HomeMy WebLinkAboutRESOLUTIONS - 02092016 - 2016/68C.91
OHS DRAFT
1/22/16
OHSUSA:764324655.2
AMENDED AND RESTATED TRUST INDENTURE
between
COUNTY OF CONTRA COSTA,
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Relating to
COUNTY OF CONTRA COSTA
MULTIFAMILY HOUSING REFUNDING REVENUE BONDS
(MIRA VISTA HILLS APARTMENTS PROJECT)
1999 SERIES H
Dated as of March 1, 2016
Amending and restating Trust Indenture, dated as of October 1, 1999,
between the County of Contra Costa and U.S. Bank National Association,
as Trustee
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS ................................................................................................. 4
Section 1.01 Definitions............................................................................................ 4
Section 1.02 Interpretation ...................................................................................... 13
ARTICLE II THE BONDS ................................................................................................. 14
Section 2.01 The Bonds .......................................................................................... 14
Section 2.02 Limited Obligations ........................................................................... 15
Section 2.03 Indenture Constitutes Contract .......................................................... 16
Section 2.04 Form and Execution ........................................................................... 16
Section 2.05 Authentication .................................................................................... 16
Section 2.06 Mutilated, Lost, Stolen or Destroyed Bonds ...................................... 16
Section 2.07 Transfer and Exchange of Bonds; Persons Treated as Owners;
Restrictions on Transfer ..................................................................... 17
Section 2.08 Temporary Bonds............................................................................... 18
Section 2.09 Delivery of Bonds .............................................................................. 18
Section 2.10 Establishment of Loan Fund; Application of Bond Proceeds
and Other Money; Assignment of Loan to Trustee ........................... 19
Section 2.11 Subordination ..................................................................................... 20
ARTICLE III REDEMPTION OF BONDS PRIOR TO MATURITY ................................ 21
Section 3.01 Redemption of Bonds Prior to Maturity ............................................ 21
Section 3.02 Selection of Bonds for Redemption ................................................... 22
Section 3.03 Notice of Redemption ........................................................................ 22
Section 3.04 Effect of Notice of Redemption ......................................................... 23
ARTICLE IV REVENUES AND FUNDS ........................................................................... 23
Section 4.01 Pledge of Revenues and Assets; Establishment of Funds .................. 23
Section 4.02 Loan Fund .......................................................................................... 24
Section 4.03 Application of Revenues .................................................................... 24
Section 4.04 Application of Bond Fund ................................................................. 25
Section 4.05 Application of Redemption Fund....................................................... 25
Section 4.06 Reserved ............................................................................................. 25
Section 4.07 Reserved ............................................................................................. 25
Section 4.08 Investment of Funds ........................................................................... 25
Section 4.09 Money Held for Particular Bonds; Funds Held in Trust .................... 26
Section 4.10 Accounting Records ........................................................................... 26
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Section 4.11 Amounts Remaining in Funds ........................................................... 26
Section 4.12 Cost of Issuance Fund ........................................................................ 27
Section 4.13 Rebate Fund; Compliance With Tax Certificate ................................ 27
ARTICLE V GENERAL COVENANTS AND REPRESENTATIONS ............................ 28
Section 5.01 Payment of Principal and Interest ...................................................... 29
Section 5.02 Performance of Covenants ................................................................. 29
Section 5.03 Representations and Warranties of the Issuer; Power to Issue
Bonds and Make Pledge and Assignment .......................................... 29
Section 5.04 Inspection of Project Books ............................................................... 29
Section 5.05 Tax Covenants. (a) Issuer’s Covenants. The Issuer covenants to
and for the benefit of the Holders of the Bonds that it will: .............. 30
ARTICLE VI DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND
BONDHOLDERS .......................................................................................... 31
Section 6.01 Events of Default ............................................................................... 31
Section 6.02 Acceleration; Other Remedies Upon Event of Default ...................... 32
Section 6.03 Rights of Bondholders ....................................................................... 33
Section 6.04 Waiver by Issuer ................................................................................ 33
Section 6.05 Application of Money After Default .................................................. 34
Section 6.06 Reserved ............................................................................................. 35
Section 6.07 Remedies Vested in Trustee............................................................... 35
Section 6.08 Remedies of Bondholders .................................................................. 35
Section 6.09 Termination of Proceedings ............................................................... 35
Section 6.10 Waivers of Events of Default ............................................................. 35
Section 6.11 Notice to Bondholders if Default Occurs........................................... 36
ARTICLE VII CONCERNING THE TRUSTEE .................................................................. 36
Section 7.01 Standard of Care ................................................................................ 36
Section 7.02 Reliance Upon Documents ................................................................ 37
Section 7.03 Use of Proceeds.................................................................................. 40
Section 7.04 Trustee May Hold Bonds ................................................................... 40
Section 7.05 Trust Imposed .................................................................................... 40
Section 7.06 Compensation of Trustee ................................................................... 40
Section 7.07 Qualifications of Trustee.................................................................... 41
Section 7.08 Merger of Trustee .............................................................................. 41
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Section 7.09 Resignation by the Trustee................................................................. 42
Section 7.10 Removal of the Trustee ...................................................................... 42
Section 7.11 Appointment of Successor Trustee .................................................... 42
Section 7.12 Concerning Any Successor Trustee ................................................... 43
Section 7.13 Successor Trustee as Trustee, Paying Agent and Bond
Registrar ............................................................................................. 43
Section 7.14 Appointment of Co-Trustee or Separate Trustee ............................... 43
Section 7.15 Notice of Certain Events .................................................................... 45
Section 7.16 Partial Release of Mortgage ............................................................... 45
Section 7.17 Filing of Financing Statements .......................................................... 45
ARTICLE VIII SUPPLEMENTAL INDENTURES AND AMENDMENTS OF
CERTAIN DOCUMENTS ............................................................................ 46
Section 8.01 Supplemental Indentures Not Requiring Consent of
Bondholders ....................................................................................... 46
Section 8.02 Supplemental Indentures Requiring Consent of Bondholders ........... 46
Section 8.03 Amendments to Financing Agreement Not Requiring Consent
of Bondholders ................................................................................... 48
Section 8.04 Amendments to Financing Agreement Requiring Consent of
Bondholders ....................................................................................... 48
Section 8.05 Reserved ............................................................................................. 48
Section 8.06 Opinion of Bond Counsel Required ................................................... 48
ARTICLE IX SATISFACTION AND DISCHARGE OF INDENTURE............................ 49
Section 9.01 Discharge of Lien ............................................................................... 49
Section 9.02 Reserved ............................................................................................. 50
Section 9.03 Discharge of Liability on Bonds ........................................................ 50
Section 9.04 Payment of Bonds After Discharge of Indenture ............................... 50
Section 9.05 Deposit of Money or Securities With Trustee ................................... 50
ARTICLE X INTENTIONALLY OMITTED .................................................................... 51
ARTICLE XI MISCELLANEOUS ...................................................................................... 51
Section 11.01 Consents and Other Instruments of Bondholders .............................. 51
Section 11.02 Reserved ............................................................................................. 51
Section 11.03 Limitation of Rights ........................................................................... 51
Section 11.04 Severability ........................................................................................ 52
Section 11.05 Notices ............................................................................................... 52
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Section 11.06 Reserved ............................................................................................. 54
Section 11.07 Trustee as Paying Agent and Bond Registrar .................................... 54
Section 11.08 Payments Due on Non-Business Days ............................................... 54
Section 11.09 Counterparts ....................................................................................... 54
Section 11.10 Governing Law .................................................................................. 54
Section 11.11 No Recourse ....................................................................................... 54
Section 11.12 Parity of Series ................................................................................... 55
EXHIBIT A FORM OF BOND ............................................................................................ 1
EXHIBIT B FORM OF PURCHASER’S LETTER ............................................................ 1
EXHIBIT C [RESERVED] .................................................................................................. 1
EXHIBIT D [RESERVED] .................................................................................................. 1
EXHIBIT E AMORTIZATION SCHEDULE ..................................................................... 1
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AMENDED AND RESTATED TRUST INDENTURE
THIS AMENDED AND RESTATED TRUST INDENTURE, dated as of March 1, 2016
(the “Indenture”), by and between the COUNTY OF CONTRA COSTA (the “Issuer”), a
political subdivision of the State of California (the “State”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under and by virtue of
the laws of the United States of America, as successor trustee (together with any successor
trustee hereunder and their respective successors and assigns, the “Trustee”), and amending and
restating that certain Trust Indenture, dated as of October 1, 1999 (the “Original Indenture”),
between the Issuer and the Trustee;
W I T N E S S E T H:
WHEREAS, the Issuer is authorized by Article 11 of Chapter 3 of Part 1 of Division 2 of
the Government Code of the State of California (the “Refunding Law”) to issue its revenue
bonds and loan the proceeds thereof to refinance the acquisition, construction and development
of multifamily rental housing for persons and families of low or moderate income; and
WHEREAS, pursuant to the Refunding Law and the Original Indenture, the Issuer issued
its County of Contra Costa Variable Rate Multifamily Housing Refunding Revenue Bonds (Delta
Square Apartments Project) 1999 Series H (the “Bonds”) to refinance the acquisition and
construction of a multifamily residential development now known as “Mira Vista Hills
Apartments” (the “Project”); and
WHEREAS, the Bonds are outstanding in the aggregate principal amount of
$10,655,000 and all of the Bonds are presently owned by Reliant CAP VIII, LLC, a California
limited liability company (the “Bondholder”); and
WHEREAS, the Issuer has entered into a Financing Agreement, dated as of October 1,
1999 (the “Original Financing Agreement”), with the Trustee and Reliant – Mira Vista, L.P., a
California limited partnership (the “Borrower”), as the assignee of Runaway Bay, LLC, a
Delaware limited liability company, the assignee of Delta Square-Oxford Limited Partnership, a
Maryland limited partnership (“DSOLP”), for the making a mortgage loan to DSOLP to
refinance the cost of the acquisition and construction of the Project; and
WHEREAS, the Borrower’s obligation to repay the loan is evidenced by a promissory
Note (the “Original Note”), endorsed by the Issuer to the Trustee pursuant to the Original
Indenture; and
WHEREAS, the Borrower’s obligations under the Original Note are secured by a
Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated
as of October 1, 1999 (the “Original Mortgage”); and
WHEREAS, the Borrower has requested the Issuer and the Trustee to enter into this
Indenture and an Amended and Restated Financing Agreement, dated as of March 1, 2016 (the
“Financing Agreement”), and to approve an amendment and restatement of the Original Note (as
amended and restated, the “Note”) and an amendment and restatement of the Original Mortgage
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(as amended and restated, the “Mortgage”), and that the Bondholder approve the execution and
delivery of this Indenture, the Financing Agreement, the Note and the Mortgage; and
WHEREAS, the Issuer and the Trustee have agreed to execute and deliver this Indenture
and the Financing Agreement and have approved the execution and delivery of the Note and the
Mortgage and the Bondholder has approved the execution and delivery of this Indenture, the
Financing Agreement, the Note and the Mortgage; and
WHEREAS, upon the execution and delivery of this Indenture, the Bonds will be
designated “County of Contra Costa Multifamily Housing Refunding Revenue Bonds (Mira
Vista Hills Apartments Project) 1999 Series H”.
NOW, THEREFORE, the Issuer, in consideration of the foregoing, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, to secure the payment
of the principal of, and interest on the Bonds according to their tenor and effect, and the
performance and observance by the Issuer of all the covenants expressed or implied herein and in
the Bonds, does hereby grant, bargain, sell, convey, pledge and assign a security int erest, unto
the Trustee, and its successors in trust and its and their assigns in and to the following (said
property being herein referred to as the “Trust Estate”), to wit:
GRANTING CLAUSE FIRST
All right, title and interest of the Issuer in and to all Revenues.
GRANTING CLAUSE SECOND
All right, title and interest of the Issuer in and to the Financing Agreement, the Note and
the Mortgage (other than the Unassigned Rights), including all extensions and renewals of the
terms thereof, if any, including, but without limiting the generality of the foregoing, the present
and continuing right to receive, receipt for, collect or make claim for any of the money, income,
revenues, issues, profits and other amounts payable or receivable thereunder, whether payable
under the above-referenced documents or otherwise, to bring actions and proceedings thereunder
or for the enforcement thereof, and to do any and all things which the Issuer or any other Person
is or may become entitled to do under said documents.
GRANTING CLAUSE THIRD
Except for funds, money or securities in the Rebate Fund, all funds, money 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;
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IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal
and proportionate benefit, security and protection of all Holders of the Bonds issued under and
secured by this Indenture without privilege, priority or distinction as to lien or otherwise of any
of the Bonds over any of the other Bonds, except as set forth in this Indenture;
PROVIDED, HOWEVER, that if the Issuer or its successors or assigns shall pay or cause
to be paid to the Holders of the Bonds the principal, interest and, to become due thereon at the
times and in the manner provided in Article IX hereof, 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, then these presents and the estate and rights hereby granted shall, at
the option of the Issuer, cease, terminate 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 the provisions of
Sections 4.09 and 4.11 and Article IX hereof, reconvey to the Issuer the estate hereby conveyed,
and assign and deliver to the Issuer any property at the time subject to the lien of this Indenture
which may then be in its possession, except for the Rebate Fund; otherwise this Indenture to be
and remain in full force and effect and upon the trusts and subject to the covenants and
conditions hereinafter set forth.
AND IT IS HEREBY COVENANTED AND AGREED by and between the parties
hereto, that the terms and provisions upon which the Bonds are to be issued, executed,
authenticated, delivered and secured, and the trusts and conditions upon which the Trust Estate is
to be held and disposed of, which said trusts and conditions the said Trustee hereby accepts and
agrees to discharge, are as follows (except that in the performance of the agreements of the
Issuer herein contained, any obligation it may thereby incur for the payment of money shall not
be a general obligation of the Issuer nor a debt or pledge of the faith and credit of the Issuer or
the State, but shall be payable solely from the revenues and funds pledged for its payment in
accordance with this Indenture):
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Terms used herein and not otherwise defined shall have
the meaning provided in the Indenture. The terms used in this Indenture (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective meanings specified
below:
“Accredited Investor” means an “accredited investor” as defined in Regulation D
promulgated under the Securities Act of 1933, as in effect on the date hereof.
“Act” means Chapter 7 of Part 5 of Division 31 of the California Health and Safety Code
as now in effect and as it may from time to time hereafter be amended and supplemented.
“Amendment Date” means _______________, 2016, the date of execution and delivery
of this Indenture.
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“Authorized Amount” shall mean $10,655,000, the principal amount of Bonds
outstanding under this Indenture on the Amendment Date.
“Authorized Denomination” means $100,000 or any dollar amount in excess thereof;
provided that if at any time the outstanding amount of Bonds is less than $100,000, one Bond
may remain outstanding in such lesser amount.
“Authorized Officer” means (a) when used with respect to the Issuer, the Chair or Vice-
Chair of the Board of Supervisors, the County Administrator, the Director of the Department of
Conservation and Development, the Assistant Deputy Director of the Department of
Conservation and Development, the Community Development Bond Program Manager, and any
other officer of the Issuer designated by certificate of any of the foregoing as authorized by the
Issuer to perform a specified act, sign a specified document or otherwise take action with respect
to the Bonds, (b) when used with respect to the Borrower, such additional Person or Persons, if
any, duly designated by the Borrower in writing to act on its behalf, and (c) when used with
respect to the Trustee, any authorized signatory of the Trustee, or any Person who is authorized
in writing to take the action in question on behalf of the Trustee.
“Bond Counsel” means Orrick, Herrington & Sutcliffe LLP, or any other firm of
attorneys selected by the Issuer that is experienced in matters relating to the issuance of
obligations by states and their political subdivisions that is listed as municipal bond attorneys in
The Bond Buyer’s Municipal Marketplace.
“Bond Fund” means the Bond Fund established by the Trustee pursuant to Section 4.01
hereof.
“Bond Payment Date” means each January 15, April 15, July 15, and October 15,
commencing April 15, 2016.
“Bond Rate” means _________________ percent (____%), which is the interest rate on
the Bonds.
“Bond Register” means the books or other records maintained by the Bond Registrar
setting forth the registered Holders from time to time of the Bonds.
“Bond Registrar” means the Trustee acting as such, and any other bond registrar
appointed pursuant to this Indenture.
“Bond Year” means, with respect to an issue of Bonds, each one-year period that ends at
the close of business on the day in the calendar year that is selected by Borrower as indicated in
the Tax Certificate. The first and last Bond Years may be short periods. If no day is selected by
Borrower before the earlier of the final maturity of an issue of Bonds or the date that is five years
after the Closing Date of such issue of Bonds, each Bond Year ends on each anniversary of the
Closing Date for such issue of Bonds and on the final maturity of such issue of Bonds.
“Bondholder” or “Holder” or “Owner” means any Person who shall be the registered
owner of any Outstanding Bond or Bonds.
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“Bondholder Representative” means any Person appointed to such position by written
instrument signed a majority of the Holders of the Outstanding Bonds. If there is no appointed
Bondholder Representative, the Holder of a majority or plurality of the Outstanding Bonds shall
be deemed to be the Bondholder Representative. The initial Bondholder Representative is
Reliant CAP VIII, LLC, a California limited liability company.
“Bonds” means, the “County of Contra Costa Multifamily Housing Refunding Revenue
Bonds (Mira Vista Hills Apartments Project) 1999 Series H”.
“Borrower” means Reliant-Mira Vista, L.P., a limited partnership duly organized and
existing under the laws of the State of California, or any of its permitted successors or assigns, as
owner of the Project.
“Business Day” means any day other than (a) a Saturday, (b) a Sunday, (c) a day on
which the Federal Reserve Bank of New York is authorized or obligated by law or executive
order to remain closed, (d) a day on which the Principal Office of the Bondholder Representative
is closed, or (e) a day on which (i) banking institutions in the City of New York or in the city in
which the Principal Office of the Trustee or the Bondholder Representative is located are
authorized or obligated by law or executive order to be closed or (ii) the New York Stock
Exchange is closed.
“Certificate of the Issuer” and “Request of the Issuer” mean, respectively, a written
certificate or request signed in the name of the Issuer by an Authorized Officer of the Issuer or
such other Person as may be designated and authorized to sign for the Issuer. Any such
instrument and supporting opinions or representations, if any, may, but need not, be combined i n
a single instrument with any other instrument, opinion or representation, and the two or more so
combined shall be read and construed as a single instrument.
“Code” means the Internal Revenue Code of 1986 and the regulations promulgated
thereunder.
“Electronic Notice” means delivery of notice in a Word format or a Portable Document
Format (PDF) by electronic mail to the electronic mail addresses listed in Section 11.05 hereof;
provided, that if a sender receives notice that the electronic mail is undeliverable, notice must be
sent as otherwise required by Section 11.05 hereof.
“Event of Default” or “event of default” means any of those events specified in and
defined by the applicable provisions of Article VI hereof to constitute an event of default.
“Excess Cash Flow” means, with respect to the Loan and the Project, for any period,
seventy five percent (75%) of the excess of (a) Gross Revenue over (b) all Property Expenses.
“Extraordinary Services” means and includes, but not by way of limitation, services,
actions and things carried out and all expenses incurred by the Trustee in respect of or to prevent
default under this Indenture or the Loan Documents, including any reasonable attorneys’ or
agents’ fees and expenses and other litigation costs that are entitled to reimbursement under the
terms of the Financing Agreement, and other actions taken and carried out by the Trustee which
are not expressly set forth in this Indenture or the Loan Documents.
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“Financing Agreement” means the Amended and Restated Financing Agreement dated as
of the date hereof among the Borrower, the Issuer and the Trustee, as such Financing Agreement
may from time to time be amended or supplemented.
“Government Obligations” means investments meeting the requirements of clauses (a) or
(b) of the definition of “Qualified Investments” herein.
“Gross Revenue” means the gross revenues generated by the Projects from all sources
during such period (excluding, however, the proceeds of casualty insurance (other than rent loss
insurance), condemnation proceeds, capital contributions, loans or advances, rental income
prepaid more than one month in advance and other unusual or extraordinary cash items the use
and application of which is restricted or encumbered by the Senior Documents.
“Indenture” means this Amended and Restated Trust Indenture, as the same may be
amended, modified or supplemented from time to time.
“Issue Date” means October 21, 1999.
“Issuer” means the County of Contra Costa, a political subdivision, duly organized and
validly existing under the laws of the State of California, and its successors and assigns.
“Issuer Fee” means the Issuer’s annual fee in the amount of $15,125.
“Loan” means the loan made by the Issuer to the Borrower pursuant to the Financing
Agreement.
“Loan Documents” means, collectively, this Indenture, the Financing Agreement, the
Note, the Mortgage and all other documents securing the Loan.
“Maturity Date” means October 15, 2029.
“Mortgage” means the Subordinate Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated as of the date hereof, together with all riders and
addenda thereto, granting a second priority mortgage and security interest in the Project to the
Trustee to secure the repayment of the Loan as the same may be amended, supplemented or
restated.
“Net Proceeds” when used with respect to any insurance proceeds or condemnation
award with respect to the Project, shall mean the amount remaining (i) after deducting from the
gross proceeds thereof all expenses (including attorneys’ fees) incurred in the collection of such
proceeds or award and (ii) after applying such amounts as set forth in the Senior Loan
Documents.
“Note” means the amended and restated promissory note in the form attached to the
Financing Agreement as Exhibit A evidencing the obligation of the Borrower to make the Loan
Payments.
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“Original Bonds” means the County of Contra Costa Variable Rate Multifamily Housing
Refunding Revenue Bonds (Delta Square Apartments Project) 1999 Series H.
“Original Indenture” means the Trust Indenture, dated as of October 1, 1999, between
the Issuer and the Trustee.
“Outstanding” when used with respect to the Bonds or “Bonds Outstanding” means, as of
any date, all Bonds that have been duly authenticated and delivered by the Trustee under this
Indenture, except:
(a) Bonds surrendered and replaced upon exchange or transfer, or cancelled because
of payment or redemption, at or prior to such date;
(b) Bonds for the payment, redemption or purchase for cancellation of which
sufficient money has been deposited prior to such date with the Trustee (whether upon or prior to
the maturity, amortization or redemption date of any such Bonds), or which are deemed to have
been paid and discharged pursuant to the provisions of Section 9.01 hereof; provided that if such
Bonds are to be redeemed prior to the maturity thereof, other than by scheduled amortization,
notice of such redemption shall have been given or arrangements satisfactory to the Trustee shall
have been made therefor, or waiver of such notice satisfactory in form to the Trustee shall have
been filed with the Trustee;
(c) Bonds authorized but not yet drawn-down and delivered to the Bond Purchaser;
and
(d) Bonds in lieu of which others have been authenticated (or payment, when due, of
which is made without replacement) under Section 2.06 hereof.
“Person” means an individual, a corporation, a partnership, an association, a joint stock
company, a joint venture, a trust, an unincorporated association, a limited liability company or a
government or any agency or political subdivision thereof, or any other organization or entity
(whether governmental or private).
“Prepayment Premium” means the amount determined in accordance with the
Prepayment Premium Schedule attached as Exhibit C.
“Principal Office of the Trustee” means the office of the Trustee referenced in
Section 11.05(a) hereof, or such other office or offices as the Trustee may designate in writing
from time to time, or the office of any successor Trustee where it principally conduct s its
business of serving as trustee under indentures pursuant to which municipal or governmental
obligations are issued.
“Project” means the 280-unit apartment complex known as Mira Vista Hills Apartments
located in the City of Antioch, California.
“Property Expenses” shall mean, for any period, all debt service, including interest
expense and the amortization of all principal under the Senior Loan for such period and the
current expenses, paid or accrued, of operation, maintenance and current repair of the Project, as
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calculated in accordance with generally accepted accounting principles, consistently applied, and
shall include, without limiting the generality of the foregoing, salaries, wages, employee
benefits, cost of materials and supplies, costs of routine repairs, renewals, replacements and
alterations occurring in the usual course of business, costs and expenses properly designated as
capital expenditures (e.g. repairs which would not be payable from amounts on deposit in a
repair and replacement fund held pursuant to the Senior Loan Documents), a management fee
(however characterized) not to exceed 4% of Gross Revenues, costs of billings and collections,
costs of insurance, asset management fees and costs of audits. Property Expenses shall not
include any payments, however characterized, on account of the Bonds or any other subordinate
financing in respect of the Property or other indebtedness, allowance for depreciation,
amortization or other non-cash items, gains and losses or prepaid expenses not customarily
prepaid.
