HomeMy WebLinkAboutMINUTES - 09252012 - D.1RECOMMENDATION(S):
OPEN the public hearing on financing 2012 projects, pursuant to Section 6586.5 of the Government Code of
the State of California, in connection with plans by the Contra Costa Public Financing Authority to issue 2012
Lease Revenue Obligations (Capital Projects Program), RECEIVE testimony, and CLOSE the public hearing;
1.
ACKNOWLEDGE and reaffirm previous approvals of projects;2.
ADOPT Resolution No. 2012/352, approving the issuance by the County of Contra Costa Public Financing
Authority of Lease Revenue Obligations (Capital Projects Program), 2012 Lease Revenue Obligations in a
principal amount not to exceed $16 million to finance various capital projects, authorizing the forms of and
directing the execution and delivery of the Trust Agreement, Site Lease, Facility Sublease and Loan
Agreement, and related financing documents; and
3.
AUTHORIZE the taking of necessary actions and the execution of necessary documents in connection
therewith.
4.
FISCAL IMPACT:
Estimated costs and sources of funding, including lease revenue obligations, for the projects to be financed have
been previously approved by the Board of Supervisors and meet the County’s established Debt Management Policy.
The uses of obligation proceeds are for
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 09/25/2012 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Mary N. Piepho, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor
Contact: Lisa Driscoll, County Finance
Director (925) 335-1023
I hereby certify that this is a true and correct copy of an action taken and entered on the
minutes of the Board of Supervisors on the date shown.
ATTESTED: September 25, 2012
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: Robert Campbell, Auditor-Controller, Russell Watts, Treasurer-Tax Collector
D. 1
To:Board of Supervisors
From:David Twa, County Administrator
Date:September 25, 2012
Contra
Costa
County
Subject:Hearing on 2012 Series A Lease Revenue Obligation, Adoption of Resolution 2012/352 and Related Documents
FISCAL IMPACT: (CONT'D)
(1) acquisition, construction, improvement, and/or equipping of all or a portion of the Martinez Wellness Center,
Parking Lot E, and the Crisis Residential Center.
The lease revenue obligations will be structured with level fiscal year debt service. The maximum aggregate
principal amount for 2012 Lease Revenue Obligations is $16.0 million, which will fund the projects and costs of
issuance of the obligations. It is anticipated that the actual principal amount of the 2012 Lease Revenue
Obligations will be about $13.2 million. The net fiscal year debt service cost for the project obligations is
approximately $1.2 million, of which about 51% is attributable to Martinez Wellness Center, 11.6% is attributable
to Parking Lot E and 37.4% is attributable to the Crisis Residential Facility. All of the costs will be allocated to the
County's Hospital Enterprise Fund I.
BACKGROUND:
This board action has three purposes: 1) provides for a public hearing; 2) approves the 2012 capital projects; and
3) approves Resolution 2012/352.
PUBLIC HEARING
Joint Powers Authority (JPA) law requires that a public hearing be held before financing projects so that the
public can be informed of what is being planned and be given an opportunity to speak. The County intends to
issue Lease Revenue Obligations to finance the 2012 Capital projects. The potential uses of the 2012 Lease
Revenue Obligations is to finance a portion of the potential projects listed below.
2012 CAPITAL PROJECTS
Martinez Wellness Center
A new, 10,000-square-foot, single-story, outpatient ambulatory and mental health clinic is planned for the Contra
Costa Regional Medical Center (CCRMC) campus, in close proximity to the existing inpatient hospital building.
The new clinic will replace a smaller, deteriorated health clinic building that was recently demolished. The new
Martinez Wellness Center will provide essential ambulatory medical and mental health care services for County
residents. 76% of the square footage will be devoted to medical care, and 24% to Mental Health services, with
separate entrances and interior separation for the two programs. There will be 16 medical exam rooms and space
for support functions.
Parking Lot E
The Contra Costa Regional Medical Center Campus has experienced on-going parking shortages for visitors and
patients for years. A new surface parking lot E is planned for a site near the hospital building and the new
outpatient Wellness Center. Parking Lot E will be approximately 46,760 square feet in size and will provide 80
new visitor and staff parking stalls, including 5 ADA spaces. The site was previously occupied by two deteriorated
buildings, which have been demolished. The increased parking capacity will deal with anticipated service
increases, in particular from the new Martinez Wellness Center. The latter project will eliminate 26 parking spaces
that must be replaced, as well as generate demand for additional patient parking.
Crisis Residential Facility
The new Crisis Residential Facility will provide a 24-hour residential treatment program as an alternative to
hospitalization. In addition, the program will provide a transitional level of care for patients leaving hospital but
needing further assistance while re-entering the community. The CRF will be a 6,600 s.f., two-story facility that
includes space for 16 residents. As a self-contained program intended to provide a non-institutional setting for
care, the facility will also include a living room, a dining room, kitchen, a library, and administrative and support
spaces. Staffing will include psychiatrists, nurses, clinical specialists, and peer providers (mental health patients
who have completed required training).
All of the Lease Revenue Obligations will be fixed rate under the terms of a Loan Agreement with the County,
County of Contra Costa Public Financing Authority, and Banc of America Public Capital Corp.
RESOLUTION 2012/352
Resolution 2012/352 provides for the Board of Supervisors to approve and direct the issuance by the County of
Contra Costa Public Financing Authority of additional lease revenue obligations called the 2012 Lease Revenue
Obligations. It authorizes the forms of and directs the execution and delivery of the Trust Agreement, Site Lease,
Facility Sublease and Loan Agreement. These documents allow the County to pledge collateral/County owned
facilities (in this case, 50 Douglas Drive and, once the projects are completed, possibly the entire 20 Allen
facility) as security for the obligations as well as prescribe the terms of the obligations themselves. The
transaction is a loan with Banc of America Public Capital Corp. Because it is a Loan, the County does not need to
undertake a public sale and obtain ratings, which reduces the costs of issuance and administration burden
associated with the transaction.
A companion to this item is Resolution 2012/353. Resolution 2012/353 1) authorizes and approves issuance of the
lease revenue obligations and the loan with Banc of America Public Capital Corp through a Loan Agreement; 2)
authorizes the issuance of the lease revenue obligations by the Authority, in an aggregate principal amount of not
to exceed $16 million for the financing of the Martinez Wellness Clinic, Parking Lot E and the Crisis Residential
Facility and the funding of issuance costs; and 3) authorizes the execution of the forms of the Trust Agreement,
Loan Agreement, Site Lease and Facility Sublease to consummate the transaction.
CONSEQUENCE OF NEGATIVE ACTION:
Inability to issue obligations and possible delay in projects.
CHILDREN'S IMPACT STATEMENT:
None.
CLERK'S ADDENDUM
CLOSED the public hearing; ACKNOWLEDGED and reaffirmed previous approvals of projects; ADOPTED
Resolution No. 2012/352, approving the issuance by the County of Contra Costa Public Financing Authority of
Lease Revenue Obligations (Capital Projects Program), 2012 Lease Revenue Obligations in a principal amount
not to exceed $16 million to finance various capital projects, authorizing the forms of and directing the
execution and delivery of the Trust Agreement, Site Lease, Facility Sublease and Loan Agreement, and related
financing documents; and AUTHORIZED the taking of necessary actions and the execution of necessary
documents in connection therewith.
ATTACHMENTS
Resolution No. 2012/352
Body of Resolution 2012/352 and Clerk's Certificate
Trust Agreement
Site Lease
Facility Sublease
Master Loan Agreement
Orrick, Herrington & Sutcliffe 9/11/12
OHSUSA:750956245.6
TRUST AGREEMENT
between the
COUNTY OF CONTRA COSTA PUBLIC FINANCING AUTHORITY
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
Dated as of October 1, 2012
$[Par Amount]
County of Contra Costa Public Financing Authority
Lease Revenue Obligations
2012 Series A
OHSUSA:750956245.6
THIS TRUST AGREEMENT dated as of October 1, 2012 (the “Trust
Agreement”), by and between the COUNTY OF CONTRA COSTA PUBLIC FINANCING
AUTHORITY (the “Authority”), a joint exercise of powers authority duly organized and existing
pursuant to an Agreement entitled “Joint Exercise of Powers Agreement” by and between the
County of Contra Costa and the Contra Costa County Redevelopment Agency, and WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States of America and qualified to accept and administer
the trusts hereby created, as trustee (the “Trustee”);
W I T N E S S E T H:
WHEREAS, the Authority is a joint exercise of powers authority duly organized
and operating pursuant to Chapter 5 of Division 7 of Title 1 of the Government Code of the State
of California (hereinafter, the “Act”);
WHEREAS, Article 4 of the Act authorizes and empowers the Authority to issue
bonds and any other evidences of indebtedness to assist local agencies in financing projects and
programs consisting of certain public improvements or working capital or liability and other
insurance needs whenever a local agency determines that there are significant public benefits
from so doing;
WHEREAS, the County of Contra Costa (the “County”) following a public
hearing duly noticed and held, has determined that the consummation of the transactions
contemplated in the Sublease (as hereinafter defined) and this Trust Agreement will result in
significant public benefits;
WHEREAS, the Authority is empowered pursuant to the Sublease and the
aforementioned Article 4 of the Act to cause the lease of the Facilities (as hereinafter defined),
and to cause the financing of the Project (as hereinafter defined) through the issuance of its debt
obligations;
WHEREAS, the County has determined to finance various capital projects as set
forth in Exhibit D to the Sublease (as amended from time to time, the “2012 Project”);
WHEREAS, the Authority intends to assist the County in financing the 2012
Project by executing a direct loan agreement with Banc of America Public Capital Corp (the
“Lender”) pursuant to which it will undertake to pay loan repayments (the “2012 Loan
Obligations”);
WHEREAS, the County will lease to the Authority certain capital assets of the
County (the “Facilities”) pursuant to the Site Lease (as hereinafter defined);
WHEREAS, the County will lease back the Facilities from the Authority pursuant
to the terms of the Sublease;
2 OHSUSA:750956245.6
WHEREAS, the Authority has authorized the undertaking of the 2012 Loan
Obligations, in an aggregate principal amount not to exceed [______] dollars ($[Par Amount]) to
assist in financing the 2012 Project;
WHEREAS, to reduce the borrowing costs of the Authority and the base rental
payments of the County, and to help the financing of the 2012 Project, from which significant
public benefit will be achieved, the 2012 Loan Obligations shall be undertaken pursuant to
Article 4 of the Act;
WHEREAS, to provide for the authentication and delivery of the Obligations (as
hereinafter defined), to establish and declare the terms and conditions upon which the
Obligations are to be executed and delivered and secured and to secure the full and timely
repayment of the principal thereof and premium, if any, and interest thereon, the Authority has
authorized the execution and delivery of this Trust Agreement; and
WHEREAS, the Authority has determined that all acts and proceedings required
by law necessary to make the Obligations, when executed and delivered by the Authority the
valid, binding and legal obligations of the Authority payable in accordance with their terms, and
to constitute this Trust Agreement a valid and binding agreement of the parties hereto for the
uses and purposes herein set forth, have been done and taken, and have been in all respects duly
authorized;
NOW, THEREFORE, THIS TRUST AGREEMENT WITNESSETH, that in
order to secure the full and timely payment of the principal of, premium, if any, and the interest
on all Obligations at any time executed, delivered and secured under this Trust Agreement,
according to their tenor, and to secure the performance and observance of all the covenants and
conditions therein and herein set forth, and to declare the terms and conditions upon and subject
to which the Obligations are to be delivered and received, and in consideration of the premises
and of the mutual covenants herein contained and of the making of the loan by the Holder
thereof, and for other valuable consideration, the receipt whereof is hereby acknowledged, the
Authority does hereby covenant and agree with the Trustee, for the benefit of the respective
holders from time to time of the Obligations, as follows:
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1.01 Definitions. Unless the context otherwise requires, the terms
defined in this Section shall for all purposes hereof and of any Supplemental Trust Agreement
and of any certificate, opinion, request or other document herein or therein mentioned have the
meanings herein specified, unless otherwise defined in such other document. Capitalized terms
not otherwise defined herein shall have the meaning assigned to such terms in the Sublease.
“Act” means the Joint Exercise of Powers Act (being Chapter 5 of Division 7 of
Title 1 of the Government Code of the State, as amended) and all laws amendatory thereof or
supplemental thereto.
3 OHSUSA:750956245.6
“Additional Obligations” means all obligations of the Authority authorized by
and at any time Outstanding pursuant hereto and executed and delivered in accordance with
Article III.
“Authority” means the County of Contra Costa Public Financing Authority
created pursuant to the Act and its successors and assigns in accordance herewith.
“Authorized Denominations” means, with respect to the 2012 Loan Obligations,
a denomination equal to the outstanding principal amount of the 2012 Loan Obligations.
“Business Day” means a day that is not a Saturday, Sunday or legal holiday on
which banking institutions in the State of New York or California are authorized to remain
closed, or a day on which the Federal Reserve system is closed.
“Certificate of the Authority” means an instrument in writing signed by any of
the following officials of the Authority: Chair, Vice-Chair, Executive Director, Assistant
Executive Director or Deputy Executive Director or a designee of any such officer, or by any
other person (whether or not an officer of the Authority) who is specifically authorized by
resolution of the Authority for that purpose.
“Certificate of the County” means an instrument in writing signed by any of the
following County officials: the Chair of the Board of Supervisors, the County Administrator of
the County, the Treasurer-Tax Collector of the County or the County Finance Director or by any
such officials’ duly appointed designee, or by any other officer of the County duly authorized by
the Board of Supervisors of the County for that purpose.
“Code” means the Internal Revenue Code of 1986, as amended.
“Costs of Issuance” means all items of expense directly or indirectly payable by
or reimbursable to the County or the Authority and related to the authorization, execution and
delivery of the Sublease, the Site Lease, this Trust Agreement and the execution and delivery of
the Obligations, including, but not limited to, costs of preparation and reproduction of
documents, costs of rating agencies and costs to provide information required by rating agencies,
filing and recording fees, fees and charges of the Trustee, legal fees and charges, fees and
disbursements of consultants and professionals, fees and charges for preparation, execution and
safekeeping of the Obligations, title search and title insurance fees, fees of the Authority and any
other authorized cost, charge or fee in connection with the execution and delivery of the
Obligations.
“Costs of Issuance Fund” means the fund by that name established pursuant to
Section 3.01.
“County” means the County of Contra Costa, a County organized and validly
existing under the Constitution and general laws of the State.
“Debt Service” means, for any Fiscal Year or other period, the sum of (1) the
interest accruing during such Fiscal Year or other period on all Outstanding Obligations,
4 OHSUSA:750956245.6
assuming that all Outstanding Obligations are retired as scheduled (except to the extent that such
interest is to be paid from the proceeds of sale of any Obligations so long as such funded interest
is in an amount equal to the gross amount necessary to pay such interest on the Obligations and
is invested in Government Securities which mature no later than the related Interest Payment
Date) and (2) the principal amount of all Outstanding Obligations due during such Fiscal Year or
other period, and provided, that the foregoing shall be subject to adjustment and recalculation as
follows.
(a) with respect to Variable Rate Obligations, the interest payments shall be
calculated at a rate equal to 150% of the highest rate borne by such Obligations in the last
12 months, but not to exceed twelve percent (12%) per annum.
“Designated Office” or “Designated Corporate Trust Office” means for the
Trustee originally appointed hereunder, the corporate trust office of Wells Fargo Bank, National,
Association, which at the date of execution of this Indenture is that specified in Section 11.10 of
this Indenture, provided, however, that when referring to the Trustee’s performance of paying
agent or registrar functions, is Wells Fargo Bank, National Association, Corporate Trust
Operations, 6th & Marquette Avenue, MAC N9303-121, Minneapolis, MN 55479.
“Event of Default” shall have the meaning specified in Section 7.01.
“Facilities” shall mean the real property and the improvements thereon as set
forth in Exhibit A to the Sublease, or any County buildings, other improvements and facilities
added thereto or substituted therefor, or any portion thereof, in accordance with the Sublease and
this Trust Agreement.
“Fiscal Year” means the twelve (12)-month period terminating on June 30 of
each year, or any other annual accounting period hereafter selected and designated by the
Authority as its Fiscal Year in accordance with applicable law.
“Government Securities” means (1) U.S. Treasury Certificates, Notes and
Bonds (including State and Local Government Series – “SLGS”); (2) direct obligations of the
U.S. Treasury which have been stripped by the Treasury itself, such as CATS, TIGRS and
similar securities; (3) Resolution Funding Corp. (REFCORP) strips (interest component only)
which have been stripped by request to the Federal Reserve Bank of New York in book entry
form; (4) pre-refunded municipal Obligations rated “Aaa” by Moody's and “[___]” by S&P, or if
not rated by Moody's, then pre-refunded Obligations that have been pre-refunded with cash,
direct U.S. or U.S. guaranteed obligations, or AA-rated pre-refunded municipal obligations;
(5) obligations executed and delivered by the following agencies which are backed by the full
faith and credit of the U.S.: (a) U.S. Export-Import Bank direct obligations or fully guaranteed
certificates of beneficial ownership, (b) Farmers Home Administration (FmHA) certificates of
beneficial ownership, (c) Federal Financing Bank, (d) General Services Administration
participation certificates, (e) U.S. Maritime Administration Guaranteed Title XI financing,
(f) U.S. Department of Housing and Urban Development (HUD) Project Notes, Local Authority
Obligations, New Communities Debentures – U.S. government guaranteed debentures, and U.S.
Public Housing Notes and Obligations – U.S. government guaranteed public housing notes and
Obligations.
5 OHSUSA:750956245.6
“Holder” means the owner of an Obligation under the Trust Agreement. The
initial Holder hereunder is the Lender.
“Independent Certified Public Accountant” means any certified public
accountant or firm of such accountants duly licensed and entitled to practice and practicing as
such under the laws of the State or another state of the United States of America or a comparable
successor, appointed and paid by the Authority, and who, or each of whom –
(1) is in fact independent according to the Statement of Auditing Standards
No. 1 and not under the domination of the Authority or the County;
(2) does not have a substantial financial interest, direct or indirect, in the
operations of the Authority or the County; and
(3) is not connected with the Authority or the County as a member, officer or
employee of the Authority or the County, but who may be regularly retained to audit the
accounting records of and make reports thereon to the Authority or the County.
“Interest Payment Date” means June 1 and December 1 in each year,
commencing June 1, 2013.
“Interest Payment Period” means the period from and including each Interest
Payment Date (or, for the first Interest Payment Period, the date of the Obligations) to and
including the day immediately preceding the next succeeding Interest Payment Date.
“Joint Powers Agreement” means the Joint Exercise of Powers Agreement by
and between the County and the Contra Costa County Redevelopment Agency, dated April 7,
1992, as originally executed and as it may from time to time be amended or supplemented
pursuant to the provisions hereof and thereof.
“Loan Agreement” means the agreement between the Lender and the Authority
pursuant to which the Lender agrees to loan the principal amount of the 2012 Loan Obligation to
the Authority and the Authority agrees to repay such loan.
“Lender” means Banc of America Public Capital Corp., the entity loaning a
principal amount to the Authority pursuant to the Loan Agreement and the Holder of the 2012
Loan Obligation.
“Moody’s” means Moody’s Investors Service a corporation duly organized and
existing under and by virtue of the laws of the State of Delaware, and its successors and assigns,
except that if such corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, then the term “Moody’s” shall be deemed to refer to any
other nationally recognized securities rating agency selected by the County.
“Obligations” means the 2012 Loan Obligations and all additional borrowing of
the Authority payable from and secured by Revenues and at any time Outstanding pursuant
hereto and executed and delivered in accordance with Section 2.02(a) and Section 3.01.
6 OHSUSA:750956245.6
“Opinion of Counsel” means a written opinion of counsel of recognized national
standing in the field of law relating to municipal bonds retained by the Authority or the County.
“Outstanding,” when used as of any particular time with reference to
Obligations, means (subject to the provisions of Section 9.02) all Obligations except
(1) Obligations theretofore cancelled by the Trustee or surrendered to the
Trustee for cancellation;
(2) Obligations paid or deemed to have been paid within the meaning of
Section 10.01;
(3) Obligations deemed tendered but not yet presented for purchase; and
(4) Obligations in lieu of or in substitution for which other Obligations shall
have been executed and delivered by the Authority pursuant hereto.
“Permitted Encumbrances” means (1) liens for general ad valorem taxes and
assessments, if any, not then delinquent, or which the County may, pursuant to the Sublease,
permit to remain unpaid; (2) easements, rights of way, mineral rights, drilling rights and other
rights, reservations, covenants, conditions or restrictions which exist of record as of the date of
recordation of the Sublease in the office of the County Recorder of the County of Contra Costa
and which the County certifies in writing will not materially impair the use of the Facilities;
(3) the Site Lease, as it may be amended from time to time and the Sublease, as it may be
amended from time to time; (4) this Trust Agreement, as it may be amended from time to time;
(5) any right or claim of any mechanic, laborer, materialman, supplier or vendor not filed or
perfected in the manner prescribed by law; (6) easements, rights of way, mineral rights, drilling
rights and other rights, reservations, covenants, conditions or restrictions to which the Authority
and the County consent in writing and certify to the Trustee will not materially impair the
ownership interests of the Authority or use of the Facilities by the County; and (7) subleases and
assignments of the County which will not adversely affect the exclusion from gross income of
interest on the Obligations.
“Permitted Investments” means any of the following:
(1) Government Securities;
(2) direct obligations of the United States of America (including obligations
executed and delivered or held in book-entry form on the books of the Department of the
Treasury) or obligations the principal of and interest on which are unconditionally guaranteed by
the United States of America;
(3) Bonds, debentures, notes or other evidence of indebtedness executed and
delivered or guaranteed by any of the following federal agencies and provided such obligations
are backed by the full faith and credit of the United States of America (stripped securities are
only permitted if they have been stripped by the agency itself): (a) Farmers Home Administration
(FmHA) certificates of beneficial ownership, (b) Federal Housing Administration (FHA)
7 OHSUSA:750956245.6
debentures, (c) General Services Administration participation certificates, (d) Government
National Mortgage Association (GNMA or “Ginnie Mae”) guaranteed mortgage-backed Bonds
and guaranteed pass-through obligations (participation certificates), (e) U.S. Maritime
Administration guaranteed Title XI financing, and (f) U.S. Department of Housing and Urban
Development (HUD) Project Notes and Local Authority Bonds;
(4) Bonds, debentures, notes or other evidence of indebtedness executed and
delivered or guaranteed by any of the following non-full faith and credit U.S. government
agencies (stripped securities are only permitted if they have been stripped by the agency itself):
(a) Federal Home Loan Bank System senior debt obligations (consolidated debt obligations),
(b) Federal Home Loan Mortgage Corporation (FHLMC or “Freddie Mac”) participation
certificates (mortgage-backed securities) and senior debt obligations, (c) Federal National
Mortgage Association (FNMA or “Fannie Mae”) mortgage-backed securities and senior debt
obligations (excluded are stripped mortgage securities which are valued greater than par on the
portion of unpaid principal), (d) Resolution Funding Corp. (REFCORP) strips (interest
component only) which have been stripped by request to the Federal Reserve Bank of New York
in book entry form, and (e) Farm Credit System Consolidated systemwide bonds and notes;
(5) money market funds registered under the Federal Investment Company Act of
1940, the shares of which are registered under the Federal Securities Act of 1933, and which
have a rating by S&P of AAAm-G, AAAm, or AA-m and, if rated by Moody's, rated Aaa, Aal or
Aa2;
(6) certificates of deposit secured at all times by collateral described in (2) and/or
(3) above (which collateral must be held by a third party and subject to a perfected first security
interest held by the Trustee) with a maturity of one year or less and issued by commercial banks,
savings and loan associations or mutual savings banks whose short term obligations are rated “A-
1+” or better by S&P and “Prime-l” by Moody's;
(7) certificates of deposit, savings accounts, deposit accounts or money market
deposits which are fully insured by FDIC, including BIF and SAIF;
(8) investment agreements, including guaranteed investment contracts;
(9) commercial paper rated “Prime-1” by Moody's and “A-1+” or better by S&P;
(10) bonds or notes issued by any state or municipality which is rated by Moody's
and S&P in one of the two highest long-term rating categories assigned by such agencies;
(11) federal funds or bankers acceptances with a maximum term of one year of
any bank which has an unsecured, uninsured and unguaranteed obligation rating of “Prime-1” or
“A3” or better by Moody's and “A-1+” or better by S&P;
(12) repurchase agreements that provide for the transfer of securities from a dealer
bank or securities firm (seller/borrower) to the Trustee (buyer/lender) and the transfer of cash
from the Trustee to the dealer bank or securities firm with an agreement that the dealer bank or
8 OHSUSA:750956245.6
securities firm will repay the cash plus a yield to the Trustee in exchange for the securities at a
specified date and that satisfy the following criteria:
(a) repurchase agreements must be between the municipal entity and
dealer banks or securities firms that are (i) on the Federal Reserve reporting dealer list which fall
under the jurisdiction of the SIPC and which are rated A or better by S&P and Moody's, or
(ii) banks rated “A” or above by S&P and Moody's, and
(b) repurchase agreements must include the following: (i) securities that
are acceptable for transfer, including those describe in clauses (2) and (3) above, (ii) terms of not
more than 30 days, (iii) collateral must be delivered to the Trustee (if Trustee is not supplying the
collateral) or third party acting as agent for the Trustee (if the Trustee is supplying the collateral)
before or simultaneously with payment (perfection by possession of certificated securities),
(iv) the Trustee must have a perfected first priority security interest in the collateral, (v) collateral
must be free and clear of third-party liens and, in the case of an SIPC broker, must not have been
acquired pursuant to a repurchase agreement or reverse repurchase agreement, (vi) failure to
maintain the requisite collateral percentage, after a two day restoration period, requires the
Trustee to liquidate collateral, (vii) securities must be valued weekly and marked-to-market at
current market price plus accrued interest, and (viii) the value of-collateral must be equal to
104% or, if the securities used as collateral are FNMA or FHLMC securities, 105%, of the
amount of cash transferred to the dealer bank or security firm under the repurchase agreement
plus accrued interest and, if the value of securities held as collateral slips below such amount,
then additional cash and/or acceptable securities must be transferred;
(13) pre-refunded municipal bonds rated “Aaa” by Moody's or “AAA” by S&P
or, if the there is no Moody's rating, then pre-refunded bonds pre-refunded with cash, direct U.S.
or U.S. guaranteed obligations, or AAA rated pre-refunded municipal obligations;
(14) money markets or mutual funds which are rated by S&P “AAAm-G” or
“AAAm” or higher and, if rated by Moody’s, are rated “Aaa” or higher, which funds may
include funds for which the Trustee, its affiliates or subsidiaries provide investment advisory or
other management services;
(15) the County of Contra Costa Investment Pool; and
(16) the Local Agency Investment Fund of the State of California. The Trustee
may conclusively rely on the written instructions of the Authority and the County that any such
investment is a Permitted Investment.
“Person” means a corporation, firm, association, partnership, trust, or other legal
entity or group of entities, including a governmental entity or any agency or political subdivision
thereof.
“Prepayment Date” shall mean the date fixed for Prepayment of any
Obligations.
9 OHSUSA:750956245.6
“Prepayment Price” means, with respect to any Obligation (or portion thereof),
the principal amount of such Obligation (or portion) plus the applicable premium, if any, payable
upon Prepayment thereof pursuant to the provisions of such Obligation and this Trust
Agreement.
“Principal Payment Date” means any date on which principal of the Obligations
is required to be paid (whether by reason of maturity, prepayment or acceleration).
“Project” means the 2012 Project and any additional facilities or improvements
financed with proceeds of Additional Obligations.
“Project Fund” means the fund by that name established pursuant to
Section 3.02.
“Qualified Institutional Buyer” has the meaning set forth in Rule 144A of the
Securities Act of 1933.
“Rating Category” means one of the general long-term (or short-term, if so
specifically provided) rating categories of either Moody’s and S&P, without regard to any
refinement or gradation of such rating category by a numerical modifier (unless a short-term
rating) or otherwise.
“Responsible Officer” means any officer of the Trustee assigned to administer
its duties under this Trust Agreement.
“Revenue Fund” means the fund by that name created pursuant to Section 5.02
hereof.
“Revenues” means (i) all Base Rental Payments and other payments paid by the
County and received by the Authority pursuant to the Sublease (but not Additional Payments),
(ii) all interest or other income from any investment, pursuant to Section 5.05, of any money in
any fund or account (other than the Rebate Fund) established pursuant to this Trust Agreement or
the Sublease, and (iii) all proceeds arising from or in connection with the exercise of any
remedies pursuant to Section 6.01 of the Sublease or under Article VII hereof.
“S&P” means Standard & Poor’s, a division of the McGraw-Hill Companies,
Inc., and its successors and assigns, except that if such entity shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, then the term S&P shall be
deemed to refer to any other nationally recognized securities rating agency selected by the
County.
“Site Lease” means that certain lease, entitled “Site Lease,” by and between the
County and the Authority, dated as of October 1, 2012, which lease or a memorandum thereof
was recorded in the office of the County Recorder of the County of Contra Costa on
[October __, 2012] as document No. [______], as originally executed and recorded or as it may
from time to time be supplemented, modified or amended pursuant to the provisions hereof and
thereof.
10 OHSUSA:750956245.6
“State” means the State of California.
“Sublease” means that certain lease, entitled “Sublease (Capital Projects
Program)”, by and between the County and the Authority, dated as of October 1, 2012, which
lease or a memorandum thereof was recorded in the office of the County Recorder of the County
of Contra Costa on [October __, 2012] as document No. [______], as originally executed and
recorded or as it may from time to time be supplemented, modified or amended pursuant to the
provisions hereof and thereof.
“Supplemental Trust Agreement” means any trust agreement then in full force
and effect which has been duly executed and delivered by the Authority and the Trustee
amendatory hereof or supplemental hereto; but only if and to the extent that such Supplemental
Trust Agreement is executed and delivered pursuant to the provisions hereof.
“Tax Certificate” means the Tax Certificate and Agreement delivered by the
Authority and the County at the time of the issuance and delivery of an Obligation, as the same
may be amended or supplemented in accordance with its terms.
“Trust Agreement” means this Trust Agreement, dated as of October 1, 2012,
between the Authority and the Trustee, as originally executed and as it may from time to time be
amended or supplemented by all Supplemental Trust Agreements executed pursuant to the
provisions hereof.
“Trustee” means Wells Fargo Bank, National Association, or any other
association or corporation which may at any time be substituted in its place as provided in
Section 8.01.
“2012 Project” means the financing of various capital projects of the County, and
payment of any costs associated with the financing of said projects, as set forth in Exhibit D to
the Sublease as the same may be changed from time to time by the County by filing a Certificate
of the County with the Trustee.
“2012 Loan Obligations” means the outstanding principal owed pursuant to the
Loan Agreement, together with interest thereon as set forth in [Section 2.02(a) hereof].
“Variable Rate Obligations” means Obligations which bear interest at a variable
interest rate.
“Written Request of the Authority” means an instrument in writing signed by
or on behalf of the Authority by its Chair, Vice-Chair, Executive Director, Assistant Executive
Director or Deputy Executive Director or a designee of any such officer or by any other person
(whether or not an officer of the Authority) who is specifically authorized by resolution of the
Board of Directors of the Authority to sign or execute such a document on its behalf.
“Written Request of the County” means an instrument in writing signed by the
County Administrator of the County or his designee, or by the County Finance Director of the
11 OHSUSA:750956245.6
County, or by any other officer of the County duly authorized by the Board of Supervisors of the
County in writing to the Trustee for that purpose.
SECTION 1.02 Equal Security. In consideration of the acceptance of the
Obligations by the Holder, this Trust Agreement shall be deemed to be and shall constitute a
contract among the Authority, the Trustee and the Holder from time to time of all Obligations
authorized, executed and delivered hereunder and then Outstanding to secure the full, timely and
final payment of the interest on and principal of and Prepayment premiums, if any, on all
Obligations which may from time to time be authorized, executed and delivered hereunder,
subject to the agreements, conditions, covenants and provisions contained herein; and all
agreements and covenants set forth herein to be performed by or on behalf of the Authority shall
be for the equal and proportionate benefit, protection and security of the Holders of the
Obligations without distinction, preference or priority as to security or otherwise of any
Obligations over any other Obligations by reason of the number or date thereof or the time of
authorization, sale, execution, issuance or delivery thereof or for any cause whatsoever, except as
expressly provided herein or therein.
