certain obligations previously issued by it for the purpose of providing permanent financing for the acquisition and development of the Project. (c) Neither the execution and delivery of the Bonds, this Agreement, the Regulatory Agreement, the Tax Certificate or the Indenture, the consummation of the transactions contemplated hereby and thereby, nor,the fulfillment of or compliance with the terms, conditions or provisions of the Bonds, this Agreement, the Regulatory Agreement, the Tax Certificate or the Indenture conflicts with or results in a breach of any of the terms, conditions or provisions of any constitution or statute of the State, or of any agreement, instrument, judgment, order or decree to which the Issuer is now a party or by which it is bound or constitutes a default under any of the foregoing. (d) Except as otherwise provided in the Indenture, the Issuer has not created and will not create any.debt, lien or charge upon the Trust Estate, and has not made and will not make any pledge or assignment of or create any encumbrance thereon, other than the pledge and assignment thereof under the Indenture. (e) The Issuer has complied and will comply with all material provisions of the Applicable Law applicable to.the Bonds and the transactions contemplated by this Agreement and the other Bond Documents. SF2-34509.2 7 41108-74-MS1-09/10/94 (f) The Bonds have been issued under the Original Indenture, as amended and restated by the Indenture, and are secured by the Indenture, pursuant to which the Issuer's interest in this Agreement (other than the Reserved Rights), and the revenues and receipts to be derived by the Issuer pursuant to this Agreement, will be pledged and assigned to the Trustee as security for payment of the principal of, premium, if any, and interest on the Bonds. The Issuer covenants that it has not pledged and will not pledge or assign its interest in this Agreement or the revenues and receipts derived pursuant to this Agreement (excepting Reserved Rights) other than to the Trustee under the Indenture to secure the Bonds. (g) Upon the discovery by the Issuer of any noncompliance by the Borrower with this Agreement or the Regulatory Agreement, the Issuer will notify the Trustee and the Credit Facility Provider of such noncompliance and will, subject to the provisions of Article X1 hereof, promptly institute action, or request the Trustee to institute action, to cause such noncompliance to be corrected, will diligently pursue such action and will attempt to cause such noncompliance to be corrected within sixty (60) days after such discovery. (h) No litigation or administrative action of any nature has been served on it and is now pending (i) seeking to restrain or enjoin the execution and delivery of the Indenture or this Agreement, or in any manner questioning the proceedings or authority relating thereto or otherwise affecting the validity of the Bonds or (ii) as to the existence or authority of the Issuer or that of its present or former members or officers and, to the best knowledge of the Issuer, none of the foregoing are threatened. ARTICLE III The Bonds and the Proceeds Thereof Section 3.1. Bonds. The Issuer has authorized the issuance of the Bonds in the Principal Amount and Bonds in the aggregate principal amount of $[Amount] are Outstanding as of the Effective Date. Section 3.2. Bond Purchase or Redemption. The Trustee shall (a) in the case of an optional redemption of Bonds pursuant to Section 214(a) of the Indenture, upon the request of the Borrower (and with the consent of Fannie Mae to the extent Fannie Mae is the Credit Facility Provider, unless the optional redemption is a redemption of all the Outstanding Bonds.and Fannie Mae shall have no further obligation under the Collateral Agreement or Section 701(c) of the Indenture), (b) in the case of a mandatory redemption of Bonds pursuant to Section 214(b) of the Indenture,. or (c) in the case of the purchase of Bonds pursuant to Article X of the Indenture, take all steps or cause all steps to be taken as may be necessary under the Indenture to effect the earliest possible redemption or the timely purchase, as provided under the Indenture, of any or all of the Bonds or portions thereof as may be specified by the Borrower or the Trustee, as the case may be, in the case of a redemption or as shall have been tendered in the case of a purchase. In the event of any redemption, the Borrower will timely pay, or cause to be paid, to the Trustee an amount equal to the principal amount of such Bonds or portions thereof called SF2-34509.2 8 41108-24-MS1-09/10/94 for redemption, together with interest accrued to the redemption date and premium, if any. The Borrower will timely pay all fees, costs and expenses associated with any redemption of Bonds. In the event that on any optional tender date or mandatory tender date under and as provided in Sections 1001 and 1002 of the Indenture, Bonds are tendered and not remarketed by the Remarketing Agent, and amounts are not available in the Bond Purchase Fund or the Principal Payment Fund, as applicable, for the purpose of paying the purchase price of such Bonds, the Borrower will, pay or cause to be paid under, and subject to the terms of, the Credit Facility to the Trustee by the applicable times provided in the Indenture an amount equal to the principal amount of such Bonds tendered and not remarketed, together with interest accrued to the mandatory tender date or optional tender date, as the case may be. The Borrower acknowledges that Purchased Bonds will be purchased for and registered in the name of the Borrower and will be pledged to the Credit Facility Provider; provided that if Fannie Mae has become the owner of the Project, all Bonds tendered and not remarketed shall be subject to mandatory redemption pursuant to Section 214(v) of the Indenture and not purchase unless the Controller and General Counsel of Fannie Mae otherwise consent in writing. Section 3.3. Investment of Funds. Any moneys held as a part of the General Receipts Fund, the Bond Purchase Fund, the Principal Payment Fund or the Rebate Fund shall be invested, reinvested or applied by the Trustee in accordance with and subject to the conditions of Section 3.4 hereof and the Indenture. The Borrower shall make no use of the proceeds of the Bonds, or of any other funds which may be deemed to be proceeds of the Bonds pursuant to Section 148 of the Code and the applicable regulations thereunder, which will cause the Bonds to be "arbitrage bonds" within the meaning of such Section and such regulations, and will comply with the requirements of such Section and such regulations throughout the term of the Bonds. Section 3.4. Tax Certificate and Regulatory Agreement. The Borrower hereby covenants and agrees to comply (and, to the extent applicable, covenants that it has complied) with the Tax Certificate and the Regulatory Agreement. Section 3.5. Credit Facility. The Borrower may at any time during a Weekly Variable Rate Period and on any Adjustment Date (but no later than an Extension Date unless a commitment to extend the existing Credit Facility has been delivered pursuant to Section 702 of the Indenture, if applicable), and in connection with any Mandatory Tender Date pursuant to clause (2) or (3) of Section 1002(c) of the Indenture, and subject to the terms of the existing Credit Facility Agreement, arrange for the delivery to the Trustee of an Alternate Credit Facility in substitution for the Credit Facility then in effect, including, without limitation, a letter of credit, surety bond, insurance policy, standby purchase agreement, a collateral purchase agreement on terms similar to the Collateral Agreement or other credit or liquidity facility from a financial institution, or any combination thereof, which provides security for payment of the principal of and interest on the Bonds when due (referred to in this Section as "credit support") and, if applicable, for payment of the purchase price of Bonds delivered or deemed delivered in accordance with Article X of the Indenture (referred to in this Section as "liquidity support"). Any Credit Facility, including any such Alternate Credit Facility, shall satisfy the following conditions, as applicable: SF2-34509.2 9 41108-24-MS1-09n0/94 (a) Prior to the Conversion Date any Credit Facility may be issued to provide only credit support or only liquidity support so long as a separate Credit Facility provides at all times while such Credit Facility is in effect complementary credit support or liquidity support, as the case may be, so that at all times while any of the Bonds bear interest at the Weekly Variable Rate or the Reset Rate such Bonds shall be entitled.to credit support.and to the liquidity support required by such Mode; provided that, in no event shall Fannie Mae provide only liquidity or credit support if any Person other than Fannie Mae provides either liquidity or credit support. During the Fixed Rate Period, the Bonds shall be entitled to credit support only. Notwithstanding the foregoing, the Issuer may, in its sole discretion, waive the requirement that a Credit Facility be provided during any Reset Period or the Fixed Rate Period. (b) The Credit Facility shall (i) be in an amount equal to the aggregate principal amount of the Bonds Outstanding from time to time plus the Interest Requirement; (ii) provide for payment in immediately available funds to the Trustee or paying agent for the Bondholders upon receipt of the Trustee's request for such payment with respect to any Interest Payment Date, purchase date (if applicable) or mandatory redemption date pursuant to the Indenture; (iii) if the Credit Facility is provided to secure Bonds during a Reset Period, provide an expiration date no earlier than the earliest of (1) the date immediately following the Adjustment Date immediately succeeding the Reset Period; (2) ten (10) days after the Trustee receives notice from the Credit Facility Provider of an Event of Default hereunder or a default under and as defined in the Credit Facility Agreement and a written direction to redeem all outstanding Bonds; (3) the date on which all Bonds are paid in full and the Indenture is discharged in accordance with its terms; and (4) the date on which the Bonds become secured by an Alternate Credit Facility in accordance with the terms of the Indenture; and (iv) unless waived by the Issuer in its sole discretion, result in the Bonds receiving a long-term rating or short-term rating, or both, as applicable for the Mode then in effect, in one of'the two highest rating categories of each Rating Agency. (c) In connection with such substitution, the Trustee must receive (i) an Opinion of Counsel to the Credit Facility Provider issuing the Alternate Credit Facility, in form and substance satisfactory to the Issuer and the Trustee, relating to the due authorization and issuance of the Alternate Credit Facility and its enforceability and (ii) an opinion of Bond Counsel to the effect that the substitution of such Alternate Credit Facility will not adversely affect the exclusion from gross income of the interest on the Bonds for federal income tax purposes. S1?234509.2 10 41108-24-MS1-09/10/94 ARTICLE IV The Mortgage Loan Section 4.1 Reserved. Section 4.2. Terms of the Mortgage Loan. The Mortgage Loan shall (a) be evidenced by the Mortgage Note; (b) be secured by the Mortgage, which must be a first lien on the Project; (c) be secured by the Principal Payment Fund and otherwise evidenced and secured by the other Mortgage Loan Documents, (d) bear interest at the Mortgage Note Rate, (e) be payable as to principal and interest as provided herein, and (f) be subject to optional and mandatory prepayment at the times, in the manner and on the terms set forth in Section 5.2 hereof, and have such other terms and provisions as are set forth therein. Section 4.3. Mortgage Note Rate. The Mortgage Note Rate shall be comprised of: (i) a pass-through rate (the "Pass-Through Rate"), which shall be a variable rate of interest equal to and changing with the Weekly Variable Rate or the Reset Rate, or a fixed rate of interest equal to the Fixed Interest Rate, as may be applicable to the Bonds from time to time WLovided that at no time shall the Pass-Through Rate exceed the Maximum Rate); plus (ii) a fixed rate of interest (the "Fixed Rate") equivalent to the sum of (a) a Facility Fee in amount equal to two and twenty-eight hundredths percent (2.280%) per annum, (b) the ongoing trust administration fee of the Trustee in an amount not to exceed eight thousand eight hundred forty dollars ($8,840) per annum, (c) the fee charged by the F;emarketing Agent in an amount not to exceed one eighth of one percent (.125%) per annum, (d) the fee of the rebate monitor for the Bonds in an amount not to exceed percent (_%) per annum and (e) fees of the Issuer in an amount not to exceed thirteen thousand six hundred and twenty-five dollars ($13,625). Section 4.4. Adjustment to Reset Rate or Fixed Interest Rate. The Pass-Through Fate shall be subject to adjustment to a fixed interest rate for a period of six months or more or a fixed interest rate to maturity, as provided in this Section 4.4, upon adjustment of the interest rate on the Bonds to a Reset Rate or the Fixed Interest Rate, respectively, pursuant to the Indenture. (i) The Pass-Through Rate is subject to adjustment to a rate which is equal to and corresponds with the Reset Rate on the Bonds if the interest rate on the Bonds is adjusted to such Reset Rate. (ii) The Pass-Through Rate is subject to conversion to a rate which is equal to and corresponds with the Fixed Interest Rate on the Bonds if the interest rate on the Bonds is converted to the Fixed Interest Rate. SF2-34509.2 11 41108-21-MS1-09/10/94 Section 4.5. Adjustment to Weekly Variable Rate. Fannie Mae, the Issuer, the Trustee and the Borrower acknowledge that if the interest rate on the Bonds is adjusted to a Reset Rate, at the end of the Reset Period the interest rate may be adjusted to the Weekly Variable Rate as provided in Section 203(e) of the Indenture. Section 4.6. Payment Terms. Interest on the Mortgage Note is payable monthly, as set forth below, throughout the Mortgage Loan Term, whether the Pass-Through Rate is (a) a variable rate of interest equal to and changing with the Weekly Variable Rate on the Bonds, (b) a fixed rate equal to and corresponding with the Reset Rate on the Bonds, or (c) a fixed interest rate equal to and corresponding with the Fixed Interest Rate on the Bonds. Interest payments on the Mortgage Note shall be due and payable monthly on the day which is the first day of the month immediately following the month to which the payment is attributable, commencing with the first day of the month immediately following the month during which the Effective Date occurs. The first payment on the Mortgage Note shall include interest for the period beginning on the Effective Date to the last day of the month in which such payment is due. [**ADJUST IF INTEREST IS NOT PAID AS OF EFFECTIVE DATE.