“Qualified Investments” means any of the following if and to the extent permitted by law:
(a) direct and general obligations of the United States of America; (b) obligations of any agency
or instrumentality of the United States of America the payment of the principal of and interest on
which are unconditionally guaranteed by the full faith and credit of the United States of America;
(c) [Reserved]; (d) [Reserved]; (e) demand deposits or time deposits with, or certificates of
deposit issued by, the Trustee or its affiliates or any bank organized under the laws of the
United States of America or any state or the District of Columbia which has combined capital,
surplus and undivided profits of not less than $50,000,000; provided that the Trustee or such
other institution has been rated at least “VMIG-1”/“A-2+” by Moody’s/S&P or which deposits or
certificates are fully insured by the Federal Deposit Insurance Corporation or collateralized
pursuant to the requirements of the Office of the Comptroller of the Currency; (f) investment
agreements with Freddie Mac or a bank or any insurance company or other financial institution
which has a rating assigned by Moody’s/S&P to its outstanding long-term unsecured debt which
is the highest rating (as defined below) for long-term unsecured debt obligations assigned by
Moody’s/S&P, and which are approved by the Bondholder Representative; or (g) any other
investments approved in writing by the Bondholder Representative. For purposes of this
definition, the “highest rating” shall mean a rating of at least “VMIG-1”/“A-1+” for obligations
with less than one year maturity; at least “Aaa”/“VMIG-1”/“AAA”/“A-1+” for obligations with a
maturity of one year or greater but less than three years; and at least “Aaa”/“AAA” for
obligations with a maturity of three years or greater. Qualified Investments must be limited to
instruments that have a predetermined fixed-dollar amount of principal due at maturity that
cannot vary or change and interest, if tied to an index, shall be tied to a single interest rate index
plus a single fixed spread, if any, and move proportionately with such index.
“Rebate Analyst” means a certified public accountant, financial analyst or bond counsel,
or any firm of the foregoing, or financial institution (which may include the Trustee) experienced
in making the arbitrage and rebate calculations required pursuant to Section 148 of the Code,
selected and retained by the Borrower at the expense of the Borrower, with the prior written
consent of the Issuer, to make the computations required under this Indenture and the Financing
Agreement.
“Rebate Fund” means the Rebate Fund established by the Trustee pursuant to Section
4.01 hereof.
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“Record Date” means the 1st day of the month in which any Bond Payment Date falls.
“Redemption Fund” means the Redemption Fund established by the Trustee pursuant to
Section 4.01 hereof.
“Regulatory Agreement” means the Amended and Restated Regulatory Agreement and
Declaration of Restrictive Covenants, dated as of October 1, 1999, among the Issuer, the Trustee
and Delta Square-Oxford Limited Partnership (the obligations under which have been assigned
to and assumed by the Borrower), relating to the Project, as the same may be amended, modified
or supplemented from time to time.
“Responsible Officer” means any officer of the Trustee employed within or otherwise
having regular responsibility in connection with the corporate trust department of the Trustee and
the trusts created hereunder.
“Revenue Fund” means the Revenue Fund established by the Trustee pursuant to
Section 4.01 hereof.
“Revenues” means (a) all payments made with respect to the Loan pursuant to the
Financing Agreement, the Note or the Mortgage, including all casualty or other insurance
benefits and condemnation awards paid in connection therewith and (b) all money and securities
held by the Trustee in the funds and accounts established pursuant to this Indenture (excluding
money or securities in the Rebate Fund), together with all investment earnings thereon.
Senior Borrower Note” means the $31,320,000 Multifamily Note dated as of
September 15, 2015 from Borrower to the Senior Lender to evidence its indebtedness under the
Senior Loan or any replacement note evidencing an indebtedness under a Senior Loan.
“Senior Lender” means Citibank, N.A. or any lender providing any replacement senior
loan facility approved by the Bondholder Representative in its sole discretion.
“Senior Loan” means the mortgage loan in the original principal amount of $31,320,000
by the Senior Lender to the Borrower, or any replacement senior loan facility approved by the
Bondholder Representative in its sole discretion.
“Senior Loan Documents” means the documents related to the Senior Loan, including
the Senior Borrower Note, the Senior Mortgage and any and all other documents, agreements, or
instruments which evidence or secure the indebtedness evidenced by the Senior Borrower Note,
or all documents related to any replacement senior loan facility approved by the Bondholder
Representative in its sole discretion.
“Senior Mortgage” means the first-lien priority Multifamily Deed of Trust, Assignment
of Leases and Rents, Security Agreement and Fixture Filing dated as of September 15, 2015
from Borrower for the benefit of the Senior Lender to secure the repayment of the Senior
Borrower Note.
“Senior Obligations” means and includes, collectively, and without limitation, each of the
following: (a) all debt service payments (including, but not limited to, interest and principal,
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whether at maturity or by mandatory sinking fund payments, redemption, acceleration or
otherwise) on the Senior Loan, (b) all obligations of the Borrower under the Senior Loan
Documents, and (c) all obligations in respect of all Property Expenses.
“State” means the State of California.
“Tax Certificate” shall mean the Tax Certificate and Agreement, dated the Closing Date,
executed and delivered by the Issuer and the Borrower.
“Trustee” means U.S. Bank National Association and its successors hereunder.
“Trust Estate” shall have the meaning given to that term in the Granting Clauses.
“Unassigned Rights” means all of the rights of the Issuer and its officers, supervisors,
elected officials, attorneys, accountants, employees, agents and consultants to be held harmless
and indemnified, to be paid its fees and expenses, to give or withhold consent to amendments,
changes, modifications and alterations, to receive notices and the right to enforce such rights.
Section 1.02 Interpretation. The words “hereof,” “herein,” “hereunder,” and other
words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. Words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders. Words importing the singular
number shall include the plural number and vice versa unless the context shall otherwise
indicate. All accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles as in effect from time to time.
References to Articles, Sections, and other subdivisions of this Indenture are to the designated
Articles, Sections and other subdivisions of this Indenture as originally executed. The headings
of this Indenture are for convenience only and shall not define or limit the provisions hereof.
ARTICLE II
THE BONDS
Section 2.01 The Bonds.
(a) The Original Bonds were issued on the Issue Date pursuant to the Original
Indenture in the aggregate principal amount of $12,100,000. The Bonds are hereby authorized to
be re-designated “County of Contra Costa Multifamily Housing Refunding Revenue Bonds
(Mira Vista Hills Apartments Project) 1999 Series H.” The Bonds are Outstanding on the
Amendment Date in the aggregate principal amount of $10,655,000. The Bonds shall be fully
registered as to principal and interest, without coupons, and shall be numbered in the manner and
with any additional designation as the Trustee, as Bond Registrar, deems necessary for the
purpose of identification. All of the Bonds are equally and ratably secured. The Bonds shall be
dated the Issue Date. The Bonds shall be due and payable in full on the Maturity Date.
(b) Interest on the Bonds shall be computed on the basis of a 360-day year consisting
of twelve 30-day months. Interest on the Bonds shall be payable on each Bond Payment Date to
the registered holder thereof on the Record Date.
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(c) The Bonds shall be issued in Authorized Denominations and shall bear interest
payable on each Bond Payment Date at the Bond Rate. Payment of the principal of and interest
on the Bonds shall be payable on each Bond Payment Date, as to principal and interest, solely
from available Revenues received by the Trustee pursuant to the provisions of the Note and the
Financing Agreement; provided, however, such payments shall be first applied to the payment of
the interest on the Bonds due and payable on such Bond Payment Date. Unpaid principal of and
interest on the Bonds, and other overdue amounts under this Indenture, shall accrue interest at
the Bond Rate.
(d) The Person in whose name any Bond is registered on the Record Date with
respect to an Bond Payment Date shall be entitled to receive the interest payable on such Bond
Payment Date (unless such Bond has been called for redemption on a redemption date wh ich is
prior to such Bond Payment Date) notwithstanding the cancellation of such Bond upon any
registration of transfer or exchange thereof subsequent to such Record Date and prior to such
Bond Payment Date; provided, however, that if and to the extent the Issuer shall default in the
payment of the interest due on any Bond Payment Date, such defaulted interest shall be paid as
provided in the next paragraph.
(e) 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 Outstanding
hereunder from and after the Amendment Date, or in substitution for other Bonds pursuant to
Section 2.06 hereof, is expressly limited to $10,655,000.
Section 2.02 Limited Obligations. THE BONDS ARE LIMITED OBLIGATIONS
OF THE ISSUER, PAYABLE SOLELY FROM THE TRUST ESTATE AND OTHER
SOURCES PROVIDED THEREFOR IN THE INDENTURE. THE BONDS ARE NOT A
DEBT OF THE ISSUER, THE STATE OF CALIFORNIA OR ANY POLITICAL
SUBDIVISION THEREOF. NEITHER THE FAITH AND CREDIT NOR THE TAXING
POWER OF THE STATE OF CALIFORNIA OR THE ISSUER IS PLEDGED TO THE
PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS.
The Issuer shall not be liable for payment of the principal of, redemption price or interest
on the Bonds or any other costs, expenses, losses, damages, claims or actions of any conceivable
kind on any conceivable theory, under or by reason of or in connection with this Indenture, the
Bonds or any other documents, except only to the extent amounts are received for the payment
thereof from the Borrower under the Financing Agreement.
No recourse shall be had for the payment of the principal of, or interest on any Bond or
for any claim based thereon or upon any obligation, covenant or agreement in this Indenture
contained, against, the Issuer, any past, present or future member of its governing body, its
officers, attorneys, accountants, financial advisors, agents or staff or the officers, attorneys,
accountants, financial advisors, agents or staff of any successor public entity, as such, either
directly or through the Issuer or any successor public entity, under any rule of law or penalty or
otherwise, and all such liability of the Issuer, any member of its governing body and its officers,
attorneys, accountants, financial advisors, agents and staff is hereby, and by the acceptance of the
Bonds, expressly waived and released as a condition of, and in consideration for, the execution
of this Indenture and the issuance of the Bonds.
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It is recognized that notwithstanding any other provision of this Indenture, neither the
Borrower, the Trustee nor any Bondholder shall look to the Issuer for damages suffered by the
Borrower, the Trustee or such Bondholder as a result of the failure of the Issuer to perform any
covenant, undertaking or obligation under this Indenture, the Financing Agreement, the Bonds or
any of the other documents referred to herein, or as a result of the incorrectness of any
representation made by the Issuer in any of such documents, nor for any other reason. Although
this Indenture recognizes that such documents shall not give rise to any pecuniary liability of the
Issuer, nothing contained in this Indenture shall be construed to preclude in any way any action
or proceeding (other than that element of any action or proceeding involving a claim for
monetary damages against the Issuer) in any court or before any governmental body, agency or
instrumentality or otherwise against the Issuer or any of its officers or employees to enforce the
provisions of any of such documents which the Issuer is obligated to perform and the
performance of which the Issuer has not assigned to the Trustee or any other person; provided,
however, that as a condition precedent to the Issuer proceeding pursuant to this Section 2.02, the
Issuer shall have received satisfactory indemnification.
Section 2.03 Indenture Constitutes Contract. In consideration of the purchase and
acceptance of the Bonds issued hereunder by those who shall hold them from time to time, the
provisions of this Indenture shall be part of the contract of the Issuer with the Holders of the
Bonds and shall be deemed to be a contract between the Issuer and the Holders of the Bonds
from time to time.
Section 2.04 Form and Execution. The Bonds shall be in substantially the form
attached as Exhibit A, with necessary and appropriate variations, omissions and insertions as are
customary, permitted or required by this Indenture. The Bonds shall be executed on behalf of the
Issuer by the manual or facsimile signature of any Authorized Officer. Any facsimile signature
shall have the same force and effect as if said officer had manually signed the Bonds.
In case any officer of the Issuer whose manual or facsimile signature shall appear on any
Bond shall cease to be such officer before the delivery of such Bond such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes, the same as if he or she had
remained in office until delivery, and also any Bond may bear the facsimile signatures of, or may
be signed by, such Persons as at the actual time of the execution of such Bond shall be the proper
officers to sign such Bond although at the date of such Bond such Persons may not have been
such officers.
Section 2.05 Authentication. No Bond shall be valid or obligatory for any purpose
or entitled to any security or benefit under this Indenture unless a certificate of authentication on
such Bond, substantially in the form set forth in Exhibit A, shall have been duly executed by an
Authorized Officer of the Trustee; and such executed certificate of authentication upon any such
Bond shall be conclusive evidence that such Bond has been duly executed, registered,
authenticated and delivered under this Indenture. It shall not be necessary that the same Person
sign the certificate of authentication on all of the Bonds.
Section 2.06 Mutilated, Lost, Stolen or Destroyed Bonds. In the event any Bond is
mutilated, lost, stolen or destroyed, the Issuer shall execute and the Trustee shall authenticate a
new Bond of like denomination, interest rate, series, maturity and tenor in exchange and
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substitution for and upon cancellation of such mutilated Bond or in lieu of and in substitution for
such lost, stolen or destroyed Bond, upon payment by the Owner thereof of any applicable tax or
governmental charge and the reasonable expenses and charges of the Issuer and the Trustee in
connection therewith, and in the case of a Bond lost, stolen or destroyed, the filing with the
Trustee of evidence satisfactory to it that such Bond was lost, stolen or destroyed, and of the
ownership thereof, and furnishing the Issuer and the Trustee with indemnity satisfactory to each
of them. In the event any such Bond shall have matured, instead of issuing a duplicate Bond or
Bonds the Issuer may pay the same without surrender thereof.
Section 2.07 Transfer and Exchange of Bonds; Persons Treated as Owners;
Restrictions on Transfer. The Trustee as Bond Registrar shall cause a Bond Register to be kept
for the registration of transfers of Bonds. Any Bond may be transferred only upon an assignment
duly executed by the registered Owner or such registered Owner’s duly authorized representative
in such form as shall be satisfactory to the Bond Registrar and upon surrender of such Bond to
the Trustee for cancellation. Whenever any Bond or Bonds shall be surrendered for transfer, the
Issuer shall execute and the Trustee shall authenticate and deliver to the transferee a replacement
fully registered Bond or Bonds, of Authorized Denomination or Denominations and for the
amount of such Bond or Bonds so surrendered.
Any Bond may, in accordance with its terms, be exchanged, at the office of the Trustee,
for a new fully registered Bond or Bonds, of the same maturity, of any Authorized Denomination
or Denominations and for the aggregate amount of such Bond then Outstanding.
In all cases in which Bonds shall be transferred or exchanged hereunder, the Trustee may
make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to
be paid with respect to such transfer or exchange. The cost of printing Bonds and any services
rendered or expenses incurred by the Trustee in connection with any transfer or exchange shall
be paid by the Bond Owners.
The Person in whose name any Bond shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes and payment of or on account of the principal of and
interest on any such Bond shall be made only to or upon the order of the registered Owner
thereof, or such registered Owner’s legal representative, and neither the Issuer nor the Trustee
shall be affected by any notice to the contrary. 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 to be paid.
Neither the Issuer nor the Trustee shall be required to make any such exchange,
registration or transfer of Bonds during the period of fifteen (15) days immediately preceding an
Bond Payment Date or, in the case of any proposed redemption of Bonds, during the period of
fifteen (15) days immediately preceding the selection of Bonds for such redemption and after the
giving of notice of redemption, the Trustee is not required to transfer or exchange any Bond or
portion thereof which has been called for redemption.
Restrictions on Transfer. The following shall apply to all sales and transfers of the Bonds
after the applicable initial sale and delivery of the Bonds:
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(a) The Bonds, in the form attached hereto as Exhibit A, shall be physical certificated
instruments, and shall not be held in a book-entry only system unless approved in advance by the
Issuer;
(b) The Bonds shall be sold in Authorized Denominations;
(c) The Bonds shall only be sold and subsequently transferred to an Accredited
Investor, with such Accredited Investor executing and delivering an Investor Letter in the form
attached as Exhibit B hereto; and
(d) The Trustee shall not authenticate or register a Bond unless it has received a
certificate from the Issuer stating that the conditions of this Section 2.07 have been satisfied and
there shall have been delivered to the Trustee an Investor Letter executed by the transferee of the
Bonds;
Section 2.08 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 temporary printed, typewritten, engraved or lithographed Bonds, in such
denomination or denominations as shall be determined by the Issuer, in fully registered form, in
substantially the form 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, and the Trustee, upon presentation to
it, at the Principal Office of the Trustee, 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, as the case may be, of an equal aggregate principal amount, of the same
maturities and bearing interest at the same rates 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 and notation of such payment shall be
endorsed thereon by the Trustee.
Section 2.09 Delivery of Bonds. Upon the execution and delivery of this Indenture,
the Issuer shall execute and deliver to the Trustee, and the Trustee shall authenticate the Bonds
and deliver them to or upon the order of the Issuer.
Section 2.10 [Reserved]
Section 2.11 Subordination.
This Indenture and the Financing Agreement are and at all times shall be subject and
subordinate in all respects to the terms, provisions, conditions, covenants, liens and security
interests of the Senior Loan Documents. Correspondingly, payment of the indebtedness
evidenced by the Bonds is and shall be subject and subordinate in all respects to the prior
payment in full of all amounts due and payable in respect of the Senior Loan and the Senior Loan
Documents. Accordingly, the Bondholders expressly subject and subordinate all of their right,
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title and interest in and to the Bonds in all respects to the payment in full of the Senior Loan. In
addition, notwithstanding anything contained in this Indenture, the Financing Agreement, the
Note or the Mortgage to the contrary, the Issuer and the Trustee agree, and the Bondholders by
their acceptance of the Bonds agree, that:
(a) the sole source of funds available to the Issuer for the purpose of paying the
principal of, and interest on, the Bonds, including scheduled sinking fund payments, if any, shall
be the Revenues;
(b) the Note is payable solely from, and only to the extent of, the Revenues; provided,
however, nothing herein shall prohibit Borrower from making payments on the Note from
Borrower funds other than Revenues;
(c) payments of the principal of, and interest on, the Note shall be made only after all
current and past due Senior Obligations have been paid in full;
(d) the sole security for the Loan and the Note shall be the Mortgage;
(e) the obligation of the Borrower to repay the Loan is and shall be subject and
subordinate in all respects to the obligations of the Borrower to pay all amounts due in respect of
the Senior Obligations, whether under the Senior Documents or otherwise;
(f) so long as any amounts are currently due and owning in respect of the Senior
Obligations, whether under the Senior Documents or otherwise, the Trustee shall not be entitled
to (1) make any payment in respect of the Bonds, (2) accelerate the Note or (3) foreclose on the
Mortgage notwithstanding (a) any arrearages in the payments of any amounts due and owing
under or with respect to the Bonds or (b) any default in respect of the Bonds, the Note, the
Mortgage or the Loan except as consented to in writing by the Senior Lenders; and
(g) unpaid principal and interest on the Bonds resulting from insufficient Revenues
may accrue and shall be payable after such accrual, provided that such principal and interest shall
be payable solely from, and only to the extent of, Revenues, provided further that payment of
such principal and interest is and shall remain subject and subordinate to the Senior Obligations.
Failure to make any payment in respect of the Bonds or otherwise under this Indenture due to
insufficient Revenues shall not constitute an Event of Default under (and as defined in) this
Indenture. The Trustee shall not, after the Trustee receives a notice of default or otherwise
acquires knowledge of a default or an Event of Default or potential default by the Borrower with
respect to the Senior Loan or under any Senior Loan Documents, make any payments in respect
of the Bonds unless and until such default or Event of Default or potential default has been cured
or waived by the Senior Lender.
The parties to this Indenture acknowledge that the terms of this Indenture are in all
respects subject to the Senior Loan Documents.
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ARTICLE III
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 3.01 Redemption of Bonds Prior to Maturity. The Bonds are subject to
redemption upon the circumstances, on the dates and at the prices set forth as follows:
(a) The Bonds shall be subject to mandatory redemption in whole or in part, on a pro
rata basis, except as otherwise provided herein, on the next Bond Payment Date for which notice
of redemption can timely be given, at a redemption price equal to the principal amount of Bonds
to be redeemed plus interest accrued thereon to the date fixed for redemption upon prepayment
of the Loan in whole or in part following a casualty to or condemnation of the Project.
(b) The Bonds shall be subject to mandatory redemption in whole on the next date for
which notice of redemption can timely be given at a redemption price equal to the principal
amount of the Bonds to be redeemed plus interest accrued thereon to the date fixed for
redemption upon acceleration of the Loan in whole following an Event of Default under Article
VII of the Financing Agreement.
(c) Except as otherwise provided in this Article III, the Bonds are subject to optional
or mandatory redemption in whole or in part on any Business Day for which notice of
redemption can timely be given, in the event and to the extent that the Loan is prepaid pursuant
to the Note as set forth in Section 4.4 of the Financing Agreement, at a redemption price equal to
the principal amount of the Bonds to be redeemed plus the Prepayment Premium, plus accrued
interest to the redemption date.
(d) The Bonds shall be subject to mandatory redemption in part from mandatory
sinking fund payments on January 15, April 15, July 15, and October 15 of each year
commencing April 15, 2021, on the dates and at a redemption price equal to the principal amount
to be redeemed plus accrued interest thereon to the date fixed for redemption, as set forth in
Exhibit E hereto.
Section 3.02 Selection of Bonds for Redemption. (a) The Trustee shall select
Bonds subject to mandatory sinking fund redemption pursuant to Section 3.01(d) hereof by lot
within the appropriate maturity. If less than all the Bonds then Outstanding shall be called for
redemption other than as a result of mandatory sinking fund redemption pursuant to Section
3.01(d) hereof, the Trustee shall redeem an amount of Bonds so that the resulting decrease in
debt service on the Bonds in each semiannual period ending on an Bond Payment Date is
proportional, as nearly as practicable, to the decrease in the payments on the Note in each such
semiannual period, and the Bonds shall be selected by lot within each maturity, the cost of such
selection being at the Borrower’s expense.
In the event of a partial redemption of Bonds, pursuant to Section 3.01(a) or 3.01(c), the
Trustee shall redeem such Bonds and request from the Borrower a revised Exhibit E showing
adjusted principal amortization of the Bonds following such partial redemption.
(b) Bonds shall be redeemed pursuant to this Article III in a manner consistent with the
definition of Authorized Denominations (i.e. each Bond shall remain at all times Outstanding in
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an amount of at least $100,000 until the total amount Outstanding is less than $100,000, at which
point the principal amount of such Bond may be reduced below $100,000 in increments of one
dollar or more).
Section 3.03 Notice of Redemption. Notice of the intended redemption of each
Bond shall be given by the Trustee by first class mail, postage prepaid, or by facsimile
transmission, to the registered Owner at the address of such Owner shown on the Bond Register.
All such redemption notices shall be given not less than ten (10) days prior to the date fixed for
redemption. The Trustee may provide a conditional notice of redemption.
Notices of redemption shall state the redemption date and the redemption price, the place
or places where amounts due upon such redemption will be payable, and, if less than all of the
then Outstanding Bonds of each Series are called for redemption, shall state (i) the numbers of
the Bonds to be redeemed by giving the individual certificate number of each Bond to be
redeemed or shall state that all Bonds between two stated certificate numbers, both inclusive, are
to be redeemed or that all of the Bonds of one or more maturities have been called for
redemption only if bonds cease to be book entry-bonds; (ii) the Maturity Date of each Bond
being redeemed; (iii) the conditions, if any, which must be satisfied in order for the redemption
to take place on the scheduled date of redemption, and (iv) any other descriptive information
needed to identify accurately the Bonds being redeemed.
Failure to give notice by mailing to the registered Owner of any Bond designated for
redemption or to any depository or information service shall not affect the validity of the
proceedings for the redemption of any other Bond if notice of such redemption shall have been
mailed as herein provided.
Section 3.04 Effect of Notice of Redemption. If a conditional notice of redemption
has been provided pursuant to the terms of this Indenture and the conditions are not satisfied,
such notice of redemption shall be of no force and effect and the Bondholders shall be restored to
their former positions as though no such notice of redemption had been delivered. Notice of
redemption having been given in the manner provided in this Article III and if either there were
no conditions to such redemption or the conditions have been satisfied (or in the event no such
notice is required under Section 3.03), and money for the redemption being held by the Trustee
for that purpose, thereupon the Bonds so called for redemption shall become due and payable on
the redemption date, and interest thereon shall cease to accrue on such date; and such Bonds
shall thereafter no longer be entitled to any security or benefit under this Indenture except to
receive payment of the redemption price thereof.
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ARTICLE IV
REVENUES AND FUNDS
Section 4.01 Pledge of Revenues and Assets; Establishment of Funds. The pledge
and assignment of and the security interest granted in the Trust Estate pursuant to the Granting
Clauses hereof shall attach, be perfected and be valid and binding from and after the time of the
delivery of the Bonds by the Trustee or by any Person authorized by the Tr ustee to deliver the
Bonds. The Trust Estate so pledged and then or thereafter received by the Trustee shall
immediately be subject to the lien of such pledge and security interest without any physical
delivery thereof or further act, and the lien of such pledge and security interest shall be valid and
binding and prior to the claims of any and all parties having claims of any kind in tort, contract
or otherwise against the Issuer irrespective of whether such parties have notice thereof.
