HomeMy WebLinkAboutCDC/2001-53
II
Also See Resolution J-49
, Also 'See Resolution 2001-355
RESOLUTION NO.
CDC/2001-53
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RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AUTHORIZING A CERTAIN
LOAN AGREEMENT AND DOCUMENTS RELATED THERETO
IN CONNECTION WITH THE ISSUANCE OF CERTAIN TAX
ALLOCATION BONDS BY THE SAN BERNARDINO JOINT
POWERS FINANCING AUTHORITY
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7 WHEREAS, the City of San Bernardino (the "City") and the
8 Redevelopment Agency of the City of San Bernardino (the "Agency")
9 have heretofore entered into a Joint Exercise of Powers Agreement
10 establishing the San Bernardino Joint Powers Financing Authority
11 (the "Authority") for the purpose, among other things, of issuing
12 bonds to be used to make loans to finance certain activities of the
13 City and the Agency; and
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the Agency desires
WHEREAS,
finance
certain
to
16 redevelopment costs within the Mount Vernon Redevelopment Project
17 Area and at the request of the Agency, the Authority has determined
18 to issue its not to exceed $5,000,000 Tax Allocation Bonds Series
19 200lA (Mount Vernon proj ect) (the "Bonds") pursuant to and secured
20 by the Indenture of Trust dated as of December 1, 2001 (the
21 "Indenture") and loan the proceeds thereof to the Agency; and
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WHEREAS, in order to carry out the financing, the
24 Authority shall enter into a Loan Agreement with the Agency dated
25 as of December 1,
(the "Loan Agreement")
2001
which shall be
"
26 secured by tax increment revenues as that term is defined in the
27 Indenture; and
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SB2001 :34147.1
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1 WHEREAS, the proceeds of the Bonds will be applied to pay
2 certain redevelopment costs of the Agency, fund a reserve fund and
3 pay costs of issuance of the Bonds; and
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5 WHEREAS, Kinsell, Newcomb & DeDios, Inc., as prospective
6 underwriter of the Bonds (the "Underwriter") has informed the
7 Authority that it intends to submit an offer to purchase the Bonds
8 and shall cause to be prepared a Preliminary Official Statement and
9 an Official Statement relating to such Bonds, as may be necessary
10 in the sale and marketing of the Bonds, the form of which
11 Preliminary Official Statement is presently on file with the
12 Secretary of the Agency; and
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14 WHEREAS, the Agency has considered the terms of the
15 transaction as contemplated herein and desires at this time to
16 approve the terms of said transaction in the public interests of
17 the Agency.
18 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION,
19 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
20 SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
21 FOLLOWS:
22
23 Section 1. Approval of Final Form of Loan Aqreement.
24 The Agency hereby approves the form of Loan Agreement (the "Loan
25 Agreement") presently on file with the Secretary together with any
26 changes therein or additions thereto as may be approved by the
27 Chairman or Executive Director and as necessary to incorporate
28 certain terms and conditions when such terms and conditions have
SB2001:34147.1
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1 been ascertained. The Agency hereby further authorizes and directs
2 that the form of Loan Agreement presently on file with the
3 Secretary be converted into the final form thereof, together with
4 such changes or modifications as deemed necessary or desirable by
5 the Chairman or Executive Director of the Authority upon the
6 recommendation of Bond Counsel. The Chairman, Vice-Chairman,
7 Executive Director or such other authorized officer of the
8 Authority is hereby authorized and directed to execute and deliver,
9 and the Secretary or Assistant Secretary is hereby authorized and
10 directed to attest to, the final form of the Loan Agreement when
11 the same has been prepared and such execution and delivery shall be
12 deemed to be conclusive evidence of the approval thereof.
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14 Section 2. Sale of the Bonds; Official Statement.