SECTION 1.03 Interpretation. Unless the context otherwise indicates, words
expressed in the singular shall include the plural and vice versa and the use of the neuter,
masculine, or feminine gender is for convenience only and shall be deemed to mean or include
the neuter, masculine or feminine gender, as appropriate. Headings of articles and sections
herein and the table of contents hereof are solely for convenience of reference, do not constitute
a part hereof and shall not affect the meaning, construction or effect hereof.
ARTICLE II
THE OBLIGATIONS
SECTION 2.01 Authorization of Obligations; 2012 Loan Obligations.
(a) Obligations may be executed and delivered hereunder from time to time in
order to obtain moneys to carry out the purposes of the Authority. The maximum principal
amount of Obligations which may be executed and delivered hereunder is not limited. The
Obligations are designated generally as “County of Contra Costa Public Financing Authority
Lease Revenue Obligations,” each to bear such additional designation as may be necessary or
appropriate to distinguish such Obligation from every other Obligation. The Obligations may be
executed and delivered in such form as from time to time shall be established and authorized by
the Authority, subject to the covenants, provisions and conditions herein contained.
(b) An initial Obligation is hereby created and designated “County of Contra
Costa Public Financing Authority Lease Revenue Obligations (Capital Projects Program), 2012
Loan Obligation” or “2012 Loan Obligations” and is evidenced by the Loan Agreement. The
aggregate principal amount of 2012 Loan Obligations which may be executed and delivered and
Outstanding under this Trust Agreement shall not exceed $[Par Amount].
(c) The Authority has reviewed all proceedings heretofore taken relative to
the authorization of the 2012 Loan Obligations and has found, as a result of such review, and
12 OHSUSA:750956245.6
hereby finds and determines that all acts, conditions and things required by law to exist, to have
happened and to have been performed precedent to and in the issuance of the 2012 Loan
Obligations do exist, have happened and have been performed in due time, form and manner as
required by law, and that the Authority is now duly authorized, pursuant to each and every
requirement of the Act, to execute and deliver the 2012 Loan Obligations in the form and manner
provided herein for the purpose of providing funds to finance the 2012 Project, and that the 2012
Loan Obligations shall be entitled to the benefit, protection and security of the provisions hereof.
(d) The validity of the the 2012 Loan Obligations shall not be dependent on or
affected in any way by the proceedings taken by the Authority for the financing of the 2012
Project or by any contracts made by the Authority or its agents in connection therewith, and shall
not be dependent upon the performance by any person, firm or corporation of his or its obligation
with respect thereto. The recital contained in the 2012 Loan Obligations that the same are
executed and delivered pursuant to the Act and pursuant hereto shall be conclusive evidence of
their validity and of the regularity of their execution and delivery, and all 2012 Loan Obligations
shall be incontestable from and after their execution and delivery. The 2012 Loan Obligations
shall be deemed to be executed and delivered, within the meaning hereof, whenever the
definitive Loan Agreement has been executed and delivered and the principal amount loaned
thereunder shall have been received.
SECTION 2.02 Terms of the 2012 Loan Obligations.
(a) The 2012 Loan Obligations shall be in the principal amount of $[Par
Amount], loaned pursuant to the Loan Agreement and the principal amount shall bear interest at
the rate as set forth in the following schedule, subject to prior Prepayment as described in the
Loan Agreement and Article IV hereof:
County of Contra Costa Public Financing Authority
Lease Revenue Obligations (Capital Projects Program),
2012 Series A
Payment Date
(June 1) Principal Amount Interest Rate
Interest
Payment Loan Payment
[2027]* $[Par Amount] [____]%
_______________
*_______
The 2012 Loan Obligations shall bear interest at the rates set forth above, payable
commencing June 1, 2013 and semiannually thereafter on June 1 and December 1 in each year.
The amount of interest so payable on any Interest Payment Date shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
(b) Payment of the 2012 Loan Obligations shall be paid by check mailed by
first class mail on each Interest Payment Date to the Holder at the address shown on the
registration books maintained by the Trustee pursuant to Section 2.07; provided, however, that
such payments shall be paid by wire transfer or other means to provide immediately available
13 OHSUSA:750956245.6
funds to any Holder of at least $1,000,000 in aggregate principal amount of such Obligations, at
its option, according to wire instructions given to the Trustee in writing for such purpose and on
file at least fifteen days preceding the Interest Payment Date.
(c) The Trustee shall maintain a record of each payment made in accordance
with the Loan Agreement and such record shall be conclusive absent manifest error.
(d) The Trustee shall identify all payments (whether made by check or by
wire transfer) of interest, principal, and premium by the designation of the Obligation.
SECTION 2.03 Form of 2012 Loan Obligations. The 2012 Loan Obligations and
the registration and assignment to appear thereon shall be substantially in the form set forth in
the Loan Agreement.
SECTION 2.04 Execution of Obligations. The Chair or the Executive Director of
the Authority is hereby authorized and directed to execute each of the Obligations on behalf of
the Authority and the Secretary or Assistant Secretary of the Authority is hereby authorized and
directed to countersign each of the Obligations on behalf of the Authority. In case any officer
whose signature appears on the Obligations shall cease to be such officer before the delivery of
the Obligations to the purchaser thereof, such signature shall nevertheless be valid and sufficient
for all purposes as if such officer had remained in office until such delivery of the Obligations.
Only those Obligations bearing thereon a certificate of authentication in the form
set forth as Exhibit A hereto, executed manually and dated by the Trustee, shall be entitled to any
benefit, protection or security hereunder or be valid or obligatory for any purpose, and such
certificate of the Trustee shall be conclusive evidence that the 2012 Loan Obligations so
authenticated have been duly authorized, executed, executed and delivered and delivered
hereunder and are entitled to the benefit, protection and security hereof.
SECTION 2.05 Transfer and Payment of Obligations. (a) Any Obligation may, in
accordance with its terms, be transferred in the books required to be kept pursuant to the
provisions of Section 2.07 by the person in whose name it is registered, in person or by his duly
authorized attorney, upon notice and, if appropriate, by surrender of such Obligation for
cancellation accompanied by delivery of a duly executed written instrument of transfer in a form
acceptable to the Trustee. Whenever any Obligations executed and delivered shall be
surrendered for transfer, the Authority shall execute and the Trustee shall authenticate and
deliver to the transferee a new Obligation of the same Series and maturity for a like aggregate
principal amount of _________. The Trustee shall require the payment by the Holder requesting
such transfer of any tax or other governmental charge required to be paid with respect to such
transfer as a condition precedent to the exercise of such privilege.
The Authority and the Trustee may, except as otherwise provided herein, deem
and treat the owner of any Obligation as the absolute owner of such Obligation for the purpose of
receiving payment thereof and for all other purposes, whether such Obligation shall be overdue
or not, and neither the Authority nor the Trustee shall be affected by any notice or knowledge to
the contrary; and payment of the interest on and principal of and Prepayment premium, if any, on
14 OHSUSA:750956245.6
such Obligation shall be made only to such owner, which payments shall be valid and effectual
to satisfy and discharge liability on such Obligation to the extent of the sum or sums so paid.
The Trustee shall not be required to register the transfer of or exchange any
Obligations which have been selected for Prepayment in whole or in part, from and after the day
of mailing of a notice of Prepayment of such Obligation selected for Prepayment in whole or in
part as provided in Section 4.04 or during the period established by the Trustee for selection of
Obligations for Prepayment.
(b) The Holder shall have the right to sell and transfer the 2012 Series A
Obligation in whole or in part to a Qualified Institutional Buyer without the consent of the
Authority, so long as the purchaser provides an Investor Letter substantially in the form attached
hereto as Exhibit D and so long as the purchaser acknowledges in writing to the limitations on
transfer. The Holder shall provide written notice to the Authority and the County identifying any
person or entity acquiring the 2012 Series A Obligation. The Holder may disclose to any
purchaser or prospective purchaser any information or other data or material in the Holder’s
possession relating to the County or the Authority, the 2012 Series A Obligation and the Project,
without the consent of or notice to the County or the Authority.
SECTION 2.06 Exchange of Obligations. Obligations executed and delivered may
be exchanged at the Designated Office of the Trustee for a like aggregate principal amount of
Obligations of the same Series and maturity of other Authorized Denominations. The Trustee
shall require the payment by the Holder requesting such exchange of any tax or other
governmental charge required to be paid with respect to such exchange as a condition precedent
to the exercise of such privilege. The Trustee shall not be required to exchange any Obligation
which has been selected for Prepayment in whole or in part, from and after the day of mailing of
a notice of Prepayment of such Obligation selected for Prepayment in whole or in part as
provided in Section 4.04 or during the period established by the Trustee for selection of
Obligations for Prepayment.
SECTION 2.07 Registration Books. The Trustee will keep at its office sufficient
books for the registration and transfer of the Obligations, which during normal business hours
shall be open to inspection by the Authority, and upon presentation for such purpose the Trustee
shall, under such reasonable regulations as it may prescribe, register or transfer the Obligations
in such books as hereinabove provided.
ARTICLE III
ISSUANCE OF 2012 Loan Obligations
SECTION 3.01 Procedure for the Issuance of 2012 Loan Obligations. The
Authority shall execute the Loan Agreement evidencing the 2012 Loan Obligations and shall
deliver it to the Trustee, and thereupon the 2012 Loan Obligations shall be authenticated and
delivered by the Trustee to the Holder upon the Written Request of the Authority and upon
receipt of payment from the Holder of the principal amount of the loan of $_________. Upon
receipt of payment for the 2012 Loan Obligations from the Holder, the Trustee shall, unless
otherwise instructed by the Authority, transfer or deposit the proceeds received from such loan to
15 OHSUSA:750956245.6
the following respective parties or to the following respective accounts or funds, in the following
order of priority:
(i) deposit the sum of $[_____] to the Costs of Issuance Fund,
which fund is hereby created and which fund the Trustee hereby covenants and agrees to
maintain. All money in the Costs of Issuance Fund shall be used and withdrawn by the
Trustee to pay the Costs of Issuance of the Obligations upon receipt of a Written Request
of the Authority, in substantially the form attached hereto as Exhibit C, filed with the
Trustee, each of which shall be sequentially numbered and shall state the person(s) to
whom payment is to be made, the amount(s) to be paid, the purpose(s) for which the
obligation(s) was incurred and that such payment is a proper charge against said fund.
On April 1, 2013, or upon the earlier Written Request of the Authority, any remaining
balance in the Costs of Issuance Fund shall be transferred to the 2012 Series A Project
Account within the Project Fund and the Costs of Issuance Fund shall be closed;
(ii) deposit the amount of $[_____] in the 2012 Series A
Project Account within the Project Fund.
SECTION 3.02 Project Fund. The Trustee hereby agrees to establish and maintain
so long as any Obligations are Outstanding the Project Fund and, within the Project Fund, a
Project Account for each Series of Obligations (the initial payment into which is provided for in
Section 3.01). The moneys in the Project Fund shall be disbursed by the Trustee upon the
Written Request of the County in substantially the form attached hereto as Exhibit B, for the
payment of costs relating to the financing and completion of the Project.
SECTION 3.03 Conditions for the Issuance of Additional Obligations. The
Authority may at any time issue Additional Obligations pursuant to a Supplemental Trust
Agreement, payable from the Revenues as provided herein and secured by a pledge of and
charge and lien upon the Revenues as provided herein equal to the pledge, charge and lien
securing the Outstanding Obligations theretofore executed and delivered hereunder, but only
subject to the following specific conditions, which are hereby made conditions precedent to the
issuance of any such Additional Obligations:
(a) The Authority shall be in compliance with all agreements and covenants
contained herein.
(b) The Supplemental Trust Agreement shall require that the proceeds of the
sale of such Additional Obligations shall be applied to the acquisition (by purchase or lease) or
construction of facilities to be added to the Facilities or for the refunding of Outstanding
Obligations.
(c) The aggregate principal amount of Obligations executed and delivered and
at any time Outstanding hereunder shall not exceed any limit imposed by law, by this Trust
Agreement or by any Supplemental Trust Agreement.
16 OHSUSA:750956245.6
(d) The Sublease shall have been amended, if necessary, so that the Base
Rental Payments payable by the County thereunder in each Fiscal Year shall at least equal Debt
Service, including Debt Service on the Additional Obligations, in each Fiscal Year.
(e) The Sublease shall have been amended so as to lease to the County the
project being financed from the proceeds of such Additional Obligations or facilities of
comparable worth and economic life.
(f) If the proceeds of such Additional Obligations are to be used, in whole or
in part, to finance construction on real property not described in the Sublease or the additional
Facilities to be leased are not situated on property described in the Sublease, (1) the Site Lease
shall have been amended so as to lease to the Authority such additional real property; and (2) the
Sublease shall have been amended so as to lease to the County such additional real property.
(g) If the additional Facilities to be leased are to be constructed, the Trustee
shall be paid an amount of capitalized interest on the Additional Obligations for the estimated
period of construction and six months thereafter.
(h) The Authority shall have obtained the written consent of the Holder.
SECTION 3.04 Proceedings for Authorization of Additional Obligations.
Whenever the Authority and the County shall determine to execute and deliver any Additional
Obligations pursuant to Section 3.03, the Authority and the Trustee shall enter into a
Supplemental Trust Agreement providing for the issuance of such Additional Obligations,
specifying the maximum principal amount of such Additional Obligations and prescribing the
terms and conditions of such Additional Obligations.
The Supplemental Trust Agreement shall prescribe the form or forms of such
Additional Obligations and, subject to the provisions of Section 3.03, shall provide for the
distinctive designation, denominations, method of numbering, dates, payment dates, interest rates
(or method of determining the rates, if variable), interest payment dates, provisions for
Prepayment (if desired) and places of payment of principal and interest.
Before such Additional Obligations shall be executed and delivered, the County
and the Authority shall file or cause to be filed the following documents with the Trustee:
(a) An Opinion of Counsel setting forth that (1) such Counsel has examined
the Supplemental Trust Agreement and the amendment to the Sublease and the Site Lease
required by Section 3.03(d), (e) and (f); (2) the execution and delivery of the Additional
Obligations have been sufficiently and duly authorized by the County and the Authority; (3) said
amendment to the Sublease and the Site Lease if any, when duly executed by the County and the
Authority, will be valid and binding obligations of the County and the Authority; and (4) said
amendment will not cause the interest on the 2012 Loan Obligations to be included in gross
income for federal income tax purposes.
(b) A Certificate of the Authority stating that the requirements of Section 3.03
have been met.
17 OHSUSA:750956245.6
(c) A certified copy of a resolution or ordinance of the County authorizing the
execution of the amendments to the Sublease required by Section 3.03(d), (e) and (f).
(d) An executed counterpart or duly authenticated copy of any amendment to
the Sublease required by Section 3.03(d), (e) and (f).
(e) A Certificate of the County stating that the insurance required by Sections
5.01, 5.02 and 5.03 of the Sublease is in effect and, if requested by the Holder, certificates of the
County’s insurance provider as described in Section 5.06 of the Sublease.
(f) If the proceeds of such Additional Obligations are to be used, in whole or
in part, to finance construction or acquire facilities on real property not then described in the
Sublease, an executed counterpart or duly authenticated copy of the Site Lease required by
Section 3.03(f).
(g) A title insurance policy in an amount equal to the aggregate principal
amount of Obligations outstanding after incurring the Additional Obligations insuring the
Authority’s leasehold or fee title in the real property on which the Facilities are located, and, if
the proceeds of such Additional Obligations are to be used to finance construction on real
property not then described in the Sublease, a title insurance policy insuring the Authority’s
leasehold or fee title in such real property.
(h) The written consent of the Holder.
Upon the delivery to the Trustee of the foregoing instruments and upon the
Trustee’s receipt of Certificates of the County and of the Authority stating that all applicable
provisions of this Trust Agreement have been complied with (so as to permit the issuance of the
Additional Obligations in accordance with the Supplemental Trust Agreement then delivered to
the Trustee), or upon the Written Request of the Authority, the Trustee shall authenticate and
deliver said Additional Obligations in the aggregate principal amount specified in such
Supplemental Trust Agreement to the Authority.
SECTION 3.05 Limitations on the Issuance of Obligations Payable from
Revenues. The Authority will not, so long as any of the Obligations are Outstanding, issue any
obligations or securities, however denominated, payable in whole or in part from Revenues
except Obligations of any Series authorized pursuant to Section 3.04.
SECTION 3.06 Trustee’s Reliance on Requisitions. The Trustee may conclusively
rely on requisitions submitted in accordance with Sections 3.01 and 3.02 hereof as complete
authorization for the disbursements made pursuant thereto and shall not be responsible for any
representations or certifications made therein.
18 OHSUSA:750956245.6
ARTICLE IV
PREPAYMENT OF OBLIGATIONS
SECTION 4.01 Extraordinary Prepayment. The Obligations are subject to
Prepayment by the Authority on any date prior to their respective stated maturities, upon notice
as hereinafter provided, as a whole or in part randomly by lot within each stated maturity in
integral multiples of Authorized Denominations, from prepayments made by the County
pursuant to Section 7.02 of the Sublease, at a Prepayment price equal to the sum of the principal
amount thereof, without premium, plus accrued interest thereon to the Prepayment Date.
Whenever less than all of the Outstanding Obligations are to be redeemed on any one date, the
Trustee shall select, in accordance with written directions from the Authority, the Obligations to
be redeemed in part from the Outstanding Obligations so that the aggregate annual principal
amount of and interest on Obligations which shall be payable after such Prepayment Date shall
be as nearly proportional as practicable to the aggregate annual principal amount of and interest
on Obligations Outstanding prior to such Prepayment Date.
SECTION 4.02 Optional Prepayment. The 2012 Loan Obligations are subject to
optional Prepayment prior to their maturity at the written direction of the Authority, from any
moneys deposited by the Authority or the County, as a whole but not in part on any date on or
after [_______], at the principal amount of 2012 Loan Obligations called for Prepayment,
together with accrued interest to the date fixed for Prepayment, without premium.
SECTION 4.03 Mandatory Sinking Fund Prepayment. The Term Obligations,
upon notice as hereinafter provided, shall also be subject to mandatory sinking fund Prepayment
prior to maturity, in part on June 1 of each year on the Mandatory Sinking Account Payment
Dates, randomly by lot, from and in the amount of the mandatory sinking account payments set
forth in the Supplemental Trust Agreement pursuant to which series Obligations are executed
and delivered at a Prepayment price equal to the sum of the principal amount thereof plus
accrued interest thereon to the Prepayment date, without premium.
SECTION 4.04 Selection of Obligations for Prepayment. The Authority shall
designate which maturities of Obligations are to be redeemed. If less than all Outstanding
Obligations of the same Series maturing by their terms on any one date are to be redeemed at any
one time, the Trustee shall select the Obligations of such maturity date to be redeemed randomly
by lot and shall promptly notify the Authority in writing of the numbers of the Obligations so
selected for Prepayment. For purposes of such selection, Obligations shall be deemed to be
composed of multiples of minimum Authorized Denominations and any such multiple may be
separately redeemed. In the event Term Obligations are designated for Prepayment, the
Authority may designate which sinking account payments are allocated to such Prepayment.
SECTION 4.05 Notice of Prepayment; Cancellation; Effect of Prepayment. Notice
of Prepayment shall be mailed by first-class mail by the Trustee, not less than thirty (30) nor
more than sixty (60) days prior to the Prepayment date to the respective Holders of the
Obligations designated for Prepayment at their addresses appearing on the registration books of
the Trustee. Each notice of Prepayment shall state the date of such notice, the date of issue of
the Obligations, the Series, the Prepayment date, the Prepayment Price, the place or places of
19 OHSUSA:750956245.6
Prepayment (including the name and appropriate address of the Trustee), and, if less than all of
any such maturity is to be redeemed, the distinctive certificate numbers of the Obligations of
such maturity, to be redeemed and, in the case of Obligations to be redeemed in part only, the
respective portions of the principal amount thereof to be redeemed. Each such notice shall also
state that on said date there will become due and payable on each of said Obligations the
Prepayment price thereof, together with interest accrued thereon to the Prepayment date, and that
from and after such Prepayment date interest thereon shall cease to accrue, and shall require that
such Obligations be then surrendered at the address of the Trustee specified in the Prepayment
notice. Failure to receive such notice shall not invalidate any of the proceedings taken in
connection with such Prepayment.
The Trustee may give a conditional notice of Prepayment prior to the receipt of all
funds or satisfaction of all conditions necessary to effect the Prepayment, provided that
Prepayment shall not occur unless and until all conditions have been satisfied and the Trustee has
on deposit and available or, if applicable, has received, all of the funds necessary to effect the
Prepayment; otherwise, such Prepayment shall be cancelled by the Trustee and the Trustee shall
mail notice of such cancellation to the recipients of the notice of Prepayment being cancelled.
The Authority may, at its option, on or prior to the date fixed for Prepayment in
any notice of Prepayment rescind and cancel such notice of Prepayment by Written Request of
the Authority and the Trustee shall mail notice of such cancellation to the recipients of the notice
of Prepayment being cancelled.
If notice of Prepayment has been duly given as aforesaid and money for the
payment of the Prepayment price of the Obligations called for Prepayment is held by the Trustee,
then on the Prepayment date designated in such notice Obligations so called for Prepayment shall
become due and payable, and from and after the date so designated interest on such Obligations
shall cease to accrue, and the Holders of such Obligations shall have no rights in respect thereof
except to receive payment of the Prepayment price thereof.
All Obligations redeemed pursuant to the provisions of this Article shall be
cancelled by the Trustee in accordance with its record retention policies then in effect and shall
not be reexecuted and delivered.
ARTICLE V
REVENUES
SECTION 5.01 Pledge of Revenues.
(a) All Revenues, any other amounts (including proceeds of the sale of the
Obligations) held by the Trustee in any fund or account established hereunder (other than
amounts on deposit in the Rebate Fund created pursuant to Section 6.03) and any other amounts
(excluding Additional Payments) received by the Authority in respect of the Facilities are hereby
irrevocably pledged and assigned to the payment of the interest and premium, if any, on and
principal of the Obligations as provided herein, and the Revenues and other amounts pledged
hereunder shall not be used for any other purpose while any of the Obligations remain
20 OHSUSA:750956245.6
Outstanding; provided, however, that out of the Revenues and other moneys there may be
applied such sums for such purposes as are permitted hereunder. This pledge shall constitute a
pledge of and charge and first lien upon the Revenues, all other amounts pledged hereunder and
all other moneys on deposit in the funds and accounts established hereunder (excluding amounts
on deposit in the Rebate Fund created pursuant to Section 6.03) for the payment of the interest on
and principal of the Obligations in accordance with the terms hereof and thereof.
(b) At least three (3) Business Days prior to each date on which a Base Rental
Payment is due, pursuant to the Sublease, the Trustee shall notify the County of the amount of
the installment of Base Rental Payment needed to pay the principal of and interest on the
Obligations due on the next following Interest Payment Date. Any failure to send such notice
shall not affect the County’s obligation to make timely payments of installments of Base Rental
Payments.
(c) The Authority, to the extent permitted by law, does hereby irrevocably and
unconditionally grant, transfer and assign to the Trustee without recourse (i) all its rights to
receive the Base Rental Payments and Additional Rental Payments scheduled to be paid by the
County under and pursuant to the Sublease, (ii) all rents, profits, products and proceeds from the
Facilities to which the Authority has any right or claim whatsoever under the Sublease, (iii) the
right to take all actions and give all consents under the Sublease, (iv) any right of access more
particularly described in the Sublease, (v) any and all other rights and remedies of the Authority
in the Sublease as lessor thereunder and (vi) all its rights, title and interest in the Site Lease;
provided, that so long as no Event of Default (as defined in the Sublease) shall have occurred or
be continuing, the Authority shall have and may exercise all rights as lessee under the Site Lease
and of the Lessor under the Sublease other than the right to receive Base Rental Payments and
Additional Rental Payments due and owing under the Sublease and the right to grant any waivers
to the County under the Sublease.
SECTION 5.02 Receipt and Deposit of Revenues in the Revenue Fund. In order to
carry out and effectuate the pledge, assignment, charge and lien contained herein, the Authority
agrees and covenants that all Revenues and all other amounts pledged hereunder when and as
received shall be received by the Authority in trust hereunder for the benefit of the Holders and
shall be transferred when and as received by the Authority to the Trustee for deposit in the
Revenue Fund (the “Revenue Fund”), which fund is hereby created and which fund the Trustee
hereby agrees and covenants to maintain in trust for Holders so long as any Obligations shall be
Outstanding hereunder. The County has been directed to pay all Base Rental Payments directly
to the Trustee. If the Authority receives any Base Rental Payments, it shall hold the same in trust
as agent of the Trustee and shall immediately transfer such Base Rental Payments to the Trustee.
All Revenues and all other amounts pledged and assigned hereunder shall be accounted for
through and held in trust in the Revenue Fund, and the Trustee shall have no beneficial right or
interest in any of the Revenues except only as herein provided. All Revenues and all other
amounts pledged and assigned hereunder, whether received by the Authority in trust or deposited
with the Trustee as herein provided, shall nevertheless be allocated, applied and disbursed solely
to the purposes and uses hereinafter in this Article set forth, and shall be accounted for separately
and apart from all other accounts, funds, money or other resources of the Trustee.
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SECTION 5.03 Establishment and Maintenance of Accounts for Use of Money in
the Revenue Fund
(a) Revenue Fund. Subject to Section 6.03, all money in the Revenue Fund
shall be set aside by the Trustee in the following respective special accounts or funds within the
Revenue Fund (each of which is hereby created and each of which the Trustee hereby covenants
and agrees to cause to be maintained) in the following order of priority:
(1) Interest Account, and
(2) Principal Account.
All money in each of such accounts shall be held in trust by the Trustee and shall be applied,
used and withdrawn only for the purposes hereinafter authorized in this Section. On each
Principal Payment Date, following payment of principal of and interest on the Obligations, any
excess amount on deposit in the Revenue Fund shall be returned to the County as an excess
payment of Base Rental Payments.
(b) Interest Account. On or before each Interest Payment Date, the Trustee
shall set aside from the Revenue Fund and deposit in the Interest Account that amount of money
which is equal to the amount of interest becoming due and payable on all Outstanding
Obligations on such Interest Payment Date.
No deposit need be made in the Interest Account if the amount contained therein
and available to pay interest on the Obligations is at least equal to the aggregate amount of
interest becoming due and payable on all Outstanding Obligations on such Interest Payment
Date.
All money in the Interest Account shall be used and withdrawn by the Trustee
solely for the purpose of paying the interest on the Obligations as it shall become due and
payable (including accrued interest on any Obligations purchased or redeemed prior to maturity).
(c) Principal Account. On or before each June 1, commencing June 1, 2014,
the Trustee shall set aside from the Revenue Fund and deposit in the Principal Account an
amount of money equal to the principal amount of all Outstanding Serial Obligations due on
such June 1.
No deposit need be made in the Principal Account if the amount contained therein
and available to pay principal of the Obligations is at least equal to the aggregate amount of the
principal of all Outstanding Serial Obligations due by their terms on such June 1.
All money in the Principal Account shall be used and withdrawn by the Trustee
solely for the purpose of paying the principal of the Obligations as it shall become due and
payable, whether at maturity or Prepayment.
SECTION 5.04 Application of Insurance Proceeds. In the event of any damage to
or destruction of any part of the Facilities covered by insurance, the Authority shall cause the
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proceeds of such insurance to be utilized for the repair, reconstruction or replacement of the
damaged or destroyed portion of the Facilities, and the Trustee shall hold said proceeds in a fund
established by the Trustee for such purpose separate and apart from all other funds designated
the “Insurance and Condemnation Fund”, to the end that such proceeds shall be applied to the
repair, reconstruction or replacement of the Facilities to at least the same good order, repair and
condition as it was in prior to the damage or destruction, insofar as the same may be
accomplished by the use of said proceeds. The County shall file a Certificate of the County with
the Trustee that sufficient funds from insurance proceeds or from any funds legally available to
the County, or from any combination thereof, are available in the event it elects to repair,
reconstruct or replace the Facilities. The Trustee shall invest said proceeds in Permitted
Investments pursuant to the Written Request of the County, as agent for the Authority under the
Sublease, and withdrawals of said proceeds shall be made from time to time upon the filing with
the Trustee of a Written Request of the County, stating that the County has expended moneys or
incurred liabilities in an amount equal to the amount therein stated for the purpose of the repair,
reconstruction or replacement of the Facilities, and specifying the items for which such moneys
were expended, or such liabilities were incurred, in reasonable detail. Any balance of such
proceeds not required for such repair, reconstruction or replacement and the proceeds of use and
occupancy insurance shall be paid to the Trustee as Base Rental Payments and applied in the
manner provided by Section 5.01. Alternatively, the County, if the proceeds of such insurance
together with any other moneys then available for such purpose are sufficient to prepay all, in
case of damage or destruction in whole of the Facilities, or that portion, in the case of partial
damage or destruction of the Facilities, of the Base Rental Payments and all other amounts
relating to the damaged or destroyed portion of the Facilities, may elect not to repair, reconstruct
or replace the damaged or destroyed portion of the Facilities and thereupon shall cause said
proceeds to be used for the Prepayment of Outstanding Obligations pursuant to the applicable
provisions of Section 4.01. The County shall not apply the proceeds of insurance as set forth in
this Section 5.04 to redeem the Obligations in part due to damage or destruction of a portion of
the Facilities unless the Base Rental Payments on the undamaged portion of the Facilities will be
sufficient to pay the scheduled principal and interest on the Obligations remaining unpaid after
such Prepayment.
SECTION 5.05 Deposit and Investments of Money in Accounts and Funds.
Subject to Section 6.03, all money held by the Trustee in any of the accounts or funds established
pursuant hereto shall be invested in Permitted Investments at the Written Request of the
Authority or, if no instructions are received, in the Wells Fargo Advantage [_________] Fund or
a successor fund offered by the Trustee. Such investments shall, as nearly as practicable, mature
on or before the dates on which such money is anticipated to be needed for disbursement
hereunder. For purposes of this restriction, Permitted Investments containing a repurchase
option or put option by the investor shall be treated as having a maturity of no longer than such
option. Unless otherwise instructed by the Authority, all interest or profits received on any
money so invested in the Project Fund shall be deposited in the Project Fund until completion of
the related Project and shall thereafter be deposited in the Revenue Fund. Unless otherwise
instructed by the Authority, all interest or profits received on any money so invested in the
Revenue Fund, the Interest Account, the Principal Account, or the Costs of Issuance Fund shall
be retained in such accounts or funds. The Trustee and its affiliates may act as principal, agent,
23 OHSUSA:750956245.6
sponsor or advisor with respect to any investments. The Trustee shall not be liable for any losses
on investments made in accordance with the terms and provisions of this Trust Agreement.
Investments purchased with funds on deposit in the Revenue Fund shall mature
not later than the payment date or Prepayment date, as appropriate, immediately succeeding the
investment.
Subject to Section 6.03, investments in any and all funds and accounts except for
the Rebate Fund may be commingled for purposes of making, holding and disposing of
investments, notwithstanding provisions herein for transfer to or holding in particular funds and
accounts amounts received or held by the Trustee hereunder, provided that the Trustee shall at all
times account for such investments strictly in accordance with the funds and accounts to which
they are credited and otherwise as provided in this Trust Agreement.
ARTICLE VI
COVENANTS OF THE AUTHORITY
SECTION 6.01 Punctual Payment and Performance. The Authority will
punctually pay out of the Revenues the interest on and principal of and Prepayment premiums, if
any, to become due on every Obligation executed and delivered hereunder in strict conformity
with the terms hereof and of the Obligations, and will faithfully observe and perform all the
agreements and covenants to be observed or performed by the Authority contained herein and in
the Obligations.
SECTION 6.02 Against Encumbrances. The Authority will not make any pledge
or assignment of or place any charge or lien upon the Revenues except as provided in Section
5.01, and will not issue any Obligations, notes or obligations payable from the Revenues or
secured by a pledge of or charge or lien upon the Revenues except as provided in Section 3.04.