The Trustee shall establish, maintain and hold in trust the following funds and accounts,
each of which is hereby established and each of which shall be disbursed and applied only as
herein authorized:
(a) Revenue Fund;
(b) Bond Fund;
(c) Redemption Fund; and
(d) Rebate Fund.
The funds and accounts established pursuant to this Section 4.01 shall be maintained in
the corporate trust department of the Trustee as segregated trust accounts, separate and
identifiable from all other funds held by the Trustee. The funds and accounts established
hereunder shall bear a designation clearly indicating that the funds deposited therein are held for
the benefit of (i) the Holders of the Bonds, respecting the Revenue Fund, the Bond Fund and the
Redemption Fund, and (ii) the Borrower, respecting the Rebate Fund. The Trustee shall, at the
written direction of an Authorized Officer of the Issuer, and may, in its discretion, establish such
additional accounts within any Fund, and subaccounts within any of the accounts, as the Issuer or
the Trustee may deem necessary or useful for the purpose of identifying more precisely the
sources of payments into and disbursements from that Fund and its accounts, or for the purpose
of complying with the requirements of the Code relating to arbitrage, but the establishment of
any such account or subaccount shall not alter or modify any of the requirements of this Series
Indenture with respect to a deposit or use of money in the funds established hereunder, or result
in commingling of funds not permitted hereunder.
Section 4.02 [Reserved]
Section 4.03 Application of Revenues.
(a) All Revenues shall be deposited by the Trustee, promptly upon receipt thereof, to
the Revenue Fund, except (i) the proceeds of the Bonds received by the Trustee on the Closing
Date, which shall be applied in accordance with the provisions of Section 2.10 hereof; (ii) as
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otherwise specifically provided in subsection (c) of this Section 4.03 with respect to certain
deposits into the Redemption Fund; (iii) with respect to investment earnings to the extent
required under the terms hereof to be retained in the funds and accounts to which they are
attributable; and (iv) with respect to amounts required to be transferred between funds and
accounts as provided in this Article IV.
(b) On each Bond Payment Date or any other date on which payment of principal of
or interest on the Bonds becomes due and payable, the Trustee, Revenues available for such
purpose, shall credit the following amounts to the following funds, but in the order and within
the limitations hereinafter indicated with respect thereto, as follows:
FIRST: to the Bond Fund, an amount equal to the principal of and interest due on the
Bonds on such date; and
SECOND: to the Redemption Fund, an amount equal to the principal amount due and
payable on the Bonds with respect to mandatory sinking fund redemption or the maturity
of any Bond on such date; and
(c) Promptly upon receipt, the Trustee shall deposit directly to the Redemption Fund
(i) Net Proceeds representing casualty insurance proceeds or condemnation awards paid as a
prepayment of the Loan, after reimbursement of any and all amounts owed to the Bondholder
Representative and (ii) amounts paid to the Trustee to be applied to the redemption of all or a
portion of the Bonds pursuant to Article III hereof.
(d) Should the amount in the Bond Fund be insufficient to pay the amount due on the
Bonds on any given Bond Payment Date or other payment date, the Trustee shall credit to the
Bond Fund the amount of such deficiency by charging the following funds and accounts in the
following order of priority: (1) the Revenue Fund; and (2) the Redemption Fund, except no such
charge to the Redemption Fund shall be made from money to be used to effect a redemption for
which notice of redemption has been provided for or from money which are hel d for payment of
Bonds which are no longer Outstanding hereunder.
Section 4.04 Application of Bond Fund. The Trustee shall charge the Bond Fund,
on each Bond Payment Date, an amount equal to the unpaid interest and principal due on the
Bonds on such Bond Payment Date, and shall cause the same to be applied to the payment of
such interest and principal when due. Any money remaining in the Bond Fund on any Bond
Payment Date after application as provided in the preceding sentence may, to the extent there
shall exist any deficiency in the Redemption Fund to redeem Bonds called for mandatory sinking
fund redemption on such Bond Payment Date, be transferred to the Redemption Fund to be
applied for such purpose.
Income realized from the investment or deposit of money in the Bond Fund shall be
deposited by the Trustee upon receipt thereof in the Revenue Fund.
No amount shall be charged against the Bond Fund except as expressly provided in this
Article IV and in Section 6.05.
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Section 4.05 Application of Redemption Fund. Any money credited to the
Redemption Fund shall be applied as set forth in Article IV hereof. On or before each Bond
Payment Date, the income realized from the investment of money in the Redemption Fund shall
be credited by the Trustee to the Revenue Fund. No amount shall be charged against the
Redemption Fund except as expressly provided in this Article IV and in Section 6.05.
Section 4.06 [Reserved]
Section 4.07 [Reserved]
Section 4.08 Investment of Funds. The money held by the Trustee shall constitute
trust funds for the purposes hereof. Any money attributable to each of the funds and accounts
hereunder shall be, except as otherwise expressly provided herein, invested by the Trustee, at the
written direction of the Borrower in Qualified Investments (or, in the case of the Reb ate Fund, at
the written instruction of Bond Counsel pursuant to Section 5.05(b). The Trustee may purchase
from or sell to itself or an affiliate, as principal or agent, securities herein authorized. The
Trustee shall be entitled to assume, absent receipt by the Trustee of written notice to the contrary,
that any investment which at the time of purchase in a Qualified Investment remains a Qualified
Investment thereafter.
Qualified Investments representing an investment of money attributable to any fund or
account shall be deemed at all times to be a part of said fund or account, and, except as otherwise
may be provided expressly in other Sections hereof, the interest thereon and any profit arising on
the sale thereof shall be credited to the Revenue Fund, and any loss resulting on the sale thereof
shall be charged against the Revenue Fund. Such investments shall be sold at the best price
obtainable (at least par) whenever it shall be necessary so to do in order to provide money to
make any transfer, withdrawal, payment or disbursement from said fund or account. In the case
of any required transfer of money to another such fund or account, such investments may be
transferred to that fund or account in lieu of the required money if permitted hereby as an
investment of money in that fund or account. The Trustee shall not be liable or responsible for
any loss resulting from any investment made in accordance herewith.
The Issuer acknowledges that to the extent that regulations of the Comptroller of the
Currency or other applicable regulatory agency grant the Issuer the right to receive brokerage
confirmations of the security transactions as they occur. To the extent permitted by law, the
Issuer specifically waives compliance with 12 C.F.R. 12 and hereby notifies the Trustee
hereunder, that no brokerage confirmations need be sent relating to the security transactions as
they occur.
Section 4.09 Money Held for Particular Bonds; Funds Held in Trust. The
amounts held by the Trustee for the payment of the interest, principal or redemption price due on
any date with respect to particular Bonds pending such payment, shall be set aside and held in
trust by it for the Holders of the Bonds entitled thereto, and for the purposes hereof such interest,
principal or redemption price, after the due date thereof, shall no longer be considered to be
unpaid.
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All money held by the Trustee for such purpose at any time pursuant to the terms of this
Indenture shall be and hereby are assigned, transferred and set over unto the Trustee in trust for
the purposes and under the terms and conditions of this Indenture.
Section 4.10 Accounting Records. The Trustee shall maintain accurate books and
records for all funds and accounts established hereunder and provide monthly statements (or
other electronic access as agreed to by the parties) of such funds and accounts to the Issuer and
the Borrower on a monthly basis.
Section 4.11 Amounts Remaining in Funds. After full payment of the Bonds (or
provision for payment thereof having been made in accordance with Section 9.01 hereof) and
full payment of the fees, charges and expenses of the Issuer and the Trustee and other amounts
required to be paid hereunder other than the Rebate Fund or under any Loan Document, any
amounts remaining in any fund or account hereunder shall be paid to the Borrower.
Section 4.12 [Reserved]
Section 4.13 Rebate Fund; Compliance With Tax Certificate. The Trustee shall
establish the Rebate Fund, and hold and apply the Rebate Fund as provided in this Section. On
any date on which any amounts are required by applicable federal tax law to be rebated to the
federal government, amounts shall be deposited into the Rebate Fund by the Borrower for such
purpose. All money at any time deposited in the Rebate Fund shall be held by the Trustee in
trust, to the extent required to satisfy the rebate requirement (as set forth in the Tax Certificate)
and as calculated by the Rebate Analyst, for payment to the United States Government, and
neither the Issuer, the Borrower, nor the Bondholders shall have any rights in or claim to such
money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this
Section and by the Tax Certificate. The Trustee shall conclusively be deemed to have complied
with such provisions if it follows the written instructions of the Issuer or the Rebate Analyst,
including supplying all necessary information in the manner set forth in the Tax Certificate, and
shall not be required to take any actions under the Tax Certificate in the absence of written
instructions from the Issuer or the Rebate Analyst.
Within 55 days of the end of each fifth Bond Year, the Borrower shall cause the Rebate
Analyst to calculate the amount of rebatable arbitrage, in accordance with Section 148(f)(2) of
the Code and Section 1.148 3 of the Treasury Regulations (taking into account any exceptions
with respect to the computation of the rebatable arbitrage, described, if applicable, in the Tax
Certificate (e.g., the temporary investments exceptions of Section 148(f)(4)(B) and (C) of the
Code)), for this purpose treating the last day of the applicable Bond Year as a (computation)
date, within the meaning of Section 1.148 1(b) of the Treasury Regulations (the “Rebatable
Arbitrage”). Pursuant to Section 2.4 of the Financing Agreement, the Borrower shall cause the
Rebate Analyst to provide such calculations to the Trustee and the Issuer. In the event that the
Borrower fails to provide such information to the Trustee and the Issuer within 55 days of the
end of each fifth Bond Year, the Trustee, at the expense of the Borrower, shall select the Rebate
Analyst, with the prior written approval of the Issuer, and shall cause the Rebate Analyst to
calculate the amount of rebatable arbitrage as required herein.
Within 55 days of the end of each fifth Bond Year, upon the written direction of the
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Issuer or the Rebate Analyst, an amount shall be deposited to the Rebate Fund by the Trustee
from amounts provided by the Borrower, if and to the extent required so that the balance in the
Rebate Fund shall equal the amount of Rebatable Arbitrage so calculated in accordance with the
preceding paragraph.
The Trustee shall pay, as directed by the Issuer or the Rebate Analyst, to the United
States Department of the Treasury, out of amounts in the Rebate Fund:
(i) Not later than 60 days after the end of (A) the fifth Bond Year, and (B) each
applicable fifth Bond Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage
calculated as of the end of such Bond Year; and
(ii) Not later than 60 days after the payment of all the Bonds, an amount equal to
100% of the Rebatable Arbitrage calculated as of the end of such applicable Bond Year, and any
income attributable to the Rebatable Arbitrage, computed in accordance with Section 148(f) of
the Code.
Each payment required to be made under this Section shall be made to the Internal
Revenue Service Center, Ogden, Utah 84201 (or such other address provided in such direction),
on or before the date on which such payment is due, and shall be accompanied by Internal
Revenue Service Form 8038 T, which shall be prepared by the Rebate Analyst and provided to
the Trustee.
Notwithstanding any provision of this Indenture to the contrary, the obligation to remit
payment of the Rebatable Arbitrage to the United States and to comply wit h all other
requirements of this Section 4.13, Section 2.4 of the Financing Agreement and the requirements
of the Tax Certificate shall survive the defeasance or payment in full of the Bonds.
Any funds remaining in the Rebate Fund after redemption and payment of all of the
Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor
satisfactory to the Trustee, shall be withdrawn and remitted to the Borrower.
The Trustee shall obtain and keep such records of the computations made pursuant to this
Section 4.13 as are required under Section 148(f) of the Code to the extent furnished to the
Trustee. The Borrower shall or shall cause the Rebate Analyst to provide to the Issuer and the
Trustee copies of all rebate computations made pursuant to this Section 4.13. The Trustee shall
keep and make available to the Borrower such records concerning the investments of the gross
proceeds of the Bonds and the investments of earnings from those investments made by the
Trustee as may be requested by the Borrower in order to enable the Borrower to cause the Rebate
Analyst to make the aforesaid computations as are required under Section 148(f) of the Code.
Notwithstanding the foregoing, the computations and payments of Rebatable Arbitrage
need not be made to the extent that neither the Issuer nor the Borrower will thereby fail to
comply with any requirements of Section 148(f) of the Code based on an opinion of Bond
Counsel, to the effect that such failure will not adversely affect the exclusion from gross income
for federal income tax purposes of interest on the Bonds, a copy of which shall be provided to
the Trustee, at the expense of the Borrower.
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ARTICLE V
GENERAL COVENANTS AND REPRESENTATIONS
Section 5.01 Payment of Principal and Interest. The Issuer covenants that it will
promptly pay or cause to be paid, but only from the sources identified herein, sufficient amounts
to provide for the payment of the principal of, and interest on the Bonds at the place, on the dates
and in the manner provided herein and in the Bonds, according to the true intent and meaning
thereof.
Section 5.02 Performance of Covenants. The Issuer covenants that it will faithfully
perform at all times any and all of its covenants, undertakings, stipulations and provisions
contained in this Indenture, in any and every Bond executed, authenticated and delivered
hereunder and in all proceedings pertaining thereto.
Section 5.03 Representations and Warranties of the Issuer; Power to Issue Bonds
and Make Pledge and Assignment. The Issuer hereby represents and warrants as follows:
(a) The Issuer is a political subdivision of the State of California.
(b) The Issuer has all necessary power and authority to issue the Bonds and to
execute and deliver this Indenture, the Financing Agreement and the other Loan Documents to
which it is a party, and to perform its duties and discharge its obligations hereunder and
thereunder.
(c) The revenues and assets pledged for the repayment of the Bonds are and will be
free and clear of any pledge, lien or encumbrance prior to, or equal with, the pledge created by
this Indenture, and all action on the part of the Issuer to that end has been duly and validly taken.
(d) The Loan Documents to which the Issuer is a party have been validly authorized,
executed and delivered by the Issuer, and assuming due authorization, execution and delivery by
the other parties thereto, constitute valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights generally
and the application of equitable principles.
(e) The Issuer is duly authorized pursuant to law to issue the Bonds and to enter into
this Indenture and to pledge and assign the Security and other assets purported to be pledged and
assigned under this Indenture in the manner and to the extent provided in this Indenture. The
Issuer has duly authorized the execution and delivery of the Bonds and the Indenture and further
represents, covenants and warrants that all requirements have been met and procedures have
occurred in order to ensure the enforceability against the Issuer of the Bonds and the Indenture.
The Issuer has taken all necessary action required to make the Bonds and the Inde nture the valid,
legal and binding limited obligations of the Issuer.
Section 5.04 Inspection of Project Books. The Issuer covenants and agrees that all
books and documents in its possession relating to the Projects shall, upon reasonable prior notice,
during normal business hours, be open to inspection and copying by such accountants or other
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agents as the Trustee or the Bondholder Representative may from time to time reasonably
designate.
Section 5.05 Tax Covenants. (a) Issuer’s Covenants. The Issuer covenants to and for
the benefit of the Holders of the Bonds that it will:
(i) neither make or use nor cause to be made or used any investment or other
use of the proceeds of the Bonds or the money and investments held in the funds and
accounts in any manner which would cause the Bonds to be arbitrage bonds under
Section 148 of the Code and the Regulations issued under Section 148 of the Code (the
“Regulations”) or which would otherwise cause the interest payable on the Bonds to be
includable in gross income for federal income tax purposes;
(ii) enforce or cause to be enforced all obligations of the Borrower under the
Regulatory Agreement in accordance with its terms and seek to cause the Borrower to
correct any violation of the Regulatory Agreement within a reasonable period after i t first
discovers or becomes aware of any such violation;
(iii) not take or cause to be taken any other action or actions, or fail to take any
action or actions, if the same would cause the interest payable on the Bonds to be
includable in gross income for federal income tax purposes;
(iv) at all times do and perform all acts and things permitted by law and
necessary or desirable in order to assure that interest paid by the Issuer on the Bonds will
be excluded from the gross income for federal income tax purposes, of the Bondholders
pursuant to the Code, except in the event where any such owner of Bonds is a
“substantial user” of the facilities financed with the Bonds or a “related person” within
the meaning of the Code; and
(v) not take any action or permit or suffer any action to be taken if the result
of the same would be to cause the Bonds to be “federally guaranteed” within the meaning
of Section 149(b) of the Code and the Regulations.
In furtherance of the covenants in this Section 5.05, the Issuer and the Borrower sh all
execute, deliver and comply with the provisions of the Tax Certificate, which is by this reference
incorporated into this Indenture and made a part of this Indenture as if set forth in this Indenture
in full, and by its acceptance of this Indenture the Trustee acknowledges receipt of the Tax
Certificate and acknowledges its incorporation into this Indenture by this reference and agrees to
comply with the terms specifically applicable to it. In the event of a conflict between the terms
of this Indenture and the Tax Certificate, the terms of the Tax Certificate shall control.
The covenants of the Issuer in this Section 5.05(a) are made in reliance on the
representations and covenants of the Borrower set forth in the Financing Agreement, the Tax
Certificate and the Regulatory Agreement and, for the purposes of this Section 5.05(a), no acts,
omissions or directions of the Borrower, the Trustee or any other Persons shall be attributed to
the Issuer nor shall any default by the borrower of any of its obligations under the Financing
Agreement or the Tax Certificate constitute an event of default by the Issuer hereunder.
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(b) Trustee’s Covenants. The Trustee agrees that it will invest funds held under this
Indenture in accordance with the covenants and terms of this Indenture and the Tax Certificate
(this covenant shall extend through the term of the Bonds, to all funds and accounts created
under this Indenture and all money on deposit to the credit of any such fund or account). The
Trustee covenants to and for the benefit of the Bondholders that, notwithstanding any other
provisions of this Indenture or of any other Loan Document, it will not knowingly make or cause
to be made any investment or other use of the money in the funds or accounts created hereunder
which would cause the Bonds to be classified as “arbitrage bonds” within the meaning of
Sections 103(b) and 148 of the Code or would cause the interest on the Bonds to be includable in
gross income for federal income tax purposes; provided that the Trustee shall be deemed to have
complied with such requirements and shall have no liability to the extent it reasonably follows
the written directions of the Borrower, the Issuer or the Rebate Analyst. This covenant shall
extend, throughout the term of the Bonds, to all funds created under this Indenture and all money
on deposit to the credit of any such fund. Pursuant to this covenant, with respect to the
investments of the funds and accounts under this Indenture, the Trustee obligates itself to comply
throughout the term of the issue of the Bonds with the requirements of Sections 103(b) and 148
of the Code; provided that the Trustee shall be deemed to have complied with such requirements
and shall have no liability to the extent it reasonably follows the written directions of the
Borrower, the Issuer or the Rebate Analyst. The Trustee further covenants that should the Issuer
or the Borrower file with the Trustee (it being understood that neither the Issuer nor the
Borrower has an obligation to so file), 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 written instructions
of the Issuer, the Borrower or Bond Counsel regarding such investment (which shall, in any
event, be a Qualified Investment) or use so as to prevent the Bonds from becoming “arbitrage
bonds,” and the Trustee will bear no liability to the Issuer, the Borrower or the Bondholders for
investments made in accordance with such instructions.
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF TRUSTEE AND BONDHOLDERS
Section 6.01 Events of Default. Each of the following shall be an event of default
with respect to the Bonds (an “Event of Default”) under this Indenture:
(a) failure to pay the principal of, or interest on any Bond when due, to the extent
sufficient Revenues are available therefor; or
(b) failure by the Issuer or the Trustee to perform or observe any other of the
covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, and
the continuation of such failure for a period of thirty (30) days after written notice thereof,
specifying such default and requiring the same to be remedied, shall have been given to the
Issuer or the Trustee by the Borrower, the Trustee or the Issuer, as applicable, or by the holders
of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding;
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The Trustee will immediately notify the Issuer and the Bondholder Representative after a
Responsible Officer obtains actual knowledge of the occurrence of an Event of Default or
obtains actual knowledge of the occurrence of an event which would become an Event of Default
with the passage of time or the giving of notice or both.
Section 6.02 Acceleration; Other Remedies Upon Event of Default.
(a) Upon the occurrence of an Event of Default under Section 6.01(b) hereof, the
Trustee shall, upon the written direction of the Bondholder Representative and receipt of
indemnity satisfactory to it, by notice in writing delivered to the Issuer, declare the principal of
all Bonds then Outstanding and the interest accrued thereon immediately due and payable, and
interest shall continue to accrue thereon until such amounts are paid.
(b) Upon the occurrence of an Event of Default (other than an Event of Default under
Section 6.01(b) hereof), the Trustee shall, but only upon the written direction of the Bondholder
Representative, by notice in writing delivered to the Issuer, declare the principal of all Bonds
then Outstanding and the interest accrued thereon immediately due and payable and interest on
the Bonds shall cease to accrue, anything contained in this Indenture or in the Bonds to the
contrary notwithstanding.
If at any time after the Bonds shall have been so declared due and payable, and before
any judgment or decree for the payment of the money due shall have been obtained or entered,
the Issuer or 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 fees and expenses of the Trustee (including its
counsel) shall have been made good or cured or adequate provision shall have been made
therefor (collectively, the “Cure Amount”)) shall have been paid in full, and all other defaults
hereunder shall have been made good or cured or waived in writing by the Bondholder
Representative, then and in every case, the Trustee on behalf of the Holders of all the
Outstanding Bonds shall 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.
Upon the occurrence and during the continuance of an Ev ent of Default, the Trustee in its
own name and as trustee of an express trust, on behalf and for the benefit and protection of the
Holders of all Bonds with respect to which such an Event of Default has occurred (if no Event of
Default has occurred and is continuing under Section 6.01(b)), may also proceed to protect and
enforce any rights of the Trustee and, to the full extent that the Holders of such Bonds
themselves might do, the rights of such Bondholders under the laws of the State or under this
Indenture by such of the following remedies as the Trustee shall deem most effectual to protect
and enforce such rights:
(i) by mandamus or other suit, action or proceeding at law or in equity, to
enforce the payment of the principal of or interest on the Bonds then Outstanding and to
require the Issuer to carry out any covenants or agreements with or for the benefit of the
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OHSUSA:764324655.2
Bondholders and to perform its duties under the Act, this Indenture, the Financing
Agreement or the Regulatory Agreement to the extent permitted under the applicable
provisions thereof;
(ii) by pursuing any available remedies under the Financing Agreement or any
Loan Document or the Regulatory Agreement;
(iii) by realizing or causing to be realized through sale or otherwise upon the
security pledged hereunder; and
(iv) by action or suit in equity enjoin any acts or things that may be unlawful
or in violation of the rights of the Holders of the Bonds and execute any other papers and
documents and do and perform any and all such acts and things as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims of the
Bondholders against the Issuer allowed in any bankruptcy or other proceeding.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee or to
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 any other remedy given to the Trustee, the
Bondholders hereunder or under the Financing Agreement or any other Loan Document or the
Regulatory Agreement, as applicable, or now or hereafter existing at law or in equity or by
statute. 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 hereunder,
whether by the Trustee or the Bondholders, shall extend to or shall affect any subsequent default
or event of default or shall impair any rights or remedies consequent thereto.
Section 6.03 Rights of Bondholders. If an Event of Default under Section 6.01(b)
hereof shall have occurred and is then continuing, and if requested in writing so to do by the
Holders of more than 51% of the aggregate principal amount of the Bonds then Outstanding with
respect to which there is a default, and if indemnified to its satisfaction, the Trustee shall exercise
one or more of the rights and powers conferred by this Article as the Trustee, being advised by
counsel or a committee of Responsible Officers, shall deem to be in the best interest of the
affected Bondholders. If an Event of Default under Section 6.01(b) hereof shall have occurred
and is then continuing, the Holders of more than 51% of the aggregate principal amount of the
Bonds then Outstanding with respect to which an Event of Default has occurred shall have the
right at any time, subject to the provisions of Section 6.08 hereof, by an instrument in writing
executed and delivered to the Trustee, to direct the time, method and place of conducting all
proceedings to be taken in connection with the enforcement of the terms and conditions of this
Indenture, or for the appointment of a receiver or any other proceedings hereunder, in accordance
with the provisions of law and of this Indenture.
Section 6.04 Waiver by Issuer. Upon the occurrence of an Event of Default, to the
extent that such right may then lawfully be waived, neither the Issuer nor anyone claiming
through or under it shall set up, claim or seek to take advantage of any appraisal, valuation, stay,
extension or redemption laws now or hereinafter in force, in order to prevent or hinder the
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enforcement of this Indenture; and the Issuer, for itself and all who may claim through or under
it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all
right of appraisement and redemption to which it may be entitled under the laws of the State and
the United States.