**] In addition, the Borrower shall make payments to be deposited in the Principal Payment Fund, on the first day of each month in the applicable amount set forth on the Principal Payment Schedule; rop vided that such payments shall be applied against the principal balance due under the Mortgage Note as provided in Section 4.7 hereof; provided fiarther that if Bonds are redeemed pursuant to Sections 214(a) or 214(b)(i) of the Indenture, the amount of the then remaining payments required in accordance with the Principal Payment Schedule shall be reduced pro rata in an aggregate amount equal to the amount of such redemption; provided further that interest and earnings retained in the Principal Payment Fund may be credited against the payments required by the Principal Payment Schedule as provided in Section 404 of the Indenture. The entire unpaid principal balance and all accrued and unpaid interest and other amounts payable under the Mortgage Loan are due and payable on the maturity date of the Mortgage Note. Section 4.7. Principal Payment Fund. The Trustee shall deposit in the Principal Payment Fund each monthly payment in respect of principal made by the Borrower in accordance with the Principal Payment Schedule which shall be held by the Trustee, in trust, and administered and invested by the Trustee. The Principal Payment Fund shall constitute part of the Trust Estate securing the Bondholders and the Credit Facility Provider unless assigned to the Credit Facility Provider together with the Mortgage Loan Documents. Amounts on deposit in the Principal Payment Fund shall be applied as provided in the Indenture (including application to redeem Bonds as provided in the Indenture), provided that the amount on deposit in the Principal Payment Fund shall, upon the occurrence of an event of default under the Mortgage Loan, be used in any manner directed by the Credit Facility Provider as permitted by the Indenture. SF2-34509.2 12 41108-24-MS1-09/10/44 Amounts in the Principal Payment Fund shall not be credited against the principal amount of the Mortgage Note until the date such amounts are withdrawn from the Principal Payment Fund and used to redeem Bonds Wrgyi1ded that, if such amounts are withdrawn from the Principal Payment Fund and used to pay interest on the Bonds, such amounts shall, upon reimbursement of such amounts by Borrower pursuant to Section 7.13 of this Agreement, be deemed to be interest payments on the Mortgage Loan). Notwithstanding any assignment of the Principal Payment Fund to the Credit Facility Provider, the investment of the Principal Payment Fund shall remain subject to the provisions of the Tax Certificate. Section 4.8. Cross Default. A default by the Borrower in the payment or performance of any obligation of the Borrower contained in any of the Bond Documents, including, without limitation, this Agreement, which default continues after any applicable grace period provided in the applicable Bond Document, shall, at the Credit Facility Provider's option, in its sole and absolute discretion, constitute a default under the Mortgage Loan. Conversely, a default under the Mortgage Loan shall, at the Credit Facility Provider's option, in its sole and absolute discretion, constitute a default under this Agreement. Section 4.9. Payment of Fees and Expenses. The Borrower shall pay the following fees and expenses: (a) A facility fee (which includes the servicing fee to the Servicer) in an amount equal to two and twenty-eight hundredths percent (2.280%) (the "Facility Fee"), which shall be included in the Mortgage Note Rate and, therefore, paid monthly, for application as directed by Fannie Mae, with each monthly payment on the Mortgage Note. (b) With respect to all funds provided by Fannie Mae under the Collateral Agreement and all withdrawals of funds from the Principal Payment Fund, in either case upon a failed remarketing of tendered Bonds, an activity fee (the "Activity Fee"), which shall be paid to the Servicer for remittance to Fannie Mae, in an amount equal to (i) the amount advanced by Fannie Mae under the Collateral Agreement or withdrawn from the Principal Payment Fund multivlied by (ii) the Activity Rate further multiplied by (iii) a fraction, the numerator of which is the number of days that such advance or withdrawal is outstanding and the denominator of which is 365 or 366, as the case may be. (c) All other fees, costs and expenses stated in the Credit Facility Agreement to be obligations of the Borrower and required, by the Credit Facility Agreement, to be paid by the Borrower, all such fees being due and payable in accordance with the terms and conditions of the Credit Facility Agreement. (d) All amounts required to (i) pay the fees of the Trustee for its duties and services as Trustee in connection with the Bonds (as such duties and services are set out in the Indenture) and (ii) reimburse the Trustee for all out-of-pocket expenses, fees, costs and other charges, including counsel fees and taxes (excluding income, value added and single business taxes), reasonably and necessarily incurred by the Trustee in performing its duties as Trustee under the Indenture and for performing the SF2-34509.2 13 41108-24MS1-09/10/94 Indenture, the Regulatory Agreement and the Credit Facility Agreement. An ongoing trust administration fee of the Trustee not to exceed the amount set forth in Section 4.3(ii)(b) shall be included in the Mortgage Note Rate and, therefore, paid monthly with each monthly payment on the Mortgage Note. All payments for fees and expenses other than the ongoing trust administration fee of the Trustee included in the Mortgage Note Rate shall be made by the Borrower not later than ten (10) days after receipt of invoices or other statements rendered to the Borrower by the Trustee or the Servicer. (e) All amounts required to pay (i) to the Issuer or to any payee designated by the Issuer, all expenses of the Issuer incurred at any time related to the Project or the financing or refinancing thereof which are not paid from the amounts held under the Indenture, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds or in connection with questions or other matters arising under such documents, which amounts shall be paid within thirty (30) days after receipt of request for payment thereof rovided that all such expenses incurred by the Issuer in connection with the execution and delivery of this Agreement, the other Bonds Documents and the Mortgage Loan Documents shall be paid by First Nationwide Bank); and (ii) an annual fee of the Issuer in an amount equal to $13,625, payable on November 1 of each year, commencing November 1, 1994, of which up to the amount set forth in Section 4.3(ii)(e) shall be included in the Mortgage Note Rate and, therefore, paid monthly, for remittance to the Issuer, with each monthly payment on the Mortgage Note. (f) All amounts required to pay, upon receipt of an appropriately completed invoice, (i) the Remarketing Agent's fee for its services as Remarketing Agent in connection with the Bonds while the Bonds bear interest at a Weekly Variable Rate, of which up to the amount set forth in Section 4.3(ii)(c) shall be included in the Mortgage Note Rate and, therefore, paid monthly, for remittance to the Remarketing Agent, with each monthly payment on the Mortgage Note, and (ii) all out-of-pocket expenses, fees, costs and other charges of the Remarketing Agent properly chargeable under the Remarketing Agreement. (g) The fees and expenses of the provider of rebate calculations as required by the Tax Certificate, of which up to the amount set forth in Section 4.3(ii)(d) shall be included in the Mortgage Note Rate and, therefore, paid monthly to the Trustee, for remittance to such provider of rebate calculations, with each monthly payment on the Mortgage Note. The Borrower further acknowledges and agrees that (i) all fees, costs and expenses involved in any adjustment or conversion of the interest rate on the Bonds and, therefore, of the Pass-Through Rate under the Mortgage Note and (ii) all fees, costs and expenses involved in any tender, purchase or remarketing of Bonds, including the fees, costs and expenses of any reoffering of the Bonds, are obligations solely of the Borrower and must be paid by the Borrower separate and apart from payments due under the Mortgage Loan and shall not be provided for in any of the Mortgage Loan Documents, or reflected in the SF2-34509.2 14 41108-24-MS1-09110/94 Mortgage Note Rate. The fees, costs and expenses of any remarketing or reoffering of Bonds other than as provided for in subsection (f) must be paid by the Borrower in advance. Neither the Servicer, the Trustee, the Issuer nor the Credit Facility Provider shall have (1) any liability, responsibility or accountability for the payment, remittance or handling of any such fees, costs or expenses or (2) any obligation to pay any such fees, costs or expenses. The Borrower shall give notice to the Credit Facility Provider of the payment of all fees and expenses not included within the Mortgage Note Rate. All fees and expenses not included in the Mortgage Note Rate (the "Additional Expenses") shall be subordinated to obligations owed by the Borrower under the Mortgage Note Rate and no such Additional Expenses shall be secured by a lien or security interest in the Project. The Servicer shall be responsible for calculating the Facility Fee and, if applicable, the Activity Fee and shall with each remittance to Fannie Mae and the Trustee include the Servicer's calculation of such fees. A copy of such calculation shall also be furnished to Fannie Mae to the attention of its The Servicer shall, upon receipt of the monthly interest payment on the Mortgage Note, (A) deduct the Facility Fee and apply the Facility Fee as provided in the Servicing Agreement and (B) remit the remainder of the interest payment to the Trustee. The Trustee shall, upon receipt of such payment from the Servicer, deposit the portion representing the Pass-Through Rate to the Interest Account for application as provided in Section 401 of the Indenture and deposit into the Fees Account the portion representing the Fixed Rate (less the Facility Fee retained by the Servicer). The Trustee shall (1) withdraw from the Fees Account and retain that portion of the Fixed Rate representing the Trustee's ongoing administration fee, (2) periodically withdraw from the Fees Account and remit to the Remarketing Agent, in accordance with the Remarketing Agreement, that portion of the Fixed Rate representing the Remarketing Agent's fee, (3) periodically withdraw from the Fees Account and remit to the rebate monitor, in accordance with the applicable agreement, that portion of the Fixed Rate representing the fee payable to the rebate monitor and (4) periodically withdraw from the Fees Account and remit to the Issuer that portion.of the Fixed Rate representing the fees of the Issuer. Section 4.10. Certain Notices From Trustee. The Trustee shall give prompt written notice to the Credit Facility Provider of all payments received by the Trustee with respect to the Mortgage Note and under the Mortgage Loan and of its failure to receive any such payment when due. The Trustee shall, in accordance with the terms and conditions of the Credit Facility Agreement, timely give all notices required by the Credit Facility Agreement, including, without limitation, (a) notice to the Credit Facility Provider of the Trustee's failure to receive any regularly scheduled payment under the Mortgage Loan and (b) as soon as practicable but not later than the last Wednesday of each month, or in the event such Wednesday is not a Business Day, the next succeeding Business Day, notice to the Servicer of the amount of the interest payment required to be made by the Borrower. SIF2-34509.2 15 41108-24-MS1-09/10/94 Section 4.11. Modification of Mortgage Loan Documents. The Trustee shall not consent to any amendments or modifications to, or adjustments or revisions of, the terms and conditions of the Mortgage Note, the Mortgage or any of the other Mortgage Loan Documents without the prior written consent of the Credit Facility Provider. Except as provided in Article VI of the Indenture, the Trustee shall not take, or fail to take, any action in the event of a default or otherwise under the Mortgage Loan or otherwise which would cause there to be insufficient money available for the scheduled payment of principal and interest on the Mortgage Loan, including the fees included within the Mortgage Note Rate. ARTICLE V Mortgage Loan Payments Section 5.1. Mortgage Loan Payments. All payments due under the Mortgage Note shall be timely paid by the Borrower. Section 5.2. Preps, ents. (a) Optional Prepayment. At any time the Bonds are subject to redemption pursuant to Section 214(a) of the Indenture, the Borrower shall have the right, upon receipt of the consent of the Credit Facility Provider, to prepay the Mortgage Loan in whole or in part, in principal amounts equal to Authorized Denominations of Bonds, by paying Available Moneys for remittance to the Trustee in an amount sufficient to pay the redemption price of the Bonds to be redeemed, including principal, interest and premium (if any), and including any interest to accrue with respect to the Mortgage Loan between the prepayment date and the redemption date, together with a sum sufficient to pay all costs in connection with such redemption and, in the case of redemption in whole, to pay all other amounts