SECTION 6.03 Tax Covenants; Rebate Fund.
(a) In addition to the accounts created pursuant to Section 5.03, the Trustee
shall establish and maintain a fund separate from any other fund or account established and
maintained hereunder designated as the Rebate Fund. There shall be deposited in the Rebate
Fund such amounts as are required to be deposited therein pursuant to the Tax Certificate. 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 defined in the Tax Certificate), for payment
to the United States of America. Notwithstanding the provisions of Sections 5.01, 5.02, 5.05,
9.01 and 10.01 relating to the pledge of Revenues, the allocation of money in the Revenue Fund,
the investments of money in any fund or account, the application of funds upon acceleration and
the defeasance of Outstanding Obligations, all amounts required to be deposited into or on
deposit in the Rebate Fund shall be governed exclusively by this Section 6.03 and by the Tax
Certificate (which is incorporated herein by reference). The Trustee shall be deemed
conclusively to have complied with such provisions if it follows the written directions of the
Authority, and shall have no liability or responsibility to enforce compliance by the Authority
with the terms of the Tax Certificate.
24 OHSUSA:750956245.6
(b) Any funds remaining in the Rebate Fund with respect to a Series of
Obligations after Prepayment and payment of all such Series of Obligations and all other
amounts due hereunder or under the Sublease relating to such Series of Obligations, or provision
made therefor satisfactory to the Trustee, including accrued interest and payment of any
applicable fees and expenses of the Trustee and satisfaction of the Rebate Requirement (as
defined in the Tax Certificate), shall be withdrawn by the Trustee and remitted to or upon the
Written Request of the Authority.
(c) The Authority shall not use or permit the use of any proceeds of the
Obligations or any funds of the Authority, directly or indirectly, in any manner, and shall not
take or omit to take any action that would cause any of the Obligations to be treated as an
obligation not described in Section 103(a) of the Code. In the event that at any time the
Authority is of the opinion that for purposes of this Section 6.03(c) it is necessary to restrict or to
limit the yield on the investment of any moneys held by the Trustee under this Trust Agreement,
the Authority shall so instruct the Trustee under this Trust Agreement in writing, and the Trustee
shall take such action as may be necessary in accordance with such instructions.
(d) Notwithstanding any provisions of this Section 6.03, if the Authority shall
provide to the Trustee an Opinion of Counsel that any specified action required under this
Section 6.03 or the Tax Certificate is no longer required or that some further or different action is
required to maintain the exclusion from federal income tax of interest on the Obligations, the
Trustee and the Authority may conclusively rely on such opinion in complying with the
requirements of this Section, and, notwithstanding Article IX hereof, the covenants hereunder
shall be deemed to be modified to that extent.
(e) The foregoing provisions of this Section 6.03 shall not be applicable to
any Series of Obligations or the proceeds thereof that the Authority determines upon the issuance
thereof are to be taxable Obligations, the interest on which is intended to be included in the gross
income of the Holder thereof for federal income tax purposes.
SECTION 6.04 Accounting Records and Reports. The Trustee will keep or cause
to be kept proper books of record and accounts in which complete and correct entries shall be
made of all transactions relating to the receipts, disbursements, allocation and application of the
Revenues, and such books shall be available for inspection by the Authority at reasonable hours
and under reasonable conditions. The Trustee shall provide to the Authority monthly statements
covering the funds and accounts held pursuant to the Trust Agreement. Not more than one
hundred eighty (180) days after the close of each Fiscal Year, the Trustee shall furnish or cause
to be furnished to the Authority a complete financial statement (which may be in the form of the
Trustee’s customary account statements) covering receipts, disbursements, allocation and
application of Revenues for such Fiscal Year. The Authority shall keep or cause to be kept such
information as is required under the Tax Certificate.
SECTION 6.05 Prosecution and Defense of Suits. The Authority will defend
against every suit, action or proceeding at any time brought against the Trustee upon any claim
to the extent arising out of the receipt, application or disbursement of any of the Revenues or to
the extent involving the failure of the Authority to fulfill its obligations hereunder; provided, that
the Trustee or any affected Holder at its election may appear in and defend any such suit, action
25 OHSUSA:750956245.6
or proceeding. The Authority will indemnify and hold harmless the Trustee against any and all
liability claimed or asserted by any person to the extent arising out of such failure by the
Authority, and will indemnify and hold harmless the Trustee against any reasonable attorney’s
fees or other reasonable expenses which it may incur in connection with any litigation to which it
may become a party by reason of its actions hereunder, except for any loss, cost, damage or
expense resulting from the negligence or willful misconduct by the Trustee. Notwithstanding
any contrary provision hereof, this covenant shall remain in full force and effect even though all
Obligations secured hereby may have been fully paid and satisfied or the Trustee shall have
resigned or been removed.
SECTION 6.06 Further Assurances. Whenever and so often as reasonably
requested to do so by the Trustee or any Holder, the Authority will promptly execute and deliver
or cause to be executed and delivered all such other and further assurances, documents or
instruments, and promptly do or cause to be done all such other and further things as may be
necessary or reasonably required in order to further and more fully vest in the Holders all rights,
interests, powers, benefits, privileges and advantages conferred or intended to be conferred upon
them hereby.
SECTION 6.07 Maintenance of Revenues. The Authority will promptly collect all
rents and charges due for the occupancy or use of the Facilities as the same become due, and will
promptly and vigorously enforce its rights against any tenant or other person who does not pay
such rents or charges as they become due. The Authority will at all times maintain and
vigorously enforce all of its rights under the Sublease.
SECTION 6.08 Amendments to Sublease. The Authority may supplement, amend,
modify or terminate any of the terms of the Sublease, or consent to any such supplement,
amendment, modification or termination, with the prior written consent of the Holder, if such
supplement, amendment, modification or termination (a) will not materially adversely affect the
interests of the Holders or result in any material impairment of the security hereby given for the
payment of the Obligations (provided that such supplement, amendment or modification shall
not be deemed to have such adverse effect or to cause such material impairment solely by reason
of providing for the payment of Additional Obligations as required by Section 3.03(e) or
substitution of real property pursuant to Section 2.03 of the Sublease), (b) is to add to the
agreements, conditions, covenants and terms required to be observed or performed thereunder by
any party thereto, or to surrender any right or power therein reserved to the Authority or the
County, (c) is to cure, correct or supplement any ambiguous or defective provision contained
therein, (d) is to accommodate any substitution in accordance with Section 2.03 of the Sublease,
(e) is to modify the legal description of the Facilities to conform to the requirements of title
insurance or otherwise to add or delete property descriptions to reflect accurately the description
of the parcels intended to be included therein, or substituted for the Facilities pursuant to the
provision of Section 2.03 of the Sublease, or (f) if the Holders of a majority in principal amount
of the Obligations then Outstanding have provided written consent to such supplement,
amendment, modification or termination; provided, that no such supplement, amendment,
modification or termination shall reduce the amount of Base Rental Payments to be made to the
Authority or the Trustee by the County pursuant to the Sublease to an amount less than the
scheduled principal and interest payment on the Outstanding Obligations, or extend the time for
26 OHSUSA:750956245.6
making such payments, or permit the creation of any lien prior to or on a parity with the lien
created by this Trust Agreement on the Base Rental Payments (except as expressly provided in
the Sublease), in each case without the written consent of all of the Holders of the Obligations
then Outstanding.
SECTION 6.09 Leasehold Estate. The Authority will be, on the date of the
delivery of the Obligations, the owner and lawfully possessed of the leasehold estate described in
the Site Lease, and the Sublease will be, on the date of delivery of the Obligations, a valid
subsisting demise for the term therein set forth of the property which it purports to demise. At
the time of the delivery of the Obligations the County will be the owner in fee simple of the
premises described in the Site Lease, and the Site Lease will be lawfully made by the County,
and the covenants contained in the Site Lease on the part of the County will be valid and binding.
At the time of the delivery of the Obligations, the Authority will have good right, full power and
lawful authority to lease said leasehold estate, in the manner and form provided in the Sublease,
and the Sublease will be duly and regularly executed.
Without allowance for any days of grace which may or might exist or be allowed
by law or granted pursuant to any terms or conditions of the Sublease, the Authority will in all
respects promptly and faithfully keep, perform and comply with all the terms, provisions,
covenants, conditions and agreements of the Sublease to be kept, performed and complied with
by it. The Authority will not do or permit anything to be done, or omit or refrain from doing
anything, in any case where any such act done or permitted to be done, or any such omission of
or refraining from action, would or might be a ground for declaring a forfeiture of the Sublease,
or would or might be a ground for cancellation or termination of the Sublease by the lessee
thereunder. The Authority will promptly deposit with the Trustee (to be held by the Trustee until
the title and rights of the Trustee under this Trust Agreement shall be released or reconvened)
any and all documentary evidence received by it showing compliance with the provisions of the
Sublease to be performed by the Authority. The Authority, immediately upon its receiving or
giving any notice, communication or other document in any way relating to or affecting the
Sublease, or the leasehold estate thereby created, which may or can in any manner affect the
estate of the lessor or of the Authority in or under the Sublease, will deliver the same, or a copy
thereof, to the Trustee.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF HOLDERS
SECTION 7.01 Events of Default and Acceleration of Maturities. If one or more
of the following events (herein called “events of default”) shall happen, that is to say:
(a) if default shall be made by the Authority in the due and punctual payment
of the interest on any Obligation when and as the same shall become due and payable;
(b) if default shall be made by the Authority in the due and punctual payment
of the principal of any Obligation when and as the same shall become due and payable, whether
at maturity as therein expressed or by proceedings for mandatory Prepayment;
27 OHSUSA:750956245.6
(c) if default shall be made by the Authority in the performance of any of the
other agreements or covenants required herein to be performed by the Authority, and such
default shall have continued for a period of sixty (60) days or such additional time (with respect
to agreements or covenants that cannot be corrected or performed within such sixty (60) day
period but the correction of which is being diligently pursued by the Authority) as is reasonably
required to correct any such default after the Authority shall have been given notice in writing of
such default by the Trustee or the Holder;
(d) if the Authority shall file a petition or answer seeking arrangement or
reorganization under the federal bankruptcy laws or any other applicable law of the United States
of America or any state therein, or if a court of competent jurisdiction shall approve a petition
filed with or without the consent of the Authority seeking arrangement or reorganization under
the federal bankruptcy laws or any other applicable law of the United States of America or any
state therein, or if under the provisions of any other law for the relief or aid of debtors any court
of competent jurisdiction shall assume custody or control of the Authority or of the whole or any
substantial part of its property; or
(e) if an Event of Default has occurred under Section 6.01 of the Sublease;
then and in each and every such case during the continuance of such event of default the Trustee,
may and upon the written request of the Holders of not less than a majority in aggregate principal
amount of the Obligations then Outstanding shall, by notice in writing to the Authority, declare
the principal of all Obligations then Outstanding and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall become due and payable,
anything contained herein or in the Obligations to the contrary notwithstanding. The Trustee
shall promptly notify all Holders by first class mail of any such event of default which is
continuing of which a Responsible Officer has actual knowledge or written notice.
This provision, however, is subject to the condition that if at any time after the
principal of the Obligations then Outstanding 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 Authority shall deposit with the Trustee a sum sufficient to pay all matured interest
on all the Obligations and all principal of the Obligations matured prior to such declaration, with
interest at the rate borne by such Obligations on such overdue interest and principal, and the
reasonable fees and expenses of the Trustee, and any and all other defaults known to the Trustee
(other than in the payment of interest on and principal of the Obligations due and payable solely
by reason of such declaration) shall have been made good or cured to the satisfaction of the
Trustee or provision deemed by the Trustee to be adequate shall have been made therefor, then
and in every such case the Trustee or the Holders of not less than a majority in aggregate
principal amount of Obligations then Outstanding, by written notice to the Authority and to the
Trustee, may on behalf of the Holders of all the Obligations then Outstanding rescind and annul
such declaration and its consequences; but no such rescission and annulment shall extend to or
shall affect any subsequent default or shall impair or exhaust any right or power consequent
thereon.
SECTION 7.02 Application of Funds Upon Acceleration. All moneys in the
accounts and funds provided in Sections 3.01, 3.02, 5.02, 5.03 and 5.04 upon the date of the
28 OHSUSA:750956245.6
declaration of acceleration by the Trustee as provided in Section 7.01 and all Revenues (other
than Revenues on deposit in the Rebate Fund) thereafter received by the Authority hereunder
shall be transmitted to the Trustee and shall be applied by the Trustee in the following order –
First, to the payment of the reasonable fees, costs and expenses of the Trustee in
providing for the declaration of such event of default and carrying out its duties under this
Agreement, including reasonable compensation to their accountants and counsel together with
interest on any amounts advanced as provided herein and thereafter to the payment of the
reasonable costs and expenses of the Holders, if any, in carrying out the provisions of this
Article, including reasonable compensation to their accountants and counsel; and
Second, upon presentation of the several Obligations, and the stamping thereon of
the amount of the payment if only partially paid or upon the surrender thereof if fully paid, to the
payment of the whole amount then owing and unpaid upon the Obligations for interest and
principal, with (to the extent permitted by law) interest on the overdue interest and principal at
the rate borne by such Obligations, and in case such money shall be insufficient to pay in full the
whole amount so owing and unpaid upon the Obligations, then to the payment of such interest,
principal and (to the extent permitted by law) interest on overdue interest and principal without
preference or priority among such interest, principal and interest on overdue interest and
principal ratably to the aggregate of such interest, principal and interest on overdue interest and
principal.
SECTION 7.03 Institution of Legal Proceedings by Trustee. If one or more of the
events of default shall happen and be continuing, the Trustee may, and upon the written request
of the Holders of a majority in principal amount of the Obligations then Outstanding, and in each
case upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its
rights or the rights of the Holders of Obligations under this Trust Agreement and under Article
VI of the Sublease by a suit in equity or action at law, either for the specific performance of any
covenant or agreement contained herein, or in aid of the execution of any power herein granted,
or by mandamus or other appropriate proceeding for the enforcement of any other legal or
equitable remedy as the Trustee shall deem most effectual in support of any of its rights and
duties hereunder.
SECTION 7.04 Non-Waiver. Nothing in this Article or in any other provision
hereof or in the Obligations shall affect or impair the obligation of the Authority, which is
absolute and unconditional, to pay the interest on and principal of and Prepayment premiums, if
any, on the Obligations to the respective Holders of the Obligations at the respective dates of
maturity or upon prior Prepayment as provided herein from the Revenues as provided herein
pledged for such payment, or shall affect or impair the right of such Holders, which is also
absolute and unconditional, to institute suit to enforce such payment by virtue of the contract
embodied herein and in the Obligations.
A waiver of any default or breach of duty or contract by the Trustee or any Holder
shall not affect any subsequent default or breach of duty or contract or impair any rights or
remedies on any such subsequent default or breach of duty or contract. No delay or omission by
the Trustee or any Holder to exercise any right or remedy accruing upon any default or breach of
duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any
29 OHSUSA:750956245.6
such default or breach of duty or contract or an acquiescence therein, and every right or remedy
conferred upon the Holders by the Act or by this Article may be enforced and exercised from
time to time and as often as shall be deemed expedient by the Trustee or the Holders.
If any action, proceeding or suit to enforce any right or exercise any remedy is
abandoned, the Authority, the Trustee and any Holder shall be restored to their former positions,
rights and remedies as if such action, proceeding or suit had not been brought or taken.
SECTION 7.05 Actions by Trustee as Attorney-in-Fact. Any action, proceeding or
suit which any Holder shall have the right to bring to enforce any right or remedy hereunder may
be brought by the Trustee for the equal benefit and protection of all Holders, whether or not the
Trustee is a Holder, and the Trustee is hereby appointed (and the successive Holders, by taking
and holding the Obligations executed and delivered hereunder, shall be conclusively deemed to
have so appointed it) the true and lawful attorney-in-fact of the Holders for the purpose of
bringing any such action, proceeding or suit and for the purpose of doing and performing any
and all acts and things for and on behalf of the Holders as a class or classes as may be advisable
or necessary in the opinion of the Trustee as such attorney-in-fact.
SECTION 7.06 Remedies Not Exclusive. No remedy herein conferred upon or
reserved to the Holders is intended to be exclusive of any other remedy, and each such remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise and may be exercised without
exhausting and without regard to any other remedy conferred by the Act or any other law.
SECTION 7.07 Limitation on Holders’ Right to Sue. No Holder of any Obligation
executed and delivered hereunder shall have the right to institute any suit, action or proceeding at
law or equity, for any remedy under or upon this Trust Agreement, unless (a) such Holder shall
have previously given to the Trustee written notice of the occurrence of an event of default as
defined in Section 7.01; (b) the Holders of at least a majority in aggregate principal amount of all
the Obligations then Outstanding shall have made written request upon the Trustee to exercise
the powers hereinbefore granted or to institute such suit, action or proceeding in its own name;
(c) said Holders shall have tendered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
and (d) the Trustee shall have refused or omitted to comply with such request for a period of
sixty (60) days after such request shall have been received by, and said tender of indemnity shall
have been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are hereby
declared, in every case, to be conditions precedent to the exercise by any Holder of Obligations
of any remedy hereunder; it being understood and intended that no one or more Holders of
Obligations shall have any right in any manner whatever by his or their action to enforce any
right under this Trust Agreement, except in the manner herein provided, and that all proceedings
at law or in equity to enforce any provision of this Trust Agreement shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all Holders of the
Outstanding Obligations.
30 OHSUSA:750956245.6
ARTICLE VIII
THE TRUSTEE
SECTION 8.01 The Trustee. Wells Fargo Bank, National Association shall serve
as the initial Trustee for the Obligations for the purpose of receiving all money which the
Authority is required to deposit with the Trustee hereunder and for the purpose of allocating,
applying and using such money as provided herein and for the purpose of paying the interest on
and principal of and Prepayment premiums, if any, on the Obligations presented for payment,
with the rights and obligations provided herein. The Authority agrees that it will at all times
maintain a Trustee having a Designated Corporate Trust Office in California.
The Authority, unless there exists any Event of Default as defined in Section 7.01,
may at any time remove the Trustee initially appointed and any successor thereto and may
appoint a successor or successors thereto by an instrument in writing; provided, that any such
successor shall be a bank, banking institution, or trust company, having (or whose parent holding
company has) a combined capital (exclusive of borrowed capital) and surplus of at least fifty
million dollars ($50,000,000) and subject to supervision or examination by federal or state
authority and shall be acceptable to the Holder as evidenced by its prior written consent. If such
bank, banking institution, or trust company publishes a report of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority above referred
to, then for the purpose of this Section the combined capital and surplus of such bank, banking
institution, or trust company shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Trustee may at any time resign by giving
written notice of such resignation to the Authority, and by mailing by first class mail to the
Holders notice of such resignation. Upon receiving such notice of resignation, the Authority
shall promptly appoint a successor Trustee by an instrument in writing. Any removal or
resignation of a Trustee and appointment of a successor Trustee shall become effective only
upon the acceptance of appointment by the successor Trustee. The successor Trustee shall send
notice of its acceptance by first class mail to the Holders. If, within thirty (30) days after notice
of the removal or resignation of the Trustee no successor Trustee shall have been appointed and
shall have accepted such appointment, the removed or resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee, which court may
thereupon, after such notice, if any, as it may deem proper and prescribe and as may be required
by law, appoint a successor Trustee having the qualifications required hereby.
The Trustee is hereby authorized to pay or prepay the Obligations when due at
maturity or on Prepayment prior to maturity from Revenues held hereunder. The Trustee shall
cancel all Obligations in the form of bonds upon payment thereof or upon the surrender thereof
by the Authority in accordance with the Trustee’s record retention policies then in effect. The
Trustee shall keep accurate records of all Obligations paid and discharged by it.
The Trustee shall, prior to an event of default, and after the curing of all events of
default that may have occurred, perform such duties and only such duties as are specifically set
forth in this Trust Agreement and no implied duties or obligations shall be read into this Trust
Agreement. The Trustee shall, during the existence of any event of default (that has not been
31 OHSUSA:750956245.6
cured), exercise such of the rights and powers vested in it by this Trust Agreement, and use the
same degree of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs; provided that the Trustee shall follow any
instructions to it from the Holder.
SECTION 8.02 Liability of Trustee. The recitals of facts, agreements and
covenants herein and in the Obligations shall be taken as recitals of facts, agreements and
covenants of the Authority, and the Trustee assumes no responsibility for the correctness of the
same or makes any representation as to the sufficiency or validity hereof or of the Obligations, or
shall incur any responsibility in respect thereof other than in connection with the rights or
obligations assigned to or imposed upon it herein, in the Obligations or in law or equity. The
Trustee shall not be liable in connection with the performance of its duties hereunder except for
its own negligence or willful misconduct.
The Trustee shall not be bound to recognize any person as the Holder of an
Obligation unless and until such Obligation is submitted for inspection, if required, and such
Holder’s title thereto satisfactorily established, if disputed.
The Trustee shall not be liable for any error of judgment made in good faith,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
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 Holders of not less than a
majority in aggregate principal amount of the Obligations at the time Outstanding, 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 Trust Agreement.
The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request, order or direction of any of the Holders
pursuant to the provisions of this Trust Agreement unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee against the reasonable costs, expenses
and liabilities that may be incurred therein or thereby. The Trustee has no obligation or liability
to the Holders for the payment of the interest on, principal of or Prepayment premium, if any,
with respect to the Obligations from its own funds; but rather the Trustee’s obligations shall be
limited to the performance of its duties hereunder.
The Trustee shall not be deemed to have knowledge of any event of default
(except payment defaults) unless and until a Responsible Officer shall have actual knowledge
thereof or a Responsible Officer of the Trustee shall have received written notice thereof at its
Designated Office. The Trustee shall not be bound to ascertain or inquire as to the performance
or observance of any of the terms, conditions, covenants or agreements herein or of any of the
documents executed in connection with the Obligations, or as to the existence of a default or
event of default thereunder. The Trustee shall not be responsible for the validity or effectiveness
of any collateral given to or held by it.
The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through attorneys-in-fact, agents or receivers, but shall
32 OHSUSA:750956245.6
be answerable for the negligence or misconduct of any such attorney-in-fact, agent or receiver.
The Trustee shall be entitled to advice of counsel and other professionals concerning all matters
of trust and its duty hereunder, but the Trustee shall not be answerable for the professional
malpractice of any attorney-in-law or certified public accountant in connection with the
rendering of his professional advice in accordance with the terms of this Trust Agreement, if
such attorney-in-law or certified public accountant was selected by the Trustee with due care.
The Trustee shall not be concerned with or accountable to anyone for the
subsequent use or application of any moneys which shall be released or withdrawn in accordance
with the provisions hereof.
Whether or not therein expressly so provided, every provision of this Trust
Agreement, the Sublease or related documents relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Article.
The Trustee makes no representation or warranty, express or implied, as to the
title, value, design, compliance with specifications or legal requirements, quality, durability,
operation, condition, merchantability or fitness for any particular purpose for the use
contemplated by the Authority or County of the Facilities or the Project. In no event shall the
Trustee be liable for incidental, indirect, special, punitive or consequential damages of any kind
whatsoever (including, but not limited to, loss of profit) in connection with or arising from the
Sublease or this Trust Agreement for the existence, furnishing or use of the Facilities or the
Project, irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
The Trustee shall be protected in acting upon any notice, resolution, requisition,
request (including any Written Request of the Authority or the County), consent, order,
certificate, report, opinion, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties. Before the Trustee acts or refrains
from acting, the Trustee may consult with counsel, who may be counsel of or to the Authority or
to the Holder, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder
in good faith and in accordance therewith.
Whenever in the administration of its rights and obligations hereunder the Trustee
shall deem it necessary or desirable that a matter be established or proved prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by a Certificate of the Authority or the Holder, which
certificate shall be full warrant to the Trustee for any action taken or suffered under the
provisions hereof upon the faith thereof, but in its discretion the Trustee may in lieu thereof
accept other evidence of such matter or may require such additional evidence as it may deem
reasonable.
No provision of this Trust Agreement shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance or exercise of any of
its duties hereunder, or in the exercise of its rights or powers.
33 OHSUSA:750956245.6
The Trustee is not responsible for the content of any official statement or any
other offering or disclosure material prepared in connection with the Obligations.
SECTION 8.03 Compensation and Indemnification of Trustee. The Authority
covenants to pay (but solely from Additional Payments) to the Trustee from time to time, and the
Trustee shall be entitled to, compensation for all services rendered by it in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the Authority will pay
or reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee, in accordance with any of the provisions of this Trust
Agreement (including the reasonable compensation and the reasonable expenses and
disbursements of their counsel (including the allocated reasonable fees and disbursements of in-
house counsel) and of all persons not regularly in their employ) except any such expense,
disbursement or advance as may arise from their negligence or willful misconduct. The
Authority, to the extent permitted by law, shall indemnify, defend and hold harmless the Trustee
against any loss, damage, liability or expense incurred without negligence or willful misconduct
on the part of the Trustee arising out of or in connection with the acceptance or administration of
the trusts created hereby, including reasonable costs and expenses (including reasonable
attorneys’ fees and disbursements) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers hereunder. The
rights of the Trustee and the obligations of the Authority under this Section 8.03 shall survive the
discharge of the Obligations and this Trust Agreement and the resignation or removal of the
Trustee.
ARTICLE IX
AMENDMENT OF THE TRUST AGREEMENT
SECTION 9.01 Amendment of the Trust Agreement.
(a) This Trust Agreement and the rights and obligations of the Authority and
of the Holders may be amended at any time by a Supplemental Trust Agreement which shall
become binding when the written consent of the Holders of a majority in aggregate principal
amount of the Obligations then Outstanding, exclusive of Obligations disqualified as provided in
Section 9.02, are filed with the Trustee; provided that if such modification or amendment will, by
its terms, not take effect so long as any Obligations of any particular maturity or Series remain
Outstanding, the consent of the Holders of such Obligations shall not be required and such
Obligations shall not be deemed to be Outstanding for the purpose of any calculation of
Obligations Outstanding under this Section. No such amendment shall (1) extend the maturity of
or reduce the interest rate on or amount of interest on or principal of or Prepayment premium, if
any, on any Obligation without the express written consent of the Holder of such Obligation, or
(2) permit the creation by the Authority of any pledge of or charge or lien upon the Revenues as
provided herein superior to or on a parity with the pledge, charge and lien created hereby for the
benefit of the Obligations, or (3) reduce the percentage of Obligations required for the written
consent to any such amendment, or (4) modify any rights or obligations of the Trustee, the
Authority, the Holder, or the County without their prior written assent thereto, respectively. It
shall not be necessary for the consent of the Holders to approve the particular form of any
34 OHSUSA:750956245.6
Supplemental Trust Agreement, but it shall be sufficient if such consent shall approve the
substance thereof. Promptly after the execution by the Authority and the Trustee of any
Supplemental Trust Agreement pursuant to this subsection (a), the Trustee shall mail a notice on
behalf of the Authority, setting forth in general terms the substance of such Supplemental Trust
Agreement to the Holders at the addresses shown on the registration books maintained by the
Trustee. Any failure to give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such Supplemental Trust Agreement.
(b) The Trust Agreement and the rights and obligations of the Authority and
of the Holders may also be amended at any time by a Supplemental Trust Agreement which shall
become binding upon adoption but without the consent of any Holders, but with the consent of
the Lender, for any purpose that will not materially adversely affect the interests of the Holders,
including (without limitation) for any one or more of the following purposes –
(i) to add to the agreements and covenants required herein to be performed by
the Authority other agreements and covenants thereafter to be performed by the
Authority, or to surrender any right or power reserved herein to or conferred herein on the
Authority;
(ii) to make such provisions for the purpose of curing any ambiguity or of
correcting, curing or supplementing any defective provision contained herein or in regard
to questions arising hereunder which the Authority may deem desirable or necessary;
(iii) to provide for the issuance of any Additional Obligations and to provide
the terms of such Additional Obligations, including provisions for full book-entry
registration of such Additional Obligations, subject to the conditions and upon
compliance with the procedure set forth in Article III (which shall be deemed not to
adversely affect Holders);
(iv) to add to the agreements and covenants required herein, such agreements
and covenants as may be necessary to qualify the Trust Agreement under the Trust
Indenture Act of 1939; or
SECTION 9.02 Disqualified Obligations. Obligations owned or held by or for the
account of the Authority shall not be deemed Outstanding for the purpose of any consent or other
action or any calculation of Outstanding Obligations provided in this Article, and shall not be
entitled to consent to or take any other action provided in this Article.
SECTION 9.03 Endorsement or Replacement of Obligations After Amendment.
After the effective date of any action taken as hereinabove provided, the Authority may
determine that the Obligations may bear a notation by endorsement in form approved by the
Authority as to such action, and in that case upon demand of the Holder of any Outstanding
Obligations and presentation of his Obligation for such purpose at the Designated Office a
suitable notation as to such action shall be made on such Obligation. If the Authority shall so
determine, new Obligations so modified as, in the opinion of the Authority, shall be necessary to
conform to such action shall be prepared and executed, and in that case upon demand of the
Holder of any Outstanding Obligation a new Obligation or Obligations shall be exchanged at the
35 OHSUSA:750956245.6
office of the Trustee without cost to each Holder for its Obligation or Obligations then
Outstanding upon surrender of such Outstanding Obligations.
SECTION 9.04 Amendment by Mutual Consent. The provisions of this Article
shall not prevent any Holder from accepting any amendment as to the particular Obligations held
by him, provided that due notation thereof is made on such Obligations.
ARTICLE X
DEFEASANCE
SECTION 10.01 Discharge of Obligations.
(a) If the Authority shall pay or cause to be paid or there shall otherwise be
paid to the Holders of all or any portion of the Outstanding Obligations the interest thereon and
principal thereof and Prepayment premiums, if any, thereon at the times and in the manner
stipulated herein and therein, and the Authority shall pay in full all other amounts due hereunder
and under the Sublease, then the Holders of such Obligations shall cease to be entitled to the
pledge of and charge and lien upon the Revenues as provided herein, and all agreements,
covenants and other obligations of the Authority to the Holders of such Obligations hereunder
shall thereupon cease, terminate and become void and be discharged and satisfied. In such event,
the Trustee shall execute and deliver to the Authority all such instruments as may be necessary or
desirable to evidence such discharge and satisfaction, the Trustee shall pay over or deliver to the
Authority all money or securities held by it pursuant hereto which are not required for the
payment of the interest on and principal of and Prepayment premiums, if any, on such
Obligations and for the payment of all other amounts due hereunder and under the Sublease.
(b) Any Outstanding Obligations shall prior to the maturity date or
Prepayment date thereof be deemed to have been paid within the meaning of and with the effect
expressed in subsection (a) of this Section if (1) in case any of such Obligations are to be
redeemed on any date prior to their maturity date, the Authority shall have given to the Trustee in
form satisfactory to it irrevocable instructions to provide notice in accordance with Section 4.05,
(2) there shall have been deposited with the Trustee (A) cash in an amount which shall be
sufficient and/or (B) noncallable Government Securities, the interest on and principal of which
when paid will provide cash which, together with the cash, if any, deposited with the Trustee at
the same time, shall be sufficient, in the opinion of an Independent Certified Public Accountant,
to pay when due the interest to become due on such Obligations on and prior to the maturity date
or Prepayment date thereof, as the case may be, and the principal of and Prepayment premiums,
if any, on such Obligations, and (3) in the event such Obligations are not by their terms subject to
Prepayment within the next succeeding sixty (60) days, the Authority shall have given the
Trustee in form satisfactory to it irrevocable instructions to mail as soon as practicable, a notice
to the Holders of such Obligations that the deposit required by clause (2) above has been made
with the Trustee and that such Obligations are deemed to have been paid in accordance with this
Section and stating the maturity date or Prepayment date upon which money is to be available for
the payment of the principal of and Prepayment premiums, if any, on such Obligations.
36 OHSUSA:750956245.6
(c) In the event of an advance refunding (i) the Authority shall cause to be
delivered, on the deposit date and upon any reinvestment of the defeasance amount, a report of
an independent firm of nationally recognized certified public accountants (“Accountants”)
verifying the sufficiency of the escrow established to pay the Obligations in full on the maturity
date or Prepayment date (“Verification”), (ii) the escrow agreement shall provide that no
(A) substitution of a Government Security shall be permitted except with another Government
Security and upon delivery of a new Verification and (B) reinvestment of a Government Security
shall be permitted except as contemplated by the original Verification or upon delivery of a new
Verification, and (iii) there shall be delivered an Opinion of Counsel to the effect that the
Obligations are no longer “Outstanding” under the Trust Agreement; each Verification and
opinion shall be addressed to the Authority and the Trustee.