Section 6.05 Application of Money After Default. All money collected by the
Trustee at any time pursuant to this Article VI shall, except to the extent, if any, otherwise
directed by a court of competent jurisdiction, be credited by the Trustee to the Revenue Fund.
Such money so credited to the Revenue Fund and all other money from time to time credited to
the Revenue Fund shall at all times be held, transferred, withdrawn and applied as prescribed by
the provisions of Article IV hereof and this Section 6.05.
In the event that at any time the money credited to the Revenue Fund, the Bond Fund and
the Redemption Fund available for the payment of interest or principal then due with respect to
the Bonds shall be insufficient for such payment, such money (other than money held for the
payment or redemption of particular Bonds as provided in Section 4.09 hereof) shall be applied
as follows and in the following order of priority:
(a) For payment of all amounts due to the Trustee incurred in performance of its
duties under this Indenture, including, without limitation, the payment of all reasonable fees and
expenses of the Trustee incurred in exercising any remedies under this Indenture;
(b) Unless the principal of all Bonds shall have become or have been declared due
and payable:
FIRST: to the payment to the Persons entitled thereto of all installments
of interest then due in the order of the maturity of such installments, and, if the
amount available is not sufficient to pay in full any installment, then to the
payment thereof ratably, according to the amounts due on such installment, to the
Persons entitled thereto, without any discrimination or preference; and
SECOND: to the payment to the Persons entitled thereto of the unpaid
principal of and, on any Bonds which shall have become due, whether at maturity
or by call for redemption, in the order in which they became due and payable,
and, if the amount available is not sufficient to pay in full all the principal of and,
on the Bonds so due on any date, then to the payment of principal ratably,
according to the amounts due on such date, to the Persons entitled thereto, without
any discrimination or preference, and then to the payment of any premium due on
the Bonds, ratably, according to the amounts due on such date, to the Persons
entitled thereto, without any discrimination or preference.
(c) If the principal of all of the Bonds shall have become or have been declared due
and payable, to the payment of the principal of, 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
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entitled thereto without any discrimination or preference except as to any differences in the
respective rates of interest specified in the Bonds.
Section 6.06 [Reserved]
Section 6.07 Remedies Vested in Trustee. All rights of action, including the right to
file proof of claims, under this Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any
Holders of the Bonds, and any recovery or judgment shall be for the mutual benefit as provided
herein of all of the Holders of the Outstanding Bonds.
Section 6.08 Remedies of Bondholders. No Holder of any Bond shall have any
right to institute any suit, action or proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust hereunder or for the appointment of a receiver or any
other remedy hereunder, unless (a) a default shall have occurred of which the Trustee shall have
been notified as provided herein; (b) such default shall have become an Event of Default under
Section 6.01(b) hereof; (c) the Holders of more than 51% of the aggregate principal amount of
the Bonds then Outstanding with respect to which there is such an Event of Default shall have
made written request to the Trustee and shall have offered reasonable opportunity to the Trustee
either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name; (d) such Holders shall have offered to the Trustee indemnity as
provided in this Indenture; and (e) the Trustee shall within sixty (60) days thereafter fail or refuse
to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding; it
being understood and intended that no one or more Holders of the Bonds shall have any right in
any manner whatsoever to affect, disturb or prejudice the lien of this Indenture or the rights of
any other Holders of Bonds or to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided with respect to the
equal and ratable benefit of all Holders of Bonds with respect to which there is a default. Nothing
contained in this Indenture shall, however, affect or impair the right of any Bondholder to
enforce the payment of the principal of and interest on any Bond at the maturity thereof or the
obligation of the Issuer to pay the principal of, and interest on the Bonds issued hereunder to the
respective holders thereof, at the time, in the place, from the sources and in the manner expressed
herein and in said Bonds.
Section 6.09 Termination of Proceedings. In case the Trustee shall have proceeded
to enforce any right under this Indenture by the appointment of a receiver, by entry 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 Trustee, the Bondholder
Representative, the Borrower and the Bondholders shall be restored to their former positions and
rights hereunder with respect to the Trust Estate herein conveyed, and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings had been taken.
Section 6.10 Waivers of Events of Default. So long as no Event of Default has
occurred and is then continuing under Section 6.01(b) hereof, the Trustee shall waive any Event
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of Default hereunder and its consequences and rescind any declaration of maturity of principal
of, and interest on the Bonds only upon the written direction of the Bondholder Representative.
If there shall have occurred and is then continuing an Event of Default under Section 6.01(b)
hereof, the Trustee shall waive any Event of Default hereunder and its consequences and rescind
any declaration of maturity of principal of, and interest on the Bonds upon the written request of
the Holders of 100% of the Bonds then Outstanding with respect to which there is a default;
provided, however, that there shall not be waived (a) any Event of Default in the payment of the
principal of any Bonds at the date of maturity specified therein, or upon proceedings for
mandatory redemption of any Bonds, (b) any default in the payment when due of the interest on
any such Bonds, unless prior to such waiver or rescission all arrears of interest, with interest (to
the extent permitted by law) at the rate borne by the Bonds in respect of which such default shall
have occurred on overdue installments of interest or all arrears of payments of principal or when
due (whether at the stated maturity thereof or upon proceedings for mandatory redemption) as
the case may be, and all expenses of the Trustee in connection with such default shall have been
paid or provided for, and in case of any such waiver or rescission, or in case any proceeding
taken by the Trustee on account of any such default shall have been discontinued or abandoned
or determined adversely, then and in every such case the Issuer, the Trustee, and the Bondholders
shall be restored to their former positions and rights hereunder, respectively, but no such waiver
or rescission shall extend to any subsequent or other default, or impair any right consequent
thereto.
Section 6.11 Notice to Bondholders if Default Occurs. Upon the occurrence of an
Event of Default, or if an event occurs which could lead to an Event of Default with the passage
of time and of which the Trustee is required to take notice pursuant to Section 7.02(l) hereof, the
Trustee shall, within thirty (30) days, give written notice thereof by first class mail to the
registered Owners of all Bonds then Outstanding. Notwithstanding the foregoing, except in the
case of an Event of Default with respect to the payment of principal of or and interest on the
Bonds, the Trustee shall be protected in withholding such notice if and s o long as the board of
directors of the Trustee, the executive committee, or a trust committee of directors or officers of
the Trustee in good faith determines that the withholding of such notice is in the best interests of
the Holders of the Bonds.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Standard of Care. The Trustee, prior to an Event of Default as defined
in Section 6.01 and after the curing or waiver of all such events which may have occurred, shall
perform such duties and only such duties as are specifically set forth in this Indenture. The
Trustee, during the existence of any such Event of Default (which shall not have been cured or
waived), shall exercise such rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent Person would exercise or use under similar
circumstances in the conduct of such Person’s own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its breach of trust, own negligence or willful misconduct, except that:
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(a) prior to an Event of Default hereunder, and after the curing or waiver of all such
Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except with regard
to the performance of such duties and obligations as are specifically set forth in this
Indenture; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificate or opinion furnished to the Trustee by the Person
or Persons authorized to furnish the same;
(b) at all times, regardless of whether or not any such Event of Default shall exist:
(i) the Trustee shall not be liable for any error of judgment made in good faith
by an officer or employee of the Trustee except for willful misconduct or negligence by
the officer or employee of the Trustee as the case may be; and
(ii) the Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Bondholder
Representative or the Holders of more than 51% of the aggregate principal amount o f the
Bonds then Outstanding (or such lesser or greater percentage as is specifically required or
permitted by this Indenture) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture.
Section 7.02 Reliance Upon Documents. Except as otherwise provided in
Section 7.01:
(a) the Trustee may rely upon the authenticity or truth of the statements and the
correctness of the opinions expressed in, and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, notarial seal, stamp, acknowledgment,
verification, request, consent, order, bond, or other paper or document of the proper party or
parties, including any facsimile transmission as permitted hereunder or under the Financing
Agreement;
(b) any notice, request, direction, election, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an instrument signed in the name of the Issuer by an
Authorized Officer of the Issuer (unless other evidence in respect thereof be herein specifically
prescribed), and any resolution of the Issuer may be evidenced to the Trustee by a copy of such
resolution duly certified by an Authorized Officer of the Issuer;
(c) any notice, request, certificate, statement, requisition, direction, election, order or
demand of the Borrower mentioned herein shall be sufficiently evidenced by an instrument
purporting to be signed in the name of the Borrower by any Authorized Officer of the Borrower
(unless other evidence in respect thereof be herein specifically prescribed), and any resolution or
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certification of the Borrower may be evidenced to the Trustee by a copy of such resolution duly
certified by a secretary or other authorized representative of the Borrower;
(d) [Intentionally Omitted];
(e) any notice, request, direction, election, order or demand of the Bondholder
Representative mentioned herein shall be sufficiently evidenced by an instrument purporting to
be signed in the name of the Bondholder Representative by any Authorized Officer of the
Bondholder Representative (unless other evidence in respect thereof be herein specifically
prescribed);
(f) [Intentionally Omitted];
(g) [Intentionally Omitted];
(h) in the administration of the trusts of this Indenture, the Trustee may execute any
of the trusts or powers hereby granted directly or through its agents, receivers or attorneys, and
the Trustee may consult with counsel and the opinion or advice of such counsel shall be full and
complete authorization and protection in respect of any action taken or permitted by it hereunder
in good faith and in accordance with the opinion of such counsel;
(i) whenever in the administration of the trusts of this Indenture, the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to taking or permitting
any action hereunder, such matters (unless other evidence in respect thereof be herein
specifically prescribed), may in the absence of negligence or willful misconduct on the part of
the Trustee, be deemed to be conclusively proved and established by a certificate of an officer or
authorized agent of the Issuer or the Borrower and such certificate shall in the absence of bad
faith on the part of the Trustee be full warrant to the Trustee for any action taken or permitted by
it under the provisions of this Indenture, but in its discretion the Trustee may in lieu thereof
accept other evidence of such matter or may require such further or additional evidence as it may
deem reasonable;
(j) the recitals herein and in the Bonds (except the Trustee’s certificate of
authentication thereon) shall be taken as the statements of the Issuer and the Borrower and shall
not be considered as made by or imposing any obligation or liabili ty upon the Trustee. The
Trustee makes no representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of the Issuer or the Borrower to the Trust Estate, or as to the security of
this Indenture, or of the Bonds issued hereunder, and the Trustee shall incur no liability or
responsibility in respect of any of such matters;
(k) the Trustee shall not be personally liable for debts contracted or liability for
damages incurred in the management or operation of the Trust Estate except for its own willful
misconduct or negligence; and every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the provisions of
this Section 7.02(k);
(l) the Trustee shall not be required to ascertain or inquire as to the performance or
observance of any of the covenants or agreements (except to the extent they obligate the Trustee)
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herein or in any contracts or securities assigned or conveyed to or pledged with the Trustee
hereunder, except Events of Default that are evident under Section 6.01(a) or Section 6.01(b)
hereof. The Trustee shall not be required to take notice or be deemed to have notice or actual
knowledge of any default or Event of Default specified in Section 6.01 hereof (except defaults
under Section 6.01(a) or Section 6.01(b) hereof) unless the Trustee shall receive from the Issuer,
the Bondholder Representative or the Holders of more than 51% of the aggregate principal
amount of the Bonds then Outstanding written notice stating that a default or Event of Default
has occurred and specifying the same, and in the absence of such notice the Trustee may
conclusively assume that there is not such default. Every provision contained in this Indenture or
related instruments or in any such contract or security wherein the duty of the Trustee depends
on the occurrence and continuance of such default shall be subject to the provisions of this
Section 7.02(l);
(m) the Trustee shall be under no duty to confirm or verify any financial or other
statements or reports or certificates furnished pursuant to any provisions hereof, except to the
extent such statement or reports are furnished by or under the direction of the Trustee, and shall
be under no other duty in respect of the same except to retain the same in its files and permit the
inspection of the same at reasonable times by the Holder of any Bond; and
(n) the Trustee shall be under no obligation to exercise those rights or powers vested
in it by this Indenture, other than such rights and powers which it shall be obliged to exercise in
the ordinary course of its trusteeship under the terms and provisions of this Indenture and as
required by law, at the request or direction of any of the Bondholders pursuant to Sections 6.03
and 6.08 of this Indenture, unless such Bondholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred by it in
the compliance with such request or direction.
None of the provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.
The Trustee is authorized and directed to execute in its capacity as Trustee the Financing
Agreement and the Regulatory Agreements and shall have no responsibility or liability with
respect to any information, statement or recital in any offering memorandum or other discl osure
material prepared or distributed with respect to the issuance of the Bonds.
The Trustee or any of its affiliates may act as advisor or sponsor with respect to any
Qualified Investments.
The Trustee agrees to accept and act upon facsimile transmission or Electronic Notice of
written instructions and/or directions pursuant to this Indenture provided, however, that:
(a) subsequent to such facsimile transmission or Electronic Notice of written instructions and/or
directions the Trustee shall forthwith receive the originally executed instructions and/or
directions, (b) such originally executed instructions and/or directions shall be signed by such
Person as may be designated and authorized to sign for the party signing such instructions and/or
directions, and (c) the Trustee shall have received a current incumbency certificate containing the
specimen signature of such designated Person.
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Any resolution, certification, notice, request, direction, election, order or demand
delivered to the Trustee pursuant to this Section 7.02 shall remain in effect until the Trustee
receives written notice to the contrary from the party that delivered such instrument accompanied
by revised information for such party.
The Trustee shall have no responsibility for the value of an y collateral or with respect to
the perfection or priority of any security interest in any collateral except as otherwise provided in
Section 7.17 hereof.
Section 7.03 Use of Proceeds. The Trustee shall not be accountable for the use or
application of any of the Bonds authenticated or delivered hereunder or of the proceeds of the
Bonds except as provided herein.
Section 7.04 Trustee May Hold Bonds. The Trustee and its officers and directors
may acquire and hold, or become pledgees of Bonds and otherwise may deal with the Issuer and
the Borrower in the same manner and to the same extent and with like effect as though it were
not Trustee hereunder.
Section 7.05 Trust Imposed. All money received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were received.
Section 7.06 Compensation of Trustee. The Trustee shall be entitled to its annual
administration fee, payable by the Borrower pursuant to the Financing Agreement, in connection
with the services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties of the Trustee hereunder. The Trustee shall be
entitled to extraordinary fees and expenses in connection with any Extraordinary Services
performed consistent with the duties hereunder or under any of the Loan Documents; provided
the Trustee shall not incur any extraordinary fees and expenses without the consent of the
Bondholder Representative (except that no consent shall be required if an Event of Default under
6.01(b) has occurred and is continuing). If any property, other than cash, shall at any time be
held by the Trustee subject to this Indenture, or any supplemental indenture, as security for the
Bonds, the Trustee, if and to the extent authorized by a receivership, bankruptcy, or other court
of competent jurisdiction or by the instrument subjecting such property to the provisions of this
Indenture as such security for the Bonds, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax liens or other liens or encumbrances thereon.
Payment to the Trustee for its services and reimbursement to the Trustee for its expenses,
disbursements, liabilities and advances, shall be limited to the sources described in the Financing
Agreement and in Sections 4.11 and 6.05 hereof. The Issuer shall have no liability for Trustee’s
fees, costs or expenses. Subject to the provisions of Section 7.09 hereof, the Trustee agrees that
it shall continue to perform its duties hereunder (including, but not limited to, its duties as Paying
Agent and Bond Registrar) and under the Loan Documents even in the event that money
designated for payment of its fees shall be insufficient for such purposes or in the event that the
Borrower fails to pay the Trustee’s fees and expenses as required by the Financing Agreement.
The Borrower shall indemnify and hold harmless the Trustee and its officers, directors,
officials, employees, agents, receivers, attorneys, accountants, advisors, consultants and servants,
past, present or future, from and against (a) any and all claims by or on behalf of any Person
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arising from any cause whatsoever in connection with this Indenture or transactions
contemplated hereby, the Projects, or the issuance of the Bonds; (b) any and all claims arising
from any act or omission of the Borrower or any of its agents, contractors, servants, employees
or licensees in connection with the Projects, or the issuance of the Bonds; and (c) all costs,
counsel fees, expenses or liabilities incurred in connection with any such claim or proceeding
brought thereon; except that the Borrower shall not be required to indemnify any Person for
damages caused by the gross negligence, willful misconduct or unlawful acts of such Person or
which arise from events occurring after the Borrower ceases to own the Projects. In the event
that any action or proceeding is brought or claim made against the Trustee, or any of its officers,
directors, officials, employees, agents, receivers, attorneys, accountants, advisors, consultants or
servants, with respect to which indemnity may be sought hereunder, the Borrower, upon written
notice thereof from the indemnified party, shall assume the investigation and defense thereof,
including the employment of counsel and the payment of all expenses. The indemnified party
shall have the right to approve a settlement to which it is a party and to employ separate counsel
in any such action or proceedings and to participate in the investigation and defense thereof, and
the Borrower shall pay the reasonable fees and expenses of such separate counsel. The
provisions of this Section shall survive the termination of this Indenture.
Section 7.07 Qualifications of Trustee. There shall at all times be a Trustee
hereunder which shall be an association or a corporation organized and doing business under the
laws of the United States of America or any state thereof, authorized under such laws to exercise
corporate trust powers. Any successor Trustee shall have a combined capital and surplus of at
least $50,000,000 (or shall be a wholly owned subsidiary of an association or corporation that
has such combined capital and surplus), and be subject to supervision or examination by federal
or state authority, or shall have been appointed by a court of competent jurisdiction pursuant to
Section 7.09. If such association or corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority referred to
above, then for the purposes of this Section, the combined capital and surplus of such association
or corporation shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shal l cease to be eligible
in accordance with the provisions of this Section and another association or corporation is
eligible, the Trustee shall resign immediately in the manner and with the effect specified in
Section 7.09.
Section 7.08 Merger of Trustee. Any association or corporation 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 association or corporation resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party shall, ipso facto, be and become successor Trustee hereunder and
vested with all 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 instruments or any further act, deed or conveyance on the part of any
of the parties hereto, anything herein to the contrary notwithstanding, and shall also be and
become successor Trustee in respect of the beneficial interest of the Trustee in the Loan.
Section 7.09 Resignation by the Trustee. The Trustee may at any time resign from
the trusts hereby created by giving written notice to the Issuer, the Borrower and the Bondholder
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Representative, and by giving notice by certified mail or overnight delivery service to each
Holder of the Bonds then Outstanding. Such notice to the Issuer, the Borrower and the
Bondholder Representative may be served personally or sent by certified mail or overnight
delivery service. The resignation of the Trustee shall not be effective until a successor Trustee
has been appointed as provided herein and such successor Trustee shall have agreed in writing to
be bound by the duties and obligations of the Trustee hereunder.
Section 7.10 Removal of the Trustee. The Trustee may be removed at any time,
either with or without cause, with the consent of the Bondholder Representative (which consent
of the Bondholder Representative shall not be unreasonably withheld and which approval shall
be deemed given after fifteen (15) days if the Bondholder Representative has not responded to a
written request for such approval) by a written instrument signed by the Issuer and delivered to
the Trustee and the Borrower, and if an Event of Default shall have occurred and be continuing,
other than an Event of Default under Section 6.01(b), by a written instrument signed by the
Bondholder Representative and delivered to the Trustee, the Issuer and the Borrower. The
Trustee may also be removed, if an Event of Default under Section 6.01(b) shall have occurred
and be continuing, by a written instrument or concurrent instruments signed by the Holders of
more than 51% of the aggregate principal amount of the Bonds then Outstanding and delivered
to the Trustee, the Issuer, the Borrower and the Bondholder Representative. The Trustee may
also be removed by the Bondholder Representative following notice to the Issuer and after a
thirty (30) day period during which the Issuer may attempt to cause the Trustee to discharge its
duties in a manner acceptable to Bondholder Representative, the Borrower and to each registered
Owner of Bonds then Outstanding as shown on the Bond Registrar. Any such removal shall take
effect on the day specified in such written instrument(s), but the Trustee shall not be discharged
from the trusts hereby created until a successor Trustee has been appointed and has accepted
such appointment and has agreed in writing to be bound b y the duties and obligations of the
Trustee hereunder.
Section 7.11 Appointment of Successor Trustee.
(a) In case at any time the Trustee shall resign or be removed, or be dissolved, or
shall be in course of dissolution or liquidation, or otherwise become incapable o f acting
hereunder, or shall be adjudged a bankrupt or insolvent, or if a receiver of the Trustee or of its
property shall be appointed, or if a public supervisory office shall take charge or control of the
Trustee or of its property or affairs, a vacancy shall forthwith and ipso facto be created in the
office of such Trustee hereunder, and the Issuer, with the written consent of the Bondholder
Representative (which consent shall not be unreasonably withheld and which consent shall be
deemed given after fifteen (15) days if the applicable party has not responded to a written request
from the Issuer for such consent), shall promptly appoint a successor Trustee. Any such
appointment shall be made by a written instrument executed by an Authorized Officer of the
Issuer.
(b) If, in a proper case, no appointment of a successor Trustee shall be made pursuant
to subsection (a) of this Section 7.11 within sixty (60) days following delivery of all required
notices of resignation given pursuant to Section 7.09 or of removal of the Trustee pursuant to
Section 7.10, the retiring Trustee may apply to any court of competent jurisdiction to appoint a
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successor Trustee. The court may thereupon, after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Trustee.
Section 7.12 Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the
Issuer a written instrument accepting such appointment hereunder, accepting assignment of the
beneficial interest in the Mortgage, and thereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the Trust Estate and the rights, powers, trusts,
duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written
request of the Issuer, the Borrower or the Bondholder Representative, or of its successor, and
upon payment of all amounts due such predecessor, including but not limited to fees and
expenses of counsel, execute and deliver such instruments as may be appropriate to transfer to
such successor Trustee all the Trust Estate and the rights, powers and trusts of such predecessor
hereunder; and every predecessor Trustee shall deliver all securities and money hel d by it as
Trustee hereunder to its successor. Should any instrument in writing from the Issuer be required
by a successor Trustee for more fully and certainly vesting in such successor the Trust Estate and
all rights, powers and duties hereby vested or intended to be vested in the predecessor, any and
all such instruments in writing shall, on request, be executed, acknowledged and delivered by the
Issuer. The resignation of any Trustee and the instrument or instruments removing any Trustee
and appointing a successor hereunder, together with all other instruments provided for in this
Article, shall be filed and/or recorded by the successor Trustee in each recording office where
this Indenture shall have been filed and/or recorded. Each successor Trustee shall mail notice by
first class mail, postage prepaid, at least once within 30 days of such appointment, to the Owners
of all Bonds Outstanding at their addresses on the Bond Register.
Section 7.13 Successor Trustee as Trustee, Paying Agent and Bond Registrar. In
the event of a change in the office of Trustee, the predecessor Trustee which shall have resigned
or shall have been removed shall cease to be trustee and paying agent on the Bonds and Bond
Registrar, and the successor Trustee shall become such Trustee, Paying Agent and Bond
Registrar.
Section 7.14 Appointment of Co-Trustee or Separate Trustee. It is the intent of the
Issuer and the Trustee that there shall be no violation of any law of any jurisdiction (including
particularly the laws of the State) denying or restricting the right of banking corporations or
associations to transact business as Trustee in such jurisdiction. It is recognized that in case of
litigation under or connected with this Indenture, the Financing Agreement or any of the other
Loan Documents, and, in particular, in case of the enforcement of any remedies on default, or in
case the Trustee deems that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein or therein granted to the Trustee or hold
title to the properties in trust, as herein granted, or take any other action which may be desirable
or necessary in connection therewith, it may be necessary that the Trustee, with the consent of
the Issuer, appoint an additional individual or institution as a co-trustee or separate trustee.
In the event that the Trustee appoints an additional individual or institution as a co -trustee
or separate trustee, in the event of the incapacity or lack of authority of the Trustee, by reason of
any present or future law of any jurisdiction, to exercise any of the rights, powers, trusts and
remedies granted to the Trustee herein or to hold title to the Trust Estate or to take any other
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action that may be necessary or desirable in connection therewith, each and every remedy,
power, right, obligation, claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be imposed upon, exercised by or vested in or
conveyed to the Trustee with respect thereto shall be imposed upon, exercisable by and vest in
such separate trustee or co-trustee, but only to the extent necessary to enable such co-trustee or
separate trustee to exercise such powers, rights, trusts and remedies, and every covenant and
obligation necessary to the exercise thereof by such co-trustee or separate trustee shall run to and
be enforceable by either of them, subject to the remaining provisions of this Section 7.14. Such
co-trustee or separate trustee shall deliver an instrument in writing acknowledging and accepting
its appointment hereunder to the Issuer and the Trustee.