15 The Agency hereby approves the sale of the Bonds by negotiated
16 purchase with the Underwriter, pursuant to that certain Bond
17 Purchase Agreement on file with the Agency (the "Purchase
18 Agreement"), and the sale of the Bonds pursuant to the Purchase
19 Agreement is hereby approved. The Authority hereby further
20 authorizes the form of Purchase Agreement as presently on file with
21 the Secretary, together with any changes therein or additions
22 thereto approved by the Chairman, Executive Director or an
23 authorized representative of the Chairman and as necessary to
24 incorporate the principal amount, the interest rate, the purchase
25 price and such other terms and conditions when such terms and
26 conditions have been ascertained. The Agency hereby authorizes and
27 directs the Underwriter to cause the preparation of the final
28 Purchase Agreement of which such terms are a part, and the
SB200 1:34147.1
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1 Chairman, the Vice-Chairman, Executive Director or such other
2 authorized officer of the Agency is hereby authorized and directed
3 to evidence the Agency's acceptance of the offer made by the
4 Purchase Agreement by executing and delivering the Purchase
5 Agreement in said form as on file with such changes therein as the
6 officer or the officers executing the same may approve, such
7 approval to be conclusively evidenced by the execution and delivery
8 thereof.
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10 Section 3. Approval of Final Form of Continuinq
11 Disclosure Aqreement. The Agency hereby approves the form of
12 Continuing Disclosure Agreement presently on file with the
13 Secretary together with any changes therein or additions thereto as
14 may be approved by the Chairman or Executive Director and as
15 necessary to incorporate certain terms and conditions when such
16 terms and conditions have been ascertained. The Agency hereby
17 further authorizes and directs that the form of Continuing
18 Disclosure Agreement presently on file with the Secretary be
19 converted into the final form thereof, together with such changes
20 or modifications as deemed necessary or desirable by the Chairman
21 or Executive Director of the Agency upon the recommendation of Bond
22 Counsel. The Chairman, Vice-Chairman, Executive Director or such
23 other authorized officer of the Agency is hereby authorized and
24 directed to execute and deliver, and the Secretary or Assistant
25 Secretary is hereby authorized and directed to attest to, the final
26 form of the Continuing Disclosure Agreement when the same has been
27 prepared and such execution and delivery shall be deemed to be
28 conclusive evidence of the approval thereof.
SB2001:34147.1
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CDC/2001-53
1
Section 4.
Official Action. The Chairman, Executive
2 Director, Secretary, Counsel and any and all other officers of the
3 Agency are hereby authorized and directed, for and in the name and
4 on behalf of the Agency, to do any and all things and take any and
5 all actions, including execution and delivery of any and all
6 assignments,
certificates,
requisitions,
agreements, notices,
7 consents, instruments of conveyance, warrants and other documents,
8 which they, or any of them, may deem necessary or advisable in
9 order to consummate the transaction contemplated herein. Whenever
10 in this Resolution any officer of the Agency is authorized to
11 execute or countersign any document or take any action, such
12 execution, countersigning or action may be taken on behalf of such
13 officer by any person designated by such officer to act on his or
14 her behalf in the case such officer shall be absent or unavailable.
15 The Agency hereby appoints its Chairman and Executive Director as
16 agents of the Agency for purposes of executing any and all
17 documents and instruments which any officer of the Agency is
18 authorized to execute hereunder.
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Section 5.
Approval of Financinq Team. The Authority
21 hereby approves the following entities for the respective category
22 of services in connection with the transactions contemplated by
23 this resolution:
24 Bond Counsel
Underwriter
25 Underwriter's Counsel
26 Trustee
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5B2001:34147.1
Lewis, D'Amato Brisbois & Bisgaard, LLP
Kinsell, Newcomb & De Dios, Inc.
Ehrensaal & Bank, PLLC
U.S. Bank Trust National Association
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AUTHORIZING A
2 CERTAIN LOAN AGREEMENT AND DOCUMENTS RELATED THERETO IN CONNECTION
WITH THE ISSUANCE OF CERTAIN TAX ALLOCATION BONDS BY THE SAN
3 BERNARDINO JOINT POWERS FINANCING AUTHORITY
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Section 6.