SECTION 10.02 Unclaimed Money. Anything contained herein to the contrary
notwithstanding, any money held by the Trustee in trust for the payment and discharge of any of
the Obligations or interest thereon which remains unclaimed for two (2) years after the date
when such Obligations or interest thereon have become due and payable, either at their stated
maturity dates or by call for Prepayment prior to maturity, if such money was held by the Trustee
at such date, or for two (2) years after the date of deposit of such money if deposited with the
Trustee after the date when such Obligations have become due and payable, shall be repaid by
the Trustee to the Authority as its absolute property free from trust, and the Trustee shall
thereupon be released and discharged with respect thereto and the Holders shall not look to the
Trustee for the payment of such Obligations.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Liability of Authority Limited to Revenues. Notwithstanding
anything contained herein, the Authority shall not be required to advance any money derived
from any source other than the Revenues as provided herein for the payment of the interest on or
principal of or Prepayment premiums, if any, on the Obligations or for the performance of any
agreements or covenants herein contained. The Authority may, however, advance funds for any
such purpose so long as such funds are derived from a source legally available for such purpose.
The Obligations are limited obligations of the Authority and are payable, as to
interest thereon, principal thereof and any premiums upon the Prepayment of any thereof, solely
from the Revenues as provided herein, and the Authority is not obligated to pay them except
from the Revenues. All the Obligations are equally secured by a pledge of and charge and lien
upon the Revenues, and the Revenues constitute a trust fund for the security and payment of the
interest on and principal of and Prepayment premiums, if any, on the Obligations as provided
herein. The Obligations are not a debt of the County, the State or any of its political
subdivisions, and neither the County, the State nor any of its political subdivisions is liable
thereon, nor in any event shall the Obligations be payable out of any funds or properties other
than those of the Authority as provided herein. The Obligations do not constitute an
indebtedness within the meaning of any constitutional or statutory limitation or restriction.
37 OHSUSA:750956245.6
SECTION 11.02 Benefits of this Trust Agreement Limited to Parties and Third
Party Beneficiaries. Nothing contained herein, expressed or implied, is intended to give to any
person other than the Authority, the Trustee, and the Holders any right, remedy or claim under or
by reason hereof. Any agreement or covenant required herein to be performed by or on behalf of
the Authority or any member, officer or employee thereof shall be for the sole and exclusive
benefit of the Authority, the Trustee and the Holders.
SECTION 11.03 Successor Is Deemed Included In All References To Predecessor.
Whenever herein either the Authority or any member, officer or employee thereof or of the
County is named or referred to, such reference shall be deemed to include the successor to the
powers, duties and functions with respect to the Project that are presently vested in the Authority
or such member, officer or employee, and all agreements and covenants required hereby to be
performed by or on behalf of the Authority or any member, officer or employee thereof shall
bind and inure to the benefit of the respective successors thereof whether so expressed or not.
SECTION 11.04 Execution of Documents by Holders. Any declaration, request or
other instrument which is permitted or required herein to be executed by Holders may be in one
or more instruments of similar tenor and may be executed by Holders in person or by their
attorneys appointed in writing. The fact and date of the execution by any Holder or his attorney
of any declaration, request or other instrument or of any writing appointing such attorney may be
proved by the certificate of any notary public or other officer authorized to make
acknowledgments of deeds to be recorded in the state or territory in which he purports to act that
the person signing such declaration, request or other instrument or writing acknowledged to him
the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such
notary public or other officer. The ownership of any Obligations and the amount, maturity,
number and date of holding the same may be proved by the registration books relating to the
Obligations at the Designated Office of the Trustee.
Any declaration, request, consent or other instrument or writing of the Holder of
any Obligation shall bind all future Holders of such Obligation with respect to anything done or
suffered to be done by the Trustee or the Authority in good faith and in accordance therewith.
SECTION 11.05 Waiver of Personal Liability. No member, officer or employee of
the Authority or the County shall be individually or personally liable for the payment of the
interest on or principal of or Prepayment premiums, if any, on the Obligations by reason of their
issuance, but nothing herein contained shall relieve any such member, officer or employee from
the performance of any official duty provided by the Act or any other applicable provisions of
law or hereby.
SECTION 11.06 [Reserved].
SECTION 11.07 Content of Certificates. Every Certificate of the Authority with
respect to compliance with any agreement, condition, covenant or provision provided herein
shall include (a) a statement that the person or persons making or giving such certificate have
read such agreement, condition, covenant or provision and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which
the statements contained in such certificate are based; (c) a statement that, in the opinion of the
38 OHSUSA:750956245.6
signers, they have made or caused to be made such examination or investigation as is necessary
to enable them to express an informed opinion as to whether or not such agreement, condition,
covenant or provision has been complied with; and (d) a statement as to whether, in the opinion
of the signers, such agreement, condition, covenant or provision has been complied with.
Any Certificate of the Authority may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel unless the person making or giving such certificate knows
that the Opinion of Counsel with respect to the matters upon which his certificate may be based,
as aforesaid, is erroneous, or in the exercise of reasonable care should have known that the same
was erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters
information with respect to which is in the possession of the Authority, upon a representation by
an officer or officers of the Authority unless the counsel executing such Opinion of Counsel
knows that the representation with respect to the matters upon which his opinion may be based,
as aforesaid, is erroneous, or in the exercise of reasonable care should have known that the same
was erroneous.
SECTION 11.08 Accounts and Funds. Any account or fund required herein to be
established and maintained by the Trustee may be established and maintained in the accounting
records of the Trustee either as an account or a fund, and may, for the purposes of such
accounting records, any audits thereof and any reports or statements with respect thereto, be
treated either as an account or a fund; but all such records with respect to all such accounts and
funds shall at all times be maintained in accordance with corporate trust industry standards and
with due regard for the protection of the security of the Obligations and the rights of the Holders.
SECTION 11.09 Business Day. When any action is provided for herein to be done
on a day named or within a specified time period, and the day or the last day of the period falls
on a day which is not a Business Day, such action may be performed on the next ensuing
Business Day with the same effect as though performed on the appointed day or within the
specified period.
SECTION 11.10 Notices. All written notices to be given hereunder shall be given
by mail to the party entitled thereto at the addresses set forth below, or at such other addresses as
such parties may provide to the other party in writing from time to time, namely:
If to the Authority: County of Contra Costa Public Financing Authority
c/o County Administrator
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
If to the Trustee: Wells Fargo Bank, National Association
MAC #A0119-181
333 Market Street, 18th Floor
San Francisco, California 94105
39 OHSUSA:750956245.6
If to the County: County of Contra Costa
c/o Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
SECTION 11.11 Article and Section Headings and References. The headings or
titles of the several articles and sections hereof and the table of contents appended hereto shall be
solely for convenience of reference and shall not affect the meaning, construction or effect
hereof. All references herein to “Articles,” “Sections” and other subdivisions or clauses are to
the corresponding articles, sections, subdivisions or clauses hereof; and the words “hereby,”
“herein,” “hereof,” “hereto,” “herewith,” “hereunder” and other words of similar import refer to
this Trust Agreement as a whole and not to any particular article, section, subdivision or clause
hereof.
SECTION 11.12 Partial Invalidity. If any one or more of the agreements or
covenants or portions thereof required hereby to be performed by or on the part of the Authority
or the Trustee shall be contrary to law, then such agreement or agreements, such covenant or
covenants or such portions thereof shall be null and void and shall be deemed separable from the
remaining agreements and covenants or portions thereof and shall in no way affect the validity
hereof or of the Obligations, and the Holders shall retain all the benefit, protection and security
afforded to them under the Act or any other applicable provisions of law. The Authority and the
Trustee hereby declare that they would have executed and delivered this Trust Agreement and
each and every other article, section, paragraph, subdivision, sentence, clause and phrase hereof
and would have authorized the issuance of the Obligations pursuant hereto irrespective of the
fact that any one or more articles, sections, paragraphs, subdivisions, sentences, clauses or
phrases hereof or the application thereof to any person or circumstance may be held to be
unconstitutional, unenforceable or invalid.
SECTION 11.13 Governing Law. This Trust Agreement shall be governed
exclusively by the provisions hereof and by the laws of the State as the same from time to time
exist.
SECTION 11.14 Execution in Several Counterparts. This Trust Agreement may be
executed in any number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original; and all such counterparts, or as many of them as the Authority and the
Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
40 OHSUSA:750956245.6
IN WITNESS WHEREOF, the COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY has caused this Trust Agreement to be signed in its name by its
Chair, and WELLS FARGO BANK, NATIONAL ASSOCIATION, in token of its acceptance of
the trusts created hereunder, has caused this Trust Agreement to be signed by one of the officers
thereunder duly authorized, all as of the day and year first above written.
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY
By:
Mary N. Piepho
Chair of the County of Contra Costa
Public Financing Authority
ATTEST:
By:
David J. Twa
Executive Director and Secretary
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Officer
Acknowledged:
COUNTY OF CONTRA COSTA
By:
Mary N. Piepho
Chair of the Board of Supervisors
County of Contra Costa,
State of California
A-1 OHSUSA:750956245.6
EXHIBIT A
[FORM OF CERTIFICATE OF AUTHENTICATION
TO APPEAR ON OBLIGATIONS]
This is one of the Obligations described in the within-mentioned Trust Agreement
which has been registered on _____________, 2012.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By
Authorized Signatory
B-1 OHSUSA:750956245.6
EXHIBIT B
FORM OF REQUISITION – PROJECT FUND
Date: _______________
No. __
Wells Fargo Bank, National Association
MAC #A0119-181
333 Market Street, 18th Floor
San Francisco, CA 94105
Re: County of Contra Costa Public Financing Authority
Lease Revenue Obligations (Capital Projects Program), 2012 Series A
(Written Request of the County – 2012 Series A Project Account)
Ladies and Gentlemen:
This letter is our authorization to you to disburse from the 2012 Series A Project
Account within the Project Fund provided for in Section 3.02 of the Trust Agreement dated as of
October 1, 2012 (the “Trust Agreement”) between the County of Contra Costa Public Financing
Authority (the “Authority”) and Wells Fargo Bank, National Association, as trustee, the amounts
indicated on Schedule A attached hereto to the therein-named individuals, firms and corporations
for project costs pursuant to the Trust Agreement.
The obligations in the stated amounts have been incurred by the County and each
item thereof is a proper charge against the 2012 Series A Project Account within the Project
Fund.
If checked here you are hereby authorized to close the 2012 Series A Project
Account within the Project Fund and transfer any remaining balance (after payment of any
amounts indicated in Schedule A) to the Revenue Fund.
Very truly yours,
COUNTY OF CONTRA COSTA
By
Chair of the Board of Supervisors
County of Contra Costa, State of California
B-2 OHSUSA:750956245.6
SCHEDULE A
Item
No. Payee Amount Purpose
C-1 OHSUSA:750956245.6
EXHIBIT C
FORM OF REQUISITION – COSTS OF ISSUANCE
Date: _______________
No. __
Wells Fargo Bank, National Association
MAC #A0119-181
333 Market Street, 18th Floor
San Francisco, CA 94105
Re: County of Contra Costa Public Financing Authority
Lease Revenue Obligations (Capital Projects Program), 2012 Series A
(Written Request of the Authority – Costs of Issuance Fund)
Ladies and Gentlemen:
This letter is our authorization to you to disburse from the Costs of Issuance Fund
provided for in Section 3.01 of the Trust Agreement dated as of October 1, 2012 (the “Trust
Agreement”) between the County of Contra Costa Public Financing Authority (the “Authority”)
and Wells Fargo Bank, National Association, as trustee, the not to exceed amounts indicated on
Schedule A attached hereto to the therein-named individuals, firms and corporations for
expenses incident to the issuance of the above-referenced Obligations pursuant to the Trust
Agreement.
The obligations in the stated amounts have been incurred by the Authority and
each item thereof is a proper charge against the Costs of Issuance Fund.
If checked here you are hereby authorized to close the Costs of Issuance Fund
and transfer any remaining balance (after payment of any amounts indicated in Schedule A) to
the 2012 Series A Project Account within the Project Fund.
Very truly yours,
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY
By
Deputy Executive Director and
Assistant Secretary
C-2 OHSUSA:750956245.6
SCHEDULE A
Item
No. Payee Amount Purpose
D-1 OHSUSA:750956245.6
EXHIBIT D
FORM OF INVESTOR LETTER
[October ___, 2012]
County of Contra Costa Public Financing Authority
Martinez, California
County of Contra Costa
Martinez, California
Wells Fargo Bank, National Association
San Francisco, California
Re: County of Contra Costa Public Financing Authority Lease Revenue Obligations
(Capital Projects Program), 2012 Series A
Ladies and Gentlemen:
The undersigned is the purchaser (the “Purchaser”) of those certain County of
Contra Costa Public Financing Authority Lease Revenue Obligations (Capital Projects Program),
2012 Series A (the “Obligations”), executed and delivered in the principal amount of
$_________, pursuant to that certain Trust Agreement, dated as of October 1, 2012 (the “Trust
Agreement”), between the County of Contra Costa Public Financing Authority (the “Authority”)
and Wells Fargo Bank, National Association, as trustee (the “Trustee”). All capitalized terms
used and not otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement.
The undersigned, as the Purchaser of the Obligations, does hereby certify,
represent and warrant for the benefit of the Authority and the County that:
(a) The Purchaser is a “Qualified Institutional Buyer.”
(b) The Purchaser has sufficient knowledge and experience in financial and business
matters, including the purchase and ownership of tax-exempt obligations, for purposes of
evaluating the merits and risks of its investment in the Obligations. The Purchaser is able to bear
the economic risk of an investment in the Obligations.
(c) The Purchaser is acquiring the Obligations solely for its own account for
investment purposes, and does not presently intend to make a public distribution of, or to assign
or transfer, all or any part of the Obligations, but reserves the right to assign or transfer the
Obligations to another Qualified Institutional Buyer in accordance with the terms and provisions
of the Trust Agreement.
(d) The Purchaser acknowledges that the Obligations have not been registered under
the under the Securities Act of 1933, as amended, or under any state securities laws and that such
D-2 OHSUSA:750956245.6
registration is not legally required. The Purchaser agrees that it will comply with any applicable
state and federal securities laws then in effect with respect to any subsequent disposition of the
Obligations, and further acknowledges that any current exemption from registration of the
Obligations does not affect or diminish this requirement.
(e) The Purchaser has either been supplied with or had access to information
concerning the Authority, the County and the Facilities to which it attaches significance in
making its investment decision with regard to the Obligations. The Purchaser understands and
acknowledges that, among other risks, the Obligations are payable solely from Revenues, as
defined in the Trust Agreement. The Purchaser has been provided an opportunity to ask
questions of, and the Purchaser has received answers from, representatives of the Authority and
the County regarding the Authority, the County and the terms and conditions of the Obligations
and the security therefor. The Purchaser has obtained all information requested by it in
connection with the issuance of the Obligations as the Purchaser regards necessary to evaluate all
merits and risks of its investment in the Obligations. The Purchaser has reviewed the documents
executed in conjunction with the issuance of the Obligations, including, without limitation, the
Trust Agreement, the Site Lease and the Sublease (hereinafter referred to as the “Obligation
Documents”).
(f) The Purchaser has authority to purchase the Obligations and to execute this
investor’s letter and any other instruments and documents required to be executed by the
Purchaser in connection with the purchase of the Obligations, including, without limitation, the
Obligation Documents. The undersigned is a duly appointed, qualified, and acting officer of the
Purchaser, is authorized to cause the Purchaser to make the certifications, representations and
warranties contained in the Obligation Documents and herein by execution of this investor’s
letter on behalf of the Purchaser and is authorized to execute and deliver the instruments and
documents required to be executed by the Purchaser in connection with the purchase of the
Obligations.
(g) In entering into this transaction, the Purchaser has not relied upon any
representations or opinions of the Authority, its counsel or its bond counsel, Orrick, Herrington
& Sutcliffe LLP (hereinafter referred to as “Bond Counsel”), the County or their counsel relating
to the legal consequences (except as with respect to those matters addressed in the final Opinion
of Counsel upon which the Purchaser is permitted to rely pursuant to a reliance letter delivered to
the Purchaser by Bond Counsel and those matters addressed in the opinion of counsel to the
County and the opinion of counsel to the Authority, which opinions are addressed to the
Purchaser, and those representations, warranties and covenants made by the Authority and the
County in the Loan Agreement, dated as of October 1, 2012, by and among the Authority, the
County and the Purchaser, and in the Obligation Documents) or other aspects of its investment in
the Obligations, nor has it looked to, nor expected, the Authority to undertake or require any
credit investigation or due diligence reviews relating to the County, their financial condition or
business operations, the Facilities (including the financing or management thereof), or any other
matter pertaining to the merits or risks of the transactions contemplated by the Obligation
Documents, or the adequacy of the assets pledged to secure repayment of the Obligations.
(h) The Purchaser understands that the Obligations are not secured by any pledge of
any moneys received or to be received from taxation by the Authority (which has no taxing
D-3 OHSUSA:750956245.6
power), the State of California or any political subdivision or taxing district thereof; that the
Obligations will never represent or constitute a general obligation or a pledge of the faith and
credit of the Authority, the State of California or any political subdivision thereof; that no right
will exist to have taxes levied by the State of California or any political subdivision thereof for
the payment of principal and interest on the Obligations; and that the liability of the Authority
with respect to the Obligations is subject to further limitations as set forth in the Obligations and
the Trust Agreement.
(i) The Purchaser has been informed that the Obligations (i) have not been and will
not be registered or otherwise qualified for sale under the “Blue Sky” laws and regulations of any
jurisdiction, (ii) will not be listed on any stock or other securities exchange, and (iii) will not
carry any rating from any rating service.
(j) The Purchaser acknowledges that it has the right to assign and transfer the
Obligations, subject to compliance with the transfer restrictions set forth in the Trust Agreement,
including, without limitation, the requirement for the delivery to the Authority and the County of
an investor’s letter in substantially the same form as this Investor’s Letter, including this
paragraph. Failure to deliver such investor’s letter shall cause the purported transfer to be null
and void. The Purchaser agrees to indemnify and hold harmless the Authority with respect to
any claim asserted against the Authority that arises with respect to any assignment, transfer or
other disposition of the Obligations by the Purchaser or any transferee thereof in violation of the
provisions of the Trust Agreement.
(k) None of the Authority, its members, its governing body, or any of its employees,
counsel or agents nor Bond Counsel will have any responsibility to the Purchaser for the
accuracy or completeness of information obtained by the Purchaser from any source regarding
the County or its financial condition or regarding the Obligations, the provision for payment
thereof, or the sufficiency of any security therefor. No written information has been provided by
the Authority to the Purchaser with respect to the Obligations. The Purchaser acknowledges that,
as between the Purchaser and all of such parties, the Purchaser has assumed responsibility for
obtaining such information and making such review as the Purchaser deemed necessary or
desirable in connection with its decision to purchase the Obligations.
[PURCHASER]
By:
Name:
Title:
TABLE OF CONTENTS
Page
i OHSUSA:750956245.6
ARTICLE I DEFINITIONS; EQUAL SECURITY ............................................................ 2
SECTION 1.01 Definitions...................................................................................... 2
SECTION 1.02 Equal Security .............................................................................. 10
SECTION 1.03 Interpretation ................................................................................ 11
ARTICLE II THE OBLIGATIONS .................................................................................... 11
SECTION 2.01 Authorization of Obligations; 2012 Loan Obligations ................ 11
SECTION 2.02 Terms of the 2012 Loan Obligations ........................................... 12
SECTION 2.03 Form of 2012 Loan Obligations ................................................... 13
SECTION 2.04 Execution of Obligations ............................................................. 13
SECTION 2.05 Transfer and Payment of Obligations .......................................... 13
SECTION 2.06 Exchange of Obligations .............................................................. 14
SECTION 2.07 Registration Books ....................................................................... 14
ARTICLE III ISSUANCE OF 2012 LOAN OBLIGATIONS ............................................. 14
SECTION 3.01 Procedure for the Issuance of 2012 Loan Obligations ................. 14
SECTION 3.02 Project Fund ................................................................................. 15
SECTION 3.03 Conditions for the Issuance of Additional Obligations ................ 15
SECTION 3.04 Proceedings for Authorization of Additional Obligations ........... 16
SECTION 3.05 Limitations on the Issuance of Obligations Payable from
Revenues ...................................................................................... 17
ARTICLE IV PREPAYMENT OF OBLIGATIONS ........................................................... 17
SECTION 4.01 Extraordinary Prepayment ........................................................... 17
SECTION 4.02 Optional Prepayment ................................................................... 18
SECTION 4.03 Mandatory Sinking Fund Prepayment ......................................... 18
SECTION 4.04 Selection of Obligations for Prepayment ..................................... 18
SECTION 4.05 Notice of Prepayment; Cancellation; Effect of Prepayment ........ 18
ARTICLE V REVENUES ................................................................................................... 19
SECTION 5.01 Pledge of Revenues ...................................................................... 19
SECTION 5.02 Receipt and Deposit of Revenues in the Revenue Fund .............. 20
SECTION 5.03 Establishment and Maintenance of Accounts for Use of
Money in the Revenue Fund ........................................................ 20
SECTION 5.04 Application of Insurance Proceeds .............................................. 21
SECTION 5.05 Deposit and Investments of Money in Accounts and Funds ........ 22
TABLE OF CONTENTS
(continued)
Page
ii OHSUSA:750956245.6
ARTICLE VI COVENANTS OF THE AUTHORITY ........................................................ 22
SECTION 6.01 Punctual Payment and Performance ............................................ 22
SECTION 6.02 Against Encumbrances ................................................................. 23
SECTION 6.03 Tax Covenants; Rebate Fund ....................................................... 23
SECTION 6.04 Accounting Records and Reports ................................................. 24
SECTION 6.05 Prosecution and Defense of Suits ................................................ 24
SECTION 6.06 Further Assurances....................................................................... 24
SECTION 6.07 Maintenance of Revenues ............................................................ 24
SECTION 6.08 Amendments to Sublease ............................................................. 25
SECTION 6.09 Leasehold Estate .......................................................................... 25
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES OF HOLDERS ....................... 26
SECTION 7.01 Events of Default and Acceleration of Maturities ....................... 26
SECTION 7.02 Application of Funds Upon Acceleration .................................... 27
SECTION 7.03 Institution of Legal Proceedings by Trustee ................................ 28
SECTION 7.04 Non-Waiver .................................................................................. 28
SECTION 7.05 Actions by Trustee as Attorney-in-Fact ....................................... 28
SECTION 7.06 Remedies Not Exclusive .............................................................. 29
SECTION 7.06 Limitation on Holders’ Right to Sue…………………………….29
ARTICLE VIII THE TRUSTEE ............................................................................................. 29
SECTION 8.01 The Trustee .................................................................................. 29
SECTION 8.02 Liability of Trustee ...................................................................... 30
SECTION 8.03 Compensation and Indemnification of Trustee ............................ 32
ARTICLE IX AMENDMENT OF THE TRUST AGREEMENT ....................................... 32
SECTION 9.01 Amendment of the Trust Agreement ........................................... 32
SECTION 9.02 Disqualified Obligations .............................................................. 33
SECTION 9.03 Endorsement or Replacement of Obligations After
Amendment .................................................................................. 33
SECTION 9.04 Amendment by Mutual Consent .................................................. 34
ARTICLE X DEFEASANCE.............................................................................................. 34
SECTION 10.01 Discharge of Obligations ............................................................. 34
SECTION 10.02 Unclaimed Money ........................................................................ 35
TABLE OF CONTENTS
(continued)
Page
iii OHSUSA:750956245.6
ARTICLE XI MISCELLANEOUS ...................................................................................... 35
SECTION 11.01 Liability of Authority Limited to Revenues ................................. 35
SECTION 11.02 Benefits of this Trust Agreement Limited to Parties and
Third Party Beneficiaries ............................................................. 36
SECTION 11.03 Successor Is Deemed Included In All References To
Predecessor .................................................................................. 36
SECTION 11.04 Execution of Documents by Holders ........................................... 36
SECTION 11.05 Waiver of Personal Liability ........................................................ 36
SECTION 11.06 Destruction of Cancelled Obligations .......................................... 36
SECTION 11.07 Content of Certificates ................................................................. 37
SECTION 11.08 Accounts and Funds ..................................................................... 37
SECTION 11.09 Business Day ................................................................................ 37
SECTION 11.10 Notices ......................................................................................... 37
SECTION 11.11 Article and Section Headings and References ............................. 38
SECTION 11.12 Partial Invalidity........................................................................... 38
SECTION 11.13 Governing Law ............................................................................ 38
SECTION 11.14 Execution in Several Counterparts ............................................... 38
Execution ..................................................................................................................................... 43
Exhibit A Form of Obligation ............................................................................................ A-1
Exhibit B Form of Project Fund Requisition...................................................................... B-1
Exhibit C Form of Costs of Issuance Requisition .............................................................. C-1
Exhibit D Form of Investor Letter ...................................................................................... D-1
OHSUSA:750956245.6
Orrick, Herrington & Sutcliffe 9/11/12
OHSUSA:750956399.4
Recording requested by
and return to:
COUNTY OF CONTRA COSTA
c/o Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105-2669
Attention: Mary A. Collins, Esq.
SITE LEASE
(Capital Projects Program)
by and between the
COUNTY OF CONTRA COSTA
and the
COUNTY OF CONTRA COSTA PUBLIC FINANCING AUTHORITY
Related to
$[Par Amount]
County of Contra Costa Public Financing Authority
Lease Revenue Obligations
2012 Series A
Dated as of October 1, 2012
THIS TRANSACTION IS EXEMPT FROM FILING FEES PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 6103 AND
TRANSFER TAXES PURSUANT TO CALIFORNIA REVENUE AND TAXATION CODE SECTION 11928
OHSUSA:750956399.4
SITE LEASE
This Site Lease, dated as of October 1, 2012 (this “Site Lease”), is by and
between the COUNTY OF CONTRA COSTA, a political subdivision organized and existing
under and by virtue of the laws of the State of California (the “County”), as lessor, and the
COUNTY OF CONTRA COSTA PUBLIC FINANCING AUTHORITY, a public entity and
agency, duly organized and existing pursuant to an Agreement entitled “Joint Exercise of Powers
Agreement” by and between the County of Contra Costa and the Contra Costa County
Redevelopment Agency (the “Authority”), as lessee. Capitalized terms not otherwise defined
herein shall have the meaning assigned to such terms in the Trust Agreement.
W I T N E S S E T H:
WHEREAS, the County has determined that it is in its best interests to finance
additional capital improvements for the County;
WHEREAS, the Authority has authorized the undertaking of the 2012 Loan
Obligations in an aggregate principal amount not to exceed $________ to assist in financing the
2012 Project pursuant to (i) a Loan Agreement dated as of October 1, 2012 (the “Loan
Agreement” among Banc of America Public Capital Corp (“Holder”), the Authority and the
County and (ii) a Trust Agreement, dated as of October 1, 2012 (as amended from time to time,
the “Trust Agreement”) by and between the Authority and Wells Fargo Bank, National
Association, as trustee (together with any successor thereto, the “Trustee”);
WHEREAS, the County, pursuant hereto, will lease certain Facilities (as
hereinafter defined) of the County to the Authority and the Authority will in turn use a portion of
the proceeds of the 2012 Loan Obligations and certain other funds to pay to the County the rental
due hereunder for the Facilities, and the County will use the proceeds of the 2012 Loan
Obligations to make deposits to the Project Fund;
WHEREAS, the Authority will lease back the Facilities to the County pursuant to
the Sublease, dated as of October 1, 2012 (the “Sublease”), between the Authority, as lessor, and
the County, as lessee; and
WHEREAS, under the Sublease, the County will be obligated to make base rental
payments to the Authority for the lease of the Facilities and the Authority will pledge such base
rental payments to the Trustee for payments of the Obligations (capitalized terms used herein and
not otherwise defined herein have the meanings assigned thereto in the Sublease);
2 OHSUSA:750956399.4
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED as follows:
SECTION 1. Lease of Facilities
The County hereby leases to the Authority and the Authority hereby hires from
the County, on the terms and conditions hereinafter set forth, the real property situated in the
County of Contra Costa, State of California, together with the improvements thereon, as
described in Exhibit A attached hereto and made a part hereof, and any additional real property
added thereto by any supplement or amendment hereto, or any real property substituted for all or
any portion of such property in accordance with this Site Lease and the Trust Agreement (the
“Facilities”); subject, however, to any conditions, reservations, and easements of record or
known to the County.
SECTION 2. Term
The term of this Site Lease as to the Facilities shall commence on the date of
recordation of this Site Lease in the office of the County Recorder of County of Contra Costa,
State of California, or on [Closing Date] whichever is earlier, and shall end on the respective
dates identified in Exhibit B hereto, as applicable to the related Facility, unless such term is
extended or sooner terminated as hereinafter provided. If on such dates the Base Rental
Payments attributable to the related Facility and all other amounts then due under the Sublease
with respect to such Facility shall not be fully paid, or if the rental or other amounts payable
under the Sublease with respect to such Facility shall have been abated at any time and for any
reason, then the term of this Site Lease with respect to such Facility shall be extended until ten
(10) days after the Base Rental Payments attributable to such Facility and all other amounts then
due under the Sublease with respect to such Facility shall be fully paid, except that the term of
this Site Lease as to the respective Facility shall in no event be extended beyond ten (10) years
after the date identified with respect thereto. If prior to such date the Base Rental Payments
attributable to the related Facility and all other amounts then due under the Sublease with respect
to such Facility shall be fully paid, the term of this Site Lease with respect to such Facility shall
end ten (10) days thereafter or upon written notice by the County to the Authority, whichever is
earlier.
The County and the Authority hereby agree that the 50 Douglas Facility will be
released from this Site Lease and the Sublease and shall no longer be encumbered hereby and
thereby or by the Trust Agreement in accordance with Section 2.02(b) of the Sublease.
SECTION 3. Rental
The Authority shall pay to the County from the proceeds of the 2012 Loan
Obligations as and for rental hereunder an amount, not less than $[_____], equal to the sum of
the proceeds of the 2012 Loan Obligations to be deposited in the Project Fund.
SECTION 4. Purpose
The Authority shall use the Facilities solely for the purpose of leasing the
Facilities to the County pursuant to the Sublease and for such purposes as may be incidental
3 OHSUSA:750956399.4
thereto; provided, that in the event of default by the County under the Sublease, the Authority
may exercise the remedies provided in the Sublease.
SECTION 5. Environmental Law and Regulations
(a) Definitions used in this Section 5 and in Section 6.
“Asbestos Containing Materials” shall mean material in friable form containing
more than one percent (1%) of the asbestiform varieties of (a) chrysotile (serpentine);
(b) crocidolite (ricbeckite); (c) amosite (cummington-itegrinerite); (d) anthophyllite;
(e) tremolite; and (f) antinolite.
“Asbestos Operations and Maintenance Plan” shall mean that written plan for the
Facilities relating to monitoring and maintaining all Asbestos Containing Materials used or
located on the Facilities.
“Environmental Regulations” shall mean all Laws and Regulations, now or
hereafter in effect, with respect to Hazardous Materials, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42
U.S.C. Section 9601, et seq.) (together with the regulations promulgated thereunder,
“CERCLA”), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 6901, et seq.) (together with the regulations promulgated thereunder, “RCRA”), the
Emergency Planning and Community Right-to-Know Act, as amended (42 U.S.C.
Section 11001, et seq.) (together with the regulations promulgated thereunder, “Title III”), the
Clean Water Act, as amended (33 U.S.C. Section 1321, et seq.) (together with the regulations
promulgated thereunder, “CWA”), the Clean Air Act, as amended (42 U.S.C. Section 7401, et
seq.) (together with the regulations promulgated thereunder, “CAA”) and the Toxic Substances
Control Act, as amended (15 U.S.C. Section 2601, et seq.) (together with the regulations
promulgated thereunder, “TSCA”), and any state or local similar laws and regulations and any
so-called local, state or federal “superfund” or “superlien” law.