Should any instrument in writing from the Issuer be required by the co -trustee or separate
trustee so appointed by the Trustee for more fully and certainly vesti ng in and confirming to him
or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered by the Issuer, the Trustee and
the Borrower. If the Issuer shall fail to deliver the same within thirty (30) days of such request,
the Trustee is hereby appointed attorney-in-fact for the Issuer to execute, acknowledge and
deliver such instruments in the Issuer’s name and stead. In case any co-trustee or separate
trustee, or a successor to either, shall die, become incapable of acting, resign or be removed, all
the estates, properties, rights, powers, trusts, duties and obligations of such co-trustee or separate
trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such co-trustee or separate trustee.
Every co-trustee or separate trustee shall, to the extent permitted by law, but to such
extent only, be appointed subject to the following terms, namely:
(a) The Bonds shall be authenticated and delivered, and all rights, powers, trusts,
duties and obligations by this Indenture conferred upon the Trustee in respect of the custody,
control or management of money, papers, securities and other personal property shall be
exercised solely by the Trustee;
(b) all rights, powers, trusts, duties and obligations conferred or imposed upon the
Trustee shall be conferred or imposed upon or exercised or performed by the Trustee, or by the
Trustee and such co-trustee, or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, 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 separate trustee;
(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 shall delegate to
the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise;
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(e) the Trustee at any time by an instrument in writing with the concurrence of the
Issuer evidenced by a certified resolution may accept the resignation of or remove any c o-trustee
or separate trustee appointed under this Section and in case an Event of Default shall have
occurred and be 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, and 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 or co-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 the Bondholders and delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee or separate trustee; and
(h) any money, 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.
The total compensation of the Trustee and co-trustee or separate trustee shall be as, and
may not exceed the amount, provided in Section 7.06 hereof.
Section 7.15 Notice of Certain Events. The Trustee shall give written notice to the
Issuer and the Bondholder Representative of any failure by the Borrower to comply with the
terms of the Regulatory Agreements of which a Responsible Officer has actual knowledge.
Section 7.16 Partial Release of Mortgage. Upon receipt of written direction from
the Bondholder Representative, the Trustee shall execute and file such documents as may be
necessary in connection with a partial release of the Mortgage, whether upon partial redemption
of the Bonds or otherwise.
Section 7.17 Filing of Financing Statements. The Trustee shall, at the expense of
the Borrower, file or record or cause to be filed or recorded all UCC continuation statements for
the purpose of continuing without lapse the effectiveness of those financing statements which
have been filed on or approximately on the Closing Date in connection with the security for the
Bonds pursuant to the authority of the UCC. Upon the filing of any such continuation statement
the Trustee shall immediately notify the Issuer, the Borrower, the Bondholder Representative
that the same has been done. If direction is given by the Bondholder Representative, the Trustee
shall file all continuation statements in accordance with such directions.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF CERTAIN DOCUMENTS
Section 8.01 Supplemental Indentures Not Requiring Consent of Bondholders .
The Issuer and the Trustee may from time to time and at any time, without the consent of, or
notice to, any of the Bondholders, but with the prior written consent of the Bondholder
Representative, enter into an indenture or indentures supplemental to this Indenture for any one
or more of the following purposes:
(a) to cure any formal defect, omission, inconsistency or ambiguity herein in a
manner not materially adverse to the Holder of any Bond to be Outstanding after the effective
date of the change;
(b) to grant to or confer upon the Trustee for the benefit of the Holders of the Bonds
any additional rights, remedies, powers or authority that may lawfully be granted or conferred
and that are not contrary to or inconsistent with this Indenture or the rights of the Trustee
hereunder as theretofore in effect;
(c) to subject to the lien and pledge of this Indenture additional revenues, properties
or collateral;
(d) to modify, amend or supplement this Indenture or any indenture supplemental
hereto in such manner as to permit the qualification hereof and thereof under the Indentu re Act
of 1939, as amended, or any similar federal statute hereafter in effect or to permit the
qualification of the Bonds for sale under any state blue sky laws;
(e) to make such additions, deletions or modifications as may be, in the opinion of
Bond Counsel delivered to the Issuer and the Trustee, necessary to maintain the exclusion from
gross income for federal income tax purposes of interest on the Bonds; or
(f) to modify, amend or supplement this Indenture in any other respect which is not
materially adverse to the Holders of the Bonds to be Outstanding after the effective date of the
change and which does not involve a change described in Section 8.02.
Section 8.02 Supplemental Indentures Requiring Consent of Bondholders . With
the prior written consent of the Bondholder Representative, the Holders of more than 51% of the
aggregate principal amount of the Bonds then Outstanding shall have the right, from time to
time, to consent to and approve the execution by the Issuer and the Trustee of such indenture or
indentures supplemental hereto as shall be deemed necessary and desirable by the Issuer for the
purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Indenture; provided, however, that nothing in this Section
contained shall permit, or be construed as permitting, (a) an extension of the time for payment of,
or an extension of the stated maturity or reduction in the principal amount or reduction in the rate
of interest on or extension of the time of payment, of interest on, or reduction of any premium
payable on the redemption of, any Bonds, or a reduction in the Borrower’s obligation on the
Note, without the consent of the Holders of all of the Bonds then Outstanding, (b) the creation of
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any lien prior to or on a parity with the lien of this Indenture, (c) a reduction in the aforesaid
percentage of the principal amount of Bonds which is required in connection with the giving of
consent to any such supplemental indenture, without the consent of the Holders of all of the
Bonds then Outstanding, (d) the modification of the rights, duties or immunities of the Trustee,
without the written consent of the Trustee, (e) a privilege or priority of any Bond over any other
Bonds, or (f) any action that results in the interest on the Bonds becoming included in gross
income for federal income tax purposes.
If at any time the Issuer shall request the Trustee to enter into any such supplemental
indenture for any of the purposes of this Section, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed execution of such
supplemental indenture to be mailed, postage prepaid, to all registered Bondholders and to the
Bondholder Representative. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the corporate trust office
of the Trustee for inspection by all Bondholders.
Thirty (30) days after the date of the mailing of such notice, the Issuer and the Trustee
may enter into such supplemental indenture substantially in the form described in such notice,
but only if there shall have first been or is simultaneously delivered to the Trustee the required
consents, in writing, of the Bondholder Representative and the Holders of not less than the
percentage of Bonds required by this Section 8.02. If the Holders of not less than the percentage
of Bonds required by this Section 8.02 shall have consented to and approved the execution and
delivery of a supplemental indenture as provided herein, no Holder of any Bond shall have any
right to object to any of the terms and provisions contained therein, or the operation thereof, or in
any manner to question the propriety of the execution thereof, or to enjoin or restrain the Trustee
or the Issuer from executing the same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such supplemental indenture as in this Section 8.02
permitted and provided, this Indenture shall be and be deemed to be modified and amended in
accordance therewith. The Trustee may rely upon an opinion of counsel as conclusive evidence
that execution and delivery of a supplemental indenture has been effected in compliance with the
provisions of this Article VIII.
Anything in this Article VIII to the contrary notwithstanding, unless the Borrower shall
then be in default of any of its obligations under the Financing Agreement, the Regulatory
Agreements, the Note or the Mortgage, a supplemental indenture under this Article VIII which
affects any rights of the Borrower shall not become effective unless and until the Borrower shall
have expressly consented in writing to the execution and delivery of such supplemental
indenture. In this regard, the Trustee shall cause notice of the proposed execution and delivery
of any such supplemental indenture to be mailed by certified or registered mail to the Borrower
or the Borrower’s attorney at least fifteen (15) days prior to the proposed date of execution and
delivery of any supplemental indenture.
Notwithstanding any other provision of this Indenture, the Issuer and the Trustee may
consent to any supplemental indenture upon receipt of the consent of the Bondholder
Representative, the Holders of all Bonds then Outstanding and, as applicable, the Borrower.
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Section 8.03 Amendments to Financing Agreement Not Requiring Consent of
Bondholders. The Trustee shall, without the consent of, or notice to, the Bondholders, but with
the consent of the Borrower and the Bondholder Representative, consent to any amendment,
change or modification of the Financing Agreement as follows:
(a) as may be required by the provisions of the Financing Agreement or this
Indenture;
(b) to cure any formal defect, omission, inconsistency or ambiguity in the Financing
Agreement in a manner not materially adverse to the Holder of any Bond to be Outstanding after
the effective date of the change;
(c) to make such additions, deletions or modifications as may be necessary, in the
opinion of Bond Counsel delivered to the Issuer and the Trustee, to maintain the exclusion from
gross income for federal income tax purposes of interest on the Bonds; or
(d) to modify, amend or supplement the Financing Agreement in any other respect
which is not materially adverse to the Trustee or Holders of the Bonds to be Outstanding after
the effective date of the change and which does not involve a change described in Section 8.04.
Section 8.04 Amendments to Financing Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications of the Financing
Agreement as provided in Section 8.03 hereof, neither the Issuer nor the Trustee shall consent to
any other amendment, change or modification of the Financing Agreement without the consent
of the Bondholder Representative, and the Borrower and without the giving of notice and the
written approval or consent of the Holders of at least 51% of the aggregate principal amount of
the Bonds then Outstanding given and procured in accordance with the procedure set forth in
Section 8.02 hereof; provided, however, that nothing contained in this Section 8.04 shall permit,
or be construed as permitting, any amendment, change or modification of the Borrower’s
obligation to make the payments required under the Financing Agreement without the consent of
the Holders of all of the Bonds then Outstanding. If at any time the Issuer and the Borrower
shall request the consent of the Trustee to any such proposed amendment, change or
modification of the Financing Agreement, the Trustee shall cause notice of such proposed
amendment, change or modification to be given in the same manner as provided in Section 8.02
hereof. Such notice shall briefly set forth the nature of such proposed amendment, change or
modification and shall state that copies of the instrument embodying the same are on file at the
Principal Office of the Trustee for inspection by Bondholders.
Section 8.05 [Reserved]
Section 8.06 Opinion of Bond Counsel Required. No supplement or amendment to
the Financing Agreement or this Indenture, as described in this Article VIII, shall be effective
until the Issuer, the Trustee and the Bondholder Representative shall have received an opinion of
Bond Counsel to the effect that such supplement or amendment is authorized or permitted by this
Indenture and, upon execution and delivery thereof, will be valid and binding upon the Issuer in
accordance with its terms and will not cause interest on the Bonds to be includable in gross
income of the Holders thereof for federal income tax purposes. The Trustee shall be entitled to
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receive, and shall be fully protected in relying upon, the opinion of any counsel approved by it as
conclusive evidence that (i) any proposed supplemental indenture or amendment permitted by
this Article VIII complies with the provisions of this Indenture, (ii) it is proper for the Trustee to
join in the execution of that supplemental indenture or amendment under the provisions of this
Article VIII, and (iii) if applicable, such proposed supplemental indenture or amendment is not
materially adverse to the interests of the Bondholders.
ARTICLE IX
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01 Discharge of Lien. If the Issuer shall pay or cause to be paid to the
Holders of the Bonds the principal and interest to become due thereon at the times and in the
manner stipulated therein and herein, in any one or more of the following ways:
(a) by the payment of the principal of and interest on all Bonds Outstanding; or
(b) by the deposit or credit to the account of the Trustee, in trust, of money or
securities in the necessary amount (as provided in Section 9.04) to pay the principal, redemption
price and interest to the date established for redemption whether by redemption or otherwise; or
(c) by the delivery to the Trustee, for cancellation by it, of all Bonds Outstanding.
and shall have paid all amounts due and owing to the Bondholder Representative hereunder, and
shall have paid all fees and expenses of and any other amounts due to the Trustee, and if the
Issuer shall keep, perform and observe all and singular the covenants and promises in the Bonds
and in this Indenture expressed as to be kept, performed and observed by it or on its part, then
these presents and the estates and rights hereby granted shall cease, determine 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 reconvey to the Issuer the estate hereby conveyed, and assign and deliver to the Issuer any
interest in 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 principal of, interest, on the
Bonds, or the payment of any amounts owed to the United States pursuant to Section 4.13.
Any Outstanding Bond shall prior to the maturity or redemption date thereof be deemed
to have been paid within the meaning and with the effect expressed in the first paragraph of this
Section 9.01 if, under circumstances which do not cause interest on the Bonds to become
includable in the Holders’ gross income for purposes of federal income taxation, the following
conditions shall have been fulfilled: (a) in case such Bond is to be redeemed on any date prior to
its maturity, the Trustee shall have given to the Bondholder irrevocable notice of redemption of
such Bond on said date; (b) there shall be on deposit with the Trustee, pursuant to Section 9.04
hereof, either money or direct obligations of the United States of America in an amount, together
with anticipated earnings thereon (but not including any reinvestment of such earnings), which
will be sufficient to pay, when due, the principal or redemption price, if applicable, and interest
due and to become due on such Bond on the redemption date or Maturity Date thereof, as the
case may be; and (c) in the case of Bonds which do not mature or will not be redeemed within
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Sixty (60) days of such deposit, the Trustee shall have received a verification report of a firm of
certified public accountants reasonably acceptable to the Trustee as to the adequacy of the
amounts so deposited to fully pay the Bonds deemed to be paid.
The Trustee shall in no event cause the Bonds to be optionally redeemed from money
deposited pursuant to this Article IX unless the requirements of Article III have been met with
respect to such redemption.
Section 9.02 [Reserved]
Section 9.03 Discharge of Liability on Bonds. Upon the deposit with the Trustee, in
trust, at or before maturity, of money or securities in the necessary amount (as provided in
Section 9.01) to pay or redeem Outstanding Bonds (whether upon or prior to their maturity or the
redemption date of such Bonds) provided that, if such Bonds are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article III provided or
provision satisfactory to the Trustee shall have been made for the giving of such notice, all
liability of the Issuer in respect of such Bonds shall cease, terminate and be completely
discharged, except only that thereafter the holders thereof shall be entitled to payment by the
Issuer, and the Issuer shall remain liable for such payment, but only out of the money or
securities deposited with the Trustee as aforesaid for their payment, subject, however, to the
provisions of Section 9.04.
Section 9.04 Payment of Bonds After Discharge of Indenture. Notwithstanding
any provisions of this Indenture, and subject to applicable unclaimed property laws of the State,
any money deposited with the Trustee or any paying agent in trust for the payment of the
principal of, interest on the Bonds remaining unclaimed for two (2) years after the payment
thereof, to the extent permitted by applicable law, shall be paid to the Borrower, whereupon all
liability of the Issuer and the Trustee with respect to such money shall cease, and the holders of
the Bonds shall thereafter look solely to the Borrower for payment of any amounts then due. All
money held by the Trustee and subject to this Section 9.04 shall be held uninvested a nd without
liability for interest thereon.
Section 9.05 Deposit of Money or Securities With Trustee. Whenever in this
Indenture it is provided or permitted that there be deposited with or credited to the account of or
held in trust by the Trustee money or securities in the necessary amount to pay or redeem any
Bonds, the money or securities so to be deposited or held shall consist of:
(a) lawful money of the United States of America in an amount equal to the principal
amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of
Bonds which are to be redeemed prior to maturity and in respect of which there shall have been
furnished to the Trustee proof satisfactory to it that notice of such redemption on a specified
redemption date has been duly given or provision satisfactory to the Trustee shall be made for
such notice, the amount so to be deposited or held shall be the principal amount of such Bonds
and interest thereon to the redemption date; or
(b) noncallable and nonprepayable direct obligations of the United States of America
or noncallable and nonprepayable obligations which as to principal and interest constitute full
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faith and credit obligations of the United States of America, in such amounts and maturing at
such times that the proceeds of said obligations received upon their respective maturities and
interest payment dates, without further reinvestment, will provide funds sufficient, in the opinion
of a nationally recognized firm of certified public accountants, to pay the principal, and interest
to maturity, or to the redemption date, as the case may be, with respect to all of the Bonds to be
paid or redeemed, as such principal, and interest become due; provided that the Trustee shall
have been irrevocably instructed by the Issuer to apply the proceeds of said obligations to the
payment of said principal, and interest with respect to such Bonds.
ARTICLE X
[RESERVED]
ARTICLE XI
MISCELLANEOUS
Section 11.01 Consents and Other Instruments of Bondholders. Any consent,
request, direction, approval, waiver, objection, appointment or other instrument required by this
Indenture to be signed and executed by the Bondholders may be signed and executed in any
number of concurrent writings of similar tenor and may be signed or executed by such
Bondholders in person or by agent appointed in writing. Proof of the execution of any such
instrument, if made in the following manner, shall be sufficient for any of the purposes of this
Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken under
such instrument, namely:
(a) the fact and date of the execution by any Person of any such instrument may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public or
other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of
deeds, certifying that the Person signing such instrument acknowledged the execution thereof.
Where such execution is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, such affidavit or certificate
shall also constitute sufficient proof of such authority;
(b) the ownership of registered Bonds shall be proved by the Bond Register; and
(c) any request, consent or vote of the Holder of any Bond shall bind every future
Holder of the same Bond and the Holder of every Bond issued in exchange therefor or in lieu
thereof, in respect of anything done or permitted to be done by the Trustee or the Issuer in
pursuance of such request, consent or vote.
Section 11.02 [Reserved]
Section 11.03 Limitation of Rights. With the exception of rights herein expressly
conferred, nothing expressed 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 Bondholder
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Representative, the Borrower and the Holders of the Bonds, any legal or equitable right, remedy
or claim under or in respect to this Indenture or any covenants, conditions and provisions hereof.
Section 11.04 Severability. If any provision of this Indenture shall be held or deemed
to be, or shall in fact be inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any
other provision or provisions hereof or any constitution, statute, rule of law or public policy, or
for any other reason, such circumstances shall not have the effect of rendering the provision in
question inoperative or unenforceable in any other case or circumstance, or of rendering any
other provision or provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever.
The invalidity of any one or more phrases, sentences, clauses or sections in this Indenture
contained, shall not affect the remaining portions of this Indenture, or any part thereof.
Section 11.05 Notices.
(a) Any provision of this Indenture relating to the mailing of notice or other
communication to Bondholders shall be deemed fully complied with if such notice or other
communication is mailed, by first class mail, postage prepaid, to each registered Owner of any
Bonds then Outstanding at the address of such registered Owner as it appears on the Bond
Register. Whenever in this Indenture the giving of notice by mail or otherwise is req uired, the
giving of such notice may be waived in writing by the Person entitled to receive such notice and
in any such case the giving or receipt of such notice shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
Any notice, request, complaint, demand, communication or other paper required or
permitted to be delivered to the Issuer, the Trustee, the Bondholder Representative, or the
Borrower shall be sufficiently given and shall be deemed given (unless anoth er form of notice
shall be specifically set forth herein) on the Business Day following the date on which such
notice or other communication shall have been delivered to a national overnight delivery service
(receipt of which to be evidenced by a signed receipt from such overnight delivery service)
addressed to the appropriate party at the addresses set forth below or as may be required or
permitted by this Indenture by Electronic Notice or by a facsimile transmission for which a
confirmation of receipt has been delivered. The Issuer, the Trustee, the Bondholder
Representative, or the Borrower may, by notice given as provided in this paragraph, designate
any further or different address to which subsequent notices or other communication shall be
sent.
The Issuer: County of Contra Costa
Department of Conservation and Development
30 Muir Road
Martinez, CA 94553
Attention: Community Development Bond
Program Manager
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The Trustee:
The Borrower: Reliant – Mira Vista, LLC
c/o Rainbow – Mira Vista, LLC
General Partner
275 Battery Street, Suite 500
San Francisco, CA 94111
Attention: Executive Director
Telephone: (602) 903-1843
Facsimile: (623) 687-9472
With a copy to: Gung Ho – Mira Vista, LLC
Co-General Partner
275 Battery Street, Suite 500
San Francisco, CA 94111
Attention: Robert Lawler
Telephone: (415) 501-9605
Facsimile: (415) 788-0435
With a copy to: Arent Fox, LLP
55 2nd Street, Suite 2100
San Francisco, CA 94105
Telephone: (415) 757-5894
Facsimile: (415) 757-5501
Attention: MJ Pritchett
Bondholder
Representative: Reliant CAP VIII, LLC
c/o Reliant Group Management, LLC
275 Battery Street, Suite 500
San Francisco, CA 94111
Attention: Caskie Collet
Telephone: (415) 501-9602
Facsimile: (415) 788-0435
The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture, provided, however, that subsequent to such facsimile
transmission of written instructions, the originally executed instructions and/or directions shall
be provided to the Trustee in a timely manner.
(b) The Trustee shall provide to the Bondholder Representative (i) prompt notice of
the occurrence of any Event of Default pursuant to Section 6.01 hereof and (ii) any written
information or other written communication received by the Trustee hereunder within ten
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(10) Business Days of receiving a written request from the Bondholder Representative for any
such information or other communication.
Section 11.06 [Reserved]
Section 11.07 Trustee as Paying Agent and Bond Registrar. The Trustee is hereby
designated and agrees to act as Paying Agent and Bond Registrar for and in respect to the Bonds.
When acting in either such capacity, the Trustee will receive the same rights, protections and
indemnifications afforded to the Trustee hereunder.
Section 11.08 Payments Due on Non-Business Days. In any case where a date of
payment with respect to any Bonds shall be a day other than a Business Day, then such payment
need not be made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on such date, and no interest shall accrue for the period after
such date providing that payment is made on such next succeeding Business Day.
Section 11.09 Counterparts. This Indenture 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 11.10 Governing Law. This Indenture and the Bonds shall be deemed to be
contracts made under the laws of the State and for all purposes shall be governed by and
construed in accordance with the laws of the State.
Section 11.11 No Personal Liability; No Recourse. No recourse under or upon any
obligation, covenant, warranty or agreement contained in this Indenture or in any Bond, or under
any judgment obtained against the Issuer, or the enforcement of any assessment, or any legal or
equitable proceedings by virtue of any constitution or statute or otherwise, or under any
circumstances under or independent of this Indenture, shall be had against any member of the
Board of Supervisors of the Issuer, the officers, agents or employees of the Issuer, as such, past,
present or future of the Issuer, either directly or through the Issuer or otherwise, f or the payment
for or to the Issuer or any receiver of the Issuer, or for or to the owner of any Bond, or otherwise,
of any sum that may be due and unpaid by the Issuer upon any such Bond. Any and all personal
liability of every nature whether at common law or in equity or by statute or by constitution or
otherwise of the officer, agent or employee, as such, by reason of any act of omission on his or
her part or otherwise, for the payment for or to the owner of any Bond or otherwise of any sum
that may remain due and unpaid upon the Bonds secured by this Indenture or any of them is, by
the acceptance of such Bond, expressly waived and released as a condition of and in
consideration for the execution of this Indenture and the issuance of the Bonds. Anything in this
Indenture to the contrary notwithstanding, it is expressly understood by the parties to this
Indenture that (a) the Issuer may rely exclusively on the truth and accuracy of any certificate,
opinion, notice or other instrument furnished to the Issuer by the Trustee or any Bondholder as to
the existence of any fact or state of affairs, (b) the Issuer shall not be under any obligation under
this Indenture to perform any record keeping or to provide any legal services, it being understood
that such services shall be performed or caused to be performed by the Trustee or by the
Bondholders and (c) none of the provisions of this Indenture shall require the Issuer to expend or
risk its own funds or otherwise to incur financial liability in the performance of any of its duties
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or in the exercise of any of its rights or powers under this Indenture, unless it shall first have
been adequately indemnified to its satisfaction against any costs, expenses and liability which it
may incur as a result of taking such action. No recourse for the payment of any part of the
principal of, premium, if any, or interest on the Bonds or for the satisfaction of any liability
arising from, founded upon or existing by reason of the issuance, purchase or ownership of the
Bonds shall be had against any member of the Board of Supervisors of the Issuer or any officer,
agent or employee of the Issuer, as such, all such liability being expressly released and waived as
a condition of and as a part of the consideration for the execution o f this Indenture and the
issuance of the Bonds. No covenant, stipulation, obligation or agreement of the Issuer contained
in this Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any
present or future member of the Board of Supervisors of the Issuer, officer, agent or employee of
the Issuer in other than that person's official capacity. No officer, agent or employee of the
Issuer shall be individually or personally liable for the payment of the principal or redemption
price of or interest on the Bonds or be subject to any personal liability or accountability by
reason of the issuance of the Bonds.
Section 11.12 Amendment of Original Indenture. This Indenture amends the
Original Indenture as of the Amendment Date and shall take effect on the Amendment Date.