payable hereunder or under the Indenture; provided that the consent of the Credit Facility Provider shall not be required if (i) the Mortgage Loan is prepaid in full, (ii) all Outstanding Bonds are redeemed and (iii) the Credit Facility Provider has no further obligation under the Collateral Agreement or Section 701(c) of the Indenture. Any such permitted prepayment may be made at any time before notice of the related redemption of Bonds is to be given, subject to subsection (c) of this Section, and will be deemed to have been made on the date of redemption of such Bonds. (b) Mandatory Prepayment. The Mortgage Loan shall be subject to mandatory prepayment in whole or in part, on dates corresponding to the dates, in the amounts and from the sources specified in Section 214(b) of the Indenture. In any such event, the Borrower shall be obligated to prepay the Mortgage Loan by paying an amount sufficient to pay the redemption price of the Bonds to be redeemed, including principal, interest and premium,.and including any interest to accrue with respect to the Mortgage Loan between the prepayment date and the redemption date, together with a sum sufficient to pay all costs in connection with such redemption and, in the case of redemption in whole, to pay all other amounts payable hereunder or under the Indenture. SF2-34509.2 16 41108-24-MS1-09/10/94 (c) Notices. In the event any prepayment of principal will be made on account of the Mortgage Loan, whether optional or mandatory (excluding any payment in accordance with the Principal Payment Schedule), and regardless of the underlying cause for the prepayment, the Borrower shall provide notice of the prepayment to the Trustee, the Credit Facility Provider and the.Servicer in writing, sixty (60) days; or such shorter time, if any, as is possible in the case of involuntary prepayments, prior to the date on which the Borrower will make the prepayment. Each such notice shall state, to the extent such information is available (i) the amount to be prepaid; (ii) the date on which the prepayment will be made by the Borrower; and (iii) the cause for the prepayment, if any. (d) Credit Facility. Except to the extent specifically set forth in the Credit Facility, or to the extent expressly otherwise agreed to by the Credit Facility Provider, no prepayment of the Mortgage Loan shall create any obligation on the part of the Credit Facility Provider to make any payments under the Credit Facility. (e) Notice of Redemption. The Issuer, the Borrower and the Trustee hereby acknowledge and agree (i) that upon any optional prepayment of the Mortgage Loan, the Trustee will not give notice to the Holders of the Bonds of redemption of the Bonds by reason of an optional prepayment unless the requirements of the fourth paragraph of Section 215 of the Indenture have been satisfied, and (ii) that any such redemption shall be cancelled by the Trustee as provided in the Indenture, unless the applicable requirements of Section 215 of the Indenture are waived by the written consent of the Issuer and the Credit Facility Provider. ARTICLE VI Certain Covenants, Undertakings and Obligations of the Issuer, Servicer and Trustee Section 6.1. Undertaking of the Servicer. The Servicer shall perform all acts in the manner prescribed in this Agreement for the purpose of causing the Mortgage Loan to comply with the Applicable Law, the Indenture and this Agreement and shall undertake certain obligations under, and pursuant to the terms of, the Servicing Agreement with respect to the Mortgage Loan. Pursuant to the Servicing Agreement, the Servicer acknowledges its obligations under this Agreement. Section 6.2. Obligations Relating to Mortgage Loan. The Trustee agrees (a) to act as mortgagee of record of the Mortgage Loan, and (b) to make all representations and warranties concerning the Mortgage Loan as are reasonably required by the Credit Facility Provider to be made by the Trustee, as mortgagee of record, to the Credit Facility Provider. SF,"234509.2 17 41108-24-MS1-09110194 Section 6.3. Servicing and Reporting. (a) The Servicer shall service the Mortgage Loan for the Trustee, and shall also perform a reporting function for Fannie Mae as provided in the Servicing Agreement between Fannie Mae and the Servicer. The Issuer and the Trustee consent to the execution wad delivery of the Servicing Agreement by Fannie Mae and the Servicer. The Servicer may service the Mortgage Loan for the Trustee until the Servicing Agreement with respect to the Mortgage Loan is terminated. The Servicer acknowledges that its obligations under this Agreement are in addition to any obligations which it may have to Fannie Mae in acting as the reporter with respect to the Mortgage Loan. (b) In executing this Agreement and undertaking its obligations hereunder, the Servicer is not acting on behalf of or as agent for the Credit Facility Provider, nor does it purport to bind the Credit Facility Provider. (c) So long as the Servicer is the servicer of the Mortgage Loan, the Servicer shall be paid a fee for its services as provided in the Servicing Agreement. Neither the Issuer, the Trustee nor the Credit Facility Provider shall have any obligation to pay such fees from their own funds; provided that the Trustee acknowledges the right of the Servicer to deduct the Facility Fee from monthly payments on the Mortgage Note made by the Borrower as provided in Section 4.9 hereof so long as the amount remitted to the Trustee is equal to the Pass-Through Rate plus other fees and expenses included in the interest rate on the Mortgage Note. (d) The Servicer shall not resign from its servicing or reporting duties and obligations unless and until replaced by a substitute servicer that (i) has been approved by the Credit Facility Provider in its sole and absolute discretion and (ii) has agreed to become the servicer for the Mortgage Loan and has assumed the duties and obligations of the Servicer under this Agreement, the Servicing Agreement and all related agreements. (e) The Issuer, the Trustee and the Borrower acknowledge and agree that (:i) approval of any new Servicer is subject to the sole and absolute discretion of the Credit Facility Provider, (ii) neither the Issuer nor the Trustee shall terminate or seek to terminate the Servicer as the servicer for the Mortgage Loan or appoint or seek to appoint a substitute servicer for the Mortgage Loan without the prior written consent of the Credit Facility Provider and (iii) the Servicing Agreement between Fannie Mae and the Servicer is subject to amendment or termination without the consent of the Trustee or the Issuer. (f) So long as the Servicer is servicing the Mortgage Loan, the Borrower shall dleliver to the Issuer, the Servicer and the Trustee copies of all reports and notices required by the Mortgage Loan Documents. Notwithstanding anything contained herein to the contrary, the Servicer shall have no duty or obligation to analyze or review any such reports for the purpose of determining whether or not the Borrower and the Project are in compliance with the requirements of the Code. M-34509.2 18 41108-24-MS1-09/10/94 (g) Each of the Servicer and the Trustee shall immediately notify each other party to this Agreement of any actual or perceived default or noncompliance by the Borrower with any provision of this Agreement, the Regulatory Agreement or the Mortgage Loan Documents. The Trustee and the Servicer shall each immediately notify the Credit Facility Provider of any nonpayment or other default under the Mortgage Loan, and the Trustee shall timely give any notices required by the Credit Facility Agreement. (h) The Credit Facility Provider reserves the right to remove the Servicer and to thereby terminate its right to service the Mortgage Loan and its right to be paid the Servicing Fee upon any default by the Servicer under the Servicing Agreement or this Agreement, for any reason specified in the Servicing Agreement, or for any failure by the Servicer to comply with the applicable provisions of the other Fannie Mae Documents to which it is a party or by which it is bound. The Borrower, Issuer and the Trustee acknowledge the authority of the Credit Facility Provider under this Article VI. (i) The Borrower will pay all amounts due under the Mortgage Loan to the Servicer and the Servicer will transfer such amounts to the Trustee and the Credit Facility Provider as their respective interests appear in the Mortgage Loan Documents and the Collateral Agreement. ARTICLE VII Covenants, Undertakings and Obligations of the Borrower Section 7.1. Maintenance of Project by Borrower; Insurance. So long as any of the Bonds are Outstanding, the Borrower shall, as required by the Mortgage Loan Documents, keep and maintain the Project, including all appurtenances thereto and any personal property therein or thereon, in good repair and good operating condition. The Borrower agrees to insure the Project as required by the Mortgage Loan Documents and to cause the Trustee and the Issuer to be named as additional insureds. Section 7.2. Taxes, Other Governmental Charges and Utility Charges. The Borrower shall pay, or cause to be paid, promptly as the same become due and payable, every lawful cost, expense and obligation of every kind and nature, foreseen or unforeseen, for the payment of which the Issuer or the Credit Facility Provider is or shall become liable toy reason of its or their estate or interest in the Project or any portion thereof, by reason of any right or interest of the Issuer or the Credit Facility Provider in or under this Agreement, or by reason of or in any manner connected with or arising out of the possession, operation, maintenance, alteration, repair, rebuilding, use or occupancy of the Project or any portion thereof, including, without limitation, all taxes, assessments, whether general or special, and governmental charges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Project or any machinery, equipment or other property installed or brought by the Borrower therein or thereon (including, without limiting the generality of the foregoing, any taxes levied upon or with respect to the receipts, income or profits from the Project and all utility and other charges incurred in the operation, SF2-34509.2 19 41108-24-MS1-09/10/94 maintenance, use, occupancy and upkeep of the Project); provided that with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, the Borrower shall be'obligated to pay such installments only as they become due. In addition, the Borrower shall pay such other amounts as are required by, and in accordance with the terms of, the Mortgage Loan Documents. The Borrower may, at its expense and in its own name, in good faith contest any such taxes, assessments and other charges, and, in the event of any such contest, upon notice to the Issuer, the Servicer, the Trustee and the Credit Facility Provider, may permit the taxes, assessments or other charges so contested to remain unpaid during the pendency of such contest and any appeal therefrom unless the Issuer, the Trustee or the Credit Facility Provider shall notify the Borrower that, in the Opinion of Counsel to the Issuer, the Trustee or the Credit Facility Provider, by nonpayment of any such items the Project or any part thereof may be subject to loss or forfeiture, in which event such taxes, assessments or charges shall be paid promptly. The Borrower, however, need not make such prompt payment provided it obtains, and keeps in effect during the pendency of such contest, a good and sufficient surety bond in an amount sufficient to pay such taxes, assessments or charges, together with any applicable interest and penalties. Upon request, the Borrower shall furnish to the Issuer, the Trustee and the Credit Facility Provider proof of the payment of any such tax, assessment or other governmental or similar charge, or any other charge which is payable by the Borrower as set forth above. Section 7.3. Remodeling and Improvements. The Borrower may remodel the Project or make modifications or improvements thereon or thereto from time to time as it, in its discretion, may deem to be desirable for its uses and purposes; provided that such remodeling, modifications or improvements may not materially alter the scope or character or diminish the value of the Project, such modifications or improvements are permitted under the Applicable Law and the Code and have been approved by the Credit Facility Provider; provided, however, that the Borrower may make de minimis modifications and improvements which are permitted by the Mortgage, including without limitation, paragraph 6 thereof. The cost of such remodeling, modifications or improvements shall be paid by the Borrower. Section 7.4. Compliance With Laws. The Borrower shall, throughout the term of this Agreement and at no expense to the Issuer, promptly comply or cause compliance with all laws, ordinances, rules, regulations and requirements of duly constituted public authorities which may be applicable to the Project or to the repair and alteration thereof, or to the use or manner of use of the Project, including, but not limited to, the Americans With Disabilities Act and all federal, State and local environmental, labor, health and safety laws, rules and regulations. Subject to the provisions of the Mortgage Loan Documents, the Borrower may, at its expense and in its own name, in good faith contest compliance with any such legal requirement and, in the event of any such contest, upon notice to the Issuer, the Trustee, the Servicer and the Credit Facility Provider, may permit the legal requirement so contested to remain in noncompliance during the pendency of such contest and any appeal therefrom, unless the Issuer, the Trustee, or the Credit Facility Provider shall notify the Borrower that, in the Opinion of Counsel to the Issuer, the Trustee or the Credit Facility Provider, by noncompliance of any such legal requirement the Project or any part thereof SIF2-34509.2 20 41108-24-MS1-09/10/94 may be subject to being closed, lost or forfeited, in which event such legal requirement shall be complied with. Section 7.5. Maintenance of Legal Existence. During the-term of this Agreement, the Borrower shall maintain its existence as set forth in Section 2.1(a) and