“Hazardous Materials” shall mean any material amount of flammable explosives,
polychlorinated biphenyl compounds, heavy metals, chlorinated solvents, cyanide, radon,
petroleum products, asbestos or any Asbestos Containing Materials, methane, radioactive
materials, pollutants, hazardous materials, hazardous wastes, hazardous, toxic, or regulated
substances or related materials, as defined in CERCLA, RCRA, CWA, CAA, TSCA and
Title III, and the regulations promulgated pursuant thereto, and in all other Environmental
Regulations applicable to the County, any of the Facilities or the business operations conducted
by the County therein.
“Laws and Regulations” shall mean any applicable law, regulation, code, order,
rule, judgment or consent agreement, including, without limitation, those relating to zoning,
building, use and occupancy, fire safety, health, sanitation, air pollution, ecological matters,
environmental protection, hazardous or toxic materials, substances or wastes, conservation,
parking, architectural barriers to the handicapped, or restrictive covenants or other agreements
affecting title to the Facilities.
4 OHSUSA:750956399.4
(b) No portion of the Facilities is located in an area of high potential incidence
of radon which has an unventilated basement or subsurface portion which is occupied or used for
any purpose other than the foundation or support of the improvements to such Facilities.
(c) The County has not received any notice from any insurance company
which has issued a policy with respect to the Facilities or from the applicable state or local
government agency responsible for insurance standards (or any other body exercising similar
functions) requiring the performance of any repairs, alterations or other work, which repairs,
alterations or other work have not been completed at the Facilities. The County has not received
any notice of default or breach which has not been cured under any covenant, condition,
restriction, right-of-way, reciprocal easement agreement or other easement affecting the
Facilities which is to be performed or complied with by it.
SECTION 6. Environmental Compliance
(a) Neither the County nor the Authority shall use or permit the Facilities or
any part thereof to be used to generate, manufacture, refine, treat, store, handle, transport or
dispose of, transfer, produce or process Hazardous Materials, except, and only to the extent, if
necessary to maintain the Facilities and then, only in compliance with all Environmental
Regulations, and any state equivalent laws and regulations, nor shall it permit, as a result of any
intentional or unintentional act or omission on its part or by any tenant, subtenant, licensee,
guest, invitee, contractor, employee and agent, the storage, transportation, disposal or use of
Hazardous Materials or the pumping, spilling, leaking, disposing of, emptying, discharging or
releasing (hereinafter collectively referred to as “Release”) or threat of Release of Hazardous
Materials on, from or beneath the Facilities or onto any other real property excluding, however,
those Hazardous Materials in those amounts ordinarily found in the inventory of an office
building, the use, storage, treatment, transportation and disposal of which shall be in compliance
with all Environmental Regulations. Upon the occurrence of any Release or threat of Release of
Hazardous Materials, the County shall promptly commence and perform, or cause to be
commenced and performed promptly, without cost to the Trustee or the Authority, all
investigations, studies, sampling and testing, and all remedial, removal and other actions
necessary to clean up and remove all Hazardous Materials so Released, on, from or beneath the
Facilities, in compliance with all Environmental Regulations. Notwithstanding anything to the
contrary contained herein, underground storage tanks shall only be permitted subject to
compliance with subsection (d) and only to the extent necessary to maintain the Facilities.
(b) The County and the Authority shall comply with, and shall cause its
tenants, subtenants, licensees, guests, invitees, contractors, employees and agents to comply
with, all Environmental Regulations, and shall keep the Facilities free and clear of any liens
imposed pursuant thereto (provided, however, that any such liens, if not discharged, may be
bonded). The County and the Authority shall cause each tenant, and use its best efforts to cause
all of such tenant’s subtenants, agents, licensees, employees, contractors, guests and invitees and
the guests and invitees of all of the foregoing to comply with all Environmental Regulations with
respect to the Facilities; provided, however, that notwithstanding that a portion of this covenant
is limited to the County and the Authority’s use of its best efforts, the Authority and the County
shall remain solely responsible for ensuring such compliance and such limitation shall not
diminish or affect in any way the County and the Authority’s obligations contained in
5 OHSUSA:750956399.4
subsection (c) hereof as provided in subsection (c) hereof. Upon receipt of any notice from any
Person with regard to the Release of Hazardous Materials on, from or beneath the Facilities, the
County and the Authority shall give prompt written notice thereof to the Trustee (and, in any
event, prior to the expiration of any period in which to respond to such notice under any
Environmental Regulation).
(c) Irrespective of whether any representation or warranty contained in
Section 5 is not true or correct, the County and the Authority shall, to the extent permitted by
law, defend, indemnify and hold harmless the Holder and the Trustee, their respective partners,
depositors and each of their employees, agents, officers, directors, trustees, successors and
assigns, from and against any claims, demands, penalties, fines, attorneys’ fees (including,
without limitation, attorneys’ fees incurred to enforce the indemnification contained in this
Section 6), consultants’ fees, investigation and laboratory fees, liabilities, settlements (five (5)
Business Days’ prior notice of which the Authority or the Trustee, as appropriate, shall have
delivered to the County and the Authority), court costs, damages, losses, costs or expenses of
whatever kind or nature, known or unknown, contingent or otherwise, occurring in whole or in
part, arising out of, or in any way related to, (i) the presence, disposal, Release, threat of Release,
removal, discharge, storage or transportation of any Hazardous Materials on, from or beneath the
Facilities, (ii) any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to such Hazardous Materials, (iii) any lawsuit brought or
threatened, settlement reached (five (5) Business Days’ prior notice of which the Authority or the
Trustee, as appropriate, shall have delivered to the County and the Authority), or governmental
order relating to Hazardous Materials on, from or beneath any of the Facilities, (iv) any violation
of Environmental Regulations or subsection (a) or (b) hereof by it or any of its agents, tenants,
employees, contractors, licensees, guests, subtenants or invitees, and (v) the imposition of any
governmental lien for the recovery of environmental cleanup or removal costs. To the extent that
the Authority or the County is strictly liable under any Environmental Regulation, its obligation
to the Trustee and the Holder and the other indemnitees under the foregoing indemnification
shall likewise be without regard to fault on its part with respect to the violation of any
Environmental Regulation which results in liability to any indemnitee. Its obligations and
liabilities under this Section 6(c) shall survive any termination of the Sublease or exercise of any
remedies thereunder, and the satisfaction of all Obligations.
(d) The County and the Authority shall conform to and carry out a reasonable
program of maintenance and inspection of all underground storage tanks, and shall maintain,
repair, and replace such tanks only in accordance with Laws and Regulations, including but not
limited to Environmental Regulations.
SECTION 7. Owner in Fee
The County covenants that it is the owner in fee of the Facilities. The County
further covenants and agrees that if for any reason this covenant proves to be incorrect, the
County will either institute eminent domain proceedings to condemn the property or institute a
quiet title action to clarify the County’s title, and will diligently pursue such action to
completion. The County further covenants and agrees that it will hold the Authority and the
Holder harmless from any loss, cost or damages resulting from any breach by the County of the
covenants contained in this Section.
6 OHSUSA:750956399.4
SECTION 8. Assignments and Subleases
Unless the County shall be in default under the Sublease, the Authority may not
assign its rights under this Site Lease or sublet the Facilities, except pursuant to the Sublease or
the Trust Agreement, without the written consent of the County, which consent may be withheld
in the County’s sole and absolute discretion. Upon the occurrence of a default by the County
under the Sublease, the Authority may assign or sell its rights under this Site Lease or sublet the
Facilities, without the consent of the County.
SECTION 9. Right of Entry; Easements
The County reserves the right for any of its duly authorized representatives to
enter upon the Facilities at any reasonable time to inspect the same or to make any repairs,
improvements or changes necessary for the preservation thereof.
The County agrees, upon written request from the Authority, to grant to the
Authority a nonexclusive easement of ingress and egress for persons, vehicles and utilities,
twenty (20) feet wide, from each parcel of the Facilities not having access to a public street, and
appurtenant to such parcel, over property owned by the County to a public street. The County
may, at any time, satisfy its obligation contained in the preceding sentence as to any such parcel
of the Facilities by granting to the Authority an easement complying with the requirements of the
preceding sentence from such parcel of the Facilities to a public street.
SECTION 10. Termination
The Authority agrees, upon the termination of this Site Lease, to quit and
surrender the Facilities in the same good order and condition as the same were in at the time of
commencement of the term hereunder, reasonable wear and tear excepted, and the Authority
further agrees that the Facilities and any other permanent improvements and structures existing
upon the Facilities at the time of the termination of this Site Lease shall remain thereon and title
thereto shall vest in the County.
Upon the exercise of the option to purchase set forth in Section 7.03 of the
Sublease and upon payment of the option price required by said section, the term of this Site
Lease shall terminate as to the portion of the Facilities being so purchased, including the real
property upon which portion is situated.
SECTION 11. Default
In the event the Authority shall be in default in the performance of any obligation
on its part to be performed under the terms of this Site Lease, which default continues for one
hundred and eighty (180) days following notice and demand for correction thereof to the
Authority and the Trustee, the County may exercise any and all remedies granted by law, except
that no merger of this Site Lease and of the Sublease shall be deemed to occur as a result thereof;
provided, however, that the County shall have no power to terminate this Site Lease by reason of
any default on the part of the Authority if such termination would affect or impair any
assignment or sublease of all or any part of the Facilities then in effect between the Authority
and any assignee or subtenant of the Authority (other than the County under the Sublease). So
7 OHSUSA:750956399.4
long as any such assignee or subtenant of the Authority shall duly perform the terms and
conditions of this Site Lease, such assignee or subtenant shall be deemed to be and shall become
the tenant of the County hereunder and shall be entitled to all of the rights and privileges granted
under any such assignment; provided, further, that so long as any Obligations are outstanding
and unpaid in accordance with the terms thereof, the rentals or any part thereof payable to the
Authority or Trustee shall continue to be paid to the Trustee on behalf of the Holder.
SECTION 12. Quiet Enjoyment
The Authority at all times during the term of this Site Lease, shall peaceably and
quietly have, hold and enjoy all of the Facilities then leased hereunder.
SECTION 13. Waiver of Personal Liability
All liabilities under this Site Lease on the part of the Authority shall be solely
liabilities of the Authority, as a public entity and agency, and the County hereby releases each
and every member, director, officer, agent or employee of the Authority of and from any
personal or individual liability under this Site Lease. No member, director, officer, agent or
employee of the Authority shall at any time or under any circumstances be individually or
personally liable under this Site Lease to the County or to any other party whomsoever for
anything done or omitted to be done by the Authority hereunder.
The Authority and its members, directors, officers, agents, employees and
assignees shall not be liable to the County or to any other party whomsoever for any death, injury
or damage that may result to any person or property by or from any cause whatsoever in, on or
about the Facilities. The County, to the extent permitted by law, shall indemnify and hold the
Authority and its members, directors, officers, agents, employees and assignees, harmless from,
and defend each of them against, any and all claims, liens and judgments arising from the
operation of the Facilities or the Project, including, without limitation, death of or injury to any
person or damage to property whatsoever occurring in, on or about the Facilities or the Project
regardless of responsibility for negligence, but excepting the active negligence of the person or
entity seeking indemnity.
SECTION 14. Taxes
The County covenants and agrees to pay any and all assessments of any kind or
character and also all taxes, including possessory interest taxes, levied or assessed upon the
Facilities.
SECTION 15. Eminent Domain
In the event the whole or any part of the Facilities is taken by eminent domain
proceedings, the interest of the Authority shall be recognized and is hereby determined to be the
amount of the then unpaid or outstanding Obligations and all other amounts due under the Trust
Agreement and the Sublease attributable to such part of the Facilities and shall be paid to the
Trustee, and the balance of the award, if any, shall be paid to the County.
8 OHSUSA:750956399.4
SECTION 16. Partial Invalidity
If any one or more of the terms, provisions, covenants or conditions of this Site
Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason
whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes
final, none of the remaining terms, provisions, covenants and conditions of this Site Lease shall
be affected thereby, and each provision of this Site Lease shall be valid and enforceable to the
fullest extent permitted by law.
SECTION 17. Notices
All notices, statements, demands, consents, approvals, authorizations, offers,
designations, requests or other communications hereunder by either party to the other shall be in
writing and shall be sufficiently given and served upon the other party if delivered personally or
if mailed by United States registered or certified mail, return receipt requested, postage prepaid,
and, if to the County, addressed to the County in care of the County Administrator, County of
Contra Costa, County Administration Building, 651 Pine Street, Martinez, California 94553, or if
to the Authority, addressed to the County in care of the Clerk of the Board of Supervisors,
County of Contra Costa Public Financing Authority, County Administration Building, 651 Pine
Street, Martinez, California 94553, in all cases with a copy to the Trustee at the address specified
in the Trust Agreement, or to such other addresses as the respective parties may from time to
time designate by notice in writing.
SECTION 18. Section Headings
All section headings contained herein are for convenience of reference only and
are not intended to define or limit the scope of any provision of this Site Lease.
SECTION 19. Amendment
The Authority and the County may at any time agree to the amendment of this
Site Lease; provided, however, that the Authority and the County agree and recognize that this
Site Lease is entered into as contemplated by the terms of the Trust Agreement, and accordingly,
that any such amendment shall only be made or effected in accordance with and subject to the
terms of the Trust Agreement and with the Holder’s prior written consent.
SECTION 20. Execution
This Site Lease may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all together shall constitute but one and the same Lease. It
is also agreed that separate counterparts of this Site Lease may separately be executed by the
County and the Authority, all with the same force and effect as though the same counterpart had
been executed by both the County and the Authority.
9OHSUSA:750956399.4
IN WITNESS WHEREOF, the County and the Authority have caused this Site
Lease to be executed by their respective officers thereunto duly authorized, all as of the day and
year first above written.
COUNTY OF CONTRA COSTA,
as Lessor
By
Mary N. Piepho
Chair of the Board of Supervisors
County of Contra Costa, State of California
[SEAL]
ATTEST:
By
David J. Twa,
Clerk of the Board of Supervisors and
County Administrator
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY,
Lessee
By
Mary N. Piepho
Chair of the County of Contra Costa
Public Financing Authority
ATTEST:
By:
David J. Twa
Executive Director and Secretary
A-1 OHSUSA:750956399.4
EXHIBIT A
Description of Facilities
All that certain real property situated in the County of Contra Costa, State of
California, described as follows:
50 Douglas Facility
The term “50 Douglas Facility” means the facility located at 50 Douglas Drive in
Martinez, California, together with parking, site development, landscaping, utilities, equipment,
furnishings, improvements and appurtenant and related facilities, located on the real property
described as follows:
[Insert Legal Description]
20 Allen Facility
The term “20 Allen Facility” means the facility located at 20 Allen Streent in
Martinez, California, together with parking, site development, landscaping, utilities, equipment,
furnishings, improvements and appurtenant and related facilities, located on the real property
described as follows:
[Insert Legal Description]
B-1 OHSUSA:750956399.4
EXHIBIT B
Lease Term
Facility Term Maximum Extension
50 Douglas Facility
20 Allen Facility
TABLE OF CONTENTS
Page
-i-
OHSUSA:750956399.4
SECTION 1. Lease of Facilities .................................................................................................. 2
SECTION 2. Term ....................................................................................................................... 2
SECTION 3. Rental ..................................................................................................................... 2
SECTION 4. Purpose ................................................................................................................... 2
SECTION 5. Environmental Law and Regulations ..................................................................... 3
SECTION 6. Environmental Compliance ................................................................................... 4
SECTION 7. Owner in Fee .......................................................................................................... 5
SECTION 8. Assignments and Subleases ................................................................................... 6
SECTION 9. Right of Entry; Easements ..................................................................................... 6
SECTION 10. Termination ............................................................................................................ 6
SECTION 11. Default.................................................................................................................... 6
SECTION 12. Quiet Enjoyment .................................................................................................... 7
SECTION 13. Waiver of Personal Liability .................................................................................. 7
SECTION 14. Taxes ...................................................................................................................... 7
SECTION 15. Eminent Domain .................................................................................................... 7
SECTION 16. Partial Invalidity..................................................................................................... 8
SECTION 17. Notices ................................................................................................................... 8
SECTION 18. Section Headings ................................................................................................... 8
SECTION 19. Amendment ............................................................................................................ 8
SECTION 20. Execution ............................................................................................................... 8
EXHIBIT A Description of Facilities ..................................................................................... A-1
EXHIBIT B Lease Term ......................................................................................................... B-1
OHSUSA:750956399.4
An extra section break has been inserted above this paragraph. Do not delete this section break if
you plan to add text after the Table of Contents/Authorities. Deleting this break will cause Table
of Contents/Authorities headers and footers to appear on any pages following the Table of
Contents/Authorities.
Orrick, Herrington & Sutcliffe 9/11/12
OHSUSA:750956414.4
Recording requested by
and return to:
COUNTY OF CONTRA COSTA
c/o Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105-2669
Attention: Mary A. Collins, Esq.
SUBLEASE
(Capital Projects Program)
by and between
COUNTY OF CONTRA COSTA
PUBLIC FINANCING AUTHORITY
and the
COUNTY OF CONTRA COSTA
Related to
$[Par Amount]
County of Contra Costa Public Financing Authority
Lease Revenue Obligations,
2012 Series A
Dated as of October 1, 2012
THIS TRANSACTION IS EXEMPT FROM FILING FEES PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 6103 AND
TRANSFER TAXES PURSUANT TO CALIFORNIA REVENUE AND TAXATION CODE SECTION 11928
OHSUSA:750956414.4
SUBLEASE
(Capital Projects Program)
This Sublease, dated as of October 1, 2012, is by and between the COUNTY OF
CONTRA COSTA PUBLIC FINANCING AUTHORITY (the “Authority”), a joint exercise
powers authority duly organized and existing under and by virtue of the laws of the State of
California, as sublessor, and the COUNTY OF CONTRA COSTA (the “County”), a body
corporate and politic and a political subdivision of the State of California, as sublessee;
W I T N E S S E T H:
WHEREAS, the County has determined to finance the construction, renovation
and acquisition of various capital projects of the County as set forth in Exhibit D hereto, as the
same may be changed from time to time (the “Project”);
WHEREAS, the Authority intends to assist the County in financing the 2012
Project pursuant to (i) a Loan Agreement dated as of October 1, 2012 (the “Loan Agreement”
among Banc of America Public Capital Corp (“Holder”), the Authority and the County and (ii) a
Trust Agreement, dated as of October 1, 2012 (as amended from time to time, the “Trust
Agreement”) by and between the Authority and Wells Fargo Bank, National Association, as
trustee (together with any successor thereto, the “Trustee”);
WHEREAS, the County will lease to the Authority certain capital assets of the
County (as further defined herein, the “Facilities”) pursuant to a Site Lease, dated as of
October 1, 2012;
WHEREAS, the County will lease back the Facilities from the Authority pursuant
to the terms of this Sublease; and
WHEREAS, under this Sublease, the County will be obligated to make base rental
payments to the Authority for the lease of the Facilities and such other facilities as may from
time to time be leased hereunder;
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
hereto agree as follows:
2 OHSUSA:750956414.4
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
Unless the context otherwise requires, the terms defined in this Section shall, for
all purposes of this Sublease, have the meanings herein specified, which meanings shall be
equally applicable to both the singular and plural forms of any of the terms herein defined.
Capitalized terms not otherwise defined herein shall have the meanings assigned to such terms in
the Trust Agreement.
Additional Payments
The term “Additional Payments” means all amounts payable to the Authority or
the Trustee or any other person from the County as Additional Payments pursuant to Section
3.02 hereof.
Architects
The term “Architects” means the architects, engineers or designers of any Project
or portion thereof, and any successor or successors to any thereof.
Authority
The term “Authority” means the County of Contra Costa Public Financing
Authority, acting as sublessor hereunder and any surviving, resulting or transferee entity.
Base Rental, Base Rental Payments
The terms “Base Rental” and “Base Rental Payments” means all amounts
payable to the Authority from the County as Base Rental Payments pursuant to Section 3.01
hereof.
Base Rental Payment Schedule
The term “Base Rental Payment Schedule” means the schedule of Base Rental
Payments payable to the Authority from the County pursuant to Section 3.01 hereof and attached
hereto as Exhibit B.
Contractors
The term “Contractors” means the construction contractor for any portion of the
2012 Project and any successor or successors to any thereof.
County
The term “County” means the County of Contra Costa, California, a body
corporate and politic and a political subdivision of the State of California.
3 OHSUSA:750956414.4
Event of Default
The term “Event of Default” shall have the meaning specified in Section 6.01
hereof.
Facilities
The term “Facilities” shall mean prior to the Release Date, the 50 Douglas
Facility and the 20 Allen Facility, and on and after the Release Date, the 20 Allen Facility or any
County buildings, other improvements and facilities added thereto or substituted therefor, or any
portion thereof, in accordance with this Sublease and the Trust Agreement.
50 Douglas Facility
The term “50 Douglas Facility” shall mean the real property and the
improvements thereon as described in Exhibit A hereto under the heading “50 Douglas Facility.”
Holder
The term “Holder” means Banc of America Public Capital Corp.
Loan Agreement
The term “Loan Agreement” means the Loan Agreement, dated as of
October 1, 2012, among the Holder, the Authority and the County.
Rental Payment Period
The term “Rental Payment Period” means the twelve month period commencing
June 1 of each year and ending the following May 31, and the initial period commencing on the
effective date hereof and ending the following May 31.
Release Date
The term “Release Date” shall mean the date when all of the Release
Requirements have been satisfied.
Release Requirements
The term “Release Requirements” shall have the meaning specified in Section
2.02(b) hereof.
Sublease
The term “Sublease” means this sublease, as originally executed and recorded or
as it may from time to time be supplemented, modified or amended pursuant to the provisions
hereof and of the Trust Agreement.
4 OHSUSA:750956414.4
Trust Agreement
The term “Trust Agreement” means the Trust Agreement, dated as of
October 1, 2012, by and among the Trustee and the Authority and acknowledged by the County,
as originally executed or as it may from time to time be supplemented, modified or amended by a
Supplemental Trust Agreement entered into pursuant to the provisions thereof.
20 Allen Facility
The term “20 Allen Facility” shall mean the real property and the improvements
thereon as described in Exhibit A hereto under the heading “20 Allen Facility.”
2012 Project
The term “2012 Project” means the various capital projects of the County, and
payment of any costs associated with financing of said projects, as set forth in Exhibit D hereto,
as the same may be amended from time to time by a Certificate of the County delivered to the
Trustee.
2012 Loan Obligations
The term “2012 Loan Obligations” means the obligations of the Authority under
and pursuant to the Loan Agreement and the Trust Agreement.
ARTICLE II
LEASE OF FACILITIES; TERM
SECTION 2.01. Lease of Facilities. The Authority hereby leases to the
County and the County hereby leases from the Authority the Facilities, subject, however, to all
easements, encumbrances, and restrictions that exist at the time of the commencement of the
term of this Sublease, as defined in Section 2.02 hereof. The County hereby agrees and
covenants during the term of this Sublease that, except as hereinafter provided, it will use the
Facilities for public and County purposes so as to afford the public the benefits contemplated by
this Sublease. The County further agrees that the easements, encumbrances and restrictions that
exist at the time of commencement of the term of this sublease do not interfere with or adversely
affect the County’s use of the Facilities.
SECTION 2.02. Term; Occupancy; Release. (a) The term of this
Sublease shall commence on the date of recordation of this Sublease in the office of the County
Recorder of Contra Costa County, State of California, or on [Closing Date], whichever is earlier,
and shall end on the dates specified in Exhibit C hereto, unless such term is extended or sooner
terminated as hereinafter provided. If on such dates, the Base Rental Payments attributable to
the related Facility and all other amounts then due hereunder with respect to such Facility shall
not be fully paid, or if the rental payable hereunder with respect to such Facility shall have been
abated at any time and for any reason, then the term of this Sublease with respect to such Facility
shall be extended until the Base Rental Payments attributable to such Facility and all other
5 OHSUSA:750956414.4
amounts then due hereunder with respect to such Facility shall be fully paid, except that the term
of this Sublease as to the respective Facility shall in no event be extended beyond ten (10) years
after the date identified with respect thereto. If prior to such dates, the Base Rental Payments
attributable to the related Facility or all the 2012 Loan Obligations payable therefrom and all
other amounts then due hereunder with respect to such Facility shall be fully paid, or provision
therefor made, the term of this Sublease with respect to such Facility shall end ten (10) days
thereafter or upon written notice by the County to the Authority, whichever is earlier.
(b) The County and the Authority hereby agree that the 50 Douglas Facility
shall be released from this Sublease and the Site Lease and shall no longer be encumbered
hereby and thereby or by the Trust Agreement at such time and date that the County shall have
filed the following with the Authority and the Trustee (the “Release Requirements”):
(i) A certificate of occupancy of the 20 Allen Facility issued by the
appropriate County or State regulatory authority, if any; and
(ii) A certificate of the County that the replacement value of the 20
Allen Facility will be at least equal to the aggregate outstanding principal amount of the Base
Rental Payments,
SECTION 2.03. Substitution. The County and the Authority may substitute
real property as part of the Facilities for purposes of this Sublease, but only with the prior written
consent of the Holder and only after the County shall have filed with the Authority, the Holder
and the Trustee, all of the following:
(a) Executed copies of the Sublease or amendments thereto containing
the amended description of the Facilities.
(b) Copies of all due diligence and similar documents relating to the
substitute Facilities equivalent to those required by the Holder with respect to the original
Facilities.
(c) A Certificate of the County with copies of the Sublease or the Site
Lease, if needed, or amendments thereto containing the amended description of the Facilities
stating that such documents have been duly recorded in the official records of the County
Recorder of the County.
(d) A Certificate of the County, supported by acquisition or
construction cost information or an appraisal, evidencing that the fair market value of the
substitute Facilities will be at least equal to the aggregate outstanding principal amount of the
Base Rental Payments, that the annual fair rental value of the substitute Facilities will be at least
equal to the maximum annual Base Rental Payments thereafter coming due and payable
hereunder, and that the useful life of the substitute Facilities will at least extend to the final Base
Rental Payment date under this Sublease, including any extensions.
(e) A Certificate of the County stating that, based upon review of such
instruments, certificates or any other matters described in such Certificate of the County, the
County has good merchantable title to the Facilities which will constitute the Facilities after such
6 OHSUSA:750956414.4
substitution. The term “Good Merchantable Title” shall mean such title as is satisfactory and
sufficient for the needs and operations of the County.
(f) A Certificate of the County stating that (i) such substitution does
not adversely affect the County’s use and occupancy of the Facilities, (ii) following such
substitution no event giving rise to an abatement of Base Rental Payments and Additional
Payments shall have occurred and be continuing with respect to the Facilities, (iii) the substitute
Facilities serve an important and valid municipal purpose, (iv) no Event of Default has occurred
and is continuing under this Sublease or the Loan Agreement, there are no lien or encumbrances
that adversely affect the use of the Substitute Facilities by the County.
(g) An Opinion of Counsel stating that such amendment or
modification (i) complies with the terms of the Constitution and laws of the State and of the
Trust Agreement; (ii) will, upon the execution and delivery thereof, be valid and binding upon
the Authority and the County; and (iii) if the 2012 Loan Obligations outstanding with respect
thereto were issued on a tax-exempt basis, will not cause the interest on the 2012 Loan
Obligations to be included in gross income for federal income tax purposes.
(h) A title insurance policy in an amount equal to the aggregate
principal amount of Obligations insuring the Authority’s leasehold or fee title in the real property
on which the Facilities are located.
ARTICLE III
RENTAL PAYMENTS; USE OF PROCEEDS
SECTION 3.01. Base Rental Payments. The County agrees to pay to the
Authority, as Base Rental Payments for the use and occupancy of the Facilities (subject to the
provisions of Sections 3.04, 3.06 and 7.01 of this Sublease) annual rental payments with
principal and interest components, the interest components being payable semi-annually, in
accordance with the Base Rental Payment Schedule attached hereto as Exhibit B and made a part
hereof. Base Rental Payments shall be calculated on an annual basis, for each Rental Payment
Period, and each annual Base Rental shall be divided into two interest components, due on
December 1 and June 1, and one principal component, due on June 1, except that the first Rental
Payment Period commences on the date of recordation of this Sublease and ends on
[May 31, 2014]. Each Base Rental Payment installment shall be payable on the fifteenth (15th)
day of the month immediately preceding its due date. The interest components of the Base
Rental Payments shall be paid by the County as and constitute interest paid on the principal
components of the Base Rental Payments to be paid by the County hereunder, computed on the
basis of a 360-day year composed of twelve 30-day months. Each annual payment of Base
Rental (to be payable in installments as aforesaid) shall be for the use of the Facilities.
If the term of this Sublease shall have been extended pursuant to Section 2.02
hereof, Base Rental Payment installments shall continue to be due on December 1 and June 1 in
each year, and payable prior thereto as hereinabove described, continuing to and including the
date of termination of this Sublease. Upon such extension of this Sublease, the County shall
deliver to the Trustee a Certificate setting forth the extended rental payment schedule, which
7 OHSUSA:750956414.4
schedule shall establish the principal and interest components of the Base Rental Payments so
that the principal components will in the aggregate be sufficient to pay all unpaid principal
components with interest components sufficient to pay all unpaid interest components plus
interest.
If at any time the Base Rental shall not have been paid by the County when due,
for any reason whatsoever, and no other source of funds shall have been available to make the
payments of principal and interest on the Obligations, the principal and interest components of
the Base Rental shall be recalculated by the County to reflect interest on the unpaid principal
components at the rate or rates specified in the Trust Agreement, and a revised Exhibit B to this
Sublease shall be prepared by the County and supplied to the Authority and the Trustee
reflecting such reallocation.
SECTION 3.02. Additional Payments. The County shall also pay such
amounts (herein called the “Additional Payments”) as shall be required by the Authority for the
payment of all costs and expenses incurred by the Authority in connection with the execution,
performance or enforcement of this Sublease, or any pledge of Base Rental payable hereunder,
the Trust Agreement, its interest in the Facilities and the lease of the Facilities to the County,
including but not limited to payment of all fees, costs and expenses and all administrative costs
of the Authority related to the Facilities, including, without limiting the generality of the
foregoing, salaries and wages of employees, all expenses, compensation and indemnification of
the Trustee payable by the Authority under the Trust Agreement, fees of auditors, accountants,
attorneys or architects, and all other necessary administrative costs of the Authority or charges
required to be paid by it in order to maintain its existence or to comply with the terms of the
Obligations or of the Trust Agreement; but not including in Additional Payments amounts
required to pay the principal of or interest on the Obligations.
Such Additional Payments shall be billed to the County by the Authority or the
Trustee from time to time, together with a statement certifying that the amount billed has been
paid by the Authority or by the Trustee on behalf of the Authority, for one or more of the items
above described, or that such amount is then payable by the Authority or the Trustee for such
items. Amounts so billed shall be paid by the County to the billing party within 30 days after
receipt of the bill by the County. The County reserves the right to audit billings for Additional
Payments although exercise of such right shall in no way affect the duty of the County to make
full and timely payment for all Additional Payments.
The Authority has issued and may in the future issue bonds and has entered into
and may in the future enter into leases to finance capital improvements other than the 2012
Project. The administrative costs of the Authority shall be allocated among the facilities subject
to such other lease agreements and the Facilities, as hereinafter in this paragraph provided. The
fees of the Trustee under the Trust Agreement, and any other expenses directly attributable to the
Facilities shall be included in the Additional Payments payable hereunder. The fees of any
trustee or paying agent under any indenture securing bonds of the Authority or any trust
agreement other than the Trust Agreement, and any other expenses directly attributable to any
facilities other than the Facilities, shall not be included in the administrative costs of the
Facilities and shall not be paid from the Additional Payments payable hereunder. Any expenses
of the Authority not directly attributable to any particular lease of the Authority shall be
8 OHSUSA:750956414.4
equitably allocated among all such leases, including this Sublease, in accordance with sound
accounting practice. In the event of any question or dispute as to such allocation, the written
opinion of an independent firm of certified public accountants, employed by the Authority to
consider the question and render an opinion thereon, shall be a final and conclusive
determination as to such allocation. The Trustee may conclusively rely upon the Written
Request of the Authority, with the approval of the County Administrator or the County Finance
Director, or a duly authorized representative of the County, endorsed thereon, in making any
determination that costs are payable as Additional Payments hereunder, and shall not be required
to make any investigation as to whether or not the items so requested to be paid are expenses
related to the lease of the Facilities.