This Indenture is entered into pursuant to Section 11.2 of the Original Indenture.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Indenture to be
executed and delivered by duly authorized officers thereof as of the day and year first written
above.
COUNTY OF CONTRA COSTA, as Issuer
By ____________________________________
John Kopchik, Director of the Department of
Conservation and Development
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By ____________________________________
Authorized Representative
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CONSENTED TO AND AGREED:
RELIANT – MIRA VISTA, L.P., a California
limited partnership, as Borrower
By: Rainbow-Mira Vista, LLC, a California
limited liability company, its Managing
General Partner
By: Rainbow Housing Assistance Corporation
a California nonprofit public benefit corporation,
its Managing Member
By: __________________________________
Flynann Janisse, Executive Director
By: Gung Ho – Mira Vista, LLC,
a California limited liability company
its Co-General Partner
By: Gung Ho Partners, LLC
a Delaware limited liability company,
acting solely with respect to its series 52,
its Sole Member
By: Reliant Group Management, LLC,
a California limited liability company,
its Manager
By: _____________________________________
Caskie Collet, Manager
RELIANT CAP VIII, LLC,
a California limited liability company,
as Bondholder
By: ___________________________________
Caskie Collet, Chief Operating Officer
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EXHIBIT A
FORM OF BOND
NO. R-___ $[________]
COUNTY OF CONTRA COSTA
MULTIFAMILY HOUSING REFUNDING REVENUE BONDS
(MIRA VISTA HILLS APARTMENTS PROJECT)
1999 SERIES H
THIS BOND MAY BE OWNED ONLY BY AN “ACCREDITED INVESTOR” (AS SUCH
TERM IS DEFINED IN THE INDENTURE REFERENCED BELOW), AND THE
HOLDER HEREOF, BY THE ACCEPTANCE OF THIS INDENTURE (A)
REPRESENTS THAT IT IS AN ACCREDITED INVESTOR OR OTHER PERMITTED
TRANSFEREE, AND (B) ACKNOWLEDGES THAT IT CAN ONLY TRANSFER THIS
BOND TO ANOTHER ACCREDITED INVESTOR OR OTHER PERMITTED
TRANSFEREE IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.
MATURITY DATE DATED DATE INTEREST RATE
October 15,2029 October 21, 1999 ____%
Registered Owner:
Principal Amount:
The County of Contra Costa, a political subdivision of the State of California (the
“Issuer”), for value received, hereby promises to pay (but only out of Revenues as hereinafter
provided) to the registered owner identified above or registered assigns, on the Maturity Date set
forth above, the principal sum set forth above and to pay (but only out of Revenues as hereinafter
provided) interest on the balance of said principal amount from time to time remaining unpaid
from and including the date hereof until payment of said principal amount has been made or duly
provided for, at the rates and on the dates determined as described herein and in the Indenture (as
hereinafter defined). The principal of and, on this Bond are payable at final maturity,
acceleration or redemption in lawful money of the United States of America upon surrender
hereof at the principal corporate trust office of U.S. Bank National Association, in
__________________, as Trustee, or its successor in trust (the “Trustee”). Payment of the
interest on any Bond shall be made on each Bond Pa yment Date (as hereinafter defined) to the
Person appearing on the bond registration books of the Bond Registrar as the Owner thereof on
the Record Date, such interest to be paid by the Paying Agent (i) to such Owner by check or draft
mailed on the Bond Payment Date, to such Owner’s address as it appears on the registration
books or at such other address as has been furnished to the Bond Registrar as provided below, in
writing by such Owner not later than the Record Date or (ii) upon written request, at least three
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OHSUSA:764324655.2
Business Days prior to the applicable Record Date, to the Owner of Bonds aggregating not less
than $1,000,000 in principal amount, by wire transfer in immediately available funds at an
account maintained in the United States at such wire address as such Owner shall specify in its
written notice; except, in each case, that, if and to the extent that there shall be a default in the
payment of the interest due on such Bond Payment Date, such defaulted interest shall be paid to
the Owner in whose name any such Bonds are registered at the close of business on the fifth to
last Business Day next preceding the date of payment of such defaulted interest.
The Bonds are limited obligations of the Issuer and, as and to the extent set forth in the
Indenture, are payable solely from, and secured by a pledge of and lien on, the Revenues . The
Bonds are all issued under and secured by and entitled to the benefits of an Amended and
Restated Trust Indenture, dated as of March 1, 2016 (the “Indenture”), between the Issuer and
the Trustee.
This Bond is one of a duly authorized issue of bonds of the Issuer designated as the
“County of Contra Costa Multifamily Housing Refunding Revenue Bonds (Mira Vista Hills
Apartments Project) 1999 Series H”, limited in aggregate principal amount of $10,655,000 (the
“Bonds”). Reference is hereby made to the Indenture and all indentures supplemental thereto for
a description of the rights thereunder of the registered owners of the Bonds, of the nature and
extent of the security, of the rights, duties and immunities of the Trustee and of the rights and
obligations of the Issuer thereunder, to all of the provisions of the Indenture and of the Financing
Agreement the holder of this Bond, by acceptance hereof, assents and agrees.
THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY
FROM THE TRUST ESTATE AND OTHER SOURCES PROVIDED THEREFOR IN THE
INDENTURE. THE BONDS ARE NOT A DEBT OF THE ISSUER, THE STATE OF
CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF. NEITHER THE FAITH
AND CREDIT NOR THE TAXING POWER OF THE STATE OF CALIFORNIA OR THE
ISSUER IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST
ON THE BONDS.
All terms not herein defined shall have the meanings ascribed to them in the Indenture.
The Bonds are issuable as fully registered bonds without coupons in denominations of
$100,000 or dollar amount in excess thereof (herein “Authorized Denominations”). Subject to
the limitations and upon payment of the charges, if any, provided in the Indenture, Bonds may be
exchanged at the Principal Corporate Trust Office of the Trustee and the Bond Registrar, for a
like aggregate principal amount of Bonds of other Authorized Denominations.
The Bonds may only be held by, or transferred to, an Accredited Investor (as defined in
the Indenture), with such Accredited Investor executing and delivering an Investor Letter in
the form attached as Exhibit B.
This Bond is transferable by the registered owner hereof, in person, or by its attorney
duly authorized in writing, at the Principal Corporate Trust Office of the Trustee and the Bond
Registrar, but only in the manner, subject to the limitations and upon payment of the charges
provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer
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a new fully registered Bond or Bonds, in an Authorized Denomination or Denominations, for the
same aggregate principal amount, will be issued to the transferee in exchange therefor. The
Issuer, the Trustee and the Bond Registrar may treat the registered owner hereof a s the absolute
owner hereof for all purposes, and the Issuer, the Trustee and the Bond Registrar shall not be
affected by any notice to the contrary.
Interest on the Bonds
Bond Payment Date has the meaning set forth in the Indenture.
Record Date means the 1st day of the month in which any Bond Payment Date falls.
Redemption of Bonds
The Bonds are subject to optional and mandatory redemption as set forth in the Indenture.
General Matters
The holder of this Bond shall have no right to institute any suit, action or proceeding at
law or in equity, for any remedy under or upon the Indenture, except as provided in the
Indenture.
No recourse shall be had for the payment of the principal of, or interest on any of the
Bonds or for any claim based thereon or upon any obligation, covenant or agreement in the
Indenture contained, against any past, present or future supervisor, officer, employee or agent of
the Issuer, or through the Issuer, or any successor to the Issuer, under any rule of law or equity,
statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all
such liability of any such member, director, officer, employee or agent as such is hereby
expressly waived and released as a condition of and in consideration for the execution of the
Indenture and the issuance of any of the Bonds.
Amendments Permitted
The Indenture contains provisions permitting the Issuer and the Trustee to execute
supplemental indentures with the written consent of the Bondholder Representative and the
Owners of more than fifty-one percent (51%) in aggregate principal amount of Bonds at the time
Outstanding, subject to certain conditions as set forth in the Indenture.
The Indenture also contains provisions permitting the Issuer and the Trustee to execute
supplemental indentures, without consent of the Owners of the Bonds, subject to certain
conditions as set forth in the Indenture.
The Indenture prescribes the manner in which it may be discharged and after which the
Bonds shall no longer be secured by or entitled to the benefits of the Indenture, except for the
purposes of transfer and exchange of Bonds and of payment of the principal of and interest on
the Bonds as the same become due and payable, including a provision that under certain
circumstances the Bonds shall be deemed to be paid if certain securities, as defined therein,
maturing as to principal and interest in such amounts and at such times as to ensure the
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availability of sufficient moneys to pay the principal of, and interest on the Bonds and all
necessary and proper fees, compensation and expenses of the Trustee shall have been deposited
with the Trustee.
No member or officer of the Issuer, nor any Person executing this Bond, shall in any
event be subject to any personal liability or accountability by reason of the issuance of the
Bonds.
It is hereby certified that all of the conditions, things and acts required to exist, to have
happened and to have been performed precedent to and in the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required by the
Constitution and statutes of the State of California.
This Bond shall not be entitled to any benefit under the Indenture, or become valid or
obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been
signed by the Bond Registrar.
In the event of any inconsistency between the provisions of this Bond and the provisions
of the Indenture, the provisions of the Indenture shall control.
IN WITNESS WHEREOF, the County of Contra Costa has caused this Bond to be duly
executed by the facsimile signature of an Authorized Officer all as of the date first written above.
COUNTY OF CONTRA COSTA
By:
Authorized Officer
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds issued under the provisions of and described in the
within-mentioned Indenture.
Date of Authentication: _______________
U.S. BANK NATIONAL ASSOCIATION
By_______________________________
Authorized Signer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security Number or other identifying number of assignee)
(Please Print or Typewrite Name and Address of Assignee)
the within bond and all rights thereunder, and hereby irrevocably constitutes and
appoints_____________________ attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: ________________.
Signature Guaranteed
___________________________
NOTICE: Signature(s) must be
guaranteed by an eligible guaranty
institution.
____________________________________
Signature
NOTICE: The Signature to this assignment
must correspond with the name as it appears
upon the face of the within Bond in every
particular, without alteration or enlargement
or any change whatever.
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EXHIBIT B
[Date]
County of Contra Costa
Martinez, California
U.S. Bank National Association
_________________________
_________________________
Re: County of Contra Costa Multifamily Housing Refunding
Revenue Bonds (Mira Vista Hills Apartments Project)
1999 Series H (the “Bonds”)
Ladies and Gentlemen:
The undersigned (the “Purchaser”) hereby acknowledges receipt of $_____________
aggregate principal amount of Bonds, in fully registered form, constituting [all] [a portion] of the
Bonds currently outstanding.
The undersigned acknowledges that the Bonds were issued for the purpose of making a
construction loan to assist in the refinancing of the construction and equipping of a multifamily
rental housing facility located in Contra Costa County, California (the “Project”).
In connection with the purchase of the Bonds by the Purchaser, the Purchaser hereby
makes the following representations upon which you may rely:
1. The Purchaser has authority to purchase the Bonds and to execute this letter and
any other instruments and documents required to be executed by the Purchaser in connection
with the purchase of the Bonds.
2. The Purchaser is an “accredited investor” (an “Accredited Investor”) as defined in
Regulation D promulgated under the Securities Act of 1933 (the “Act”), which has sufficient
knowledge and experience in financial and business matters, including purchase and ownership
of multifamily housing revenue bonds, to be able to evaluate the risks and merits of the
investment represented by our purchase of the Bonds and we can bear the economic risk of our
purchase and ownership of the Bonds.
3. The Bonds are being acquired by the Purchaser for investment purposes and not
with a present view to, or for resale in connection with, any distribution of the Bonds, and the
Purchaser intends to hold the Bonds for its own account for an indefinite period of time and does
not intend at this time to dispose of all or any pa rt of the Bonds. The Purchaser understands that
it may need to bear the risks of this investment for an indefinite time, since any sale prior to
maturity may not be possible.
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4. The Purchaser understands that the Bonds are not registered under the Act, and
further understands that the Bonds (a) are not being registered or otherwise qualified for sale
under the “Blue Sky” laws and regulations of any state, (b) will not be listed in any stock or other
securities exchange, (c) will not carry a rating from any rating service and (d) will be delivered in
a form which may not be readily marketable.
5. The Purchaser acknowledges that it has either been supplied with or been given
access to information, including financial statements and other financial information, to which a
reasonable Purchaser would attach significance in making investment decisions, and the
Purchaser has had the opportunity to ask questions and receive answers from knowledgeable
individuals concerning the owner of the Project, the Project and the Bonds and the security
therefor so that, as a reasonable Purchaser, the Purchaser has been able to make its own decision
to purchase the Bonds. The Purchaser acknowledges that it has not relied upon the Issuer for any
information in connection with the Purchaser’s purchase of the Bonds.
6. The Purchaser acknowledges that it has the right to sell and transfer the Bonds to
Accredited Investors in denominations of at least $100,000, subject to the delivery to the Trustee
of a purchaser’s letter from each transferee to the same effect as this Purchaser’s Letter, with no
material revisions except as may be approved in writing by the Issuer. Failure to deliver such
purchaser’s letter shall cause the purported transfer to be null and void.
7. The Purchaser hereby agrees to indemnify and hold harmless the Issuer and its
officers and employees with respect to such losses, damages, liabilities or related expenses as are
determined by a court of competent jurisdiction by a final and non-appealable judgment to have
resulted from sale, transfer or other disposition of the Bonds by the Purchaser in violation of the
terms of this letter.
[PURCHASER]
By:
Name:
Title:
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EXHIBIT C
Prepayment Premium Schedule
Any Prepayment Premium payable under Section 3.01 (c) of the Indenture shall be the
greater of:
(1) one percent (1%) of the amount of principal being prepaid; or
(2) the product obtained by multiplying:
(i) the amount of principal being prepaid,
by
(ii) the difference obtained by subtracting from the interest rate on the
Bonds, the Yield Rate (as defined below) on the twenty-fifth (25th) Business Day
preceding (i) the redemption date, or (ii) the date acceleration of the Loan or
otherwise accepts a prepayment,
by
(iii) the present value factor calculated using the following formula:
1 - (1 + r)-n/12
r
[r = Yield Rate
n = the number of months remaining between (i) either of the
following: (x) in the case of a voluntary prepayment, the
last day of the month in which the prepayment is made, or
(y) in any other case, the date on which the Loan is
accelerated the unpaid principal balance of the Loan and
(ii) July 15, 2029.
For purposes of this clause (2), the “Yield Rate” means the
yield calculated by interpolating the yields for the
immediately shorter and longer term U.S. “Treasury
constant maturities” (as reported in the Federal Reserve
Statistical Release H.15 Selected Interest Rates (the “Fed
Release”) under the heading “U.S. government securities”)
closest to July 15, 2029, as follows (rounded to three (3)
decimal places):
byzyx
ba
)()(
)(
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OHSUSA:764324655.2
a = the yield for the longer U.S. Treasury constant
maturity
b = the yield for the shorter U.S. Treasury constant
maturity
x = the term of the longer U.S. Treasury constant
maturity
y = the term of the shorter U.S. Treasury constant
maturity
z = “n” (as defined in the present value factor
calculation above) divided by twelve (12).
Notwithstanding any provision to the contrary, if “z” equals a term reported under the
U.S. “Treasury constant maturities” subheading in the Fed Release, the yield for such term shall
be used, and interpolation shall not be necessary. If publication of the Fed Release is
discontinued by the Federal Reserve Board, Bondholder Representative shall determine the Yield
Rate from another source selected by the Bondholder Representative. Any determination of the
Yield Rate by the Bondholder Representative will be binding absent manifest error.
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EXHIBIT D
[Reserved]
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EXHIBIT E
AMORTIZATION SCHEDULE
OHS DRAFT
1/22/16
OHSUSA:764324649.2
AMENDED AND RESTATED FINANCING AGREEMENT
among
COUNTY OF CONTRA COSTA,
as Issuer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
and
RELIANT-MIRA VISTA, LP, a California Limited Partnership,
as Borrower
Relating to
COUNTY OF CONTRA COSTA
MULTIFAMILY HOUSING REFUNDING REVENUE BONDS
(MIRA VISTA HILLS APARTMENTS PROJECT)
1999 SERIES H
Dated as of March 1, 2016
Amending and restating Financing Agreement dated as of October 1, 1999
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS .................................................................................................. 2
Section 1.1. Definitions............................................................................................ 2
Section 1.2. Interpretation ........................................................................................ 2
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS ...................... 2
Section 2.1. Representations, Warranties and Covenants of the Issuer ................... 2
Section 2.2. Representations, Warranties and Covenants of the Borrower ............. 3
Section 2.3. Representations and Warranties of the Trustee ................................... 6
Section 2.4. Arbitrage and Rebate Fund Calculations ............................................. 7
Section 2.5. Tax Covenants of the Borrower ........................................................... 7
Section 2.6. Enforcement of Loan Documents ........................................................ 8
ARTICLE III THE LOAN ....................................................................................................... 8
Section 3.1. [Reserved] ............................................................................................ 8
Section 3.2. Terms of the Loan ................................................................................ 8
Section 3.3. [Reserved] ............................................................................................ 8
Section 3.4. Assignment to Trustee ......................................................................... 8
Section 3.5. Investment of Funds ............................................................................. 8
Section 3.6. Damage; Destruction and Eminent Domain ........................................ 9
ARTICLE IV LOAN PAYMENTS ......................................................................................... 9
Section 4.1. Payments Under the Note; Independent Obligation of Borrower ........ 9
Section 4.2. Payment of Certain Fees and Expenses ............................................... 9
Section 4.3. Additional Payments .......................................................................... 10
Section 4.4. Prepayment of Loan ........................................................................... 11
Section 4.5. Borrower’s Obligations Upon Redemption ....................................... 11
ARTICLE V SPECIAL COVENANTS OF BORROWER ................................................. 12
Section 5.1. Performance of Obligations ............................................................... 12
Section 5.2. Compliance With Applicable Laws ................................................... 12
Section 5.3. Indenture Provisions .......................................................................... 12
Section 5.4. [Reserved] .......................................................................................... 12
Section 5.5. Borrower to Maintain Its Existence; Certification of No Default ...... 12
Section 5.6. Borrower to Remain Qualified in State and Appoint Agent .............. 13
TABLE OF CONTENTS
(continued)
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Section 5.7. Sale or Other Transfer of Project ....................................................... 13
Section 5.8. Right to Perform Borrower’s Obligations.......................................... 13
Section 5.9. Notice of Certain Events .................................................................... 13
Section 5.10. Survival of Covenants ........................................................................ 13
Section 5.11. Access to Project; Records................................................................. 13
Section 5.12. [Reserved ........................................................................................... 14
Section 5.13. Damage, Destruction and Condemnation .......................................... 14
Section 5.14. [Reserved] .......................................................................................... 14
Section 5.15. Filing of Financing Statements .......................................................... 14
ARTICLE VI INDEMNIFICATION..................................................................................... 14
Section 6.1. Borrower’s Obligations ...................................................................... 14
Section 6.2. Defense of Claims .............................................................................. 16
Section 6.3. Borrower's Continuing Obligation ..................................................... 16
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ................................................. 17
Section 7.1. Events of Default ............................................................................... 17
Section 7.2. Remedies on Default .......................................................................... 17
Section 7.3. No Remedy Exclusive........................................................................ 18
Section 7.4. Agreement to Pay Attorneys’ Fees and Expenses ............................. 18
Section 7.5. No Additional Waiver Implied by One Waiver ................................. 18
ARTICLE VIII MISCELLANEOUS ....................................................................................... 19
Section 8.1. Notices ............................................................................................... 19
Section 8.2. Concerning Successors and Assigns .................................................. 19
Section 8.3. Governing Law .................................................................................. 19
Section 8.4. Modifications in Writing.................................................................... 19
Section 8.5. Further Assurances and Corrective Instruments ................................ 20
Section 8.6. Captions ............................................................................................. 20
Section 8.7. Severability ........................................................................................ 20
Section 8.8. Counterparts ....................................................................................... 20
Section 8.9. Amounts Remaining in Bond Fund or Other Funds .......................... 20
Section 8.10. Effective Date and Term .................................................................... 20
TABLE OF CONTENTS
(continued)
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OHSUSA:764324649.2
Section 8.11. Cross References ................................................................................ 20
Section 8.12. Waiver of Personal Liability .............................................................. 20
Section 8.13. Limited Liability ................................................................................ 21
Section 8.14. No Liability of Officers ..................................................................... 21
Section 8.15. Capacity of the Trustee ...................................................................... 21
Section 8.16. Reliance.............................................................................................. 21
Section 8.17. Amendment of Original Financing Agreement ................................. 22
AMENDED AND RESTATED FINANCING AGREEMENT
THIS AMENDED AND RESTATED FINANCING AGREEMENT (this “Financing
Agreement”), dated as of March 1, 2016, by and among the COUNTY OF CONTRA COSTA
(the “Issuer”), a political subdivision of the State of California (the “State”), U.S. BANK
NATIONAL ASSOCIATION, a national banking association, organized and operating under
the laws of the United States of America, as successor trustee (together with any successor
trustees appointed under the Indenture, the “Trustee”), and RELIANT-MIRA VISTA, L.P., a
limited partnership duly organized and existing under the laws of the State of California
(together with its successors and assigns permitted hereunder, the “Borrower”), and amending
and restating that certain Financing Agreement, dated as of October 1, 1999 (the “Original
Financing Agreement”), by and among the Issuer, the Trustee and the Borrower, as assignee of
Runaway Bay, LLC, a Delaware limited liability company, the assignee of Delta Square -Oxford
Limited Partnership, a Maryland limited partnership;
W I T N E S S E T H:
WHEREAS, the Issuer is authorized by Article 11 of Chapter 3 of Part 1 of Division 2 of
the Government Code of the State of California (the “Refunding Law”) to issue revenue bonds
for the purpose of refinancing the acquisition, construction and development of multifamily
rental housing and for the provision of capital improvements in connection therewith and
determined necessary thereto; and pursuant to the Refunding Law and a Trust Indenture, dated as
of October 1, 1999 (the “Original Indenture”), by and between the Issuer and the Trustee, the
Issuer issued its County of Contra Costa Variable Rate Multifamily Housing Refunding Revenue
Bonds (Delta Square Apartments Project) 1999 Series H (the “Bonds”) to refinance the
acquisition and construction of a multifamily residential development now known as “Mira Vista
Hills Apartments” (the “Project”) and made a Loan to the Borrower (the “Loan”) evidenced by a
promissory note (the “Original Note”) and secured by a deed of trust (the Original Mortgage”);
WHEREAS, the Bonds are outstanding in the aggregate principal amount of
$10,655,000 and all of the Bonds are presently owned by Reliant C AP VIII, LLC, a California
limited liability company (the “Bondholder”); and
WHEREAS, the Borrower has requested the Issuer and the Trustee to enter into an
Amended and Restated Trust Indenture, dated as of March 1, 2016 (the “Indenture”), and this
Financing Agreement and to approve an amendment and restatement of the Original Note (as
amended and restated, the “Note”) and an amendment and restatement of the Original Mortgage
(as amended, the “Mortgage”), and that the Bondholder approve the execution and delivery of
this Indenture, the Financing Agreement, the Note and the Mortgage; and
WHEREAS, the Issuer and the Trustee have agreed to execute and deliver the Indenture
and this Financing Agreement and have approved the execution and delivery of the Note and the
Mortgage and the Bondholder has approved the execution and delivery of th e Indenture, this
Financing Agreement, the Note and the Mortgage; and
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NOW, THEREFORE, for and in consideration of the mutual covenants and
representations hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. All words and phrases (except for “Event of Default”)
defined in the Indenture shall have the same meanings for the purposes of this Financing
Agreement. In addition to the words and phrases defined in the Indenture and elsewhere herein,
the following words and phrases shall have the following meanings:
“Event of Default” means any of those events specified in and defined by the applicable
provisions of Article VII hereof to constitute an event of default.
“Financing Agreement” means this Financing Agreement, together with any amendments
hereto.
“Taxes” means all taxes, water rents, sewer rents, assessments and other governmental or
municipal or public or private dues, fees, charges and levies and any liens (including federal tax
liens) which are or may be levied, imposed or assessed upon the Project or any part thereof, or
upon any leases pertaining thereto, or upon the rents, issues, income or profits thereof, whether
any or all of the aforementioned be levied directly or indirectly or as excise taxes or as income
taxes.
Section 1.2. Interpretation. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders. Words importing the
singular number shall include the plural number and vice versa unless the context shall otherwise
indicate. Words importing persons include firms, partnerships, limited liability companies, joint
ventures, associations and corporations. References to Articles, Sections and other subdivisions
of this Financing Agreement are the Articles, sections and other subdivisions of this Financing
Agreement as originally executed.