shall not terminate, dissolve, or dispose of all or substantially all of its assets; provided, however, that the Borrower may, with the written permission of the Issuer and the Credit Facility Provider, consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it, or transfer all or substantially all of its assets to another entity, but only on the condition that the assignee entity or the entity resulting from or surviving such merger or consolidation (if other than the Borrower), or the entity to which such transfer shall be made, shall be duly organized and existing, in good standing and qualified to do business under the laws of the State, shall remain so continuously during the term hereof, and shall expressly assume in writing and agree to perform all of the Borrower's obligations hereunder and under all other documents executed by the Borrower in connection with the issuance of the Bonds; provided, further, that any transfer of the Project shall be effected in accordance with the Mortgage Loan Documents, including without limitation, Section F of the Rider to Multifamily Instrument. Nothing in this Section 7.5 shall be deemed to relieve the Borrower of its obligations to comply with the provisions of the Mortgage Loan Documents. Section 7.6. Access to Project and Records; Reports. (a) Subject to reasonable notice, the Issuer, the Credit Facility Provider and the Trustee, and the respective duly authorized agents of each, shall have the right at all reasonable times and during normal business hours to enter the Project and any other location containing the records relating to the Project and the Borrower and to inspect and audit the same, and shall have the right at all such reasonable times to make copies of any records that the Credit Facility Provider, the Trustee or the Issuer, or their respective duly authorized agents, may reasonably require. The Borrower shall make available to the Issuer, the Trustee and the Credit Facility Provider such information concerning the Project as any of them may reasonably request. (b) The Borrower shall file such certificates and other reports with the Servicer, the Issuer, the Trustee and the Credit Facility Provider as are required by the Regulatory Agreement. (c) The Borrower agrees to provide to the Issuer all information necessary to enable the Issuer to complete and file all forms and reports required by the laws of the State and the Code in connection with the Project and the Bonds. Section 7.7. Operation of Project. (a) Subject to the provisions of the Regulatory Agreement and the Tax Certificate, the Borrower hereby covenants with the Issuer, the Credit Facility Provider and the Trustee that the Project will at all times meet the requirements of this Agreement, the Regulatory Agreement, the other Bond Documents and the Mortgage Loan Documents. SF2-34509.2 21 41108-24-M S1-09/10/94 (b) The Borrower will not sell, transfer or otherwise dispose of the Project except as provided in the Regulatory Agreement, the Mortgage and Section 7.5 of this Agreement, and the Borrower hereby further agrees that any sale, transfer or other disposition of the Project in violation hereof shall be null, void and without effect, shall cause reversion of title to the Borrower and shall be ineffective to relieve the Borrower of its obligations under this Agreement. Section 7.8. Tax Covenants. The Borrower covenants that it will comply with the requirements and conditions of the Tax Certificate. Without limiting the foregoing, the Borrower covenants that, notwithstanding any provision of this Agreement or the rights of the Borrower hereunder (but subject to Section 8.2 hereof), it will not take; or permit to be taken on its behalf, any action which would cause interest on the Bonds to be included in gross income for federal income tax purposes and that it will take such reasonable action as may be necessary to continue such exclusion from gross income, including, without limitation, (a) compliance with the requirements contained in Section 3.3 hereof; (b) the preparation and filing of any statements required to be filed by it in order to maintain such exclusions; and (c) the payment to the United States of any amount required to be paid by the Issuer or the Borrower pursuant to Section 148(f) of the Code and the regulations thereunder, including, to the extent applicable, Section 1.148-3 of the Treasury Regulations on Income Tax or subsequent applicable Treasury Regulations, at the times, in the amounts and at the places required thereby in order to maintain the exclusion of interest on the Bonds for federal income tax purposes; and the Borrower hereby irrevocably authorizes and directs the Issuer and the Trustee (and any other agent designated by the Issuer) to make payment of such amounts from funds of the Borrower, if any, held by the Issuer, the Trustee, or any agent of the Issuer or the Trustee. The Borrower further covenants and agrees that, pursuant to the requirements of the Treasury Regulations Section 1.148-1(b), it (or any related person contemplated by such regulations) will not purchase Bonds in an amount related to the amount of the Mortgage Loan, other than as required by Section 3.2 of this Agreement. Section 7.9. Further Assurances and Corrective Instruments. The parties hereto agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and to the other documents contemplated hereby as may reasonably be required to carry out the intention of or to facilitate the performance of this Agreement or the Indenture. Section 7.10. Compliance With Other Documents. The Borrower shall make all payments and shall observe and perform all covenants, conditions and agreements required to be paid, observed or performed by the Borrower under the Mortgage Note, the Mortgage, the other Mortgage Loan Documents, the Regulatory Agreement, the Fannie Mae Documents and all other documents, instruments or agreements which may at any time, or from time to time, be entered into by the Borrower with respect to the Project or the operation, occupancy or use thereof. The Indenture has been submitted to the Borrower for examination, and the Borrower, by execution of this Agreement, acknowledges and agrees that it has participated in the drafting of the Indenture, that it has approved and agreed to each of the provisions of the Indenture and that it is bound by, shall adhere to the provisions of, and shall have the rights set forth by the terms and conditions of, the Indenture and covenants and agrees to perform all obligations required of the Borrower pursuant to the terms of the Indenture. The SF2-34509.2 22 41108-24-MS1-09/10/94 Borrower further agrees to abide by the terms and conditions of the Credit Facility Agreement and assumes and agrees to perform all obligations noted or described as requirements of the Borrower in the Credit Facility Agreement, including, without limitation, those set forth in this Agreement, and acknowledges that the Borrower's failure to so comply shall constitute an Event of Default under this Agreement and a default under the Mortgage Loan, entitling the Trustee, at the direction.of the Credit Facility Provider, to exercise all available remedies set forth in this Agreement and in the Mortgage Note, the Mortgage and the other Mortgage Loan Documents. Section 7.11. Notice of Certain Events. The Borrower hereby covenants to advise the Servicer, the Issuer, the Trustee and the Credit Facility Provider promptly in writing of the occurrence of any default by the Borrower in the performance or observance of any covenant, agreement, representation, warranty or obligation of the Borrower set forth in this Agreement, the other Bond Documents, the Mortgage Loan Documents or any other documents contemplated hereby or thereby, or of any Event of Default hereunder known to it or of which it has received notice,or any event which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto. Section 7.12. Indemnification. The Borrower hereby releases the Issuer and its officers and employees from, and covenants and agrees to indemnify, hold harmless and defend the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider and their respective officers, members, directors, officials, agents and employees and each of them (each an "indemnified party") from and against, (i) any.and all claims, joint or several, by or on behalf of any person arising from any cause whatsoever in connection with transactions contemplated hereby or otherwise in connection with the Project, the Bonds or the execution or amendment of any document relating thereto; (ii) any and all claims, joint or several, arising from any cause whatsoever in connection with the approval of financing for the Project or the making of the Mortgage Loan; (iii) any and all claims, joint or several, arising from any act or omission of the Borrower or any of its agents, servants, employees or Eicensees, in connection with the Mortgage Loan or the Project; (iv) all reasonable costs, counsel fees, expenses or liabilities incurred in connection with,any such claim or proceeding brought thereon; (v) any and all claims arising in connection with the issuance and sale, resale or remarketing of any Bonds or any certifications or representations made by any person other than the Issuer or the party seeking indemnification in connection therewith and the carrying out by the Borrower of any of the transactions contemplated by the Bonds and this Agreement; (vi) any and all claims arising in connection with the operations of the Project, or the conditions, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; and (vii) any and all losses, claims, damages, liabilities or expenses, joint or several, arising out of or connected with the Trustee's acceptance or administration of the trusts created by the Indenture and the exercise of its powers or duties thereunder or under this Agreement, the Regulatory Agreement or any other agreements in connection therewith to which it is a party; except (a) in the case of the foregoing indemnification of the Trustee, the Tender Agent or the Credit Facility Provider or any of their respective officers, members, directors, officials and employees, to the extent such SF2-34509.2 23 41108-24-MS1-09/10/94 damages are caused by the negligence or willful misconduct of such Person, or with respect to the Trustee, to the extent the Trustee is otherwise liable as provided in the Indenture; or (b) in the case of the foregoing indemnification of the Issuer or any of its officers, members, directors, officials and employees, to the extent such damages are caused by the willful misconduct of such Person. In the event that any action or proceeding is brought against any indemnified party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Borrower, subject to the approval of the indemnified party in such party's sole discretion, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the lune in its sole discretion; provided that the Issuer, the Trustee, the Tender Agent and the Credit Facility Provider shall have the right to review and approve or disapprove any such compromise or settlement. Each indemnified party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such separate counsel; provided, however, that unless such separate counsel is employed with the approval of the Borrower, which approval shall not be unreasonably withheld, the Borrower shall not be required to pay the fees and expenses of such separate counsel. Notwithstanding any transfer of the Project to another owner in accordance with the provisions of the Regulatory Agreement, the Borrower shall remain obligated to indemnify each indemnified party pursuant to this Section if such subsequent owner fails to indemnify any party entitled to be indemnified hereunder, unless such indemnified party has consented to such transfer and to the assignment of the rights and obligations of the Borrower hereunder. Section 7.13. Reimbursement Obligations. The Borrower unconditionally agrees to pay for the account of Fannie Mae, the following amounts: (a) on and after each date on which Fannie Mae shall have provided funds under the Collateral Agreement, an amount equal to the amount provided by Fannie Mae under the Collateral Agreement in order to reimburse Fannie Mae for the amount so provided under the Collateral Agreement and, to the extent that Fannie Mae is not reimbursed by 2:00 p.m. (Washington, D.C. time) on the date on which Fannie Mae shall have provided funds under the Collateral Agreement, the Activity Fee, payable as provided in the Collateral Agreement; and (b) To the extent that any payment (other than a payment of the redemption price of Bonds to be redeemed) is made by the Trustee to a Bondholder in whole or in part from funds on deposit in the Principal Payment Fund, the Borrower, after first paying to the Trustee, for remittance to Fannie Mae, any amount due Fannie Mae in order to reimburse Fannie Mae for the amount so provided under the Collateral Agreement (if such payment is made in part from funds provided by Fannie Mae under the Collateral Agreement and in part from funds on deposit in the Principal Payment Fund), shall pay to the Servicer for remittance to the Trustee, for (i) deposit into the Principal Payment Fund (1) the amount previously withdrawn by the Trustee from the Principal Payment Fund (in order to fully replenish the Principal Payment Fund to the amount on deposit in the Principal Payment SF2-34509.2 24 41108-24-MS1-09/10/94 Fund prior to such withdrawal), and (2) to the extent that the Principal Payment Fund is not fully replenished by 2:00 p.m. (Washington, D.C. time) on the date on which the Trustee shall have withdrawn funds from the Principal Payment Fund the amount representing the lost investment income to the Principal Payment Fund by reason of the withdrawal and (ii) remittance to Fannie Mae, the Activity Fee, as and to the extent applicable to the amount (l) that shall have been provided by Fannie Mae under the Collateral Agreement if Fannie Mae is not reimbursed by 2:00 p.m. (Washington, D.C. time) on the date on which Fannie Mae shall have provided funds under the Collateral Agreement and (2) withdrawn from the Principal Payment Fund to the extent that the Principal Payment Fund is not