SECTION 3.03. Fair Rental Value. Such payments of Base Rental
Payments and Additional Payments for each rental period during the term of this Sublease shall
constitute the total rental for said Rental Payment Period and shall be paid by the County in each
Rental Payment Period for and in consideration of the right of use and occupancy of, and
continued quiet use and enjoyment of, the Facilities during each such period for which said rental
is to be paid. The parties hereto have agreed and determined that such total rental payable for
each Rental Payment Period represents the fair rental value of the Facilities for each such period.
In making such determination, consideration has been given to the value of the Facilities, costs
of acquisition, design, construction and financing of the Facilities, other obligations of the parties
under this Sublease, the uses and purposes which may be served by the Facilities and the benefits
therefrom which will accrue to the County and the general public.
SECTION 3.04. Payment Provisions. Each installment of rental payable
hereunder shall be paid in lawful money of the United States of America to or upon the order of
the Authority at the corporate trust office of the Trustee in San Francisco, California, or such
other place as the Authority shall designate. Any such installment of rental accruing hereunder
which shall not be paid when due and payable under the terms of this Sublease shall bear interest
at the rate of twelve percent (12%) per annum, or such lesser rate of interest as may be permitted
by law, from the date when the same is due hereunder until the same shall be paid.
Notwithstanding any dispute between the Authority and the County, the County shall make all
rental payments when due without deduction or offset of any kind and shall not withhold any
rental payments pending the final resolution of such dispute. In the event of a determination that
the County was not liable for said rental payments or any portion thereof, said payments or
excess of payments, as the case may be, shall be credited against subsequent rental payments due
hereunder or refunded at the time of such determination. Amounts required to be deposited by
the County with the Trustee pursuant to this Section on any date shall be reduced to the extent of
amounts on deposit in the Revenue Fund, the Interest Account or the Principal Account and
available therefor.
All payments received shall be applied first to the interest components of the Base
Rental Payments due hereunder, then to the principal components of the Base Rental Payments
due hereunder and thereafter to all Additional Payments due hereunder, but no such application
of any payments which are less than the total rental due and owing shall be deemed a waiver of
any default hereunder.
Rental is subject to abatement as provided in Section 3.06.
9 OHSUSA:750956414.4
Nothing contained in this Sublease shall prevent the County from making from
time to time contributions or advances to the Authority for any purpose now or hereafter
authorized by law, including the making of repairs to, or the restoration of, the Facilities in the
event of damage to or the destruction of the Facilities.
SECTION 3.05. Appropriations Covenant. The County covenants to take
such action as may be necessary to include all such Base Rental Payments and Additional
Payments due hereunder in its annual budgets, to make necessary annual appropriations for all
such Base Rental Payments and Additional Payments as shall be required to provide funds in
such year for such Base Rental Payments and Additional Payments. The County will deliver to
the Authority and the Trustee within sixty (60) days of adoption of the County budget a
Certificate of the County stating that the budget as adopted appropriates all moneys necessary for
the payment of Base Rental Payments and Additional Payments hereunder. The covenants on
the part of the County herein contained shall be deemed to be and shall be construed to be duties
imposed by law and it shall be the duty of each and every public official of the County to take
such action and do such things as are required by law in the performance of the official duty of
such officials to enable the County to carry out and perform the covenants and agreements in this
Sublease agreed to be carried out and performed by the County.
The Authority and the County understand and intend that the obligation of the
County to pay Base Rental Payments and Additional Payments hereunder shall constitute a
current expense of the County and shall not in any way be construed to be a debt of the County
in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by the County, nor shall anything contained herein
constitute a pledge of the general tax revenues, funds or moneys of the County. Base Rental
Payments and Additional Payments due hereunder shall be payable only from current funds
which are budgeted and appropriated or otherwise legally available for the purpose of paying
Base Rental Payments and Additional Payments or other payments due hereunder as
consideration for use of the Facilities. This Sublease shall not create an immediate indebtedness
for any aggregate payments which may become due hereunder in the event that the term of the
Sublease is continued. The County has not pledged the full faith and credit of the County, the
State of California or any agency or department thereof to the payment of the Base Rental
Payments and Additional Payments or any other payments due hereunder.
SECTION 3.06. Rental Abatement. The Base Rental Payments and
Additional Payments shall be abated proportionately, during any period in which by reason of
any damage or destruction (other than by condemnation which is hereinafter provided for) there
is substantial interference with the use and occupancy of the Facilities by the County, in the
proportion in which the initial cost of that portion of the Facilities rendered unusable bears to the
initial cost of the whole of the Facilities. Such abatement shall continue for the period
commencing with such damage or destruction and ending with the substantial completion of the
work of repair or reconstruction. In the event of any such damage or destruction, this Sublease
shall continue in full force and effect and the County waives any right to terminate this Sublease
by virtue of any such damage or destruction.
10 OHSUSA:750956414.4
SECTION 3.07. Use of Proceeds. The parties hereto agree that the proceeds
of the 2012 Loan Obligations will be used to finance the 2012 Project and to pay the costs of
incurring the 2012 Loan Obligations and incidental and related expenses.
ARTICLE IV
MAINTENANCE; ALTERATIONS AND ADDITIONS
SECTION 4.01. Maintenance and Utilities. During such time as the County
is in possession of the Facilities, all maintenance and repair, both ordinary and extraordinary, of
the Facilities shall be the responsibility of the County, which shall at all times maintain or
otherwise arrange for the maintenance of the Facilities in first class condition, and the County
shall pay for or otherwise arrange for the payment of all utility services supplied to the Facilities,
which may include, without limitation, janitor service, security, power, gas, telephone, light,
heating, ventilation, air conditioning, water and all other utility services, and shall pay for or
otherwise arrange for payment of the cost of the repair and replacement of the Facilities resulting
from ordinary wear and tear or want of care on the part of the County or any assignee or
sublessee thereof or any other cause and shall pay for or otherwise arrange for the payment of all
insurance policies required to be maintained with respect to the Facilities. In exchange for the
rental herein provided, the Authority agrees to provide only the Facilities.
SECTION 4.02. Changes to the Facilities. Subject to Section 8.02 hereof,
the County shall, at its own expense, have the right to remodel the Facilities or to make
additions, modifications and improvements to the Facilities. All such additions, modifications
and improvements shall thereafter comprise part of the Facilities and be subject to the provisions
of this Sublease. Such additions, modifications and improvements shall not in any way damage
the Facilities or cause them to be used for purposes other than those authorized under the
provisions of state and federal law or give rise to any abatement of Base Rental Payments during
or after the making thereof; and the Facilities, upon completion of any additions, modifications
and improvements made pursuant to this Section, shall be of a value which is at least equal to the
value of the Facilities immediately prior to the making of such additions, modifications and
improvements.
SECTION 4.03. Installation of County’s Equipment. The County and any
sublessee may at any time and from time to time, in its sole discretion and at its own expense,
install or permit to be installed other items of equipment or other personal property in or upon
the Facilities. All such items shall remain the sole property of such party, in which neither the
Authority nor the Trustee shall have any interest, and may be modified or removed by such party
at any time provided that such party shall repair and restore any and all damage to the Facilities
resulting from the installation, modification or removal of any such items. Nothing in this
Sublease shall prevent the County from purchasing items to be installed pursuant to this Section
under a conditional sale or lease purchase contract, or subject to a vendor’s lien or security
agreement as security for the unpaid portion of the purchase price thereof, provided that no such
lien or security interest shall attach to any part of the Facilities.
11 OHSUSA:750956414.4
ARTICLE V
INSURANCE
SECTION 5.01. Fire and Extended Coverage Insurance. The County shall
procure or cause to be procured and maintain or cause to be maintained, throughout the term of
this Sublease, insurance against loss or damage to any structures constituting any part of the
Facilities by fire and lightning, with extended coverage insurance, vandalism and malicious
mischief insurance and sprinkler system leakage insurance and earthquake insurance, if available
on the open market at a reasonable cost from reputable insurance companies. Said extended
coverage insurance shall, as nearly as practicable, cover loss or damage by explosion,
windstorm, flood, riot and riot attending a strike, aircraft, vehicle damage, hail, smoke and such
other hazards as are normally covered by such insurance. Such insurance shall be in an amount
equal to the replacement cost (without deduction for depreciation) of all structures constituting
any part of the Facilities, excluding the cost of excavations, of grading and filling, and of the
land (except that such insurance may be subject to deductible clauses for any one loss of not to
exceed $250,000 or comparable amount adjusted for inflation or more in the case of earthquake
insurance), or, in the alternative, shall be in an amount and in a form sufficient (together with
moneys held under the Trust Agreement), in the event of total or partial loss, to enable the
County to prepay all or any part of the Base Rental Payments then unpaid, pursuant to Section
7.02 hereof and to prepay outstanding Loan Obligations.
In the event of any damage to or destruction of any part of the Facilities, caused
by the perils covered by such insurance, the Authority, except as hereinafter provided, shall
cause the proceeds of such insurance to be utilized for the repair, reconstruction or replacement
of the damaged or destroyed portion of the Facilities, and the Trustee shall hold said proceeds
separate and apart from all other funds, in a special fund to be designated the “Insurance and
Condemnation Fund,” to the end that such proceeds shall be applied to the repair, reconstruction
or replacement of the Facilities to at least the same good order, repair and condition as they were
in prior to the damage or destruction, insofar as the same may be accomplished by the use of said
proceeds. Withdrawals of said proceeds from time to time shall be made upon the Written
Request of the Authority, stating that the Authority has expended moneys or incurred liabilities
in an amount equal to the amount therein requested to be paid over to it for the purpose of repair,
reconstruction or replacement, and specifying the items for which such moneys were expended,
or such liabilities were incurred. Any balance of said proceeds not required for such repair,
reconstruction or replacement shall be treated by the Trustee as Base Rental Payments and
applied in the manner provided by Section 5.02 of the Trust Agreement, provided, however, that
if the insurance proceeds were paid to cover damage to property of the County that does not
constitute part of the Facilities, as defined herein, including, but not limited to furniture and
office equipment, then such proceeds shall be paid to the County. Alternatively, the Authority,
at its option, and if the proceeds of such insurance together with any other moneys then available
for the purpose are at least sufficient to redeem an aggregate principal amount of outstanding
2012 Loan Obligations, equal to the amount of Base Rental attributable to the portion of the
Facilities so destroyed or damaged (determined by reference to the proportion which the cost of
such portion of the Facilities bears to the cost of the Facilities), may elect not to repair,
reconstruct or replace the damaged or destroyed portion of the Facilities and thereupon shall
12 OHSUSA:750956414.4
cause said proceeds to be used for the prepayment of outstanding 2012 Loan Obligations
pursuant to the provisions of the Trust Agreement.
The Authority and the County shall promptly apply for Federal disaster aid or
State of California disaster aid in the event that the Facilities are damaged or destroyed as a
result of an earthquake occurring at any time. Any proceeds received as a result of such disaster
aid shall be used to repair, reconstruct, restore or replace the damaged or destroyed portions of
the Facilities, or, at the option of the County and the Authority, to enable the County to prepay
all or any part of the Base Rental Payments then unpaid, pursuant to Section 7.02 hereof, and to
prepay outstanding 2012 Loan Obligations if such use of such disaster aid is permitted.
As an alternative to providing the insurance required by the first paragraph of this
Section, or any portion thereof, the County may, provide a self insurance method or plan of
protection if and to the extent such self insurance method or plan of protection shall afford
reasonable coverage for the risks required to be insured against, in light of all circumstances,
giving consideration to cost, availability and similar plans or methods of protection adopted by
public entities in the State of California other than the County. So long as such method or plan is
being provided to satisfy the requirements of this Sublease, there shall be filed annually with the
Trustee a statement of an actuary, insurance consultant or other qualified person (which may be
the Risk Manager of the County), stating that, in the opinion of the signer, the substitute method
or plan of protection is in accordance with the requirements of this Section and, when effective,
would afford reasonable coverage for the risks required to be insured against. There shall also be
filed a Certificate of the County setting forth the details of such substitute method or plan. In the
event of loss covered by any such self insurance method, the liability of the County hereunder
shall be limited to the amounts in the self insurance reserve fund or funds created under such
method.
SECTION 5.02. Liability Insurance. Except as hereinafter provided, the
County shall procure or cause to be procured and maintain or cause to be maintained, throughout
the term of this Sublease, a standard comprehensive general liability insurance policy or policies
in protection of the Authority and its members, directors, officers, agents and employees and the
Trustee, indemnifying said parties against all direct or contingent loss or liability for damages for
personal injury, death or property damage occasioned by reason of the operation of the Facilities,
with minimum liability limits of $1,000,000 for personal injury or death of each person and
$3,000,000 for personal injury or deaths of two or more persons in each accident or event, and in
a minimum amount of $200,000 for damage to property resulting from each accident or event.
Such public liability and property damage insurance may, however, be in the form of a single
limit policy in the amount of $3,000,000 covering all such risks. Such liability insurance may be
maintained as part of or in conjunction with any other liability insurance carried by the County.
As an alternative to providing the insurance required by the first paragraph of this
Section, or any portion thereof, the County may provide a self insurance method or plan of
protection if and to the extent such self insurance method or plan of protection shall afford
reasonable protection to the Authority, its members, directors, officers, agents and employees
and the Trustee, in light of all circumstances, giving consideration to cost, availability and
similar plans or methods of protection adopted by public entities in the State of California other
than the County. So long as such method or plan is being provided to satisfy the requirements of
13 OHSUSA:750956414.4
this Sublease, there shall be filed annually with the Trustee a statement of an actuary,
independent insurance consultant or other qualified person (which may be the Risk Manager of
the County), stating that, in the opinion of the signer, the substitute method or plan of protection
is in accordance with the requirements of this Section and, when effective, would afford
reasonable protection to the Authority, its members, directors, officers, agents and employees
and the Trustee against loss and damage from the hazards and risks covered thereby. There shall
also be filed a Certificate of the County setting forth the details of such substitute method or
plan.
SECTION 5.03. Rental Interruption or Use and Occupancy Insurance. The
County shall procure or cause to be procured and maintain or cause to be maintained, rental
interruption or use and occupancy insurance to cover loss, total or partial, of the rental income
from or the use of the Facilities as the result of any of the hazards covered by the insurance
required by Section 5.01 hereof (provided with respect to earthquake insurance, only if available
on the open market from reputable insurance companies at a reasonable cost, as determined by
the County), in an amount sufficient to pay the maximum Base Rental Payments due in any two
year period, except that such insurance may be subject to a deductible clause of not to exceed
two hundred and fifty thousand dollars ($250,000) or a comparable amount adjusted for inflation
(or more in the case of earthquake coverage). Any proceeds of such insurance shall be used by
the Trustee to reimburse to the County any rental theretofore paid by the County under this
Sublease attributable to such structure for a period of time during which the payment of rental
under this Sublease is abated, and any proceeds of such insurance not so used shall be applied as
provided in Section 3.01 (to the extent required for the payment of Base Rental) and in Section
3.02 (to the extent required for the payment of Additional Payments) and any remainder shall be
treated as Revenue under the Trust Agreement. The County shall not be entitled to self-insure
for rental interruption insurance.
SECTION 5.04. Worker’s Compensation. The County shall also maintain
worker’s compensation insurance issued by a responsible carrier authorized under the laws of the
State of California to insure its employees against liability for compensation under the Worker’s
Compensation Insurance and Safety Act now in force in California, or any act hereafter enacted
as an amendment or supplement thereto. As an alternative, such insurance may be maintained as
part of or in conjunction with any other insurance carried by the County. Such insurance may be
maintained by the County in the form of self-insurance.
SECTION 5.05. Title Insurance. The County shall obtain, for the benefit of
the Authority, upon the execution and delivery of this Sublease, title insurance on the Facilities,
in an amount equal to the aggregate principal amount of the 2012 Loan Obligations, issued by a
company of recognized standing duly authorized to issue the same, subject only to Permitted
Encumbrances.
SECTION 5.06. Insurance Proceeds; Form of Policies. All policies of
insurance required by Sections 5.01 and 5.03 hereof shall name the County, the Authority and
the Trustee as insured and shall contain a lender’s loss payable endorsement in favor of the
Trustee substantially in accordance with the form approved by the Insurance Services Office and
the California Bankers Association. The Trustee shall, to the extent practicable, collect, adjust
and receive all moneys which may become due and payable under any such policies, may
14 OHSUSA:750956414.4
compromise any and all claims thereunder and shall apply the proceeds of such insurance as
provided in Sections 5.01 and 5.03. All policies of insurance required by this Sublease shall
provide that the Trustee shall be given thirty (30) days notice of each expiration thereof or any
intended cancellation thereof or reduction of the coverage provided thereby. The Trustee shall
not be responsible for the sufficiency of any insurance herein required and shall be fully
protected in accepting payment on account of such insurance or any adjustment, compromise or
settlement of any loss agreed to by the County. The County shall pay when due the premiums
for all insurance policies required by this Sublease.
The County will deliver to the Authority and the Trustee on or before
September 15 in each year a written Certificate of an officer of the County stating whether such
policies satisfy the requirements of this Sublease, setting forth the insurance policies then in
force pursuant to this Article, the names of the insurers which have issued the policies, the
amounts thereof and the property and risks covered thereby, and, if any self-insurance program is
being provided, the annual report of an actuary, independent insurance consultant or other
qualified person containing the information required for such self-insurance program and
described in Sections 5.01, 5.02 and 5.04. In addition, the Trustee, at the request of the Holder,
may at any time request from the County certificates from the County’s insurance company,
agent or broker setting forth the insurance policies then in force, the names of the insurers
issuing the policies, the amounts thereof and the property and risks covered thereby, which such
certificates the County shall promptly provide. Delivery to the Trustee of the certificates under
the provisions of this Section shall not confer responsibility upon the Trustee as to the
sufficiency of coverage or amounts of such policies. If so requested in writing by the Trustee,
the County shall also deliver to the Trustee certificates or duplicate originals or certified copies
of each insurance policy described in such schedule.
Any policies of insurance provided by a commercial insurer to satisfy the
requirements of Sections 5.01, 5.02 or 5.03 hereof shall be provided by a commercial insurer
rated A or better by Best or in one of the two highest rating categories by S&P and by Moody’s.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Defaults and Remedies. (a) If the County shall fail to pay
any rental payable hereunder when the same becomes due, time being expressly declared to be of
the essence of this Sublease or the County shall fail to keep, observe or perform any other term,
covenant or condition contained herein to be kept or performed by the County for a period of
sixty (60) days after notice of the same has been given to the County by the Authority or the
Trustee or for such additional time as is reasonably required, in the sole discretion of the
Authority, to correct the same, or upon the happening of any of the events specified in
subsection (b) of this Section (any such case above being an “Event of Default”), the County
shall be deemed to be in default hereunder and it shall be lawful for the Authority to exercise any
and all remedies available pursuant to law or granted pursuant to this Sublease. Upon any such
default, the Authority, in addition to all other rights and remedies it may have at law, shall have
the option to do any of the following:
15 OHSUSA:750956414.4
(1) To terminate this Sublease in the manner hereinafter provided on
account of default by the County, notwithstanding any re-entry or re-letting of the Facilities as
hereinafter provided for in subparagraph (2) hereof, and to re-enter the Facilities and remove all
persons in possession thereof and all personal property whatsoever situated upon the Facilities
and place such personal property in storage in any warehouse or other suitable place located
within the County of Contra Costa, California. In the event of such termination, the County
agrees to surrender immediately possession of the Facilities, without let or hindrance, and to pay
the Authority all damages recoverable at law that the Authority may incur by reason of default
by the County, including, without limitation, any costs, loss or damage whatsoever arising out of,
in connection with, or incident to any such re-entry upon the Facilities and removal and storage
of such property by the Authority or its duly authorized agents in accordance with the provisions
herein contained. Neither notice to pay rent or to deliver up possession of the Facilities given
pursuant to law nor any entry or re-entry by the Authority nor any proceeding in unlawful
detainer, or otherwise, brought by the Authority for the purpose of effecting such re-entry or
obtaining possession of the Facilities nor the appointment of a receiver upon initiative of the
Authority to protect the Authority’s interest under this Sublease shall of itself operate to
terminate this Sublease, and no termination of this Sublease on account of default by the County
shall be or become effective by operation of law or acts of the parties hereto, or otherwise, unless
and until the Authority shall have given written notice to the County of the election on the part of
the Authority to terminate this Sublease. The County covenants and agrees that no surrender of
the Facilities or of the remainder of the term hereof or any termination of this Sublease shall be
valid in any manner or for any purpose whatsoever unless stated or accepted by the Authority by
such written notice.
(2) Without terminating this Sublease, (i) to collect each installment of
rent as it becomes due and enforce any other terms or provision hereof to be kept or performed
by the County, regardless of whether or not the County has abandoned the Facilities, or (ii) to
exercise any and all rights of entry and re-entry upon the Facilities. In the event the Authority
does not elect to terminate this Sublease in the manner provided for in subparagraph (1) hereof,
the County shall remain liable and agrees to keep or perform all covenants and conditions herein
contained to be kept or performed by the County and, if the Facilities are not re-let, to pay the
full amount of the rent to the end of the term of this Sublease or, in the event that the Facilities
are re-let, to pay any deficiency in rent that results therefrom; and further agrees to pay said rent
and/or rent deficiency punctually at the same time and in the same manner as hereinabove
provided for the payment of rent hereunder (without acceleration), notwithstanding the fact that
the Authority may have received in previous years or may receive thereafter in subsequent years
rental in excess of the rental herein specified, and notwithstanding any entry or re-entry by the
Authority or suit in unlawful detainer, or otherwise, brought by the Authority for the purpose of
effecting such entry or re-entry or obtaining possession of the Facilities. Should the Authority
elect to enter or re-enter as herein provided, the County hereby irrevocably appoints the
Authority as the agent and attorney-in-fact of the County to re-let the Facilities, or any part
thereof, from time to time, either in the Authority’s name or otherwise, upon such terms and
conditions and for such use and period as the Authority may deem advisable, and to remove all
persons in possession thereof and all personal property whatsoever situated upon the Facilities
and to place such personal property in storage in any warehouse or other suitable place located in
the County of Contra Costa, California, for, to the extent permitted by law, the account of and at
the expense of the County, and the County, to the extent permitted by law, hereby exempts and
16 OHSUSA:750956414.4
agrees to save harmless the Authority from any costs, loss or damage whatsoever arising out of,
in connection with, or incident to any such re-entry upon and re-letting of the Facilities and
removal and storage of such property by the Authority or its duly authorized agents in
accordance with the provisions herein contained. The County agrees that the terms of this
Sublease constitute full and sufficient notice of the right of the Authority to re-let the Facilities
and to do all other acts to maintain or preserve the Facilities as the Authority deems necessary or
desirable in the event of such re-entry without effecting a surrender of this Sublease, and further
agrees that no acts of the Authority in effecting such re-letting shall constitute a surrender or
termination of this Sublease irrespective of the use or the term for which such re-letting is made
or the terms and conditions of such re-letting, or otherwise, but that, on the contrary, in the event
of such default by the County the right to terminate this Sublease shall vest in the Authority to be
effected in the sole and exclusive manner provided for in sub-paragraph (1) hereof. The County
further waives the right to any rental obtained by the Authority in excess of the rental herein
specified and hereby conveys and releases such excess to the Authority as compensation to the
Authority for its services in re-letting the Facilities or any part thereof. The County further
agrees, to the extent permitted by law, to pay the Authority the reasonable cost of any alterations
or additions to the Facilities necessary to place the Facilities in condition for re-letting
immediately upon notice to the County of the completion and installation of such additions or
alterations.
The County hereby waives any and all claims for damages caused or which may
be caused by the Authority in re-entering and taking possession of the Facilities as herein
provided and all claims for damages that may result from the destruction of or injury to the
Facilities and all claims for damages to or loss of any property belonging to the County, or any
other person, that may be in or upon the Facilities.
(b) If (1) the County’s interest in this Sublease or any part thereof be assigned
or transferred, either voluntarily or by operation of law or otherwise, without the written consent
of the Authority, as hereinafter provided for, or (2) the County or any assignee shall file any
petition or institute any proceeding under any act or acts, state or federal, dealing with or relating
to the subject or subjects of bankruptcy or insolvency, or under any amendment of such act or
acts, either as a bankrupt or as an insolvent, or as a debtor, or in any similar capacity, wherein or
whereby the County asks or seeks or prays to be adjudicated a bankrupt, or is to be discharged
from any or all of the County’s debts or obligations, or offers to the County’s creditors to effect a
composition or extension of time to pay the County’s debts or asks, seeks or prays for
reorganization or to effect a plan of reorganization, or for a readjustment of the County’s debts,
or for any other similar relief, or if any such petition or any such proceedings of the same or
similar kind or character be filed or be instituted or taken against the County, or if a receiver of
the business or of the property or assets of the County shall be appointed by any court, except a
receiver appointed at the instance or request of the Authority, or if the County shall make a
general or any assignment for the benefit of the County’s creditors, or (3) the County shall
abandon or vacate the Facilities, or (4) any representation or warranty made by the County herein
proves to have been false, incorrect, misleading or breached in any material respect on the date
when made, or (5) there shall occur an event of default as defined in any agreement for bonded
indebtedness with a principal amount in excess of two million dollars ($2,000,000) or any lease
purchase agreement with a principal amount in excess of two million dollars ($2,000,000) under
which the County is now or hereafter becomes obligated to the Holder.
17 OHSUSA:750956414.4
(c) The Authority shall in no event be in default in the performance of any of
its obligations hereunder or imposed by any statute or rule of law unless and until the Authority
shall have failed to perform such obligations within sixty (60) days or such additional time as is
reasonably required to correct any such default after notice by the County to the Authority
properly specifying wherein the Authority has failed to perform any such obligation. In the
event of default by the Authority, the County shall be entitled to pursue any remedy provided by
law.
(d) In addition to the other remedies set forth in this Section, upon the
occurrence of an event of default as described in this Section, the Authority shall be entitled to
proceed to protect and enforce the rights vested in the Authority by this Sublease or by law. The
provisions of this Sublease and the duties of the County and of its trustees, officers or employees
shall be enforceable by the Authority by mandamus or other appropriate suit, action or
proceeding in any court of competent jurisdiction. Without limiting the generality of the
foregoing, the Authority shall have the right to bring the following actions:
(1) Accounting. By action or suit in equity to require the County and its
trustees, officers and employees and its assigns to account as the trustee of an express
trust.
(2) Injunction. By action or suit in equity to enjoin any acts or things which
may be unlawful or in violation of the rights of the Authority.
(3) Mandamus. By mandamus or other suit, action or proceeding at law or in
equity to enforce the Authority’s rights against the County (and its board, officers and
employees) and to compel the County to perform and carry out its duties and obligations
under the law and its covenants and agreements with the County as provided herein.
The exercise of any rights or remedies under this Sublease shall not permit acceleration of Base
Rental Payments.
Each and all of the remedies given to the Authority hereunder or by any law now
or hereafter enacted are cumulative and the single or partial exercise of any right, power or
privilege hereunder shall not impair the right of the Authority to other or further exercise thereof
or the exercise of any or all other rights, powers or privileges. The term “re-let” or “re-letting”
as used in this Section shall include, but not be limited to, re-letting by means of the operation by
the Authority of the Facilities. If any statute or rule of law validly shall limit the remedies given
to the Authority hereunder, the Authority nevertheless shall be entitled to whatever remedies are
allowable under any statute or rule of law.
In the event the Authority shall prevail in any action brought to enforce any of the
terms and provisions of this Sublease, the County agrees to pay a reasonable amount as and for
attorney’s fees incurred by the Authority in attempting to enforce any of the remedies available
to the Authority hereunder, whether or not a lawsuit has been filed and whether or not any
lawsuit culminates in a judgment.
SECTION 6.02. Waiver. Failure of the Authority to take advantage of any
default on the part of the County shall not be, or be construed as, a waiver thereof, nor shall any
18 OHSUSA:750956414.4
custom or practice which may grow up between the parties in the course of administering this
instrument be construed to waive or to lessen the right of the Authority to insist upon
performance by the County of any term, covenant or condition hereof, or to exercise any rights
given the Authority on account of such default. A waiver of a particular default shall not be
deemed to be a waiver of the same or any subsequent default. The acceptance of rent hereunder
shall not be, or be construed to be, a waiver of any term, covenant or condition of this Sublease.
SECTION 6.03. Exercise of Remedies by Trustee. The Authority and the
County acknowledge and agree that the rights and remedies of the Authority hereunder have
been assigned to, and will be exercised by, the Trustee for the benefit of the Holder.
ARTICLE VII
EMINENT DOMAIN; PREPAYMENT
SECTION 7.01. Eminent Domain. If the whole of the Facilities or so much
thereof as to render the remainder unusable for the purposes for which it was used by the County
shall be taken under the power of eminent domain, the term of this Sublease shall cease as of the
day that possession shall be so taken. If less than the whole of the Facilities shall be taken under
the power of eminent domain and the remainder is usable for the purposes for which it was used
by the County at the time of such taking, then this Sublease shall continue in full force and effect
as to such remainder, and the parties waive the benefits of any law to the contrary, and in such
event there shall be a partial abatement of the rental due hereunder in an amount equivalent to
the amount by which the annual payments of principal and interest on the Outstanding 2012
Loan Obligations will be reduced by the application of the award in eminent domain to the
prepayment of outstanding 2012 Loan Obligations. So long as any of the 2012 Loan Obligations
shall be outstanding, any award made in eminent domain proceedings for taking the Facilities or
any portion thereof shall be paid to the Trustee and applied to the prepayment of the Base Rental
Payments as provided in Section 7.02. Any such award made after all of the Base Rental
Payments and Additional Payments have been fully paid, or provision therefor made, shall be
paid to the to the County.
SECTION 7.02. Prepayment. (a) The County shall prepay on any date from
insurance (including proceeds of title insurance) and eminent domain proceeds, to the extent
provided in Sections 5.01 and 7.01 hereof (provided, however, that in the event of partial damage
to or destruction of the Facilities caused by perils covered by insurance, if in the judgment of the
Authority the insurance proceeds are sufficient to repair, reconstruct or replace the damaged or
destroyed portion of the Facilities, such proceeds shall be held by the Trustee and used to repair,
reconstruct or replace the damaged or destroyed portion of the Facilities, pursuant to the
procedure set forth in Section 5.01 for proceeds of insurance), all or any part of Base Rental
Payments then unpaid so that the aggregate annual amounts of Base Rental Payments which shall
be payable after such prepayment date shall be as nearly proportional as practicable to the
aggregate annual amounts of Base Rental Payments unpaid prior to the prepayment date (taking
into account the reduction in Base Rental allocable to future interest on the Obligations that are
redeemed), at a prepayment amount equal to the redemption payment of the maximum amount of
2012 Loan Obligations, including the principal thereof and the interest thereon to the date of
redemption, plus any applicable premium redeemable from such proceeds.
19 OHSUSA:750956414.4
(b) The County may prepay, from any source of available funds, all but not
less than all Base Rental Payments by depositing with the Trustee moneys or securities as
provided in Article X of the Trust Agreement sufficient to defease 2012 Loan Obligations
corresponding to such Base Rental Payments when due; provided that the County furnishes the
Trustee with an Opinion of Counsel that such deposit will not cause interest on the 2012 Loan
Obligations to be includable in gross income for federal income tax purposes. The County
agrees that if following such prepayment the Facilities are damaged or destroyed or taken by
eminent domain, it is not entitled to, and by such prepayment waives the right of, abatement of
such prepaid Base Rental Payments and shall not be entitled to any reimbursement of such Base
Rental Payments.
(c) Before making any prepayment pursuant to this article, the County shall,
within five (5) days following the event creating such right or obligation to prepay, give written
notice to the Authority and the Trustee describing such event and specifying the date on which
the prepayment will be made, which date shall be not less than forty-five (45) days from the date
such notice is given.