This Resolution shall take effect upon the
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date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
17 The foregoing resolution
day of November, 2001.
approved this;Z /
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23 By:
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SB2001 :34147.1
Frank Schnetz, Actin Chairaan
Community Development Commission
City of San Bernardino
legal content:
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LOAN AGREEMENT
Dated as of December 1,2001
by and between the
SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
and
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Relating to
$
SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
TAX ALLOCATION BONDS SERIES 2001A
(MOUNT VERNON PROJECT)
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The amounts payable to the SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY (the
"Authority") and certain other rights of the Authority under this Loan Agreement have been pledged and assigned to U~Bank:::tJ
Trust National Association, as trustee (the "Trustee"), under the Indenture of Trust dated as of December I, 2001('lilJy and",
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between the Authority and the Trustee. /TJ
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of December I 200 I, by and
between the SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY, ajoint powers
authority organized and existing under the laws ofthe State of California (the "Authority") and the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate
and politic duly organized and existing under the laws of the State of California (the "Agency"):
WIT N E SSE T H:
WHEREAS, the Authority is a joint powers authority, duly established and authorized
to transact business and exercise powers under and pursuant to a Joint Exercise of Powers
Agreement between the City of San Bernardino (the "City") and the Agency which established the
Authority for the purpose of permitting the Authority to issue bonds the proceeds of which may be
used to make loans to, or acquire obligations of, any of its members or any other local agencies ofthe
State of California to finance public capital improvements of such members or local agencies; and
WHEREAS, the Agency is a public body, corporate and politic, duly established and
authorized to transact business and exercise powers under and pursuant to the provisions of Part I of
Division 24 ofthe Health and Safety Code ofthe State of California (the "Redevelopment Law") and
WHEREAS, the Agency desires to finance certain projects within the Mount Vernon Project
Area (the "Project Area") including, but not limited to, land acquisition, street improvements,
relocation costs and infrastructure improvements and has requested that the Authority assist the
Agency with said refinancing; and
WHEREAS, the Authority has determined to issue its $ San Bernardino Joint
Powers Financing Authority Tax Allocation Bonds, Series 200lA (Mount Vernon Project), all
pursuant to and secured by this Indenture in the manner provided herein (the "Bonds"); and
WHEREAS, the proceeds of the Bonds shall be loaned to the Agency pursuant to this Loan
Agreement; and
WHEREAS, in order to establish and declare the terms and conditions upon which the
Loan is to be made and secured, the Agency and the Authority wish to enter into this Loan
Agreement; and
WHEREAS, all acts and proceedings required by law necessary to make this Loan
Agreement, when executed by the Agency and the Authority, the valid, binding and legal obligation
of the Agency and the Authority, and to constitute this Loan Agreement a valid and binding
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agreement for the uses and purposes herein set forth in accordance with its terms, have been done
and taken, and the execution and delivery of this Loan Agreement have been in all respects duly
authorized.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto do hereby agree, as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context clearly otherwise requires or unless
otherwise defined herein, the capitalized terms in this Loan Agreement shall have the respective
meanings which such terms have in Section 1.01 ofthe Indenture. In addition, the following terms
defined in this Section 1.01 shall, for all purposes of this Loan Agreement, have the respective
meanings herein specified.
"Certificate of the Agency" means a certificate in writing signed by the Chairman,
Vice Chairman, Executive Director, Treasurer or Secretary ofthe Agency or by any other officer of
the Agency duly authorized by the Agency for that purpose.
"County" means the County of San Bernardino, a county duly organized and existing
under the Constitution and laws ofthe State.
"Event of Default" means any of the events described in Section 5.01.
"Independent Accountant" means any nationally-recognized accountant or firm of
such accountants duly licensed or registered or entitled to practice and practicing as such under the
laws ofthe State, appointed by the Agency, and who, or each of whom: (a) is in fact independent and
not under the domination of the Agency; (b) does not have any substantial interest, direct or indirect,
with the Agency; and (c) is not connected with the Agency as an officer or employee of the Agency,
but who may be regularly retained to make reports to the Agency.
"Independent Financial Consultant" means any consultant or firm of such consultants
appointed by the Agency, and who, or each of whom: (a) is judged by the Agency to have experience
in matters relating to the collection of Tax Revenues or otherwise with respect to the financing of
redevelopment projects; (b) is in fact independent and not under the domination of the Agency; (c)
does not have any substantial interest, direct or indirect, with the Agency, other than as the
Underwriter or as the original purchaser of any Bonds; and (d) is not connected with the Agency as
an officer or employee of the Agency, but who may be regularly retained to make reports to the
Agency.