fully replenished by 2:00 p.m. (Washington, D.C. time) on the date on which the Trustee shall have withdrawn funds from the Principal Payment Fund. If Fannie Mae shall have provided funds under the Collateral Agreement and if funds on deposit in the Principal Payment Fund shall, upon demand by Fannie Mae, be paid to Fannie Mae in reimbursement of the amounts provided by Fannie Mae under the Collateral Agreement, the Borrower shall pay for, (A) deposit into the Principal Payment Fund the amount (I) previously withdrawn by the Trustee from the Principal Payment Fund to reimburse Fannie Mae (in order to fully replenish the Principal Payment Fund) and (II) representing the lost investment income to the Principal Payment Fund by reason of the withdrawal rovided that if such lost income cannot be readily calculated by the Trustee the Activity Rate shall be used in calculating such amount) and (B) remittance to Fannie Mae, the Activity Fee, as and to the extent applicable to the amount (I) that shall have been provided by Fannie Mae under the Collateral Agreement if Fannie Mae is not reimbursed by 2:00 p.m. (Washington, D.C. time) on the date on which Fannie Mae shall have provided fiends under the Collateral Agreement and (II) withdrawn from the Principal Payment Fund to the extent that the Principal Payment Fund is not fully replenished by 2:00 p.m. (Washington, D.C. time) on the date on which the Trustee shall have withdrawn funds from the Principal Payment Fund. Any failure of the Borrower to pay to the Servicer for remittance to the Trustee (x) any amount required to reimburse Fannie Mae for any amount Fannie Mae shall have provided under the Collateral Agreement, (y) any amount required to be deposited into the Principal Payment Fund or (z) the Activity Fee required to be paid to Fannie Mae, on or before the thirtieth (30th) day following the date on which Fannie Mae shall have provided funds under the Collateral Agreement and/or the Trustee shall have withdrawn funds from the Principal Payment Fund, shall, at Fannie Mae's option, in its discretion, constitute a default under the Mortgage Loan and an Event of Default under this Agreement. Upon the occurrence and continuance of any default under the Mortgage Loan or any Event of Default under this Agreement, the amounts due and payable in reimbursement of funds provided under the Collateral Agreement or to replenish the Principal Payment Fund for amounts previously withdrawn by the Trustee from the Principal Payment Fund, and the Activity Fee, as and to the extent applicable, shall be immediately due and payable. The amount due and payable in reimbursement of funds provided under the Collateral Agreement or to replenish the Principal Payment Fund for amounts previously withdrawn by the Trustee from the Principal Payment Fund, and the Activity Fee, as and to the extent applicable, shall be immediately due and payable upon the effective date of any Alternate Credit Facility. The obligation of the Borrower to make payments required hereunder shall not be dependent upon notice or demand. S1,72-34509.2 25 41108-24-MSl-09/10/94 Section 7.14. Costs Incurred By Credit Facility Provider. If the Credit Facility Provider provides funds under the Credit Facility Agreement for any purpose provided in the Credit Facility Agreement, the Borrower shall pay to the Credit Facility Provider, on demand, in addition to the amounts so provided, all costs, expenses and charges incurred by the Credit Facility Provider in providing such amount. Section 7.15. Right to Perform Borrower's Obligations. In the event the Borrower fails to perform any of its obligations under this Agreement, the Issuer, the Credit Facility Provider and/or the Trustee, after giving the requisite notice, if any, may, but shall be under no obligation to, perform such obligation and pay all costs related thereto, and all such costs so advanced by the Issuer, the Credit Facility Provider or the Trustee shall become an additional obligation of the Borrower hereunder, payable on demand with interest thereon at the Maximum Rate. In the event of an advance made due to the Borrower's default, the interest thereon shall be at the default rate of interest payable under the Mortgage Loan Documents. Section 7.16. Obligations of the Borrower Unconditional. The obligation of the Borrower to repay the Mortgage Loan, to reimburse the Credit Facility Provider as provided in Sections 7.13 and 7.14 of this Agreement, to make the payments required by Section 4.9 of this Agreement, to provide indemnification pursuant to Section 7.12 hereof and to make any and all other payments required by this Agreement, the Indenture or any other documents contemplated hereby or thereby shall be absolute and unconditional and shall not be subject to diminution by set-off, recoupment, counterclaim, abatement or otherwise. Until the Bonds have been fully paid (or provision made therefor) in accordance with the Indenture (and longer if required by the terms of this Agreement or any Mortgage Loan Document), the Borrower (a) shall continue to have the obligation to repay the Mortgage Loan as aforesaid, (b) shall perform and observe all of its other obligations contained in this Agreement, the Indenture and all other documents contemplated hereby or thereby, and (c) shall not terminate this Agreement for any cause, including, without limiting the generality of the foregoing, defect in title to the Project, any acts or circumstances that may constitute failure of consideration, destruction of, damage to or condemnation of the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State or any political subdivision of either, or any failure of the Issuer to perform and observe any of its obligations arising out of or connected with this Agreement. It is the intent and expectation of the Borrower that the Borrower's payments hereunder will be sufficient for the payment in full of the Bonds including (i) the total interest becoming due and payable on the Bonds to the respective dates of payment thereof, (iii) the total principal of the Bonds, (iii) the redemption of Bonds prior to their stated payment dates, including any premium required to be paid in connection therewith, and Qv) the purchase price of the Bonds in the event Bonds are tendered and not remarketed by the Remarketing Agent. In the event of any deficiency in the amount of funds available for payment of the principal of, interest on or purchase price of the Bonds when and as due, regardless of the reason for such deficiency, the Borrower agrees that upon notice of the deficiency from the Trustee or the Issuer it shall then immediately pay the amount of the deficiency to the Trustee on behalf of the Issuer, provided that if the Credit Facility Provider shall have provided funds under the Credit Facility Agreement or if funds on deposit in the Principal Payment Fund shall have been used by the Trustee to pay the principal of, interest SF234509.2 26 41108-24-MS1-09/10/94 on or purchase price of the Bonds, the Borrower agrees to immediately pay the amounts owed the Credit Facility Provider in reimbursement of the funds provided by the Credit Facility Provider or in replenishment of the Principal Payment Fund, as the case may be, as provided in Section 7.13 of this Agreement. Neither (A) payment made by the Credit Facility Provider under the Credit Facility with respect to the payment of the principal and interest on the Mortgage Loan, to facilitate the purchase of Tendered Bonds, to repurchase Pledged Collateral or otherwise nor (B) the T'rustee's use of any funds on deposit in the Principal Payment Fund to pay principal of or interest on the Bonds or the purchase price of Tendered Bonds, shall relieve the Borrower of any of its obligations under the Mortgage Loan Documents, this Agreement or, to the extent applicable, the Indenture. Section 7.17. Nonrecourse Provisions. (a) Notwithstanding anything herein to the contrary, except Section 4.9 and Section 7.17(b) hereof and except as otherwise provided in the Mortgage Loan Documents, in any action or proceeding brought on any instrument evidencing any indebtedness to the Issuer or the Trustee no deficiency or other money judgment shall be enforced against the Borrower or any partner of the Borrower personally, any successor or assign of the Borrower, or any partner of a partner, and any judgment obtained shall, subject in all respects to the limitations of the Regulatory Agreement, be enforced only against the property of the Borrower, and the rents, issues and profits thereof, and any other security for the indebtedness evidenced hereby, and not against the Borrower, any partner of the Borrower, any successor or assign of the Borrower, or any partner of a partner. It is understood and agreed that nothing herein shall be construed in any way to limit or restrict any of the Reserved Rights of the Issuer or any of the rights and remedies of the Issuer in any proceeding or other enforcement for the payment of any indebtedness, subject only to the aforesaid limitation upon enforcement of any judgment against the Borrower, any partner of the Borrower, and any successor or assign of the Borrower, or any partner of a partner, subject in all respects to the limitations of the Regulatory Agreement. (b) Notwithstanding anything to the contrary contained in subsection (a) of this Section 7.17, the obligations of the Borrower under the Bond Documents shall be recourse under the circumstances and to the extent provided in Section C of the Addendum to the Mortgage Note and as set forth below: (i) the incurrence of any fees, expenses, damages, or liabilities including, without limitation, all reasonable attorneys' fees, whether incurred by the Issuer or the Trustee prior to or following foreclosure of the Mortgage and whether the Issuer or the Trustee shall be in the status of a lienholder or an owner of the Project following foreclosure, directly or indirectly arising out of or attributable to use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Project of any materials, wastes, or substances defined or classified as hazardous or toxic under any federal, state or local laws, regulations or otherwise constituting a breach of the Borrower of the covenants, agreements or representations relating to environmental matters contained in the Mortgage; SF2-34509.2 27 41108-14-MSl-09/10/94 (ii) any failure by the Borrower to comply with Section 4.9 of this Agreement, until such time as the Borrower ceases to own the Project; and (iii) the incurrence of any fees, expenses, damages or liabilities, including, without limitation, all reasonable attorneys' fees, arising as a result of the indemnification provided by the Borrower under Section 7.12 hereof. ARTICLE VIII Mortgage Loan Documents Section 8.1. Assurances. The Borrower, the Issuer and the Trustee mutually agree that no party hereto shall enter into any contracts or agreements or perform any acts, or r(Nuest any other party hereto to enter into any contracts or agreements or perform any acts, which shall adversely affect the Mortgage Loan Documents. Section 8.2. Mortgage Loan to Borrower. The Mortgage Loan Documents shall be standard Fannie Mae multifamily forms for the State as in effect on the Effective Date, as amended to conform to the Bond Documents and with such other modifications as are required by Fannie Mae. Section 8.3. Assignment of Certain Rights. Pursuant to Section 3.14(c) of the Collateral Agreement and subject to the terms of such Section, the Trustee has assigned certain of its rights as the holder of the Mortgage Note and the Mortgage (excluding the right to receive payments in respect of principal and interest on the Mortgage Loan) to Fannie Mae. ARTICLE IX The Project Section 9.1. Reserved. Section 9.2. Regulatory Agreements Subordination of Certain Obligations. (a) The covenants of the Borrower in the Regulatory Agreement shall be deemed to constitute covenants of the Borrower running with the land and an equitable servitude for the benefit of the owners of the Bonds and shall be binding upon any owner of the Project until (i) such time as such restrictions expire under their own terms, or (ii) the Issuer (in its sole and absolute discretion) and the Trustee (as provided in the Indenture) consent to the release of such restrictions, or (iii) the Project is conveyed in foreclosure.of the Mortgage Loan or by deed in lieu of foreclosure or the Regulatory Agreement is otherwise terminated by its terms. The Borrower hereby covenants to file of record the Regulatory Agreement and such other documents and take such other steps as are necessary in order to assure that the restrictions contained in the Regulatory Agreement will be binding upon all owners of the Project. The Borrower hereby covenants to include such restrictions in any documents transferring any S1?2-34509.2 28 41108-24-MSI-09/10/94 interest in the Project to another to the end that such transferee has notice of, and is bound by, such restrictions. (b) Subject to the provisions of Article XI hereof, the Issuer and the Trustee shall have the right and obligation to seek specific performance of the requirements of any covenants of the Borrower contained in the Regulatory Agreement or this Agreement. (c) Notwithstanding anything.to the contrary contained herein or in the Regulatory Agreement, all obligations under the Regulatory Agreement for the payment of money and all claims for damages against the Borrower occasioned by breach or alleged breach by the Borrower of its obligations under the Regulatory Agreement shall be subordinate in all respects to the obligations of the Borrower under the Mortgage and all other documents evidencing or securing the Mortgage Loan. Section 9.3. Project Operation. The Borrower agrees that the operation of the Project shall not conflict with any zoning, water or air pollution or other law, ordinance, order, rule or regulation applicable thereto. The Project has been designed in accordance with all applicable federal, state and local laws, ordinances, orders, rules and regulations relating to zoning, building, safety and environmental quality. Section 9.4. Right to Enforce Compliance. The Issuer, the Trustee and the Credit Facility Provider shall have the right, but not