The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof” and any similar terms
refer to this Financing Agreement; the term “heretofore” means before the date of execution of
this Financing Agreement; and the term “hereafter” means after the date of execution of this
Financing Agreement.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations, Warranties and Covenants of the Issuer. The Issuer
makes the following representations, warranties and covenants:
(a) The Issuer is a political subdivision of the State and is duly authorized to issue the
Bonds and to perform its obligations under this Financing Agreement.
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OHSUSA:764324649.2
(b) All requirements have been met and procedures have occurred in order to
authorize the execution and delivery of this Financing Agreement. The Issuer has taken all
necessary action and has complied with all provisions of the law required to make this
Agreement a valid and binding limited obligation of the Issuer, except to the extent limited by
bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by
the application of equitable principles regardless of whether enforcement is sought in a
proceeding at law or in equity, or by public policy.
(c) The Bonds have been duly issued by the Issuer. Nothing in this Financing
Agreement shall be construed as requiring the Issuer to provide any financing for the Project
other than the proceeds of the Bonds or to provide sufficient moneys for all of the cost of
financing the Project.
(d) To the best knowledge of the Issuer, there is no action, suit, proceeding, inquiry or
investigation by or before any court, governmental agency or public board or body pending or
threatened against the Issuer that (i) affects or seeks to prohibit, restrain or enjoin the execution
or delivery of the Indenture or this Financing Agreement, (ii) affects or questions the validity or
enforceability of the Bonds or the Loan Documents or (iii) questions the tax-exempt status of
interest on the Bonds.
Section 2.2. Representations, Warranties and Covenants of the Borrower. The
Borrower makes the following representations, warranties and covenants, all of which, together
with the other representations and agreements of the Borrower contained in this Financing
Agreement, are relied upon by the Issuer and the Trustee and serve as a basis for the
undertakings of the Issuer and the Trustee contained in this Financing Agreement:
(a) The Borrower is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of California and duly qualified to conduct its business under
the laws of the State and in every other state in which the nature of its business requires such
qualification, has full legal right, power and authority to enter into this Financing Agreement and
the other Loan Documents, and to carry out and consummate all transactions contemplated
hereby and by the other Loan Documents, and by proper partnership action has duly authorized
the execution, delivery and performance of this Financing Agreement and the other Loan
Documents. All general partners, if any, of the Borrower are duly organized and in good
standing under the laws of their respective states of organization and are duly qualified to
transact business in the State.
(b) The Borrower has the legal right, power and authority to (i) own its properties and
assets, including, but not limited to, the Project, (ii) to carry on its business as now being
conducted and the Borrower contemplates it to be conducted with respect to the Project and
(iii) execute and deliver, carry out its obligations under, and close the transactions provided for
in, the Loan Documents to which it is a party.
(c) The Loan Documents have been duly authorized, executed and delivered by the
Borrower.
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(d) This Financing Agreement when assigned to the Trustee pursuant to the Indenture
and the other Loan Documents will constitute the legal, valid and binding agreements of the
Borrower enforceable against the Borrower by the Trustee in accordance with their terms for the
benefit of the Bondholders, and any rights of the Issuer and obligations of the Borrower not so
assigned to the Trustee constitute the legal, valid, and binding agreements of the Borrower
enforceable against the Borrower by the Issuer in accordance with their terms; except in each
case as enforcement may be limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors’ rights generally, by the application of equitable principles regardless of
whether enforcement is sought in a proceeding at law or in equity and by public policy.
(e) No consent or approval of any trustee or holder of any indebtedness of the
Borrower, and to the best knowledge of the Borrower and with respect to the Borrower, no
consent, permission, authorization, order or license of, or filing or registration with, any
governmental authority (except with respect to any state securities or “blue sky” laws) is
necessary in connection with the execution and delivery of this Financing Agreement or the other
Loan Documents or the consummation of any transaction herein or therein contemplated, or the
fulfillment of or compliance with the terms and conditions hereof or thereof, except as have been
obtained or made and as are in full force and effect.
(f) The execution and delivery of this Financing Agreement and the other Loan
Documents, the consummation of the transactions herein and therein contemplated and the
fulfillment of or compliance with the terms and conditions hereof and thereof, will not conflict
with or constitute a violation or breach of or default (with due notice or the passage of time or
both) under (i) the organizational or other governing documents of the Borrower or to the best
knowledge of the Borrower and with respect to the Borrower, (ii) any applicable law or
administrative rule or regulation, or any applicable court or administrative decree or order,
(iii) any mortgage, deed of trust, Financing Agreement, lease, contract or other agreement or
instrument to which the Borrower is a party or by which it or its properties or assets are
otherwise subject or bound, or (iv), except as provided in the Loan Documents, 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, which conflict, violation, breach, default, lien, charge or
encumbrance might have consequences that would materially and adversely affect the
consummation of the transactions contemplated by this Financing Agreement or the Loan
Documents, or the financial condition, assets, properties or operations of the Borrower.
(g) There is no action, suit, proceeding, inquiry or investigation, before or by any
court or federal, state, municipal or other governmental authority, pending, or to the knowledge
of the Borrower, after reasonable investigation, threatened, against or affecting the Borrower or
the assets, properties or operations of the Borrower which, if determined adversely to the
Borrower or its interests, would have a material adverse effect upon the consummation of the
transactions contemplated by, or the validity of, this Financing Agreement or the other Loan
Documents or upon the financial condition, assets, properties or operations of the Borrower, and
the Borrower is not in default (and no event has occurred and is continuing which with the giving
of notice or the passage of time or both could constitute a default) with respect to any order or
decree of any court or any order, regulation or demand of any federal, state, municipal or other
governmental authority, which default might have consequences that would materially and
adversely affect the consummation of the transactions contemplated by this Financing
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Agreement or the other Loan Documents or the financial condition, assets, properties or
operations of the Borrower. All tax returns (federal, state and local) required to be filed by or on
behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest
and penalties, except such, if any, as are being actively contested by the Borrower in good faith,
have been paid or adequate reserves have been made for the payment thereof which reserves, if
any, are reflected in the audited financial statements described therein. The Borrower enjoys the
peaceful and undisturbed possession of all of the premises upon which it is operating its
facilities.
(h) The Project and the operation of the Project (in the manner contemplated by th e
Loan Documents) conform with the requirements of the Act as well as all applicable zoning,
planning, building and environmental laws, ordinances and regulations of governmental
authorities having jurisdiction over the Project in effect as of the Amendment Date.
(i) The Borrower is not in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any agreement or instrument to
which it is a party which default would materially adversely affect the tran sactions contemplated
by the Loan Documents or the operations of the Borrower or the enforceability of the Loan
Documents to which the Borrower is a party or the ability of the Borrower to perform all
obligations thereunder.
(j) The Borrower agrees to pay all costs of maintenance and repair, all Taxes and
assessments, insurance premiums (including public liability insurance and insurance against
damage to or destruction of the Projects) concerning or in any way related to the Projects, or any
part thereof, and any expenses or renewals thereof, and any other governmental charges and
impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments
concerning or in any way related to the Projects.
(k) All of the partnership interests in the Borrower are validly issued and are fully
registered, if required, with the applicable governmental authorities and/or agencies, and, except
as set forth in the Borrower’s partnership agreement, there are no outstanding options or rights to
purchase or acquire those interests. Nothing in this Financing Agreement shall prevent the
Borrower from issuing additional partnership interests if such units are issued in accordance with
all applicable securities laws.
(l) The representations and warranties of the Borrower contained in the Regulatory
Agreement are true and accurate.
(m) The information, statements or reports furnished in writing to the Issuer by the
Borrower in connection with this Financing Agreement or the consummation of the transactions
contemplated hereby do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in light of the circumstances
under which they were made, not misleading; and the representations and warrant ies of the
Borrower and the statements, information and descriptions contained in the Borrower’s closing
certificates, as of the Amendment Date, are true and correct in all material respects, do not
contain any untrue statement of a material fact, and do not omit to state a material fact necessary
to make the representations, warranties, statements, information and descriptions contained
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therein, in the light of the circumstances under which they were made, not misleading; and any
estimates or the assumptions contained in any certificate of the Borrower delivered as of the
Amendment Date are reasonable.
(n) All financial statements and information heretofore delivered to the Issuer by
Borrower, including without limitation, information relating to the financial condition of
Borrower, the Project, the partners, joint venturers or members of Borrower, and/or any
guarantor, fairly and accurately present the financial position thereof and have been prepared
(except where specifically noted therein) in accordance with generally accepted accounting
principles consistently applied. Since the date of such statements, there has been no material
adverse change in the financial condition or results of operations of the Borrower or the other
subjects of such statements.
(o) The Borrower shall pay and indemnify the Issuer and the Trustee against all
reasonable fees, costs and charges, including reasonable fees and expenses of attorneys,
accountants, consultants and other experts, incurred in good faith (and with respect to the
Trustee, without negligence) and arising out of or in connection with the Bond Documents, the
Bonds or the Indenture. These obligations and those in Section 2.5 shall remain valid and in
effect notwithstanding repayment of the loan hereunder or the Bonds or termination of this
Financing Agreement or the Indenture.
(p) The Borrower acknowledges, represents and warrants that it understands the
nature and structure of the transactions relating to the financing of the Projects; that it is familiar
with the provisions of all of the documents and instruments relating to such financing to which
the Borrower is a party or of which it is a beneficiary, including the Indenture; that it understands
the risks inherent in such transactions; and that it has not relied on the Issuer for any guidance or
expertise in analyzing the financial or other consequences of the transactions contemplated by
the Bond Documents and the Indenture or otherwise relied on the Issuer for any advice.
Section 2.3. Representations and Warranties of the Trustee. The Trustee makes the
following representations and warranties:
(a) The Trustee is a national banking association, duly organized and existing under
the laws of the United States of America. The Trustee is duly authorized to act as a fiduciary and
to execute the trust created by the Indenture, and meets the qualifications to act as Trustee under
the Indenture.
(b) The Trustee has complied with the provisions of law which are prerequisite to the
consummation of, and has all necessary power (including trust powers) and authority (i) to
execute and deliver this Financing Agreement and the other Loan Documents to which it is a
party, (ii) to perform its obligations under this Financing Agreement and the other Loan
Documents to which it is a party, and (iii) to consummate the transactions contemplated by this
Financing Agreement and the other Loan Documents to which it is a party.
(c) The Trustee has duly authorized (i) the execution and delivery of this Financing
Agreement and the other Loan Documents to which it is a party, (ii) the performance by the
Trustee of its obligations under this Financing Agreement and the other Loan Documents to
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which it is a party, and (iii) the actions of the Trustee contemplated by this Financing Agreement
and the other Loan Documents to which it is a party.
(d) Each of the Loan Documents to which the Trustee is a party has been duly
executed and delivered by the Trustee and, assuming due authorization, execution and delivery
by the other parties thereto, constitutes a valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of
creditors generally and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(e) No approval, permit, consent, authorization or order of any court, governmental
agency or public board or body not already obtained is required to be obtained by the Trustee as
a prerequisite to (i) the execution and delivery of this Financing Agreement and the other Loan
Documents to which the Trustee is a party (ii ) the authentication or delivery of the Bonds,
(iii) the performance by the Trustee of its obligations under this Financing Agreement and the
other Loan Documents to which it is a party, or (iv) the consummation of the transactions
contemplated by this Financing Agreement and the other Loan Documents to which the Trustee
is a party. The Trustee makes no representation or warranty relating to compliance with any
federal or state securities laws.
Section 2.4. Arbitrage and Rebate Fund Calculations. The Borrower shall (a) take or
cause to be taken all actions necessary or appropriate in order to fully and timely comply with
Section 4.13 of the Indenture, and (b) if required to do so under Section 4.13 of the Indenture,
select at the Borrower’s expense, a Rebate Analyst reasonably acceptable to the Issuer for the
purpose of making any and all calculations required under Section 4.13 of the Indenture. Such
calculations, if required, shall be made in the manner and at such times as specified in Section
4.13 of the Indenture. The Borrower shall cause the Rebate Analyst to provide such calculations
to the Trustee and the Issuer at such times and with such directions as are necessary to comply
fully with the arbitrage and rebate requirements set forth in the Indenture and to comply fully
with Section 148 of the Code, including the timely payment of any arbitrage rebate owed.
Section 2.5. Tax Covenants of the Borrower. The Borrower covenants and agrees
that:
(a) It will at all times comply with the terms of the Tax Certificate and the Regulatory
Agreement;
(b) It will not take, or permit to be taken on its behalf, any action which would cause
the interest payable on the Bonds to be included in gross income, for federal income tax
purposes, and will take such action as may be necessary in the opinion of Bond Counsel to
continue such exclusion from gross income, including, without limitation, the preparation and
filing of all statements required to be filed by it in order to maintain the exclusion (including, but
not limited to, the filing of all reports and certifications required by the Regulatory Agreement);
(c) No changes will be made to the Projects, no actions will be taken by the Borrower
and the Borrower will not omit to take any actions, which will in any way adversely affect the
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tax-exempt status of the Bonds;
(d) It will comply with the requirements of Section 148 of the Code and the
Regulations issued thereunder throughout the term of the Bonds and will not make any use of the
proceeds of the Bonds, or of any other funds which may be deemed to be proceeds of the Bonds
under the Code and the related regulations of the United States Treasury, which would cause the
Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code;
(e) If the Borrower becomes aware of any situation, event or condition which would,
to the best of its knowledge, result in the interest on the Bonds becoming includable in gross
income for purposes of federal income tax purposes, it will promptly give written notice of such
circumstance, event or condition to the Issuer, and the Trustee.
In the event of a conflict between the terms of this Section 2.5 and the Tax Certificate,
the terms of the Tax Certificate shall control.
Section 2.6. Enforcement of Loan Documents. The Trustee may enforce and take all
reasonable steps, actions and the proceedings necessary for the enforcement of all terms,
covenants and conditions of the Loan Documents as and to the extent set forth therein.
ARTICLE III
THE LOAN
Section 3.1. [Reserved] .
Section 3.2. Terms of the Loan. The Loan shall (i) be evidenced by the Note; (ii) be
secured by the Mortgage; (iii) be in the aggregate principal amount outstanding on the
Amendment Date of $10,655,000; (iv) bear interest at a rate of ____% per annum; (v) provide
for principal and interest payments in accordance with the Note and this Financing Agreement;
and (vi) be subject to optional and mandatory prepayment at the times, in the manner and on the
terms, and have such other terms and provisions, as provided herein and in the Note.
Section 3.3. [Reserved] .
Section 3.4. Assignment to Trustee. The parties hereto acknowledge, and the
Borrower consents to, the assignment by the Issuer to the Trustee pursuant to the Indenture of all
of the Issuer’s right, title and interest in this Financing Agreement (excluding the Unassigned
Rights), the Loan, the Mortgage and the Revenues as security for the payment of the principal of,
premium, if any, and interest on the Bonds.
Section 3.5. Investment of Funds. Except as otherwise provided in the Indenture, any
money held as a part of any fund or account established under the Indenture shall be invested or
reinvested by the Trustee in Qualified Investments in accordance with the Indenture.
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Section 3.6. Damage; Destruction and Eminent Domain. If, prior to payment in full
of the Bonds, the Project or any portion thereof is destro yed or damaged in whole or in part by
fire or other casualty, or title to, or the temporary use of, the Project or any portion thereof shall
have been taken by the exercise of the power of eminent domain, and the Issuer, the Borrower,
the Trustee receives Net Proceeds from insurance or any condemnation award in connection
therewith, such Net Proceeds shall be utilized as provided in the Loan Documents and the
Indenture.
ARTICLE IV
LOAN PAYMENTS
Section 4.1. Payments Under the Note; Independent Obligation of Borrower.
(a) The Borrower shall pay to the Trustee, from Excess Cash Flow, for deposit into
the Bond Fund, on the 5th day of each month commencing on April 5, 2016, in good funds
delivered no later than 9:00 am Pacific time, an amount equal to the sum of (i) one third of (A)
the amount due as payment on the Bonds on the next succeeding Bond Payment Date in
accordance with the payment schedule attached to the Indenture as Exhibit E (with pro rata
adjustment for deposits made prior to the initial Bond Payment Date) plus (B) the cumulative
amount that any prior payments on the Bonds were less than the amount shown such Exhibit E to
the Indenture for the corresponding period, plus (ii) if any prior monthly payment the same
quarter was less than one third of the amount due on the next Bond Payment Date (the amount of
such deficiency being referred to herein as the “Shortfall”), the Shortall to the extent such
Shortfall was not paid in a previous month. Amounts so paid to the Trustee by the Borrower
shall be in immediately available funds or shall be such that on the Interest Payment Date they
are available funds. Nothing in this Agreement shall prohibit Bo rrower from making payments
on the Note from Borrower’s funds in excess of Excess Cash Flow.
(b) The obligations of the Borrower to repay the Loan, to perform all of its
obligations under the Loan Documents, to provide indemnification pursuant to Section 6.1
hereof, to pay costs, expenses and charges pursuant to Section 4.2 hereof and to make any and all
other payments required by this Financing Agreement, the Indenture or any other documents
contemplated by this Financing Agreement or by the Loan Documents shall, subject to the
limitations set forth in Section 5.1 hereof, be absolute and unconditional and shall not be subject
to diminution by setoff, recoupment, counterclaim, abatement or otherwise.
(c) Notwithstanding anything contained in any other provision of this Financing
Agreement to the contrary (but subject to the provisions of Section 5.1 hereof), the following
obligations of the Borrower shall be and remain the joint and several full recourse obligations of
the Borrower and each of the Borrower’s general partners, payable from and enforceable against
any and all income, assets and properties of the Borrower: (i) the Borrower’s obligations to the
Issuer and the Trustee under Section 4.2 of this Financing Agreement; (ii) the Borrower’s
obligations under Section 6.1 of this Financing Agreement; and (iii) the Borrower’s obligation to
pay legal fees and such expenses under Section 7.4 of this Financing Agreement.
Section 4.2. Payment of Certain Fees and Expenses.
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(a) The Borrower shall pay (or cause to be paid by the Trustee), on the Amendment
Date, the following fees, expenses and other money payable in connection with the Loan:
(i) On or prior to the Amendment Date, to the Issuer, an amount equal to
$_________ plus all third-party and out-of-pocket expenses of the Issuer (including but
not limited to the fees and expenses of counsel to the Issuer) in connection with the
execution and delivery of the Indenture and this Financing Agreement.
(ii) On the Amendment Date, to the Trustee, all third party and out-of-pocket
expenses of the Trustee (including but not limited to the fees and expenses of counsel to
the Trustee) in connection with the execution and delivery of the Indenture and this
Financing Agreement.
Section 4.3. Additional Payments. The Borrower covenants to pay all third-party fees
of the financing, including but not limited to the following:
(a) All taxes and assessments of any type or character charged to the Issuer or to t he
Trustee affecting the amount available to the Issuer or the Trustee from payments to be received
hereunder or in any way arising due to the transactions contemplated hereby (including taxes and
assessments assessed or levied by any public agency or governmental authority of whatsoever
character having power to levy taxes or assessments) but excluding franchise taxes based upon
the capital and/or income of the Trustee and taxes based upon or measured by the net income of
the Trustee; provided, however, that the Borrower shall have the right to protest any such taxes
or assessments and to require the Issuer or the Trustee, at the Borrower’s expense, to protest and
contest any such taxes or assessments levied upon them and that the Borrower shall have the
right to withhold payment of any such taxes or assessments pending disposition of any such
protest or contest unless such withholding, protest or contest would adversely affect the rights or
interests of the Issuer or the Trustee;
(b) All reasonable fees, charges and expenses of the Trustee for services rendered
under the Indenture, as and when the same become due and payable;
(c) The Issuer Fee, and the reasonable fees and expenses of the Issuer or any agents,
attorneys, accountants, consultants selected by the Issuer to act on its behalf in connection with
this Financing Agreement, the Regulatory Agreements, the Bonds or the Indenture, including,
without limitation, any and all reasonable expenses incurred in connection with the authorization,
issuance, sale and delivery of the Bonds or in connection with any litigation which may at any
time be instituted involving this Financing Agreement, the Regulatory Agreements, the
Financing Agreement, the Bonds or the Indenture or any of the other documents contempl ated
thereby, or in connection with the reasonable supervision or inspection of the Borrower, its
properties, assets or operations or otherwise in connection with the administration of the
foregoing; all payments for fees and expenses of the Issuer shall be made by the Borrower to the
Issuer or to any payee designated by the Issuer not later than thirty (30) days after receipt of
invoices rendered to the Borrower by the Issuer.
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(d) These obligations and those in Section 6.1 shall remain valid and in effect
notwithstanding repayment of the loan hereunder or termination of this Financing Agreement or
the Indenture.
Section 4.4. Prepayment of Loan. The Borrower shall have the option to prepay the
Loan in full or in part prior to the payment and discharge of all the outstanding Bonds in
accordance with the provisions of the Indenture, this Financing Agreement and the Note, upon
payment of any amount due under the next succeeding paragraph. The Borrower shall be
required to prepay the Loan in each case that Bonds are required to be redeemed in accordance
with the terms and conditions set forth in the Indenture.
The Bonds are subject to redemption in accordance with the terms and conditions set
forth in the Indenture. In connection with any prepayment, whether optional or mandatory, in
addition to all other payments required under the Note, the Borrower shall pay an amount
sufficient to pay the redemption price of the Bonds to be redeemed, including principal, interest
and premium (if any), and further including any interest to accrue with respect to the Loan and
such Bonds between the prepayment date and the redemption date, together with a sum sufficient
to pay all fees, costs and expenses in connection with such redemption and, in the case of
redemption in whole, to pay all other amounts payable under this Financing Agreement and the
Indenture. The Borrower shall provide notice of the optional prepayment to the Issuer, and the
Trustee in writing thirty (30) days prior to the date on which the Borrower will make the
prepayment. Each such notice shall state, to the extent such information is available, (a) the
amount to be prepaid, (b) the date on which the prepayment will be made by the Borrower, and
(c) the cause for the prepayment, if any.
The Loan is subject to optional or mandatory prepayment in whole or in part on such
dates and at such prices as the Bonds are subject to redemption under the Indenture.
Section 4.5. Borrower’s Obligations Upon Redemption. In the event of any
redemption, the Borrower will timely pay, to the Trustee an amount equal to the principal
amount of such Bonds or portions thereof called for redemption, together with interest accrued to
the redemption date and premium (if any). In addition, the Borrower will timely pay all fees,
costs and expenses associated with any redemption of Bonds.
In the event of a partial redemption of Bonds pursuant to Section 3.01(a), the Borrower
shall, in accordance with Section 3.02 of the Indenture, provide to the Trustee a revised
Exhibit E to the Indenture showing adjusted principal amortization of the Bonds following such
partial redemption.
Section 4.6. Partial Release of Mortgage. Upon receipt of written direction from the
Bondholder Representative, the Borrower shall execute and file such documents as may be
necessary in connection with a partial release of the Mortgage, whether upon partial redemption
of the Bonds or otherwise.
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ARTICLE V
SPECIAL COVENANTS OF BORROWER
Section 5.1. Performance of Obligations. The Borrower shall keep and faithfully
perform all of its covenants and undertakings contained herein and in the Loan Documents,
including, without limitation, its obligations to make all payments set forth herein and therein in
the amounts, at the times and in the manner set forth herein and therein.
Except as otherwise provided herein or in the Loan Documents, the obligations of the
Borrower under this Financing Agreement are non-recourse liabilities of the Borrower and
neither Borrower nor its partners shall have any personal liability hereunder. The Bond
Purchaser’s sole remedy against Borrower after an Event of Default shall be to exercise its rights
under the Mortgage and no deficiency judgment shall be obtained against the Borrower.
However, nothing in this Section 5.1 shall limit the right of the Issuer or the Trustee to proceed
against the Borrower to recover any fees owing to any of them or any actual out-of-pocket
expenses (including but not limited to actual out-of-pocket attorneys’ fees incurred by any of
them) incurred by any of them in connection with the enforcement of any rights under this
Financing Agreement or the other Loan Documents. In any action or proceeding brought with
respect to the Loan or the Bonds, no deficiency or other money judgment shall be enforced
against the Borrower or any partner of the Borrower or any successor or assign of the Borrower ,
and any judgment obtained shall be enforced only against the Projects and other property of the
Borrower encumbered by the Loan Documents and not against the Borrower or any partner of
the Borrower or any successor or assign of the Borrower.
Section 5.2. Compliance With Applicable Laws. All work performed in connection
with the Projects shall be performed in strict compliance with all applicable federal, state, county
and municipal laws, ordinances, rules and regulations now in force or that may be enacted
hereafter.