"Parity Loan" means any tax allocation bonds (including, without limitation, bonds,
notes, interim certificates, debentures or other obligations) issued or incurred by the Agency as
permitted by Section 4.02 ofthis Loan Agreement.
"Redevelopment Law" means the Community Redevelopment Law of the State,
constituting Part 1 of Division 24 of the Health and Safety Code of the State, and the acts
amendatory thereof and supplemental thereto.
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"Redevelopment Projects" means the undertaking of the Agency of certain
redevelopment projects pursuant to the Redevelopment Plan and the Redevelopment Law.
"Report" means a document in writing signed by an Independent Financial Consultant
and including: (a) a statement that the person or firm making or giving such Report has read the
pertinent provisions of this Loan Agreement to which such Report relates; (b) a brief statement as to
the nature and scope of the examination or investigation upon which the Report is based; and (c) a
statement that, in the opinion of such person or firm, sufficient examination or investigation was
made as is necessary to enable said consultant to express an informed opinion with respect to the
subject matter referred to in the Report.
"Request of the Agency" means a request in writing signed by the Chairman, Vice
Chairman, Executive Director, Treasurer or Secretary of the Agency or by any other officer of the
Agency duly authorized by the Agency for that purpose.
"Special Fund" means the special fund by that name created pursuant to Section 3.02
hereof.
"Subordinate Debt" means any loans, advances or indebtedness issued or incurred by
the Agency, pursuant to and in accordance with the provisions of Section 4.03, which are either: (a)
payable from, but not secured by a pledge or lien upon, any Tax Revenues; or (b) secured by a pledge
of or lien upon the Tax Revenues which is subordinate to the pledge of and lien upon the Pledged
Revenues hereunder for the security of the Loan.
'Tax Revenue Certificate" means a Certificate of the Agency identifying the amount
of all Tax Revenues received or to be received by the Agency in the then current Fiscal Year, based
on assessed valuation of property in the Project Area as evidenced in a written document from an
appropriate official of the County.
Section 1.02. Rules of Construction. All references herein to "Articles," "Sections"
and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Loan
Agreement, and the words "herein," "hereof," "hereunder" and other words of similar import refer to
this Loan Agreement as a whole and not to any particular Article, Section or subdivision hereof.
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ARTICLE IT
THE LOAN; REPAYMENT; APPLICATION OF PROCEEDS
Section 2.01. Authorization. The Authority hereby agrees to lend to the Agency the
principal amount of Dollars ($ ) under and subject to the terms of this Loan
Agreement, the Bond Law and the Act. This Loan Agreement constitutes a continuing agreement
with the Authority to secure the full and final payment of the Loan, subject to the covenants,
agreements, provisions and conditions herein contained. The proceeds ofthe Loan shall be disbursed
to the Agency and shall be applied by the Agency as set forth in Section 2.04.
Section 2.02. Repayment of Loan. The Loan shall be payable in installments of
principal, interest and premium, if any, which shall be due and payable by the Agency on each
Interest Payment Date in an amount equal to the principal of and interest and premium (if any)
coming due and payable on the Outstanding Bonds on such Interest Payment Date as provided in
Appendix A hereto. Principal of and interest and premium (if any) on the Loan shall be payable by
the Agency to the Trustee, as assignee ofthe Authority under the Indenture, in immediately available
funds which constitute lawful money of the United States of America. Payment of such principal
and interest shall be secured, and amounts for the payment thereof shall be deposited with the
Trustee in the amounts and at the times, as set forth in Article ill herein.
Section 2.03. Optional Prepayment. The Agency shall have the right to prepay the
Loan on any date on which the Bonds are subject to optional redemption pursuant to the Indenture,
by depositing with the Trustee an amount sufficient to pay the principal of and interest and premium
(if any) on the Outstanding Bonds to be so redeemed pursuant to the Indenture. The Authority agrees
that upon payment by the Agency to the Trustee of such amount, the Authority shall take or cause to
be taken any and all steps required under the Indenture to redeem such Outstanding Bonds on the
redemption date designated pursuant to a Request of the Agency filed with the Authority and the
Trustee; provided, however, that such redemption date shall be a date for which notice of redemption
of Bonds has been timely given pursuant to the Indenture.