the obligation, to enforce compliance by the Borrower and its successors as subsequent owners of the Project with the requirements contained in this Article IX. Section 9.5. Damage. Destruction and Condemnation. If prior to full payment of the Bonds (or provision for payment thereof in accordance with the provisions of the Indenture) the Project or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty, or title to, or the temporary use of, the Project or any portion thereof shall"be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, the Borrower shall nevertheless be obligated to continue to pay the amounts specified herein and in the Mortgage Note to the extent the Mortgage Loan is not prepaid in accordance with Section 5.2 hereof. The proceeds, if any, of any insurance or condemnation awards resulting from the damage, destruction or condemnation of the Project or any portion thereof shall be deposited in a special account held by the Servicer (herein called the "Insurance Proceeds Account") and applied to the payment of all or a portion of the Mortgage Loan or to the repair, restoration, replacement, relocation or improvement of the Project, all as provided in the Mortgage, including without limitation, paragraphs 5 and 11 thereof. SF2-34509.2 29 41108-24-MS1-09/10/94 ARTICLE X Trustee's Interest in Agreement Section 10.1. Issuer Assignment of this Agreement. (a) Pursuant to the Indenture, the Issuer shall pledge, assign and transfer all of its night, title and interest in this Agreement (other than the Reserved Rights of the Issuer), and the revenues, receipts and collections hereunder and thereunder, as security for the payment of the principal of, premium, if any, and interest on the Bonds, and the parties hereby acknowledge that the covenants and agreements contained therein and herein are for the benefit of the registered owners from time to time of the Bonds and may be enforced on their behalf by the Trustee. The Issuer shall execute and deliver from time to time, in addition to the instruments of assignment herein specifically provided for, such other and further instruments and documents as may be reasonably requested by the Trustee from time to time to further evidence, effect or perfect such pledge and assignment for the purposes contemplated in the Indenture. (b) The Borrower hereby acknowledges and consents to the assignment and pledge (subject to the reservation by the Issuer of its Reserved Rights) by the Issuer to the Trustee, for the benefit of the Bondholders and the Credit Facility Provider, as security for' the payment of the Bonds and as security for the reimbursement of amounts owing to the Credit Facility Provider under this Agreement, (i) the moneys deposited to the various funds and accounts hereunder and under the Indenture (excluding the Rebate Fund), including investments thereof; and (ii) all of the Issuer's rights and interests under this Agreement (but excluding the Issuer's Reserved Rights) and the right and interest to enforce, either jointly or separately, the performance of the obligations of the Borrower under this Agreement. The Borrower further acknowledges and consents to the right of the Trustee to enforce all rights of the Issuer and the Bondholders assigned under the Indenture. Section 10.2. Rights of Trustee Hereunder: Third-Party Beneficiaries. The parties hereto recognize and agree that the terms of this Agreement and the enforcement thereof are essential to the security of the Bonds and the security of the Credit Facility Provider, and are entered into for the benefit of the Bondholders and the Credit Facility Provider. The Trustee as representative of the Bondholders and the Credit Facility Provider shall accordingly have contractual rights and duties in this Agreement and be entitled to enforce separately or jointly with the Issuer, or to cause the Issuer to enforce, the terms of this Agreement. In addition, the Bondholders and the Credit Facility Provider are intended to be, and shall be, third-party beneficiaries of this Agreement; and the Credit Facility Provider shall have the right to enforce the terms of this Agreement insofar as this Agreement sets forth obligations of the Borrower under this Agreement. Section 10.3. Issuer Compliance With Indenture. The Issuer shall comply with the covenants, requirements and provisions of the Indenture and perform all of its obligations thereunder. S172.34509.2 30 41108-24-MSI-09/10/94 ARTICLE XI Events of Default and Remedies Section 11.1. Events of Default. (a) Each of the following shall constitute an event of default under this Agreement, and the term "Event of Default" shall mean, whenever used in this Agreement, any one or more of the following events: (i) Failure by the Borrower to pay any amounts due under this Agreement, the Mortgage Note or the Mortgage at the times and in the amounts required hereby or thereby; or (ii) Failure by the Borrower to observe or perform any covenants, agreements or obligations in this Agreement on its part to be observed or performed for a period of thirty (30) days after receipt of written notice specifying such failure and requesting that it be remedied, given to the Borrower by any party to this Agreement; provided, however, that if said failure shall be such that it cannot be corrected within such period, it shall not constitute an Event of Default if the failure is correctable without material adverse effect on the Bonds and if corrective action is instituted by the Borrower within such period and diligently pursued until the failure is corrected, and provided further that any such failure shall have been cured within 90 days of receipt of notice of such failure; or (iii) Breach of any of the covenants, agreements or obligations of the Borrower under the Regulatory Agreement, the Tax Certificate, the Mortgage, the Mortgage Note or any of the other Mortgage Loan Documents, including any exhibits to any of the foregoing; or (iv) Any representation or warranty made by the Borrower herein or in any document delivered by or on behalf of the Borrower to the Trustee, the Credit Facility Provider or the Issuer in connection with the Project, the Mortgage Loan or the Bonds is untrue or proves to have been untrue or misleading in any material respect as of the date made or deemed made; or (v) The occurrence of an Event of Default by the Borrower under and as defined in the Indenture or under any of the other Bond Documents; or (vi) The Borrower shall generally not pay its debts as they become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors or shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial SF2-34509.2 31 41108-24-MSI-09/10/94 part of its property; or the Borrower shall take any action to authorize any of the actions described above in this subsection (vi), or any proceeding shall be instituted against the Borrower seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and, if such proceeding is being contested by the Borrower in good faith, such proceeding shall remain undismissed or unstayed for a period of sixty (60) days; or (vii) Any claim is made against the Trust Estate as a result of any action or proceeding described in subsection (vi) of this Section 11.1 by, or with respect to, the Issuer. (b) If, following an optional or mandatory tender of Bonds in accordance with the Indenture, the Bonds have not been remarketed, but have been purchased by the Trustee on behalf of and'as agent for the Borrower with funds withdrawn from the Principal Payment Fund or with funds provided by the Credit Facility Provider under the Credit Facility Agreement and such Bonds have not been remarketed as of the thirtieth (30th) day following such purchase, the Credit Facility Provider shall have the right, at any time following such thirtieth (30th) day, if the Bonds have not then been remarketed, to instruct the Trustee in writing to do any one or more of the following: (i) assign the Mortgage Loan to the Credit Facility Provider, (ii) declare an Event of Default under this Agreement and a default under the Mortgage Loan or (iii) direct the Trustee to give notice of the mandatory redemption or mandatory tender of the Bonds in accordance with Section 214(b)(iii) or 1002(c)(i) of the Indenture. (c) The occurrence of a default under the Mortgage Loan shall, at the option of the Credit Facility Provider, in its sole and absolute discretion, constitute an Event of Default under this Agreement, and the occurrence of an Event of Default under this Agreement shall, al the option of the Credit Facility Provider, in its sole and absolute discretion, constitute a default under the Mortgage Loan. Section 11.2. Remedies Upon an Event of.Default. (a) Whenever any Event of Default shall have occurred and be continuing, the Issuer or the Trustee may, subject to the Regulatory Agreement, take any one or more of the following remedial steps: (i) Give Immediate Notice to the Credit Facility Provider and, if the Event of Default is the failure to receive a Required Mortgage Payment (as defined in the Collateral Agreement), give notice to the Credit Facility Provider, pursuant to and in accordance with Section 3.7(a) of the Collateral Agreement, and the Servicer, of such failure and demand payment by Fannie Mae of a Required Fannie Mae Payment (as defined in the Collateral Agreement) in lieu of the Required Mortgage Payment. SIT2-34509.2 32 41108-24-MSI-09/10/94 (ii) If (A) with the prior written consent or at the direction of the Credit Facility Provider, the Bonds shall have been called for mandatory redemption pursuant to Section 214(b)(iv) of the Indenture, or (B) with the prior written consent of the Credit Facility Provider, the principal and interest accrued on the Bonds shall have been declared immediately due and payable pursuant to the Indenture, the Trustee shall thereupon demand payment under the Credit Facility up to the amount available thereunder; provided, however, that if the Trustee shall cancel such mandatory redemption or annul a declaration of acceleration of the Bonds pursuant to the Indenture, the Issuer, the Servicer, the Trustee and the Credit Facility Provider shall be restored to their former rights and positions, and all rights, duties and obligations of the parties shall continue as if no adverse proceeding had been taken, subject to the limits of any adverse determination. (iii) The Issuer or the Trustee shall have access to and may inspect, examine, audit and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Borrower or the general partners of the Borrower, only insofar as they relate to the Project or the Event of Default and the remedying thereof. (iv) To the extent of any insufficiency in the payment of the Bonds after the Trustee receives money pursuant to the Credit Facility, the Trustee may, by any suit, action or proceeding, pursue all remedies now or hereafter existing at law or in equity to collect all amounts then due and thereafter to become due under this Agreement, to enforce the performance of any covenant, obligation or agreement of the Borrower under this Agreement (subject to the nonrecourse provisions of this Agreement and the Regulatory Agreement) or to enjoin acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee. (v) Exercise and enforce all or any of its rights under this Agreement. (vi) Take such action as is permitted by the Mortgage Loan Documents but only with the consent of the Credit Facility Provider. (vii) Take whatever other action at law or in equity may appear necessary or desirable to enforce any monetary obligation of the Borrower under this Agreement or to enforce any other covenant, obligation or agreement of the Borrower under (1) this Agreement or (2) the Regulatory Agreement or, (3) with the consent of the Credit Facility Provider, the Mortgage Loan Documents. (b) The provisions of subsection (a) hereof are subject to the condition that if, after any Event of Default, except a default under the Regulatory Agreement, (i) all amounts which would then be payable hereunder by the Borrower if such Event of Default had not occurred and was not continuing shall have been paid by or on behalf of the Borrower, and (ii) the Borrower shall have also performed all other obligations in respect of which it is then in default hereunder and shall have paid the reasonable charges and expenses of the Issuer, the Trustee and the Credit Facility Provider, including reasonable attorney fees paid or incurred in connection with such default, then and in every such case, such Event of Default SF2-34509.2 33 41108-24-Ms1-09/10/94 may be waived and annulled, but no such waiver or annulment shall extend to or affect any subsequent Event of Default or impair any right or remedy consequent thereon. (c) The Issuer and the Trustee hereby acknowledge that the occurrence of an Event of Default hereunder will not by itself cause a default to arise under the Mortgage Loan or any of the Mortgage Loan Documents unless otherwise declared a default under the Mortgage Loan Documents by the Credit Facility Provider. (d) Notwithstanding any other provision of this Agreement or the Regulatory Agreement to the contrary, neither the Issuer, the Trustee nor any person under their control shall, without the prior written consent of the Credit Facility Provider, (i) initiate or take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal, interest and other amounts due under the Mortgage Loan, (ii) upon the occurrence of an event of default under the Mortgage Loan, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan, or (iii) interfere with or attempt to influence the exercise by the Credit Facility Provider of any of its rights under the Bond Documents; provided that this subsection (d) shall neither be construed to limit the obligations of the Issuer and Trustee to seek specific performance of the Regulatory Agreement and Section 11.3 hereof, nor to preclude the Issuer or the Trustee from exercising their rights under this Section, provided that (1) such rights shall not be exercised or enforced in a manner inconsistent with the limitations set forth in this subsection (d) and, (2) under no circumstances shall the Issuer or the Trustee seek monetary damages under the Regulatory Agreement or under this Section or Section 