Section 5.3. Indenture Provisions. The execution of this Financing Agreement shall
constitute conclusive evidence of approval of the Indenture by the Borrower. Whenever the
Indenture by its terms imposes a duty or obligation upon the Borrower, such duty or obligation
shall be binding upon the Borrower to the same extent as if the Borrower were an express party
to the Indenture, and the Borrower shall carry out and perform all of its obligations under the
Indenture as fully as if the Borrower were a party to the Indenture.
Section 5.4. [Reserved] .
Section 5.5. Borrower to Maintain Its Existence; Certification of No Default.
(a) The Borrower agrees to maintain its existence and maintain its current legal status
with authority to own and operate the Project.
(b) In addition to performing all other similar requirements under the Loan
Documents to which the Borrower is a party, the Borrower shall, within thirty (30) days after the
end of each calendar year, render to the Trustee a certificate executed by an Authorized Officer
of the Borrower to the effect that the Borrower is not, as of the date of such certificate, in default
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OHSUSA:764324649.2
of any of its covenants, agreements, representations or warranties under any of the Loan
Documents to which the Borrower is a party and that, to the best of the Borrower’s knowledge,
after reasonable investigation, there has occurred no default or Event of Default (as such terms
are defined in each respective Loan Document) under any of the Loan Documents.
Section 5.6. Borrower to Remain Qualified in State and Appoint Agent . The
Borrower will remain duly qualified to transact business in the State and will maintain an agent
in the State on whom service of process may be made in connection with any actions against the
Borrower.
Section 5.7. Sale or Other Transfer of Project. The Borrower may convey and
transfer the Project only upon strict compliance with the provisions of the Regulatory
Agreements and the Loan Documents.
Section 5.8. Right to Perform Borrower’s Obligations. In the event the Borrower fails
to perform any of its obligations under this Financing Agreement, the Issuer or the Trustee, after
giving 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 or the Trustee shall
become an additional obligation of the Borrower hereunder, payable on demand and if not paid
on demand with interest thereon at the default rate of interest payable under the Loan
Documents.
Section 5.9. Notice of Certain Events. The Borrower shall promptly advise the Issuer
and the Trustee in writing of the occurrence of any Event of Default hereunder or any event
which, with the passage of time or service of notice or both, would constitute an Event of
Default, specifying the nature and period of existence of such event and the actions being taken
or proposed to be taken with respect thereto.
Section 5.10. Survival of Covenants. The provisions of Sections 2.4, 4.2, 6.1 and 7.4 of
this Financing Agreement shall survive the expiration or earlier termination of this Financing
Agreement and, with regard to the Trustee, the resignation or removal of the Trustee.
Section 5.11. Access to Project; Records. Subject to reasonable notice, the Issuer and
the Trustee, and the respective duly authorized agents of each, shall have the right (but not any
duty or obligation) at all reasonable times and during normal business hours: (a) to enter the
Projects and any other location containing the records relating to the Borrower, the Projects, the
Loan and the Borrower’s compliance with the terms and conditions of the Loan Documents; (b)
to inspect and audit any and all of the Borrower’s records or accounts pertaining to the Borrower,
the Projects, the Loan and the Borrower’s compliance with the terms and conditions of the Loan
Documents; and (c) to require the Borrower, at the Borrower’s sole expense, (i) to furnish such
documents to the Issuer and the Trustee, as the Issuer or the Trustee, as the case may be, from
time to time, deems reasonably necessary in order to determine that the provisions of the Loan
Documents have been complied with and (ii) to make copies of any records that the Issuer or the
Trustee or the respective duly authorized agents of each, may reasonably require. The Borrower
shall make available to the Issuer and the Trustee, such information concerning the Projects, the
Mortgage and the Loan Documents as any of them may reasonably request.
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Section 5.12. [Reserved].
Section 5.13. Damage, Destruction and Condemnation. If prior to full payment of the
Bonds (or provision for payment of the Bonds in accordance with the provisions of the
Indenture) the Projects or any portion of it is destroyed (in whole or in part) or is damaged by
fire or other casualty, or title to, or the temporary use of, the Projects or any portion of it shall be
taken under the exercise of the power of eminent domain by any governmental body or by an y
person, firm or corporation acting under governmental authority, or shall be transferred pursuant
to an agreement or settlement in lieu of eminent domain proceedings, the Borrower shall
nevertheless be obligated to continue to pay the amounts specified in this Financing Agreement
and in the Note to the extent the Loan is not prepaid in accordance with the terms of the Loan
Documents.
Section 5.14. [Reserved] .
Section 5.15. Filing of Financing Statements. The Borrower shall file or record or
cause to be filed or recorded on or prior to the Amendment Date all financing statements which
are required to be filed or recorded in order fully to protect and preserve the security interes ts
relating to the priority of the Loan, the Trust Estate and the Mortgage, and the rights and powers
of the Issuer and the Trustee in connection with such security interests. The Borrower shall
cooperate with the Trustee in connection with the filing of any continuation statements for
purposes of continuing without lapse the effectiveness of such financing statements.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Borrower’s Obligations. The Borrower releases the Issuer, the Trustee
and their respective officers, directors, agents, officials, employees (and, as to the Issuer,
members of its governing body) and any person who controls the Issuer or the Trustee within the
meaning of the Securities Act of 1933, from, and covenants and agrees to indemnify, hold
harmless and defend the Issuer, the Trustee and their respective officers, directors, employees,
agents, members of its governing body, officials and any person who controls such party within
the meaning of the Securities Act of 1933 and employees and each of them (each an
"Indemnified Party") from and against, any and all losses, claims, damages, demands, liabilities
and expenses (including attorney's fees and expenses), taxes, causes of action, suits, claims,
demands and judgments of any nature, joint or several, by or on behalf of any person arising out
of:
(i) the transactions provided for in the Loan Documents or otherwise in connection
with the Project, the Bonds or the Loan;
(ii) the execution and delivery or amendment of any document entered into in
connection with the transactions provided for in the Loan Documents, including any
certifications or representations made by any person other than the party seeking
indemnification;
(iii) the approval of the refinancing for the Project;
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(iv) the Loan;
(v) any and all claims arising in connection with the interpretation, performance,
enforcement, breach, default or amendment of the Loan Documents or any other documents
relating to the Project or the Bonds or in connection with any federal or state tax audit, or any
questions or other matters arising under such documents;
(vi) as to the Trustee, the Trustee's acceptance or administration of the trusts created
by the Indenture or the exercise of its powers or duties under the Indenture, this Financing
Agreement, the Regulatory Agreement or any other agreements to which it is a party or
otherwise in connection with the transactions provided for in the Loan Documents;
(vii) any and all claims arising in connection with (a) the issuance, sale or remarketing
of any Bonds or any certifications or representations made by any person other than the party
seeking indemnification, including, but not limited to, any (1) statement or information made b y
the Borrower with respect to the Borrower or the Project in any offering document or materials
regarding the Bonds, the Project or the Borrower or in the Tax Certificate of the Borrower or in
any other certificate executed by the Borrower which, at the time made, is misleading, untrue or
incorrect in any material respect, (2) untrue statement or alleged untrue statement of a material
fact made by the Borrower relating to the Borrower or the Project contained in any offering
material relating to the sale of the Bonds, as from time to time amended or supplemented, or
arising out of or based upon the omission or alleged omission to state in such offering material a
material fact relating to the Borrower or the Project required to be stated in such offering
material or necessary in order to make the statements in such offering material not misleading,
(3) failure to properly register or otherwise qualify the sale of the Bonds or failure to comply
with any licensing or other law or regulation which would affect the manner in which or to
whom the Bonds could be sold and (b) the carrying out by the Borrower of any of the
transactions provided for in the Bond Documents and the Mortgage Loan Documents;
(viii) the Borrower's failure to comply with any requirement of this Financing
Agreement or the Regulatory Agreement; and
(ix) any act or omission of the Borrower or any of its agents, servants, employees or
licensees in connection with the Loan or the Project, including violation of any law, ordinance,
court order or regulation affecting the Project or any part of it or the ownership, occupancy or
use of it;
(x) any damage or injury, actual or claimed, of whatsoever kind, cause or character,
to property (including loss of use of property) or persons, occurring or allegedly occurring in, on
or about the Project or arising out of any action or inaction of the Borrower, whether or not
related to the Project, or resulting from or in any way connected with the construction or
management of the Project, the issuance of the Bonds or otherwise in connection with
transactions provided for in the Loan Documents or otherwise in connection with the Project, the
Bonds or the execution or amendment of any document relating to the Project or the Bonds;
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(xi) any violation, other than a violation by the party seeking indemnification, of any
environmental law, rule or resolution applicable to, or the release of any toxic substance from,
the Project;
(xii) any and all claims arising in connection with the operation of the Project, or the
conditions, environmental or otherwise, occupancy, use, possession, conduct or supervision of
work done in or about, or from the planning, design, acquisition, construction, repair or
equipping of, the Project or any part of it; and
This indemnification shall extend to and include, without limitation, all reasonable costs,
counsel fees, expenses or liabilities incurred in connection with any such claim, or proceeding
brought with respect to such claim, except (a) in the case of the foregoing indemnification of the
Trustee or any of their respective Indemnified Parties, to the extent such damages are caused by
the negligence or willful misconduct of such Person, and (b) in the case of the foregoing
indemnification of the Issuer or any of its Indemnified Parties, to the extent such damages are
caused by the willful misconduct of such Person.
Section 6.2. Defense of Claims.. In the event that any action or proceeding is brought
against any Indemnified Party with respect to which indemnity may be sought under this
Financing Agreement, the Borrower, upon written notice from the Indemnified Party, shall
assume the investigation and defense of the action or proceeding, including the engagement 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 reasonable expenses related to the action or
proceeding, with full power to litigate, compromise or settle the same in its sole discretion,
provided that the Issuer and/or the Trustee, as appropriate, shall have the right to review and
approve or disapprove any such compromise or settlement. Each Indemnified Party shall have
the right to engage separate counsel in any such action or proceeding and participate in the
investigation and defense of the action or proceeding and the Borrower shall be obligated to pay
the reasonable fees and expenses of such separate counsel if (a) the Indemnified Party determines
that a conflict of interest exists between the interests of the Indemnified Party and the interests of
the Borrower or (b) such separate counsel is engaged with the approval of the Borrower, which
approval shall not be unreasonably withheld, conditioned or delayed.
Section 6.3. Borrower's Continuing Obligation. Notwithstanding any transfer of the
Project to another owner, the Borrower shall remain obligated to indemnify each Indemnified
Party pursuant to this Article IX for all matters arising prior to the date of such transfer, and, as a
condition to the release of the transferor on and after the transfer date, the transferee must
assume the obligations of the Borrower under the Bond Documents, and the Mortgage Loan
Documents on and after such transfer date and indemnify each Indemnified Party pursuant to this
Article IX for all matters arising on and after the date of such transfer. The Indemnified Party's
rights under this Article IX shall survive the termination of this Financing Agreement, the
payment of the Mortgage Loan and the payment or defeasance of the Bonds.
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default. The following shall be “Events of Default” under this
Financing Agreement and the term “Event of Default” shall mean, whenever it is used in this
Financing Agreement, one or all of the following events:
(a) Any representation or warranty made by the Borrower in the Loan Documents or
any certificate, statement, data or information furnished by the Borrower in connection therewith
or included by the Borrower in its application to the Issuer for assistance proves at any time to
have been incorrect when made in any material respect;
(b) Failure by the Borrower to pay any amounts due under this Financing Agreement,
the Note or the Mortgage at the times and in the amounts required by this Financing Agreement,
the Note and the Mortgage, as applicable, to the extent Excess Cash Flow was available at such
time to make such payment; or
(c) The Borrower’s failure to observe and perform any of its other covenants,
conditions or agreements contained herein, other than as referred to in clause (a) above, for a
period of thirty (30) days after written notice specifying such failure and requesting that it be
remedied is given by the Issuer or the Trustee to the Borrower; provided, however, that if the
failure shall be such that it can be corrected but not within such period, the Borrower shall
commence the cure within such 30 day period and diligently pursue the cure until the failure is
corrected;
Nothing contained in this Section is intended to amend or modify any of the provisions of
the Loan Documents or to bind the Issuer or the Trustee to any notice and cure periods other than
as expressly set forth in the Loan Documents.
Section 7.2. Remedies on Default. Whenever any Event of Default hereunder shall
have occurred and be continuing, the Trustee or the Issuer, with the prior written consent of the
Bondholder Representative (as such term is defined in the Indenture), where so provided may
take any one or more of the following remedial steps:
(a) The Issuer shall cooperate with the Trustee as the Trustee acts pursuant to
Section 6.02 of the Indenture.
(b) In the event any of the Bonds shall at the time be Outstanding and not paid and
discharged in accordance with the provisions of the Indenture, the Issuer or the Trustee may have
access to and inspect, examine and make copies of the books and records and any and all
accounts, data and income tax and other tax returns of the Borrower.
(c) The Issuer or the Trustee may, without being required to give any notice (other
than to the Issuer or the Trustee, as applicable), except as provided herein, pursue all remedies of
a creditor under the laws of the State, as supplemented and amended, or any other applicable
laws.
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(d) The Issuer or Trustee may take whatever action at law or in equity may appear
necessary or desirable to collect the payments due under this Financing Agreement then due and
thereafter to become due, or to enforce performance and observance of any obligation,
agreement or covenant of the Borrower under this Financing Agreement.
Any amounts collected pursuant to Article IV and any other amounts which would be
applicable to payment of principal of and interest and any premium on the Bonds collected
pursuant to action taken under this Section shall be applied in accordance with the provisions of
the Indenture.
The provisions of this Section are subject to the further limitation that if, after any Event
of Default hereunder 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 o n
behalf of the Borrower, and 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 and the Trustee, including reasonable attorneys’ fees paid or incurred in
connection with such default, and if there shall then be no default existing under the Indenture,
then and in every such case such Event of Default hereunder shall be waived and annulled, but
no such waiver or annulment shall affect any subsequent or other Event of Default or impair any
right consequent thereon.
The Issuer hereby agrees that any cure of any Event of Default hereunder made or
tendered by the Investor Limited Partner shall be deemed to be cured by the Borrower, and shall
be accepted or rejected by the Issuer on the same basis as if made or tendered by the Borrower.
Section 7.3. No Remedy Exclusive. No remedy conferred upon or reserved to the
Issuer or the Trustee by this Financing Agreement is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Financing Agreement or now or hereafter
existing at law or in equity or by statute. 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 thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the Issuer or the Trustee to exercise any
remedy reserved to it in this Article VII, it shall not be necessary to give any notice, other than
such notice as may be expressly required by this Financing Agreement.
Section 7.4. Agreement to Pay Attorneys’ Fees and Expenses. In the event the
Borrower should default under any of the provisions of this Financing Agreement and the Issuer
or the Trustee should employ attorneys or incur other expenses for the collection of loan
payments or the enforcement of performance or observance of any obligation or agreement on
the part of the Borrower contained in this Financing Agreement or in the Note, the Borrower
shall on demand therefor reimburse the reasonable fees of such attorneys and such other
expenses so incurred.
Section 7.5. No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Financing Agreement should be breached by any party and thereafter
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waived by the other parties, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other breach hereunder.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Notices. Whenever in this Financing Agreement the giving of notice by
mail or otherwise is required, the giving of such notice may be waived in writing by the person
entitled to receive such notice and in any such case the giving or receipt of such notice shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
Any notice, request, complaint, demand, communication or other paper required or
permitted to be delivered to the Issuer, the Trustee, or the Borrower shall be sufficiently given
and shall be deemed given (unless another form of notice shall be specifically set forth herein) on
the Business Day following the date on which such notice or other communication shall have
been delivered to a national overnight delivery service (receipt of which to be evidenced by a
signed receipt from such overnight delivery service) addressed to the appropriate party at the
addresses set forth in Section 11.05 of the Indenture or upon receipt such notice or other
communication delivered by facsimile transmission as required or permitted by this Financing
Agreement (receipt of which shall be evidenced by confirmation of transmission). The Issuer,
the Trustee or the Borrower may, by notice given as provided in this paragraph, designate any
further or different address to which subsequent notices or other communication shall be sent.
The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Financing Agreement, provided, however, that subsequent to
such facsimile transmission of written instructions shall provide the originally executed
instructions and/or directions shall be provided to the Trustee in a timely manner.
Section 8.2. Concerning Successors and Assigns. All covenants, agreements,
representations and warranties made herein and in the certificates delivered pursuant hereto shall
survive the financing herein contemplated and shall continue in full force and effect so long as
the obligations hereunder are outstanding. Whenever in this Financing Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the successors and assigns
of such party; and all covenants, promises and agreements by or on behalf of the Borrower which
are contained in this Financing Agreement shall bind its successors and assigns and inure to the
benefit of the successors and assigns of the Issuer and the Trustee.
Section 8.3. Governing Law. This Financing Agreement and the Bonds shall be
deemed to be contracts made under the laws of the State and for all purposes shall be governed
by and construed in accordance with the laws of the State.
Section 8.4. Modifications in Writing. Modification or the waiver of any provisions of
this Financing Agreement or consent to any departure by the parties therefrom, shall in no event
be effective unless the same shall be in writing approved by the parties hereto and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given and so long as the interests of any Bondholders are not adversely affected and the Trustee
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consents in writing thereto. No notice to or demand on the Borrower in any case shall entitle it
to any other or further notice or demand in the same circumstances.
Section 8.5. Further Assurances and Corrective Instruments. The Issuer, the Trustee
and the Borrower agree that they will, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements hereto and such further
instruments as may reasonably be required for correcting any inadequate or incorrect description
of the performance of this Financing Agreement.
Section 8.6. Captions. The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Financing
Agreement.
Section 8.7. Severability. The invalidity or unenforceability of any provision of this
Financing Agreement shall not affect the validity of any other provision, and all other provisions
shall remain in full force and effect.
Section 8.8. Counterparts. This Financing Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto and hereto were upon the same
instrument.
Section 8.9. Amounts Remaining in Bond Fund or Other Funds . It is agreed by the
parties hereto that any amounts remaining in the Bond Fund or other funds and accounts
established under the Indenture upon expiration or sooner termination of the term hereof, shall be
paid in accordance with the Indenture.
Section 8.10. Effective Date and Term. This Financing Agreement shall become
effective upon its execution and delivery by the parties hereto, shall be effective and remain in
full force from the date hereof, and, subject to the provisions hereof, shall expire on such date as
the Indenture shall terminate.
Section 8.11. Cross References. Any reference in this Financing Agreement to an
“Exhibit,” an “Article,” a “Section,” a “Subsection” or a “Paragraph” shall, unless otherwise
explicitly provided, be construed as referring, respectively, to an exhibit attached to this
Financing Agreement, an article of this Financing Agreement, a section of this Financing
Agreement, a subsection of the section of this Financing Agreement in which the reference
appears and a paragraph of the subsection within this Financing Agreement in which the
reference appears. All exhibits attached to or referred to in this Financing Agreement are
incorporated by reference into this Financing Agreement.
Section 8.12. Waiver of Personal Liability. No supervisor, officer, agent or employee
of the Issuer or any director, officer, agent or employee of the Borrower shall be individually or
personally liable for the payment of any principal (or Redemption Price) or interest on the Bonds
or any other sum hereunder or be subject to any personal liability or accountability by reason of
the execution and delivery of this Financing Agreement, but nothing herein contained shall
relieve any such member, director, officer, agent or employee from the performance of any
official duty provided by law or by this Financing Agreement.
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Section 8.13. Limited Liability. All obligations of the Issuer incurred under this
Financing Agreement, the Regulatory Agreement and the Indenture shall be limited obligations
of the Issuer, payable solely and only from the Trust Estate. The Bonds shall be payable solely
from the Trust Estate, 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 Issuer, the State or any political subdivision or
other public body of the State, nor to enforce the payment of the Bonds against any property of
Issuer, the State or any such political subdivision or other public body, except as provided in the
Indenture. No member, officer, agent, director, employee, attorney or member of the Board of
Supervisors of the Issuer, including any person executing this Financing Agreement on behalf of
the Issuer, shall be liable personally under this Financing Agreement or for any reason relating to
the issuance of the Bonds. No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on the Bonds, or for any claim based on the Bonds, or otherwise
in respect of the Bonds, or based on or in respect of this Financing Agreement or any amendment
to this Financing Agreement, against any member, officer, employee, director, agent , attorney or
member of the Board of Supervisors of the Issuer, 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 of this Financing Agreement and
as part of the consideration for the issuance of the Bonds, expressly waived and released.
Section 8.14. No Liability of Officers. No recourse under or upon any obligation,
covenant, or agreement or in any Bonds, or under any judgment obtained against the Issuer, or
by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any
constitution or statute or otherwise or under any circumstances, shall be had against any
incorporator, member, director, commissioner, employee, agent or officer, as such, past, present,
or future, of the Issuer, either directly or through the Issuer, or otherwise, for the payment for or
to the Issuer or any receiver thereof, or for or to the Owner of any Bonds, of any sum that may be
due and unpaid by the Issuer upon any of the Bonds. Any and all personal liability of every
nature, whether at common law or in equity, or by statute or by constitution or otherw ise, of any
such incorporator, member, director, commissioner, employee, agent or officer, as such, to
respond by reason of any act or omission on his or her part or otherwise, for the payment for or
to the Issuer or any receiver thereof, or for or to the Owner of any Bonds, of any sum that may
remain due and unpaid upon the Bonds or any of them, is hereby expressly waived and released
as a condition of and consideration for the execution of this Financing Agreement and the release
and conversion of the Bonds.
Section 8.15. Capacity of the Trustee. The Trustee is entering into this Financing
Agreement solely in its capacity as Trustee and shall be entitled to the rights, protections,
limitations from liability and immunities afforded it as Trustee under the Indenture. The Trustee
shall be responsible only for the duties of the Trustee expressly set forth herein and in the
Indenture.
Section 8.16. Reliance. The representations, covenants, agreements and warranties set
forth in this Financing Agreement may be relied upon by the Issuer and the Trustee. In
performing their duties and obligations under this Financing Agreement and under the Indenture,
the Issuer and the Trustee may rely upon statements and certificates of the Borrower, upon
certificates of tenants believed to be genuine and to have been executed by the proper person or
persons, and upon audits of the books and records of the Borrower pertaining to occupancy of
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the Projects. In addition, the Issuer and the Trustee may consult with counsel, and the opinion of
such counsel shall be full and complete authorization and protection in respect of any action
taken or suffered by the Issuer or the Trustee under this Financing Agreement and under the
Indenture in good faith and in conformity with the opinion of such counsel. It is expressly
understood and agreed by the parties to this Financing Agreement (other than the Issuer) that:
(a) the Issuer may rely conclusively on the truth and accurac y of any certificate,
opinion, notice or other instrument furnished to the Issuer by the Trustee, any Bondholder or the
Borrower as to the existence of a fact or state of affairs required under this Financing Agreement
to be noticed by the Issuer;
(b) the Issuer shall not be under any obligation to perform any record keeping or to
provide any legal service, it being understood that such services shall be performed or caused to
be performed by the Trustee or the Borrower, as applicable; and
(c) none of the provisions of this Financing Agreement shall require the Issuer or the
Trustee to expend or risk its own funds (apart from the proceeds of Bonds issued under the
Indenture) or otherwise endure financial liability in the performance of any of its duties or in the
exercise of any of its rights under this Financing Agreement, unless it shall first have been
adequately indemnified to its satisfaction against the costs, expenses and liabilities which may be
incurred by taking any such action.
Section 8.17. Amendment of Original Financing Agreement. This Financing
Agreement amends the Original Financing Agreement as of the Amendment Date.
[Signature Pages Follow]
OHSUSA:764324649.2
IN WITNESS WHEREOF, the parties hereto have executed this Financing Agreement all
as of the date first set forth above.
COUNTY OF CONTRA COSTA
By
John Kopchik
Director of the Department of
Conservation and Development
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By
Authorized Representative
OHSUSA:764324649.2
RELIANT - MIRA VISTA, L.P., a California Limited
Partnership
By: Rainbow - Mira Vista, LLC, a California limited
liability company, its Managing General Partner
By: Rainbow Housing Assistance Corporation, a
California nonprofit public benefit corporation, its
Managing Member
By
Flynann Janisse, Executive Director
By: Gung Ho – Mira Vista, LLC, a California limited
liability company, its Co-General Partner
By: Gung Ho Partners, LLC, a Delaware|
limited liability company, acting solely
with respect to its series 52,
its Sole Member
By: Reliant Group Management, LLC,
a California limited liability
company, its Manager
By:_________________________
Caskie Collet, Manager
CONSENTED TO AND AGREED:
RELIANT CAP VIII, LLC,
a California limited liability company,
as Bondholder
By:
EXHIBIT A
[TO COME]
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