Section 2.04. Application of Loan Proceeds. For and as the Loan, on the Closing
Date the Authority shall cause to be disbursed the proceeds of sale of the Bonds as provided in
Section 3.02 of the Indenture.
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ARTICLE III
SECURITY FOR LOAN; APPLICATION OF FUNDS
Section 3.01. Pledge of Tax Revenues. The Loan shall be equally secured by a first
pledge of and lien on all of the Tax Revenues and all of the moneys in the Reserve Fund. The Tax
Revenues are hereby allocated in their entirety to the payment ofthe principal of and interest on the
Loan as provided herein. Except as herein provided, no funds or properties of the Agency shall be
pledged to, or otherwise liable for, the payment of principal of or interest or premium (if any) on the
Loan.
Section 3.02. Special Fund; Deposit of Tax Revenues. There is hereby established by
the Agency a special fund known as the "Special Fund", which shall be held by the Agency in trust
for the benefit of the Owners of all Outstanding Bonds. The Agency shall deposit all of the Tax
Revenues received in any Bond Year in the Special Fund, for use as set forth in Section 3.03 until
such date, (if any) during such Bond Year as the amounts on deposit in the Special Fund are
sufficient to meet all payment obligations of the Agency hereunder for such Bond Year, whereupon
such amounts shall be transferred to the Trustee as provided in Section 3.03 hereoffor deposit to the
appropriate accounts held thereby. Any Tax Revenues received during such Bond Year after such
date shall be released from the pledge and lien hereunder and from the lien ofthe Indenture and may
thereafter be applied for any lawful purposes of the Agency. Prior to the payment in full of the
principal of and interest and prepayment premium (if any) on the Loan and the payment in full of all
other amounts payable hereunder, the Agency shall not have any beneficial right or interest in the
moneys on deposit in the Special Fund, except as provided in this Loan Agreement, and such moneys
shall be used and applied as set forth herein.
Section 3.03. Transfer of Tax Revenues From Special Fund. The Agency is required
to withdraw from the Special Fund and transfer to the Trustee for deposit in the various funds and
accounts under the Indenture as provided therein at the following times:
(a) Deposits. Not later than the fifteenth (15th) day preceding each Interest
Payment Date commencing May 15, 2001, the Agency shall withdraw from the Special Fund and
transfer to the Trustee for deposit to the various funds and accounts established under the Indenture,
an amount equal to the aggregate amounts coming due on the Loan pursuant to Section 4.02 thereof.
In lieu of depositing cash with the Trustee as payment of any installment of principal
coming due on December 1 of any year pursuant to Section 2.02 ofthis Loan Agreement, the Agency
shall have the option to tender to the Trustee for cancellation Bonds maturing or subject to any
mandatory sinking fund redemption on December 1 or in such year. Such Bonds may be purchased
by the Agency with any source of available moneys (including but not limited to Tax Revenues not
required to be deposited with the Trustee pursuant to this Section), at public or private sale as and
when and at such prices as the Agency may in its discretion determine. The par amount of any
Bonds so purchased by the Agency and tendered to the Trustee in any twelve-month period ending
on June 30 in any calendar year shall be credited towards and shall reduce the payment required to be
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made pursuant to this subsection (a) on the fifteenth (15th) day preceding the next succeeding
December 1 in such year.
(b) Surplus. The Agency shall not be obligated to transfer from the Special Fund
to the Trustee for deposit in the principal and interest accounts of the Revenue Fund in any Fiscal
Year an amount of Tax Revenues which, together with other available amounts in the Revenue Fund
exceeds the amounts required in such Fiscal Year pursuant to Section 3.03 of this Loan Agreement.
In the event that for any reason whatsoever any amounts shall remain on deposit in the Special Fund
on any December 2 after making all of the transfers theretofore required to be made pursuant to the
preceding clauses (a) and (b), and any payments required under Section 4.07 hereof, the Agency may
withdraw such amounts from the Special Fund and, after payments of amounts due the Trustee
pursuant to Section 4.10 hereof, use such amounts for any lawful purposes of the Agency.
Section 3.06. Investment of Moneys; Valuation of Investments. All moneys in the
Special Fund shall be invested by the Agency in Permitted Investments to the extent permitted by the
Bond Law and the Redevelopment Law.