11.3 hereof. The Trustee may, with the consent of the Credit Facility Provider, permit the Borrower to cure any default under the Mortgage Note and the Mortgage, but only if (A) the Borrower pays to the Trustee all overdue payments of principal and interest on the Mortgage Note, including all payments under the Principal Payment Schedule, (B) the Borrower cures any nonmonetary defaults under the Mortgage Note, the Mortgage and the other Mortgage Loan Documents to the satisfaction of the Credit Facility Provider, and (C) the Borrower pays all fees, costs and expenses of the Trustee, the Issuer, the Servicer and the Credit Facility Provider, extraordinary or otherwise, including, without limitation, legal fees and expenses, incurred in connection with such default. The Borrower acknowledges that any cure of any such default will.not affect any subsequent default under the Mortgage Loan. In addition to and without limitation of the foregoing, the Trustee shall not be obligated to (x) otherwise acquire possession of or take any other action with respect to the Project if, as a result of any such action, the Trustee would be considered to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of the Project within the meaning of the Comprehensive Environmental Responsibility Cleanup and Liability. Act of 1980, as amended, from time to time ("CERCLA"), or (y) suffer any liability under any other laws, rules or regulations relating to the environment (together with CERCLA referred to as "Environmental Laws"), unless the Trustee has previously determined, based on a report prepared by a Person who regularly conducts environmental audits and/or legal course, that: SF2-34504.2 34 41108-24-MSI-09/10/94 (i) the Project is in compliance with applicable environmental laws or, if not, that it would be in the best interest of the owners of the Bonds to take such actions as are necessary for the Project to comply therewith; and (ii) there are not circumstances present at the Project relating to the use, management or disposal of any hazardous wastes for which investigation, testing, monitoring, containment, clean-up or remediation could be required under any federal, state or local law or regulation, or that if any such materials are present for which such action could be required, that it would be in the best economic interest of the owners of the Bonds to take such actions with respect to the Project. The environmental audit report and/or legal opinion contemplated hereby shall not be prepared by an employee or affiliate of the Trustee, but shall be prepared by a Person who regularly conducts environmental audits for purchasers of commercial property, as determined.(and, if applicable, selected) by the Trustee, and the cost thereof shall be borne by the Borrower. (e) Subject to the limitations of the Regulatory Agreement, the Issuer, without the consent of the Trustee or the Servicer, but only after written notice to the Trustee, the Borrower and the Credit Facility Provider, may take whatever action at law or in equity may appear necessary or desirable to enforce performance and observance of any Reserved Right of the Issuer; provided that, except as otherwise provided herein or in the Indenture, the Lssuer may not, without the consent of the Trustee and the Credit Facility Provider, terminate this Agreement or cause the Mortgage Loan to become due and payable hereunder, or cause the Trustee to declare the principal of all Bonds then outstanding and the interest accrued thereon to be immediately due and payable, or cause the Trustee to foreclose or take any other action under the Bond Documents, the Mortgage Loan Documents or any other documents contemplated hereby or thereby to obtain such performance or observance. (f) Any amounts collected pursuant to action taken under this Section (other than amounts collected by the Issuer under subsection (h) hereof) shall, after the payment of the costs and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee or the Credit Facility Provider and their respective counsel, be paid into the Receipts Account of the General Receipts Fund and applied in accordance with the provisions of the Indenture; provided, however, there.shall be no deduction for costs and expenses associated with the Trustee's collection of funds payable under the Credit Facility. No action taken pursuant to this Section shall relieve the Borrower from the Borrower's obligations pursuant to Section 7.12 hereof. (g) No remedy herein conferred upon or reserved to the Issuer or the Trustee is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shallbe cumulative and shall be in addition to every other remedy now or hereafter existing pursuant to any other agreement at law or in equity or by statute. (h) Except as required to be deposited in the Rebate Fund pursuant to the Tax Certificate, any amounts collected pursuant to action taken under this Section shall be paid SF2-34509.2 35 41108-24-MSI-09/10/94 into the Receipts Account of the General Receipts Fund and applied in accordance with the Indenture, except amounts collected pursuant to Section 7.12 hereof for the benefit of the Issuer. Section 11.3. Default Under Regulatory Agreement. (a) If the Borrower fails, at any time for any reason, to comply with the requirements of the Regulatory Agreement, then within thirty (30) days after the earlier of the date the violation is discovered by the Issuer or the Trustee or the date the Issuer or the Trustee received notice thereof, the Issuer (if necessary to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes) or the Trustee, on behalf of the Issuer, shall institute an action at law or in equity to correct the violation. The Borrower hereby acknowledges and agrees that money damages alone will not be an adequate remedy at law for a default by the Borrower arising from a failure to comply with the Regulatory Agreement, and therefore the Borrower agrees that the remedy of specific performance (subject to the provisions of Section 11.2(d) hereof) shall be available to the Issuer and/or the Trustee in any such case. (b) From and after the date of assignment and delivery of the Mortgage Loan to the Trustee, and notwithstanding the availability of the remedy of specific performance provided for in subsection (a) of this Section, promptly upon determining that a violation of the Regulatory Agreement has occurred, the Issuer shall, by notice in writing to the Servicer and to the Credit Facility Provider, inform the Credit Facility Provider that a violation of the Regulatory Agreement has occurred; notwithstanding the occurrence of such violation, neither the Issuer nor the Trustee shall have, and each of them acknowledges that they shall not have, any right to cause or direct acceleration of the Mortgage Loan, to enforce the Mortgage Note or to foreclose on the Mortgage. Section 11.4. Limitation on Waivers. (a) No delay or omission to exercise any right or power occurring upon any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed appropriate. The Issuer and the Trustee agree to give only such notices as may be herein expressly required. (b) In the event any covenant, agreement or condition contained in this Agreement shall be breached by a party and thereafter waived by another party, such waiver shall not bind any party which has not waived the breach and shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder nor be a waiver of the same breach on a future occasion. By reason of the assignment and pledge of certain of the Issuer's rights and interests in this Agreement to the Trustee, the Issuer shall have no power to waive or release the Borrower from any Event of Default or the performance or observance of any obligation or condition of the Borrower under this Agreement without first requesting and receiving the prior written consent of the Trustee and the Credit Facility Provider, but shall do so if requested by the Trustee and the Credit Facility Provider; provided that the Issuer shall not be required to grant such waiver or release unless it shall SF2-34509.2 36 41108-24-MS1-09/10/94 have been provided with (i) an Opinion of Counsel that such action will not result in any pecuniary liability to it, (ii) such indemnification as the Issuer shall deem reasonably necessary, and (iii) written notice from the Trustee and the Credit Facility Provider of the request for such waiver or release. Notwithstanding anything contained herein to the contrary, the Issuer expressly reserves its right to exercise its Reserved Rights without obtaining the consent or approval of the Borrower, the Servicer, the Trustee and/or the Credit Facility Provider, and nothing herein contained shall be construed as a waiver or relinquishment of the Issuer's Reserved Rights. Section 11.5. Notice of Default; Credit Facility Provider's Right to Cure. The Issuer, Servicer and the Trustee shall each give notice to the others and to the Credit Facility Provider of the occurrence of any Event of Default by the Borrower hereunder of which it has actual knowledge. The Credit Facility Provider shall have the right, but not the obligation, to cure any such default by the Borrower, and upon performance by the Credit Facility Provider to the satisfaction of the Issuer and the Trustee of the covenant, agreement or obligation of the Borrower with respect to which an Event of Default has occurred, the parties hereto shall be restored to their former respective positions, it being agreed that the Credit Facility Provider shall have the right to repayment from the Borrower of moneys it has expended and any other appropriate redress for actions it has taken to cure any default by the Borrower; provided that the Borrower's reimbursement obligation shall be non-recourse to the same extent as the underlying obligation is non-recourse to the Borrower. Section 11.6. Right to Specific Performance. The Borrower, the Credit Facility Provider, the Issuer or the Trustee may apply in any court of competent jurisdiction for specific performance by the Borrower, the Issuer or the Servicer, as the case may be, of its covenants, obligations and agreements under this Agreement, for an injunction against any violation of the covenants, obligations or agreements on the part of the Borrower, the Issuer or the Servicer to be observed or performed under this Agreement, or, subject to the Regulatory Agreement, for such other relief as may be appropriate, it being mutually agreed by the parties hereto that the injury to the Borrower, the Issuer or the Credit Facility Provider, as the case may be, arising from an Event of Default hereunder, or from a breach of the covenants, obligations or agreements herein contained, would be irreparable, and that the amount of monetary damages arising as a consequence thereof which are in addition to any amounts owing to the Borrower, the Issuer or the Credit Facility Provider, as the case may be, would be difficult to ascertain. Section 11.7. Rights Cumulative. All rights and remedies herein given or granted to the Issuer, the Trustee and the Credit Facility Provider are cumulative, nonexclusive and in addition to any and all rights and remedies that the Issuer, the Trustee and the Credit Facility Provider may have or may be given by reason of any law, statute, ordinance or otherwise. Neither the Trustee nor the Issuer may commence any action against the Borrower for specific performance or any other remedy at law or in equity, other than to enforce performance and observance of any Reserved Right of the Issuer, without first obtaining the prior written consent of the Credit Facility Provider. Section 11.8. Assignment to the Credit Facility Provider. If(a) the Credit Facility Provider shall have honored a demand for payment under the Credit Facility and thereby SF2-34509.2 37 41108-24-MS1-09/10/94 provided the Trustee with moneys sufficient to pay in full the principal of and interest on all Bonds, the Trustee, at the Credit Facility Provider's request, shall assign to the Credit Facility Provider, without recourse, this Agreement and the Mortgage Loan, including the Principal Payment Fund and all other funds which would otherwise be available to the Borrower under the Bond Documents, or (b) as to Fannie Mae, upon Fannie Mae's repurchase of the Trustee's interest in all of the Pledged Collateral pursuant to the Collateral Agreement, the Trustee shall, unless otherwise instructed by Fannie Mae, endorse and deliver the Mortgage Note to Fannie Mae, assign and deliver the Mortgage to Fannie Mae, assign and deliver all other Mortgage Loan Documents and the Principal Payment Fund to Fannie Mae, assign this Agreement to Fannie Mae and execute all such documents as are necessary to legally and validly effectuate the assignments. In addition, at any time upon request by Fannie Mae to the Trustee, Fannie Mae shall have the right, in its sole and absolute discretion, without repurchasing the Pledged Collateral under the Collateral Agreement or directing the Trustee to accelerate payment of the Bonds in accordance with Section 602 of the Indenture, but only upon filing with the Trustee a certification reaffirming Fannie Mae's obligations under the Collateral Agreement, to instruct the Trustee in writing to assign the Mortgage Loan, including the Principal Payment Fund, to Fannie Mae, in which event the Trustee shall endorse and deliver the Mortgage Note to Fannie Mae, assign and deliver the Mortgage to Fannie Mae, assign and deliver the Principal Payment Fund and assign and deliver all other Mortgage Loan Documents to Fannie Mae and execute all such other documents as are necessary to legally and validly effectuate the assignments. The endorsement of the Mortgage Note to Fannie Mae and the assignment of the Mortgage and the other Mortgage Loan Documents to Fannie Mae shall be without recourse. All fees, expenses or disbursements of the Trustee or the Issuer shall remain an unsecured obligation of the Borrower to the Trustee or the Issuer, as appropriate, and such unsecured obligation of the Borrower to the Trustee or the Issuer shall continue and survive the assignment of this Agreement to the Credit Facility Provider, and the Reserved Rights shall continue to be vested in the Issuer and shall survive the assignment of