(d) When (1) there shall have been deposited with the Trustee at or prior to
the due dates of the Base Rental Payments or date when the County may exercise its option to
purchase the Facilities or any portion or item thereof, in trust for the benefit of the Owners of the
2012 Loan Obligations and irrevocably appropriated and set aside to the payment of the Base
Rental Payments or option price, sufficient moneys and Permitted Investments described in
subsection (1) of the definition thereof in the Trust Agreement, not redeemable prior to maturity,
the principal of and interest on which when due will provide money sufficient to pay all
principal, premium, if any, and interest on the Obligations to the due date of the Obligations or
date when the County may exercise its option to purchase the Facilities, as the case may be;
(2) all requirements of Section 10.01 of the Trust Agreement have been satisfied; and (3) an
agreement shall have been entered into with the Trustee for the payment of its fees and expenses
so long as any of the 2012 Loan Obligations shall remain unpaid, then and in that event the right,
title and interest of the Authority herein and the obligations of the County hereunder shall
thereupon cease, terminate, become void and be completely discharged and satisfied (except for
the right of the Authority and the obligation of the County to have such moneys and such
Permitted Investments applied to the payment of the Base Rental Payments or option price and
the obligation of the County to provide for any deficiency in such moneys or Permitted
Investments) and the Authority’s interest in and title to the Facilities or applicable portion or
item thereof shall be transferred and conveyed to the County. In such event, the Authority shall
cause an accounting for such period or periods as may be requested by the County to be prepared
and filed with the Authority and evidence such discharge and satisfaction, and the Authority
shall pay over to the County as an overpayment of Base Rental Payments all such moneys or
Permitted Investments held by it pursuant hereto other than such moneys and such Permitted
Investments as are required for the payment or prepayment of the Base Rental Payments or the
option price and the fees and expenses of the Trustee, which moneys and Permitted Investments
shall continue to be held by the Trustee in trust for the payment of Base Rental Payments or the
option price and the fees and expenses of the Trustee, and shall be applied by the Authority to
the payment of the Base Rental Payments or the option price and the fees and expenses of the
Trustee.
20 OHSUSA:750956414.4
SECTION 7.03. Option to Purchase; Sale of Personal Property. The County
shall have the option to purchase the Authority’s interest in any part of Facilities upon payment
of an option price consisting of moneys or securities of the category specified in clause (1) of the
definition of the term Permitted Investments contained in Section 1.01 of the Trust Agreement
(not callable by the issuer thereof prior to maturity) in an amount sufficient (together with the
increment, earnings and interest on such securities) to provide funds to pay the aggregate amount
for the entire remaining term of this Sublease of the part of the total rent hereunder attributable to
such part of the Facilities (determined by reference to the proportion which the cost of such part
of the Facilities bears to the cost of all of the Facilities). Any such payment shall be made to the
Trustee and shall be treated as rental payments and shall be applied by the Trustee to pay the
principal of the 2012 Loan Obligations and interest on the 2012 Loan Obligations and to prepay
2012 Loan Obligations if such 2012 Loan Obligations are subject to prepayment pursuant to the
terms of the Trust Agreement. Upon the making of such payment to the Trustee and the
satisfaction of all requirements set forth in Section 10.01 of the Trust Agreement, (a) the Base
Rental thereafter payable under this Sublease shall be reduced by the amount thereof attributable
to such part of the Facilities and theretofore paid pursuant to this Section, (b) Section 3.06 and
this Section of this Sublease shall not thereafter be applicable to such part of the Facilities, (c)
the insurance required by Sections 5.01, 5.02 and 5.03 of this Sublease need not be maintained as
to such part of the Facilities, and (d) title to such part of the Facilities shall vest in the County
and the term of this Sublease shall end as to such Facilities.
The County, in its discretion, may request the Authority to sell or exchange any
personal property which may at any time constitute a part of the Facilities, and to release said
personal property from this Sublease, if the Holder has agreed in writing and the County
provides its certificate certifying that (a) in the opinion of the County the property so sold or
exchanged is no longer required or useful in connection with the operation of the Facilities, (b)
the consideration to be received from the property is of a value substantially equal to the value of
the property to be released, and (c) if the value of any such property shall, in the opinion of the
Authority, exceed the amount of $100,000, the Authority shall have been furnished a certificate
of an independent engineer or other qualified independent professional consultant (satisfactory to
the Authority) certifying the value thereof and further certifying that such property is no longer
required or useful in connection with the operation of the Facilities. In the event of any such
sale, the full amount of the money or consideration received for the personal property so sold and
released shall be paid to the Authority. Any money so paid to the Authority may, so long as the
County is not in default under any of the provisions of this Sublease, be used upon the Written
Request of the County to purchase personal property, which property shall become a part of the
Facilities leased hereunder. The Authority may require such opinions, certificates and other
documents as it may deem necessary before permitting any sale or exchange of personal property
subject to this Sublease or before releasing for the purchase of new personal property money
received by it for personal property so sold.
21 OHSUSA:750956414.4
ARTICLE VIII
COVENANTS
SECTION 8.01. Right of Entry. The Authority and its assignees shall have
the right to enter upon and to examine and inspect the Facilities during reasonable business hours
(and in emergencies at all times) (a) to inspect the same, (b) for any purpose connected with the
Authority’s or the County’s rights or obligations under this Sublease, and (c) for all other lawful
purposes.
SECTION 8.02. Liens. In the event the County shall at any time during the
term of this Sublease cause any changes, alterations, additions, improvements, or other work to
be done or performed or materials to be supplied, in or upon the Facilities, the County shall pay,
when due, all sums of money that may become due for, or purporting to be for, any labor,
services, materials, supplies or equipment furnished or alleged to have been furnished to or for
the County in, upon or about the Facilities and shall keep the Facilities free of any and all
mechanics’ or materialmen’s liens or other liens against the Facilities or the Authority’s interest
therein. In the event any such lien attaches to or is filed against the Facilities or the Authority’s
interest therein, the County shall cause each such lien to be fully discharged and released at the
time the performance of any obligation secured by any such lien matures or becomes due, except
that if the County desires to contest any such lien it may do so in good faith. If any such lien
shall be reduced to final judgment and such judgment or such process as may be issued for the
enforcement thereof is not promptly stayed, or if so stayed and said stay thereafter expires, the
County shall forthwith pay and discharge said judgment. The County agrees to and shall, to the
maximum extent permitted by law, indemnify and hold the Authority and the Trustee and their
respective members, directors, agents, successors and assigns, harmless from and against, and
defend each of them against, any claim, demand, loss, damage, liability or expense (including
attorney’s fees) as a result of any such lien or claim of lien against the Facilities or the
Authority’s interest therein.
SECTION 8.03. Quiet Enjoyment. The parties hereto mutually covenant
that the County, by keeping and performing the covenants and agreements herein contained and
not in default hereunder, shall at all times during the term of this Sublease peaceably and quietly
have, hold and enjoy the Facilities without suit, trouble or hindrance from the Authority.
SECTION 8.04. Authority Not Liable. The Authority and its members,
directors, officers, agents and employees shall not be liable to the County or to any other party
whomsoever for any death, injury or damage that may result to any person or property by or
from any cause whatsoever in, on or about the Facilities. The County, to the extent permitted by
law, shall indemnify and hold the Authority and its members, directors, officers, agents and
employees, harmless from, and defend each of them against, any and all claims, liens and
judgments arising from the operation of the Facilities, including, without limitation, death of or
injury to any person or damage to property whatsoever occurring in, on or about the Facilities
regardless of responsibility for negligence, but excepting the active negligence of the person or
entity seeking indemnity.
22 OHSUSA:750956414.4
SECTION 8.05. Assignment and Subleasing. Neither this Sublease nor any
interest of the County hereunder shall be mortgaged, pledged, assigned, sublet or transferred by
the County by voluntary act or by operation of law or otherwise, except with the prior written
consent of the Authority and the Holder, which, in the case of subletting, shall not be
unreasonably withheld; provided such subletting shall not affect the tax-exempt status of the
interest on the Obligations. No such mortgage, pledge, assignment, sublease or transfer shall in
any event affect or reduce the obligation of the County to make the Base Rental Payments and
Additional Payments required hereunder.
SECTION 8.06. Title to Facilities. During the term of this Sublease, the
Authority shall hold a leasehold estate to the Facilities and any and all additions which comprise
fixtures, repairs, replacement or modifications thereof, except for those fixtures, repairs,
replacements or modifications which are added thereto by the County and which may be
removed without damaging the Facilities, and except for any items added to the Facilities by the
County pursuant to Section 4.02 hereof. This provision shall not operate to the benefit of any
insurance company if there is a rental interruption covered by insurance pursuant to Section 5.03
hereof.
Upon the termination or expiration of this Sublease, the Authority shall execute
such conveyances, deeds and other documents as may be necessary to evidence the ownership of
the Facilities by the County and to clarify the title of the County on the record thereof.
SECTION 8.07. Tax Covenants. The County and the Authority shall at all
times do and perform all acts and things permitted by law which are necessary or desirable in
order to assure that the interest on the 2012 Loan Obligations that are issued as tax-exempt 2012
Loan Obligations will be excluded from gross income for federal income tax purposes under
Section 103 of the Code and shall take no action that would result in such interest not being
excluded from gross income for federal income tax purposes.
If at any time the County or the Authority is of the opinion that for purposes of
this Section it is necessary to restrict or limit the yield on or change in any way the investment of
any moneys held by the Trustee or the County or the Authority under this Sublease or the Trust
Agreement, the County or the Authority shall so instruct the Trustee or the appropriate officials
of the County in writing, and the Trustee or the appropriate officials of the County, as the case
may be, shall take such actions as may be necessary in accordance with such instructions.
In furtherance of the covenants of the County and the Authority set forth above,
the County will comply with the Tax Certificate and will instruct the Trustee in writing as
necessary to comply with the Tax Certificate. The Trustee and the Authority may conclusively
rely on any such written instructions, and the County hereby agrees to hold harmless the Trustee
and the Authority for any loss, claim, damage, liability or expense incurred by the Authority and
the Trustee for any actions taken by the Authority or the Trustee in accordance with such
instructions.
SECTION 8.08. Taxes. The County shall pay or cause to be paid all taxes
and assessments of any type or nature charged to the Authority or affecting the Facilities or the
respective interests or estates therein; provided that with respect to special assessments or other
23 OHSUSA:750956414.4
governmental charges that may lawfully be paid in installments over a period of years, the
County shall be obligated to pay only such installments as are required to be paid during the term
of this Sublease as and when the same become due.
The County shall also pay directly such amounts, if any, in each year as shall be
required by the Authority for the payment of all license and registration fees and all taxes
(including, without limitation, income, excise, license, franchise, capital stock, recording, sales,
use, value-added, property, occupational, excess profits and stamp taxes), levies, imposts, duties,
charges, withholdings, assessments and governmental charges of any nature whatsoever, together
with any additions to tax, penalties, fines or interest thereon, including, without limitation,
penalties, fines or interest arising out of any delay or failure by the County to pay any of the
foregoing or failure to file or furnish to the Authority or the Trustee for filing in a timely manner
any returns, hereinafter levied or imposed against the Authority or the Facilities, the rentals and
other payments required hereunder or any parts thereof or interests of the County or the
Authority or the Trustee therein by any governmental authority.
The County may, at the County’s expense and in its name, in good faith contest
any such taxes, assessments and other charges and, in the event of any such contest, may permit
the taxes, assessments or other charges so contested to remain unpaid during the period of such
contest and any appeal therefrom unless the Authority or the Trustee shall notify the County that,
in the opinion of independent counsel, by nonpayment of any such items, the interest of the
Authority in the Facilities will be materially endangered or the Facilities, or any part thereof, will
be subject to loss or forfeiture, in which event the County shall promptly pay such taxes,
assessments or charges or provide the Authority with full security against any loss which may
result from nonpayment, in form satisfactory to the Authority and the Trustee.
SECTION 8.09. Authority’s Purpose. The Authority covenants that, prior to
the discharge of this Sublease, it will not engage in any activities inconsistent with the purposes
for which the Authority is organized.
SECTION 8.10. Purpose of Lease. The County covenants that during the
term of this Sublease, except as hereinafter provided, (a) it will use, or cause the use of, the
Facilities for public purposes and for the purposes for which the Facilities are customarily used,
(b) it will not vacate or abandon the Facilities or any part thereof, and (c) it will not make any
use of the Facilities which would jeopardize in any way the insurance coverage required to be
maintained pursuant to Article V hereof.
SECTION 8.11. Essential Use. The Facilities and the financing
contemplated by this Sublease, the Loan Agreement and the Trust Agreement are essential to the
proper, efficient and economic operation of the County, serve an essential governmental function
of the County and are in the best interests of the County
24 OHSUSA:750956414.4
ARTICLE IX
DISCLAIMER OF WARRANTIES;
VENDOR’S WARRANTIES; USE OF THE FACILITIES
SECTION 9.01. Disclaimer of Warranties. THE AUTHORITY MAKES
NO AGREEMENT, WARRANTY OR REPRESENTATION, EITHER EXPRESS OR
IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY, FITNESS
FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE FACILITIES OR
WARRANTY WITH RESPECT THERETO. THE COUNTY ACKNOWLEDGES THAT THE
AUTHORITY IS NOT A MANUFACTURER OF THE FACILITIES OR A DEALER
THEREIN, THAT THE COUNTY LEASES THE FACILITIES AS-IS, IT BEING AGREED
THAT ALL OF THE AFOREMENTIONED RISKS ARE TO BE BORNE BY THE COUNTY.
In no event shall the Authority be liable for any incidental, indirect, special or consequential
damage in connection with or arising out of this Sublease or the existence, furnishing,
functioning or the County’s use of any item or products or services provided for in this Sublease.
SECTION 9.02. Vendor’s Warranties. The Authority hereby irrevocably
appoints the County its agent and attorney-in-fact during the term of this Sublease, so long as the
County shall not be in default hereunder, to assert from time to time whatever claims and rights,
including warranties of the Facilities, which the Authority may have against the manufacturers,
vendors and contractors of the Facilities. The County’s sole remedy for the breach of such
warranty, indemnification or representation shall be against the manufacturer or vendor or
contractor of the Facilities, and not against the Authority, nor shall such matter have any effect
whatsoever on the rights and obligations of the Authority with respect to this Sublease, including
the right to receive full and timely payments hereunder. The County expressly acknowledges
that the Authority makes, and has made, no representation or warranties whatsoever as to the
existence or availability of such warranties of the manufacturer, vendor or contractor.
SECTION 9.03. Use of the Facilities. The County will not install, use,
operate or maintain the Facilities improperly, carelessly, in violation of any applicable law or in
a manner contrary to that contemplated by this Sublease. The County shall provide all permits
and licenses, if any, necessary for the installation and operation of the Facilities. In addition, the
County agrees to comply in all respects (including, without limitation, with respect to the use,
maintenance and operation of the Facilities) with all laws of the jurisdictions in which its
operations may extend and any legislative, executive, administrative or judicial body exercising
any power or jurisdiction over the Facilities; provided, however, that the County may contest in
good faith the validity or application of any such law or rule in any reasonable manner which
does not, in the opinion of the Authority, adversely affect the estate of the Authority in and to the
Facilities or its interest or rights under this Sublease.
25 OHSUSA:750956414.4
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Law Governing. This Sublease shall be governed
exclusively by the provisions hereof and by the laws of the State of California as the same from
time to time exist.
SECTION 10.02. Notices. All notices, statements, demands, consents,
approvals, authorizations, offers, designations, requests, agreements or promises or other
communications hereunder by either party to the other shall be in writing and shall be
sufficiently given and served upon the other party if delivered personally or if mailed by United
States registered mail, return receipt requested, postage prepaid:
If to the County: County of Contra Costa
c/o Clerk of the Board of Supervisors
County Administration Building
651 Pine Street
Martinez, California 94553
With respect to insurance matters:
County of Contra Costa
Risk Manager
Risk Management Department
2530 Arnold Drive
Martinez, California 94553
cc: Public Works Department,
Attn: Real Estate Manager,
255 Glacier Drive, Martinez, California 94553-4825
If to the Authority: County of Contra Costa
Public Financing Authority
c/o County Administrator
County Administration Building
651 Pine Street
Martinez, California 94553
26 OHSUSA:750956414.4
If to the Trustee: Wells Fargo Bank, National Association
MAC #A0119-181
333 Market Street, 18th Floor
San Francisco, California 94105
If to the Holder: Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Attn: Contract Administration
or to such other addresses as the respective parties may from time to time designate by notice in
writing. A copy of any such notice or other document herein referred to shall also be delivered
to the Trustee and the Holder.
SECTION 10.03. Validity and Severability. If for any reason this Sublease
shall be held by a court of competent jurisdiction to be void, voidable, or unenforceable by the
Authority or by the County, or if for any reason it is held by such a court that any of the
covenants and conditions of the County hereunder, including the covenant to pay rentals
hereunder, is unenforceable for the full term hereof, then and in such event this Sublease is and
shall be deemed to be a lease under which the rentals are to be paid by the County annually in
consideration of the right of the County to possess, occupy and use the Facilities, and all of the
rental and other terms, provisions and conditions of this Sublease, except to the extent that such
terms, provisions and conditions are contrary to or inconsistent with such holding, shall remain
in full force and effect.
SECTION 10.04. Net-Net-Net Lease. This Sublease shall be deemed and
construed to be a “net-net-net lease” and the County hereby agrees that the rentals provided for
herein shall be an absolute net return to the Authority, free and clear of any expenses, charges or
set-offs whatsoever.
SECTION 10.05. Section Headings. All section headings contained herein
are for convenience of reference only and are not intended to define or limit the scope of any
provision of this Sublease.
SECTION 10.06. Amendment or Termination. The Authority and the
County may at any time agree to the amendment or termination of this Sublease; provided,
however, that the Authority and the County agree and recognize that this Sublease is entered into
in accordance with the terms of the Trust Agreement, and accordingly, that any such amendment
or termination shall only be made or effected in accordance with and subject to the terms of the
Trust Agreement.
SECTION 10.07. Execution. This Sublease may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all together shall constitute
but one and the same Sublease. It is also agreed that separate counterparts of this Sublease may
separately be executed by the Authority and the County, all with the same force and effect as
though the same counterpart had been executed by both the Authority and the County.
27 OHSUSA:750956414.4
IN WITNESS WHEREOF, the Authority and the County have caused this
Sublease to be executed by their respective officers thereunto duly authorized, all as of the day
and year first above written.
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY,
as Sublessor
By:
Mary N. Piepho
Chair of the County of Contra Costa
Public Financing Authority
ATTEST:
By:
David J. Twa
Executive Director and Secretary
COUNTY OF CONTRA COSTA,
as Sublessee
[SEAL] By
Mary N. Piepho
Chair of the Board of Supervisors
County of Contra Costa, State of California
ATTEST:
By
David J. Twa,
Clerk of the Board of Supervisors and
County Administrator
A-1 OHSUSA:750956414.4
EXHIBIT A
Description of the Facilities
All that certain real property situated in the County of Contra Costa, State of
California, described as follows:
50 Douglas Facility
The term “50 Douglas Facility” means the facility located at 50 Douglas Drive in
Martinez, California, together with parking, site development, landscaping, utilities, equipment,
furnishings, improvements and appurtenant and related facilities, located on the real property
described as follows:
[Insert Legal Description]
20 Allen Facility
The term “20 Allen Facility” means the facility located at 20 Allen Street in Martinez,
California, together with parking, site development, landscaping, utilities, equipment,
furnishings, improvements and appurtenant and related facilities, located on the real property
described as follows:
[Insert Legal Description]
B-1 OHSUSA:750956414.4
EXHIBIT B
Base Rental Payment Schedule
Base Rental
Payment
Date*
Principal
Interest
Total
Fiscal Year
Total
____________________________
* Payable on the 15th day of the preceding month.
C-1 OHSUSA:750956414.4
EXHIBIT C
Lease Term
Facility Term Maximum Extension
50 Douglas Facility
20 Allen Facility
D-1 OHSUSA:750956414.4
EXHIBIT D
Project
2012 Project
The “2012 Project” means the acquisition, construction, improvement and/or equipping
of the following facilities:
Martinez Wellness Center
The Martinez Wellness Center is the 10,000-square-foot, single-story, outpatient
ambulatory and mental health clinic to be located at [2500 Alhambra Avenue Martinez,
California], together with [parking], site development, landscaping, utilities, equipment,
furnishings, improvements and appurtenant and related facilities.
Parking Lot E
Parking Lot E is a new surface parking lot that will be approximately 46,760 square-feet
in size and will provide 80 new visitor and staff parking stalls, and will be located near the
Martinez Wellness Center at [2500 Alhambra Avenue Martinez, California], together with site
development, landscaping, utilities, equipment, improvements and appurtenant and related
facilities.
Crisis Residential Center
The Crisis Residential Center is the 6,600 square-foot, two-story, residential treatment program
facility that will be located at [20 Allen Street Martinez, California and ____], together with
[parking], site development, landscaping, utilities, equipment, furnishings, improvements and
appurtenant and related facilities.
TABLE OF CONTENTS
Page
i OHSUSA:750956414.4
ARTICLE I DEFINITIONS .................................................................................................. 2
SECTION 1.01. Definitions ............................................................................................. 2
ARTICLE II LEASE OF FACILITIES; TERM ..................................................................... 4
SECTION 2.01. Lease of Facilities ................................................................................. 4
SECTION 2.02. Term; Occupancy; Release ................................................................... 5
SECTION 2.03. Substitution ........................................................................................... 5
ARTICLE III RENTAL PAYMENTS; USE OF PROCEEDS ............................................... 6
SECTION 3.01. Base Rental Payments ........................................................................... 6
SECTION 3.02. Additional Payments ............................................................................. 7
SECTION 3.03. Fair Rental Value .................................................................................. 8
SECTION 3.04. Payment Provisions ............................................................................... 8
SECTION 3.05. Appropriations Covenant. ..................................................................... 9
SECTION 3.06. Rental Abatement ................................................................................ 10
SECTION 3.07. Use of Proceeds ................................................................................... 10
ARTICLE IV MAINTENANCE; ALTERATIONS AND ADDITIONS .............................. 10
SECTION 4.01. Maintenance and Utilities ................................................................... 10
SECTION 4.02. Changes to the Facilities ..................................................................... 10
SECTION 4.03. Installation of County’s Equipment .................................................... 11
ARTICLE V INSURANCE .................................................................................................. 11
SECTION 5.01. Fire and Extended Coverage Insurance............................................... 11
SECTION 5.02. Liability Insurance .............................................................................. 12
SECTION 5.03. Rental Interruption or Use and Occupancy Insurance ........................ 13
SECTION 5.04. Worker’s Compensation ..................................................................... 13
SECTION 5.05. Title Insurance. .................................................................................... 14
SECTION 5.06. Insurance Proceeds; Form of Policies ................................................. 14
ARTICLE VI DEFAULTS AND REMEDIES ...................................................................... 15
SECTION 6.01. Defaults and Remedies ........................................................................ 15
SECTION 6.02. Waiver ................................................................................................. 18
SECTION 6.03. Exercise of Remedies by Trustee ........................................................ 18
ARTICLE VII EMINENT DOMAIN; PREPAYMENT ......................................................... 18
SECTION 7.01. Eminent Domain ................................................................................. 18
SECTION 7.02. Prepayment .......................................................................................... 19
SECTION 7.03. Option to Purchase; Sale of Personal Property ................................... 20
ARTICLE VIII COVENANTS ................................................................................................. 21
SECTION 8.01. Right of Entry ...................................................................................... 21
TABLE OF CONTENTS
(continued)
Page
ii OHSUSA:750956414.4
SECTION 8.02. Liens .................................................................................................... 21
SECTION 8.03. Quiet Enjoyment ................................................................................. 21
SECTION 8.04. Authority Not Liable ........................................................................... 22
SECTION 8.05. Assignment and Subleasing ................................................................ 22
SECTION 8.06. Title to Facilities ................................................................................. 22
SECTION 8.07. Tax Covenants ..................................................................................... 22
SECTION 8.08. Taxes ................................................................................................... 23
SECTION 8.09. Authority’s Purpose ............................................................................ 23
SECTION 8.10. Purpose of Lease ................................................................................. 23
SECTION 8.11. Essential Use ....................................................................................... 24
ARTICLE IX DISCLAIMER OF WARRANTIES; VENDOR’S WARRANTIES;
USE OF THE FACILITIES ............................................................................ 24
SECTION 9.01. Disclaimer of Warranties .................................................................... 24
SECTION 9.02. Vendor’s Warranties ........................................................................... 24
SECTION 9.03. Use of the Facilities ............................................................................. 24
ARTICLE X MISCELLANEOUS ........................................................................................ 25
SECTION 10.01. Law Governing ................................................................................... 25
SECTION 10.02. Notices ................................................................................................ 25
SECTION 10.03. Validity and Severability..................................................................... 26
SECTION 10.04. Net-Net-Net Lease .............................................................................. 26
SECTION 10.05. Section Headings ................................................................................. 26
SECTION 10.06. Amendment or Termination ................................................................ 26
SECTION 10.07. Execution ............................................................................................ 26
EXHIBIT A Description of the Facilities .......................................................................... A-1
EXHIBIT B Base Rental Payment Schedule ..................................................................... B-1
EXHIBIT C Lease Term .................................................................................................... C-1
EXHIBIT D Project ............................................................................................................ D-1
OHSUSA:750956414.4
An extra section break has been inserted above this paragraph. Do not delete this section break if
you plan to add text after the Table of Contents/Authorities. Deleting this break will cause Table
of Contents/Authorities headers and footers to appear on any pages following the Table of
Contents/Authorities.
Orrick, Herrington & Sutcliffe 9/11/12
OHSUSA:751092526.4
LOAN AGREEMENT
Lender: Banc of America Public Capital Corp
County/Lessor: County of Contra Costa Public Financing Authority
County/Lessee: County of Contra Costa
THIS LOAN AGREEMENT dated as of October 1, 2012 (the “Loan Agreement”)
is among Banc of America Public Capital Corp, a ________________ corporation, as lender (the
“Lender”), the County of Contra Costa Public Financing Authority (the “Authority”), a public
instrumentality of the State of California (the “State”) and the County of Contra Costa, a political
subdivision under the laws of the State (the “County”). Capitalized terms not otherwise defined
herein shall have the meaning assigned to such terms in the Trust Agreement.
W I T N E S S E T H:
WHEREAS, the Authority is authorized and empowered under the laws of the
State to issue its bonds, notes and other evidence of indebtedness to finance the cost of projects,
all in furtherance of its public purposes; and
WHEREAS, the County is authorized to sublease, purchase and hold real and
personal property; and
WHEREAS, the County desires to finance certain projects (collectively, the
“Project”) and has agreed to a lease lease-back financing with the Authority; and
WHEREAS, the Authority has entered into a Trust Agreement dated as of
October 1, 2012 (the “Trust Agreement”) with Wells Fargo Bank National Association as trustee
(the “Trustee”); and
WHEREAS, in order to finance the costs of the Project, the Authority will enter
into this Agreement with the Lender pursuant to the terms of this Loan Agreement, and to secure
its obligations hereunder will designate this Loan Agreement as an Obligation under the Trust
Agreement secured by a pledge of Revenues consisting primarily of base rental payments by the
County; and
WHEREAS, the County shall make lease payments to the Trustee as assignee of
the Authority and the Trustee will make payments to the Lender as holder of an Obligation
secured by the Trust Agreement; and
WHEREAS, this Loan Agreement and the Obligations issued under the Trust
Agreement are limited obligations of the Authority and are not a lien or charge upon the funds or
property of the Authority except to the extent of the aforementioned pledge and assignment
under the Trust Agreement. Neither the County nor the Authority shall be obligated to pay the
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Obligations or the interest thereon, except from Revenues and neither the faith and credit nor the
taxing power of the State, or Authority, or any political subdivision of the State is pledged to the
payment of the principal of, premium, if any, or interest on the Obligations. The Obligations are
not a debt of the County and the County is not liable for payment thereof;
NOW, THEREFORE, in consideration of the payments to be made hereunder and
the mutual covenants contained herein, the parties agree as follows.
ARTICLE I
DEFINITIONS
The following terms used herein will have the meanings indicated below unless
the context clearly requires otherwise.
“Agreement” means this Loan Agreement and a Schedule, as executed and as the
same may be amended or modified from time to time, including the accompanying Attachments
and documents relating to such Schedule, which shall constitute a fully integrated transaction
existing in accordance with its own terms and conditions separate from and independent of all
other transactions, including the execution of other Schedules, pursuant to this Loan Agreement.
For the purpose of construing a transaction as an integrated agreement and for the purposes of
the provisions of Article III hereof, an Agreement shall be considered a single transaction and a
legal and binding agreement.
“Authority” means (i) the County of Contra Costa Public Financing Authority; (ii)
any surviving, resulting or transferee entity thereof; and (iii) except where the context requires
otherwise, any assignee(s) of the Authority.
“Authority Legal Documents” means the Trust Agreement, the Site Lease and the
Sublease.
“Authorized Officer’’ means: (i) in the case of the Lender, any __________, or
_____________, and when used in reference to an act or document of the Lender, also means
any other person authorized to perform the act or sign the document; (ii) in the case of the
Authority, the Chairperson or any Deputy thereof, Executive Director, or Deputy Executive
Director, or any other person authorized by the governing body of the Authority; and (iii) in the
case of the County, the County Administrator, the County Finance Director, any designee of
either such officers, the Treasurer or other chief financial officer or any assistant Treasurer, and
when used with reference to an act or document of the County, also means any other person
authorized to perform the act or execute the document.
“Bond Counsel” means an attorney or firm of attorneys nationally recognized on
the subject of municipal bonds and acceptable to the Authority and the Lender.
“County” means the County of Contra Costa, a political subdivision of the State.
“Closing” means the date of delivery of all executed documents related to each
Agreement as required under this Loan Agreement.
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“Code” means the Internal Revenue Code of 1986, or any successor statute
thereto, and any regulations promulgated thereunder.
“County Legal Documents” means the Site Lease and the Sublease.
“Costs of Issuance” means the cost of preparation and delivery of the Agreement,
including, but not limited to, legal fees and expenses of Bond Counsel, County’s Counsel and
Lender’s Counsel as more fully set forth in a Schedule.
“Lender” means (i) Banc of America Public Capital Corp; (ii) any surviving,
resulting or transferee corporation of Banc of America Public Capital Corp; and (iii) if this Loan
Agreement has been assigned by a Lender pursuant to Section 7.01 hereof, the assignee, or if an
Agreement has been assigned by a Lender pursuant to Section 7.01, such assignee shall be
considered a Lender with respect to such Agreement.
“Loan Payments” means those scheduled payments (but excluding, administrative
fees, indemnifications and Additional Payments (defined below) payable to the Lender and the
Authority hereunder) payable by the Authority from Revenues pursuant to the provisions of this
Loan Agreement and each Schedule, as specifically set forth in applicable Schedules to this Loan
Agreement. As provided in Article V hereof, Loan Payments shall be payable by the Trustee
directly to Lender in the amounts and at the times as set forth in the applicable Schedule.
“Loan Agreement” means, collectively, this Loan Agreement, including Exhibit A
hereto, as any of the same may be supplemented or amended from time to time in accordance
with the terms hereof.
“Prepayment Price” means the amount which the Authority may pay or cause to
be paid to the Lender in order to prepay its obligations under an Agreement, as provided in
Article VI hereof, such amount being set forth in the Schedule comprising a part of such
Agreement, plus all other amounts then owed under such the Agreement by the County.
“Prime” means the highest rate of interest published in The Wall Street Journal
listing of prime or base rates for major lending institutions, or if such listing is no longer
published, then the highest rate of interest announced by any member of the New York
Clearinghouse Association as its “prime” or “base” lending rate for commercial loans of short
term maturities.
“Project” means “project” as defined in the Trust Agreement.
“Schedule” means, with respect to the provision of this Loan Agreement, a
Schedule of Loan Payments in substantially the same form set forth as Exhibit A, which has been
executed by the Lender, the Authority and the County, that sets forth the Loan Payments and
Prepayment Price payable in respect thereof, and certain other matters. Schedules shall be
numbered consecutively beginning with 1.
“State” means the State of California.