this Agreement to the Credit Facility Provider. The Credit Facility Provider shall have no liability for any such fees, costs or expenses except from amounts received under the Mortgage Loan. Any such assignment shall not be deemed to create a new obligation on the part of the Credit Facility Provider. ARTICLE XII Miscellaneous Section 12.1. Amounts Remaining in Funds. It is agreed by the parties hereto that any amounts remaining in the General Receipts Fund or Project Fund upon expiration or sooner cancellation or termination of this Agreement after payment in full of the Mortgage Loan and the Bonds (or provision therefor) shall be applied in accordance with this Agreement and the Indenture. Section 12.2. Notices. All notices, certificates or other communications herein provided shall be given in writing to the Issuer, the Borrower, the Trustee, the Credit Facility Provider and the Servicer, and shall be sufficiently given and shall be deemed given if given in the manner provided in Section 1103 of the Indenture. Copies of each notice, &F2-345D9.2 38 41108-24-MS1-09/10/94 certificate or other communication given hereunder by any party hereto shall be given to all parties hereto. By notice given hereunder, any party may designate further or different addresses to which subsequent notices, certificates or other communications are to be sent. A duplicate copy of each notice, certificate, request or other communication given hereunder to the Issuer, the Borrower, the Servicer or the Trustee shall also be given to the Credit Facility Provider. Section 12.3. Amendment. This Agreement and all other documents contemplated hereby to which the Issuer is a party may be amended or terminated only if permitted by Article IX of the Indenture, and no amendment to this Agreement shall be binding upon any party hereto until such amendment is reduced to writing and executed by the parties hereto. Section 12.4. Entire Agreement. Except as provided in the other Bond Documents, this Agreement contains all agreements among the parties hereto, and there are no other representations, warranties, promises, agreements or understandings, oral, written or implied, among the parties hereto, unless reference is made thereto in this Agreement or the Indenture. Section 12.5. Binding Effect. This Agreement shall be binding upon the Issuer, the Servicer, Fannie Mae, any other Credit Facility Provider, the Borrower and the Trustee and their respective successors and assigns. This Agreement shall inure to the benefit of the Issuer, Fannie Mae, any other Credit Facility Provider, the Borrower and the Trustee and their respective successors and assigns, subject to the limitation that any obligation of the Issuer created by or arising out of this Agreement shall not be a general obligation of the Issuer or the State or any political subdivision or taxing district thereof, but shall be payable solely out of the Trust Estate pledged under the Indenture. Section 12.6. Severability. If any clause, provision or section of this Agreement be ruled invalid or unenforceable by any court of competent jurisdiction, the invalidity or unenforceability of such clause, provision or section shall not affect any of the remaining clauses, provisions or sections. Section 12.7. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 12.8. Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State without regard to conflicts of laws principles. Section 12.9. Limited Liability. All obligations of the Issuer incurred hereunder, under the Regulatory Agreement, the Tax Certificate and the Indenture shall be limited obligations of the Issuer, payable solely and only from Bond proceeds, revenues and other amounts derived by the Issuer from the Trust Estate and from the Credit Facility. The Bonds shall be payable solely from the revenues and other funds and property pledged under the Indenture for the payment of the Bonds, and no owner or owners of any of the Bonds shall ever have the right to compel any exercise of the taxing power of the State or any SF;234509.2 39 41108-24-MS1.09/10/94 political subdivision or other public body thereof, nor to enforce the payment thereof against any property of the State or any such political subdivision or other public body. No member, officer, agent, employee or attorney of the Issuer, including any person executing this Agreement, shall be liable personally hereunder or for any reason relating to the issuance of the Bonds. No recourse shall be had for the payment of the principal of or the interest on the Bonds, or for any claim based therein, or otherwise in respect thereof, or based on or in respect of this Agreement or any amendment hereto, against any member, officer, employee or agent, as such, of the Issuer or any successor whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue of the Bonds, expressly waived and released. Section 12.14. Term of this Agreement. This Agreement shall be in full force and effect from its date to and including such date as all of the Bonds shall have been fully paid or retired (or provision for such payment shall have been made as provided in the Indenture) and all amounts owing to the Credit Facility Provider shall have been paid; rola vided, however, that the covenants of the Borrower contained in Sections 2.1 and 7.8 of this Agreement shall survive the termination hereof. Section 12.11. References to the Credit Facility Provider. All provisions hereof regarding consents, approvals, directions, waivers, appointments, requests or other actions by the Credit Facility Provider shall be deemed not to require or permit such consents, approvals, directions, waivers, appointments, requests or other actions and shall be read as if the Credit Facility Provider were not mentioned therein (a) during any period during which there is a payment default under the Credit Facility, or (b) after the Credit Facility shall at any time for any reason cease to be valid and binding on the Credit Facility Provider, or shall be declared to be null and void by final judgment of a court of competent jurisdiction or after the Credit Facility Provider has rescinded, repudiated or terminated the Credit Facility; provided, however, that the payment of amounts due (including without limitation all uidemnity payments) to the Credit Facility Provider pursuant to the terms hereof shall continue in full force and effect. The foregoing shall not affect any other rights of the Credit Facility Provider. All provisions herein relating to the rights of the Credit Facility Provider shall be of no force and effect if there is no Credit Facility in effect and there are no Purchased Bonds or Bonds in which the Credit Facility Provider has a security interest and all amounts owing to the Credit Facility Provider under the Credit Facility Agreement have been paid. In such event, all references to the Credit Facility Provider shall have no force or effect. [Remainder of page intentionally left blank] sf2-34509.2 40 41108-24-Ms1-09/10/94 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. COUNTY OF CONTRA COSTA By: Deputy Director-Redevelopment RIVERSHORE APARTMENTS, INC., a California Corporation By: Sam L. Arnold, President FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory SF2-34509.2 41 41108-24MS1-09/10/44 WHEN RECORDED MAIL TO: Orrick, Herrington& Sutcliffe Attn: Michelle W. Sexton, Esq. 400 Sansome Street San Francisco, CA 94111 FIRST AMENDMENT TO REGULATORY AGREEMENT THIS FIRST AMENDMENT TO REGULATORY AGREEMENT (this "Amendment"), amending that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of November 1, 1992 (the "Regulatory Agreement"), relating to a multifamily rental housing project located on the real property described in Exhibit A hereto (the "Project"), is made and entered into as of September 1, 1994, by and among the COUNTY OF CONTRA COSTA, a legal subdivision and body corporate and politic of the State of California (together with any successor to its rights, duties and obligations, the "County"), FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States of America, in its capacity as trustee under the Amended and Restated Indenture of Trust of even date herewith (the "Indenture"), by and between it and the County, and as successor as trustee under the Regulatory Agreement (together with any successor in such capacity, the "Trustee"), and R.IVERSHORE APARTMENTS, INC. (together with any successor to their rights, duties and obligations hereunder and as owner of the Project identified herein, the "Owner"). WITNESSETH : WHEREAS, as more fully set forth in the Indenture, the Issuer has previously issued its Variable Rate Demand Multifamily Mortgage Revenue Refunding Bonds (Rivershore Apartments) 1992 Series B (the 'Bonds"), and Bonds in an aggregate principal amount of$10,800,000 remain outstanding on the date hereof; and WHEREAS, the parties hereto acknowledge the matters set forth in the recitals to the Indenture; NOW, THEREFORE, the parties hereto, in consideration of the premises and the mutual covenants and commitments of the parties set forth herein, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, hereby agree as follows: Section 1. Deletion of Certain References. The following terms and all references thereto (including the definitions thereof in Section 1 of the Regulatory Agreement) are hereby deleted in their entirety: "Credit Agreement" "Credit Bank Representative" "Letter of Credit" SE-7,34586.2 41108-14-MS1.09/10/94 Section 2. Amendment of Definitions. The following definitions contained in Section 1 of the Regulatory Agreement are hereby amended in their entirety to read as follows: Credit Bank means the Federal National Mortgage Association. Indenture means the Indenture, dated as of November 1, 1992, between the County and the Trustee, pursuant to which the Bonds have been issued, as amended and restated by the Amended and Restated Indenture of Trust, dated as of September 1, 1994, between the County and the Trustee, as originally executed or as it may from time to time be supplemented, modified or amended in accordance with its terms. Loan Agreement means the Financing Agreement, dated as of September 1, 1994, among the County, the Trustee and the Owner, as originally executed or as it may from time to time be supplemented, modified or amended in accordance with its terms. Project Mortgage means that certain Multifamily Deed of Trust, Assignment of Rents and Security Agreement (together with all riders thereto), dated as of September 1, 1994, executed by the Owner, as it may from time to time be supplemented, modified or amended in accordance with its terms. Qualified Project Period means the period beginning on the first day on which ten percent of the dwelling units in the Project are occupied and ending on the later of(i) the date which is ten years after the date on which fifty percent of the dwelling units in the Project are occupied, or (ii) the date which is a "qualified number of days" (i.e., 50% of the total number of days from the date of issuance of the Prior Bonds to and including the final stated maturity date of the Bonds or the scheduled maturity date of any bonds issued to refund the Bonds) after the date on which any of the dwelling units in the Project were occupied, or (iii) the date on which any assistance provided with respect to the Project under Section 8 of the United States Housing Act of 1937 terminates, or (iv) December 8, 2017. Regulatory greement means the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of November 1, 1992, among the County, the Trustee and the Owner, as supplemented and amended by the First Amendment to Regulatory Agreement, dated as of September 1, 1994, among the County, the Trustee and the Owner, as it may from time to time be supplemented, modified or amended in accordance with its terms. Section 3. Notice. Any notice required to be given to the Credit Bank pursuant to the terms of the Regulatory Agreement shall be given by registered or certified mail, postage prepaid, return receipt requested, at the address specified below, or at such other address as may be specified in writing by the Credit Bank: If to the Credit Bank: Federal National Mortgage Association 3900 Wisconsin Avenue, N.W. Washington, D.C. 20016-2899 Attention: Manager of Investment Accounting with a copy to: Federal National Mortgage Association 3900 Wisconsin Avenue, N.W. Washington, D.C. 20016-2899 Attention: Manager, Multifamily Operations Sr2-34586.2 2 41108-21-MS1-09/10/94 Section 4. Reaffirmation of RegulatoryAgreement. The County, the Trustee and the Owner each hereby reaffirms each of the provisions of the Regulatory Agreement, as amended hereby, and confirms that the Regulatory Agreement, as amended, and each-of the terms and provisions thereof shall remain in full force and effect for the term thereof. Section 5. Execution of Counterparts. This Amendment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective duly authorized representatives, as of the day and year first written above. COUNTY OF CONTRA COSTA By. Deputy Director-Redevelopment FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, as Trustee By Authorized Signatory RIVERSHORE APARTMENTS, INC., a California corporation By: Sam Arnold, President SM2-W86.2 3 41108-94-MSl-091101% RIVERSHORE APARTMENTS, INC., a California Corporation EXHIBIT A PROPERTY DESCRIPTION PEAL PROPERTY in an unincorporated area,'County of Contra Costa, State of California, described as fellows: Lot 1 as shown on the Map of Subdivision 6622, in Map Book 303, Page 43L, Contra Costa County Records. EXCEPTING THEREFROM A PORTION OF THE PREMISES DESCRIBED AS FOLLOWS: "All water, oil, gas, casinghead gasoline and other hydrocarbon substances lying below a depth of 500 feet below the surface together with the right to take, remove, pass through and dispose of all said water, gas, casinghead gasoline and other hydrocarbon and mineral substances, but without any right whatsoever to enter upon the surface of said lands or upon the surface of said lands.or upon any,part of said lands within 500 fret from the surface thereof', as granted to Alfred A. Affinito, et al., recorded September 29, 1981, Book 10515, Page 501, Official Records. A.P. No.: 098-450-002 SF2-34586.2 A-1 41108-24-MSl-09/10194