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OHSUSA:751092526.4
“Tax Agreement” means the Tax Certificate and Agreement executed and
delivered by the Authority and the County in connection with the Closing of each Schedule.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE AUTHORITY AND THE COUNTY
Section 2.01. Authority’s Representations, Warranties, Covenants and Findings.
The Authority represents, warrants and covenants, for the benefit of the Lender and the County,
as follows:
(a) The Authority has taken official action by resolution (the “Authority
Resolution”) adopted by at least a majority of the members of the Authority Board of Directors
at a meeting duly called, noticed and conducted, at which a quorum was present and acting
throughout, on ______________, all action necessary to be taken by it for the execution and
delivery of the Authority Legal Documents and this Agreement and for the due performance of
the Authority Legal Documents and this Agreement, and any and all action as may be required
on the part of the Authority to carry out, give effect to and consummate the transactions
contemplated hereby and thereby has been taken, and the Authority Resolution has not been
modified or amended and is in full force and effect;
(b) The Authority is a joint exercise of powers agency duly organized and
validly existing pursuant to the Constitution and laws of the State with the full power and
authority to adopt the Authority Resolution, to issue the Obligations for the purposes described
in the Trust Agreement and to enter into and perform its duties under the Authority Legal
Documents and this Agreement, and to consummate the transactions contemplated hereby and
thereby;
(c) This Agreement constitutes, and upon their execution and delivery, the
Authority Legal Documents will each constitute legal, valid and binding obligations of the
Authority enforceable in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, moratorium or creditors’ rights generally, to the application
of equitable principles, to the exercise of judicial discretion and to the limitations on legal
remedies against joint powers authorities in California; and the execution and delivery of the
Authority Legal Documents and this Agreement, and compliance with the provisions of the
Authority Legal Documents and this Agreement will not conflict with or constitute a breach of or
a default under any applicable law or administrative regulation of the State or the United States,
or any applicable judgment or decree or any lease, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Authority is a party or is otherwise
subject, nor will any such execution, delivery or compliance result in the creation or imposition
of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any
of the properties or assets of the Authority under the terms of any such California or federal law,
administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution,
agreement or other instrument, except as provided in the Authority Legal Documents;
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OHSUSA:751092526.4
(d) The Authority is not in material breach of or in material default under any
existing law or administrative regulation of the State or the United States or any applicable
judgment or decree or any lease, loan agreement, indenture, bond, note, resolution, agreement or
other instrument to which the Authority is a party or is otherwise subject, and no event has
occurred and is continuing which, with the passage of time or the giving of notice or both, would
constitute a material default under any such instrument;
(e) There is no action, suit, proceeding, inquiry or investigation at law or in
equity, before or by any California or federal court, public board or body pending or, to the best
knowledge of the Authority after due inquiry, threatened against the Authority, wherein an
unfavorable decision, ruling or finding would: (i) adversely affect the creation, organization,
existence or powers of the Authority, or the titles of its members or officers, (ii) enjoin or
restrain the execution or delivery of the Authority Legal Documents or this Agreement or the
receipt of Base Rental Payments under the Sublease or challenging, directly or indirectly, the
location of the Facilities, or the proceedings to lease the Facilities from the County, (iii) in any
way question or adversely affect any authority for the execution and delivery of the Authority
Legal Documents or this Agreement, or the validity or enforceability of the Authority Legal
Documents or this Agreement, (iv) in any way question or adversely affect this Agreement, the
Authority Legal Documents or the transactions contemplated by this Agreement or any other
agreement or instrument to which the Authority is a party relating to the execution and delivery
of this Agreement, or (v) in any way question or affect the federal tax-exempt status of the
interest on the loan repayments;
(f) There is no consent, approval, authorization or other order of, or filing or
registration with, or certification by, any regulatory authority having jurisdiction over the
Authority required for the execution and delivery of this Agreement or the consummation by the
Authority of the other transactions contemplated by this Agreement or the Authority Legal
Documents;
(g) The Agreement will be an Obligation under the Trust Agreement;
(h) The Agreement will be a validly outstanding Obligation of the Authority,
entitled to the benefits of the Trust Agreement, and the Trust Agreement will provide, for the
benefit of the Lender, a legally valid and binding pledge of and lien on the Revenues and the
funds and accounts pledged under the Trust Agreement, subject only to the provisions of the
Trust Agreement permitting the application thereof on the terms and conditions set forth in the
Trust Agreement;
(i) The Authority shall apply the loan proceeds from the Agreement, and
earnings thereon, in accordance with the Trust Agreement;
(j) The Authority is not in default, and at no time has defaulted in any
material respect, on any bond, note or other obligation for borrowed money or any agreement
under which any such obligation is or was outstanding; and
(k) Any certificate signed by a duly authorized officer of the Authority and
delivered to the Lender pursuant to this Agreement or any document contemplated hereby shall
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OHSUSA:751092526.4
be deemed a representation and warranty by the Authority to the Lender as to the statements
made therein.
Section 2.02. County’s Representations, Warranties and Covenants. The County
represents, warrants and covenants, for the benefit of the Lender and the Authority as follows:
(a) The County has taken official action by resolution (the “County
Resolution”) adopted by at least four-fifths of the members of the County Board of Supervisors
at a meeting duly called, noticed and conducted, at which a quorum was present and acting
throughout, on _______________, all action necessary to be taken by it for the execution and
delivery of the County Legal Documents and this Agreement and for the due performance of the
County Legal Documents and this Agreement, and any and all action as may be required on the
part of the County to carry out, give effect to and consummate the transactions contemplated
hereby and thereby has been taken, and the County Resolution has not been modified or
amended and is in full force and effect;
(b) The County is a political subdivision, duly organized and existing under
the laws of the Constitution and the State and has all necessary power and authority to adopt the
County Resolution, to enter into and perform its duties under the County Legal Documents and
this Agreement, and to consummate the transactions contemplated hereby and thereby;
(c) This Agreement and the County Legal Documents each constitute, legal,
valid and binding obligations of the County enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium or
creditors’ rights generally, to the application of equitable principles, to the exercise of judicial
discretion and to the limitations on legal remedies against counties in California; and the
execution and delivery of the County Legal Documents and this Agreement, and compliance
with the provisions of the County Legal Documents and this Agreement will not conflict with or
constitute a breach of or a default under any applicable law or administrative regulation of the
State or the United States, or any applicable judgment or decree or any lease, loan agreement,
indenture, bond, note, resolution, agreement or other instrument to which the County is a party or
is otherwise subject, nor will any such execution, delivery or compliance result in the creation or
imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever
upon any of the properties or assets of the County under the terms of any such California or
federal law, administrative regulation, judgment or decree or any lease, loan agreement,
indenture, bond, note, resolution, agreement or other instrument, except as provided in the
County Legal Documents;
(d) The County is not in material breach of or in material default under any
existing law or administrative regulation of the State or the United States or any applicable
judgment or decree or any lease, loan agreement, indenture, bond, note, resolution, agreement or
other instrument to which the County is a party or is otherwise subject, and no event has
occurred and is continuing which, with the passage of time or the giving of notice or both, would
constitute a material default under any such instrument;
(e) There is no action, suit, proceeding or investigation at law or in equity,
before or by any court, public board or body pending or, to the best knowledge of the County
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OHSUSA:751092526.4
after due inquiry, threatened against the County, wherein an unfavorable decision, ruling or
finding would: (i) adversely affect the creation, organization, existence or powers of the County,
or the titles of its members or officers, (ii) enjoin or restrain the execution and delivery of this
Agreement or the County Legal Documents or the payment of Base Rental Payments under the
Sublease or challenging, directly or indirectly, the location of the Facilities, or the proceedings to
lease the Facilities from the Authority, (iii) in any way question or adversely affect any authority
for the execution and delivery of this Agreement or the County Legal Documents, or the validity
or enforceability of the County Legal Documents or this Agreement, (iv) in any way question or
adversely affect this Agreement, the County Legal Documents or the transactions contemplated
by this Agreement or any other agreement or instrument to which the County is a party relating
thereto or (v) in any way question or affect the federal tax-exempt status of the interest on the
loan repayment;
(f) There is no material consent, approval, authorization or other order of, or
filing or registration with, or certification by, any regulatory authority having jurisdiction over
the County required for the execution and delivery of this Agreement or the execution and
delivery of the County Legal Documents or the consummation by the County of the other
transactions contemplated by this Agreement or the County Legal Documents;
(g) The Agreement will be an Obligation payable in accordance with the Trust
Agreement;
(h) The Agreement will be entitled to the benefits of the Trust Agreement, and
the Trust Agreement will provide, for the benefit of the Lender, a legally valid and binding
pledge of and lien on the Revenues (as defined in the Trust Agreement) and the funds and
accounts pledged under the Trust Agreement, subject only to the provisions of the Trust
Agreement permitting the application thereof on the terms and conditions set forth in the Trust
Agreement;
(i) Except as disclosed to the Lender, there has not been any material adverse
change in the financial condition of the County since June 30, ____, and the Lender is assumed
to have knowledge of the State’s fiscal situation and its potential effect on County finances. The
financial statements of, and other financial information regarding, the County that have been
provided to the Lender fairly present the financial position and results of the operations of the
County as of the dates and for the periods therein, set forth, including that (i) the audited
financial statements have been prepared in accordance with generally accepted accounting
principles consistently applied, and (ii) the other financial information provided to the Lender
has been determined on a basis substantially consistent with that of the County’s audited
financial statements provided to the Lender;
(j) The County is not in default, and at no time has defaulted in any material
respect, on any bond, note or other obligation for borrowed money or any agreement under
which any such obligation is or was outstanding;
(k) Any certificate signed by a duly authorized official of the County and
delivered to the Lender pursuant to this Agreement or any document contemplated hereby shall
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OHSUSA:751092526.4
be deemed a representation and warranty by the County to the Lender as to the statements made
therein;
(l) The items listed in Exhibit B hereto (the “County Information”) provided
to the Lender by the County are true and correct in all material respects as of its date;
(m) The County will provide the Lender with audited financial statements
within two hundred seventy (270) days after each fiscal year end and agrees to deliver to the
Lender any other financial information regarding the County, including annual budgets and
budget updates, that the Lender may from time to time reasonably request; and
(n) The County has sufficient budgeted funds for the current fiscal year to
make Base Rental Payments and Additional Payments coming due this fiscal year.
Section 2.03. Tax Covenants.
(a) It is the intention of the parties hereto that the interest on the loan
repayment be and remain excludable from gross income for purposes of federal income taxation.
(b) The Authority covenants that it will at all times do and perform all acts
and things permitted by law that are necessary or desirable in order to assure that the interest
paid on the loan repayment will be excluded from gross income for purposes of federal income
taxes and it will not intentionally perform any act that shall have the effect of terminating such
exclusion from gross income of the interest on the loan repayment for federal income tax
purposes. Without limiting the generality of the foregoing, the Authority agrees to comply with
the provisions of the Tax Agreement. This covenant shall survive payment in full or defeasance
of the loan.
(c) The County covenants that it will pay any arbitrage rebate due to the
United States of America in connection with this Loan Agreement and any Schedule hereto and
that it will take any and all other actions lawfully within its powers and applicable to the acts
done or omitted by the County so as to maintain an exclusion from gross income for federal
income tax purposes of the interest on the loan repayment under any Schedule hereto, and that it
will not perform any act or enter into any agreement or use or permit the use of the Project or any
portion thereof in a manner that shall have the effect of terminating such exclusion from gross
income for federal income tax purposes of the interest on the loan repayment received by the
Lender. The County acknowledges having read the Tax Agreement and agrees to perform all
duties imposed upon it by the Tax Agreement. This covenant shall survive payment in full or
defeasance of the loan.
Section 2.04. Compliance with Rebate Requirement.
(a) The County covenants to comply with the Tax Agreement and its Closing
Certificate delivered at the Closing of each Schedule, the terms of which are hereby incorporated
by reference into this Loan Agreement.
(b) The requirements of this Section 2.04 and the Tax Agreement may be
modified or amended in whole or in part upon receipt by Authority and Lender of an opinion of
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OHSUSA:751092526.4
Bond Counsel to the effect that such modifications and amendments will not adversely affect the
exclusion from gross income of the interest on any loan repayment.
ARTICLE III
FINANCING OF PROJECT
Section 3.01. Project. The Authority hereby agrees to cause the proceeds of the
loan received hereunder to be paid to the County pursuant to the County Legal Documents and
the Trust Agreement in order to finance the Project and pay the Costs of Issuance.
Section 3.02. Loans to Finance Project. Upon execution of each Schedule,
Lender shall pay to the Trustee the principal amount of the loan specified in such Schedule in
order to finance the Project pursuant to the Trust Agreement. In exchange for such
consideration, the Authority shall acknowledge and the Trustee shall authenticate the agreement
as an Obligation issued under and secured by the Trust Agreement, payable from Revenues. As
security for the Agreement issued under such Schedule, the Authority shall acknowledge the
Agreement as an Obligation under the Trust Agreement secured by the pledge and assignment
under the Trust Agreement.
ARTICLE IV
TERM OF AGREEMENT
Section 4.01. Commencement of Term. The term applicable to any Agreement
shall commence on the date specified in the applicable Schedule and shall terminate as provided
in Section 4.02.
Section 4.02. Termination of Term. The term applicable to any Agreement will
terminate upon the earliest to occur of any of the following events:
(a) The exercise by the Authority of the option granted under the provisions
of Articles VI hereof to prepay its Loan Payments with respect to such Agreement and the
payment of any Additional Payments, any rebate payments and any other payments required to
be paid by Authority hereunder; or
(b) The payment by the Authority when due of all Loan Payments with
respect to such Agreement, any Additional Payments, any rebate payments and any other
payments required to be paid by Authority hereunder.
ARTICLE V
LOAN PAYMENTS
Section 5.01. Payment of Loan Payments. The Authority shall pay or cause the
Trustee to pay the principal of, premium if any, and interest on each loan made hereunder, but
only out of Revenues, consisting primarily of the amounts paid by the County pursuant to the
Sublease. As security for its obligation to pay the principal of, premium if any, and interest on
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OHSUSA:751092526.4
the loan, the Authority has assigned to the Trustee all of its right to receive Base Rental
Payments from the County, as well as all rights and remedies of the Authority as lessor under the
Sublease and all of the Authority’s rights, title and interest in the Site Lease; provided, that so
long as no Event of Default (as defined in the Sublease) shall have occurred or be continuing, the
Authority shall have and may exercise all rights as lessee under the Site Lease and of the Lessor
under the Sublease other than the right to receive Base Rental Payments and Additional Rental
Payments due and owing under the Sublease and the right to grant any waivers to the County
under the Sublease. The County, pursuant to the Sublease, shall pay to the Trustee, as the
assignee of the Authority, the Base Rental Payments in lawful money of the United States of
America in the amounts and on the dates set forth in the Sublease. The County hereby consents
and agrees to the foregoing assignments and agrees to make the Base Rental Payments directly to
the Trustee. The Lender hereby acknowledges that the Authority has no liability to make
payments on the loan, except from the Base Rental Payments that are paid by the County and
other Revenues under the Trust Agreement. No provision, covenant or agreement contained in
this Loan Agreement or any obligation herein imposed on Authority, or the breach thereof, shall
constitute or give rise to or impose upon Authority a pecuniary liability, a charge upon its
general credit, or a pledge of its general revenues. The Authority has no taxing power. In
making the provisions, covenants and agreements set forth in this Loan Agreement, the
Authority has not obligated itself except with respect to the Revenues held by the Trustee under
the Trust Agreement.
The loan agreement obligations hereunder are limited obligations of the Authority
and are not a lien or charge upon the funds or property of the Authority except to the extent of
the aforementioned pledge and assignment. Neither the State nor the Authority shall be
obligated to pay the loan or the interest thereon, except from Revenues and neither the faith and
credit nor the taxing power of the State, or the Authority, or any political subdivision of the State
is pledged to the payment of the principal of, premium, if any, or interest on the loan.
Section 5.02. Interest and Principal Components. A portion of each Loan
Payment is paid as, and represents payment of, interest, and the balance of, each Loan Payment
is paid as, and represents payment of principal. Each Schedule hereto shall set forth the principal
and interest components of each Loan Payment payable hereunder during the term of the loan.
Section 5.03. Loan Payments. As to each Agreement, the Trustee on behalf of
the Authority shall be instructed to pay to the Lender the Loan Payments, including the interest
components thereof, equal to the amounts specified in the Schedule comprising a part of such
Agreement and equal to the principal and interest payable on the loan and shall pay to Lender
and Authority all other payments and fees due hereunder from Additional Payments made by the
County. The Loan Payments shall be payable without notice or demand when due at such place
as the Lender shall direct in writing at the time the Schedule is executed or such other place as
the Lender or the Authority, as the case may be, may from time to time designate in writing to
the Trustee. The obligations of the Authority to make payment of the Loan Payments and all
other payments and fees due hereunder, as well as to perform and observe all other covenants
hereunder, shall be absolute and unconditional in all events, without abatement, diminution,
deduction, set off or defense for any reason, except such payments shall be limited to Revenues.
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Section 5.04. Appointment of Trustee. The Lender hereby acknowledges that
the Trustee shall administer payment of the Loan Payments and the security thereof pursuant to
the Trust Agreement.
Section 5.05. Non Liability of Authority. The Authority shall not be obligated to
pay the principal of, and premium, if any, and interest on the Loan Payments, except from
Revenues. Neither the faith and credit nor the taxing power of the State or any political
subdivision thereof is pledged to the payment of the principal of or premium or interest on the
Loan Payments.
The County and Lender hereby acknowledge that the Authority’s sole source of
moneys to repay the loan will be provided by the payments made by the County pursuant to the
Sublease and through the exercise by the Trustee of remedies pursuant to Section 6.01 of the
Sublease or Article VII of the Trust Agreement.
ARTICLE VI
PREPAYMENT
Section 6.01. Prepayment Rights. The Authority shall be entitled to prepay its
Loan Payments with respect to a particular Schedule, in whole but not in part, on any date on
which a Loan Payment is due from and after the Loan Payment date on or next following the
date when one half of the Agreement term has passed, upon written notice delivered at least
thirty (30) days in advance of any date on which a Loan Payment is due, and upon the payment
on such date of the Loan Payment due and the applicable Prepayment Price, which prepayment
price will be without premium if paid from prepayments made by the County pursuant to
Section 7.02 of the Sublease and at all other times will be at the Prepayment Price set forth in the
Schedule.
ARTICLE VII
ASSIGNMENT
Section 7.01. Assignment by Lender. This Loan Agreement and/or an
Agreement, the Obligations and the right to receive Loan Payments and the Prepayment Price
from Authority hereunder, may be assigned and reassigned in whole or in part by the Lender at
any time subsequent to its execution, without the necessity of obtaining the consent of the
Authority or the County so long as notice is given to the Authority, the Trustee and the County
and the assignee is a sophisticated investor and the Lender shall have obtained, prior to such
assignment, a sophisticated investor’s letter in the form of Exhibit D to the Trust Agreement;
provided, however, that no such assignment shall be effective and binding on the Authority, the
Trustee or the County unless and until the Authority, the Trustee and the County shall have
received notice of the assignment disclosing the name and address of the assignee. Upon any
such assignment of all or a portion of the Loan Agreement, the right to receive Loan Payments
and the Prepayment Price from the Authority under the corresponding Agreement and other
provisions of the Agreement shall also be registered under the Trust Agreement.
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Section 7.02. Representations of Lender. The Lender has sufficient knowledge
and experience in financial and business matters, including purchase and ownership of municipal
and other tax-exempt obligations, to be able to evaluate the risks and merits of the investment
represented by the Agreements and is able to bear the economic risk of such investment. The
Lender has made its own inquiry and analysis with respect to the County, the Authority, the loan
and the security therefor, and other material factors affecting the security and payment of the
loan.
The Lender has either been supplied with or had access to information, including
financial statements and other financial information, to which a reasonable investor would attach
significance in making investment decisions, and has had the opportunity to ask questions and
receive answers from knowledgeable individuals concerning the County, the Authority, the
Obligations and the security therefor so that as a reasonable investor, it has been able to make its
decision to enter into the Agreements.
The Lender represents to the Authority that it is making the loan for investment
for its own account and not with a present view toward resale or the distribution thereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. The following constitute “Events of Default”
under this Loan Agreement:
(a) failure by the Authority to pay (following 30 days notice to the County
and the Authority with an opportunity to cure) when due any Loan Payment; or
(b) an “Event of Default” has occurred under the Trust Agreement; or
(c) failure by the Authority or the County to observe and perform any other
covenant, condition or agreement on its part to be observed or performed for a period of 60 days
after written notice is given to the Authority or the County by the Lender, specifying such failure
and requesting that it be remedied; or
(d) initiation by the County or the Authority of a proceeding under any federal
or state bankruptcy or insolvency law seeking relief under such laws concerning the indebtedness
of the County or the Authority.
Section 8.02. Remedies on Default. Whenever any Event of Default shall have
occurred and be continuing, the Lender shall have the right, subject to the Trust Agreement,
without any further demand or notice, to declare the unpaid principal amount of all Loan
Payments (and the related Obligations) under any or all of the Agreements to be immediately due
and payable and upon any such declaration to take any action or remedies permitted by
applicable law; including directing the Trustee to take appropriate action in accordance with the
Trust Agreement.
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Lender hereby agrees to notify the Authority and the Trustee promptly of any
Event of Default under this Loan Agreement and of the initiation by the Lender of the exercise of
remedies in connection therewith.
Section 8.03. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Trustee or the Lender is intended to be exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Loan Agreement or
now or hereafter existing at law or in equity. 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 or power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle the Lender to exercise any remedy
reserved to it in this Article, it shall not be necessary to give any notice other than such notice as
may be required by this Article VIII. All remedies herein conferred upon or reserved to the
Lender shall survive the termination of this Loan Agreement.
ARTICLE IX
APPLICATION OF PROCEEDS
Section 9.01. Application of Proceeds. At the Closing of each Agreement, the
Lender shall pay or provide the principal amount of the loan in the amount identified on the
applicable Schedule to the Trustee for administration on behalf of the Authority. As provided in
the Trust Agreement, the costs associated with executing the Schedule may be disbursed by the
Trustee at the execution of each Agreement as payment of the costs associated with execution of
such Agreement and issuance of the related Obligation.
ARTICLE X
MISCELLANEOUS
Section 10.01. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, to the parties at their addresses specified below:
If to the Authority: County of Contra Costa Public Financing Authority
c/o County Administrator
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
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OHSUSA:751092526.4
If to the County: County of Contra Costa
c/o Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
If to the Lender: [___________]
Section 10.02. Binding Effect. This Loan Agreement shall inure to the benefit of
and shall be binding upon the Lender, the Authority, the County and their respective successors
and assigns, if any.
Section 10.03. Severability. In the event any provision of this Loan Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other provision hereof.
Section 10.04. Amendments. To the extent permitted by law, the terms of this
Loan Agreement shall not be waived, altered, modified, supplemented or amended in any
manner whatsoever except by written instrument signed by the parties hereto, and then such
waiver, consent, modification or change shall be effective only in the specific instance and for
the specific purpose given. The Authority covenants and agrees not to amend the Trust
Agreement or other Authority Documents without the Lender’s prior written consent.
Section 10.05. Execution in Counterparts. This Loan Agreement and each
Schedule hereunder may be executed in several counterparts, each of which shall be an original
and all of which shall constitute one and the same instrument and any of the parties hereto may
execute this Loan Agreement and each Schedule hereunder by signing any such counterpart.
Section 10.06. Applicable Law; Jurisdiction. This Loan Agreement shall be
governed by and construed in accordance with the laws, excluding the laws relating to the choice
of law, of the State. The Authority, the County and the Lender each agree that any legal action
or proceeding by or against the Authority or with respect to or arising out of this Loan
Agreement, the Obligations or any Agreement to which the Authority is a party, shall be brought
and maintained in a court located in the County of Contra Costa or a federal court located in the
Northern District of California. By execution of this Loan Agreement, the County and the
Lender each accept, for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforementioned courts. The Authority, the County and the Lender hereby
waive any right to stay or dismiss any action or proceeding to which the Authority is a party
under or in connection with this Loan Agreement, the Obligations or any Agreement brought
before the foregoing courts on the basis of forum non-conveniens. The Authority, in its sole
discretion, may waive the foregoing venue requirement.
Section 10.07. Waiver of Jury Trial. THE PARTIES TO THIS LOAN
AGREEMENT TO THE EXTENT PERMITTED BY LAW HEREBY UNCONDITIONALLY
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
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OHSUSA:751092526.4
OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
LOAN AGREEMENT, ANY AGREEMENT HEREUNDER, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THEM. The scope of this
waiver is intended to be all encompassing of any and all disputes that may be filed in any court
(including, without limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims). THIS WAIVER IS IRREVOCABLE MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS LOAN AGREEMENT, ANY AGREEMENT HEREUNDER,
ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event
of litigation, this Agreement may be filed as a written consent to a trial by the court.
Section 10.08. Captions. The captions or headings in this Loan Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
sections of this Loan Agreement.
Section 10.09. Entire Agreement. This Loan Agreement (together with
Schedules, and the attachments thereto, attached hereto) together with the Authority Legal
Documents constitute the entire agreement between the Lender, the Authority and the County.
There are no understandings, agreements, representations or warranties, express or implied, not
specified herein or therein regarding this Loan Agreement or the Project financed hereunder.
The Authority and the County hereby agree that the Lender shall be a third party beneficiary of
each of the Authority Legal Documents. Any terms and conditions of any document submitted
by the County in connection with this Loan Agreement which are in addition to or inconsistent
with the terms and conditions of this Loan Agreement will not be binding on the Lender and will
not apply to this Loan Agreement. An Agreement, including the respective Schedule and
exhibits hereto, shall not be effective or binding upon the County until it is signed on its behalf
by one of its Authorized Officers or upon the Authority until it is signed on its behalf by one of
its Authorized Officers and it has been authenticated by the Trustee as an Obligation under the
Trust Agreement.
Section 10.10. Waiver. The Lender’s, the Authority’s or the County’s failure to
enforce at any time or for any period of time any provision of an Agreement shall not be
construed to be a waiver of such provision or of the right of the Lender, the County or the
Authority thereafter to enforce each and every provision. No express or implied waiver by the
Lender, the Authority or the County of any default or remedy of default shall constitute a waiver
of any other default or remedy of default, or a waiver of any of the Lender’s, the County’s or the
Authority’s rights.
Section 10.11. Survivability. All of the limitations of liability and indemnities
contained in an Agreement shall continue in full force and effect notwithstanding the expiration
or early termination of the Agreement and are expressly made for the benefit of, and shall be
enforceable by, the Lender and the Authority, or their successors and assigns.
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OHSUSA:751092526.4
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OHSUSA:751092526.4
IN WITNESS WHEREOF, the parties hereto have executed this Loan Agreement
under seal in their respective corporate names by their duly Authorized Officers, all as of the
date first written above.
BANC OF AMERICA PUBLIC CAPITAL
CORP
By:
Title:
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY
By:
[SEAL]
ATTEST:
COUNTY OF CONTRA COSTA
By:
A-1
OHSUSA:751092526.4
EXHIBIT A TO LOAN AGREEMENT
Form of Schedule
SCHEDULE NO. 1
TO LOAN AGREEMENT
By and Between
BANC OF AMERICA PUBLIC CAPITAL CORP, AS LENDER
and
COUNTY OF CONTRA COSTA PUBLIC FINANCING AUTHORITY, AS
BORROWER/LESSOR
and
COUNTY OF CONTRA COSTA,
as Leasee
Dated as of October 1, 2012
THIS SCHEDULE NO. 1 (this “Schedule”) to the Loan Agreement identified
above (the “Loan Agreement”) is entered into as of this October 1, 2012, by and among BANC
OF AMERICA PUBLIC CAPITAL CORP (“Lender”), COUNTY OF CONTRA COSTA
PUBLIC FINANCING AUTHORITY (“Authority”) and COUNTY OF CONTRA COSTA
(“County”). All of the provisions of the Loan Agreement are incorporated herein by reference
and capitalized terms used herein and not defined shall have the meanings assigned them in the
Loan Agreement.
1. The Loan Agreement and this Schedule No. 1 jointly constitute an
Agreement (this “Agreement”). Lender hereby loans to the Authority the Principal Amount of
$______________ and the Authority hereby agrees to repay such amount, plus interest thereon
in accordance with Exhibit 1 hereto.
[Conditions to closing to come]
A-2
OHSUSA:751092526.4
IN WITNESS WHEREOF, the parties hereunto affix their signatures to this
Schedule No. 1 as of the day and year first written above.
BANC OF AMERICA PUBLIC CAPITAL
CORP
By:
Name:
Title:
An Authorized Officer
COUNTY OF CONTRA COSTA PUBLIC
FINANCING AUTHORITY
By:
Name:
Deputy
ATTEST:
COUNTY OF CONTRA COSTA,
By:
ATTEST:
[Add Trustee Certificate of Authentication]
OHSUSA:751092526.4
EXHIBIT I TO SCHEDULE NO. 1
AMORTIZATION SCHEDULE
Payment Date Principal Interest Total Payment Prepayment Price
OHSUSA:751092526.4
EXHIBIT B
COUNTY INFORMATION
1. Contra Costa County’s [20__] through 2011 Comprehensive Annual Financial
Reports (CAFR)
2. Contra Costa County’s 2010/11, 2011/12, and 2012/13 Budgets
OHSUSA:751092526.4
LOAN AGREEMENT
among
BANC OF AMERICA PUBLIC CAPITAL CORP
as Lender
and
COUNTY OF CONTRA COSTA PUBLIC FINANCING AUTHORITY,
as County/Lessor
and
COUNTY OF CONTRA COSTA,
as County/Lessee
Dated as of October 1, 2012
LOAN AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ................................................................................................. 2
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS OF
ISSUER AND BORROWER .......................................................................... 4
Section 2.01. Authority’s Representations, Warranties, Covenants and
Findings................................................................................................ 4
Section 2.02. County’s Representations, Warranties and Covenants ........................ 6
Section 2.03. Tax Covenants ..................................................................................... 8
Section 2.04. Compliance with Rebate Requirement ................................................ 9
ARTICLE III FINANCING OF PROJECT ........................................................................... 9
Section 3.01. Project .................................................................................................. 9
Section 3.02. Loans to Finance Project ...................................................................... 9
ARTICLE IV TERM OF AGREEMENT ............................................................................... 9
Section 4.01. Commencement of Term ..................................................................... 9
Section 4.02. Termination of Term ............................................................................ 9
ARTICLE V LOAN PAYMENTS ...................................................................................... 10
Section 5.01. Payment of Loan Payments ............................................................... 10
Section 5.02. Interest and Principal Components .................................................... 10
Section 5.03. Loan Payments ................................................................................... 10
Section 5.04. Appointment of Trustee ..................................................................... 11
Section 5.05. Non Liability of Authority ................................................................. 11
ARTICLE VI PREPAYMENT ............................................................................................. 11
Section 6.01. Prepayment Rights ............................................................................. 11
ARTICLE VII ASSIGNMENT .............................................................................................. 11
Section 7.01. Assignment by Lender ....................................................................... 11
Section 7.02. Representations of Lender ................................................................. 12
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ................................................ 12
Section 8.01. Events of Default ............................................................................... 12
Section 8.02. Remedies on Default .......................................................................... 12
Section 8.03. No Remedy Exclusive........................................................................ 13
ARTICLE IX APPLICATION OF PROCEEDS, ACCEPTANCE...................................... 13
Section 9.01. Application of Proceeds ..................................................................... 13
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ARTICLE X MISCELLANEOUS ...................................................................................... 13
Section 10.01. Notices ............................................................................................... 13
Section 10.02. Binding Effect .................................................................................... 13
Section 10.03. Severability ........................................................................................ 13
Section 10.04. Amendments ...................................................................................... 13
Section 10.05. Execution in Counterparts .................................................................. 14
Section 10.06. Applicable Law; Jurisdiction ............................................................. 14
Section 10.07. Waiver of Jury Trial ........................................................................... 14
Section 10.08. Captions ............................................................................................. 14
Section 10.09. Entire Agreement ............................................................................... 14
Section 10.10. Waiver ................................................................................................ 15
Section 10.11. Survivability ....................................................................................... 15
OHSUSA:751092526.4
LIST OF ATTACHMENTS TO SCHEDULE