Moneys in the Special Fund shall be invested only in obligations which will by their
terms mature at least fifteen (15) days prior to each Interest Payment Date as to insure that before
each Interest Payment Date there will be in such funds and accounts, from matured obligations and
other moneys already in such funds and accounts, amounts equal to the interest and principal due and
payable on the Bonds on such dates.
In the absence of any such direction from the Agency, any such moneys shall be
invested in obligations described in paragraph (6) of the definition of Permitted Investments.
Obligations purchased as an investment of moneys in any fund established hereunder shall be
credited to and deemed to be part of such fund.
All interest, profits and other income received from the investment of moneys in any
fund established hereunder shall be deposited in such fund. Notwithstanding anything to the contrary
contained in this paragraph, an amount of interest received with respect to any investment equal to
the amount of accrued interest, if any, paid as part of the purchase price of such investment shall be
credited to the fund from which such accrued interest was paid.
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ARTICLE IV
OTHER COVENANTS OF THE AGENCY
Section 4.01. Punctual Payment. The Agency will punctually pay or cause to be paid
the principal of and interest on the Loan together with any prepayment premiums thereon in strict
conformity with the terms ofthis Loan Agreement, and it will faithfully observe and perform all of
the conditions, covenants and requirements of this Loan Agreement.
Section 4.02. Limitation on Superior, Parity and Subordinate Loans. While the Loan
is Outstanding, the Agency may not issue or incur debt superior to the Bonds or the Loan. The
Agency may incur debt on a parity with the Loan in such principal amount as shall be determined by
the Agency, subject to the provisions hereinafter set forth. The Agency may incur and deliver any
Parity Loan subject to the following specific conditions which are made conditions precedent to the
delivery of such Parity Loan issued in accordance with this Loan Agreement:
(a) No event of default shall have occurred and be continuing, and the Agency
shall otherwise be in compliance with all covenants set forth in this Loan Agreement.
(b) Receipt by the Agency of a written document from the following parties which
complies with the requirements set forth below:
(i) Official documentation from an appropriate official ofthe County stating
(A) the dollar amount of the Tax Revenues either received or to be received for the Fiscal Year for
which such certification is being delivered, based upon the most recent taxable valuation of property
in the Project Area, exclusive of State subventions and taxes levied to pay Outstanding bonded
indebtedness, or (B) documentation prepared by Agency staff and verified by an Independent
Financial Consultant to the effect that the dollar amount of Tax Revenues set forth above, is at least
equal to percent L%) of maximum annual debt service on the Loan and all Parity Loans
which will be Outstanding immediately following the issuance of such Parity Loan;
(ii) An opinion of counsel stating that the Agency is entitled under the
Law and the Redevelopment Plan to receive taxes under Section 33670.
(c) For purposes of calculating the amount of Tax Revenues available per
subsection (b) above, Tax Revenues available for the payment of maximum annual debt service on
the Parity Loan which shall be Outstanding immediately following incurring ofthe Parity Loan, shall
be reduced by 20% to fulfill the Agency requirements to set-aside moneys pursuant to Section
33334.2 and Section 33334.3 ofthe Redevelopment Law. The Agency shall deliver to the Trustee a
Certificate of the Agency certifying that the conditions precedent to the issuance of such Parity Loan
set forth in subsections (a) and (b) above have been satisfied. For the purposes of compliance with
subsection (b) above, any variable rate Parity Loan shall be assumed to bear interest at the maximum
interest rate permitted under the appropriate documentation.d
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Section 4.03. Additional Pass-Through Agreements. The Agency represents and
warrants that there are no pass-through agreements pursuant to Section 33401 of the Law
which have a lien on the Tax Revenues senior and superior to the Loan [to be confirmed].
Following the Closing Date, the Agency may at any time, or from time to time, enter into pass-
through agreements pursuant to Section 33401 of the Law which are subordinate to the obligations of
the Agency to make payments under this Loan Agreement. In addition, the Agency may enter into
such pass-through agreements, under which payments are not so subordinate, but only upon the
Agency's meeting the conditions set forth in Section 4.02 as to the incurrence of Parity Debt, for this
purpose treating payments under such pass-through agreements as though they were payments under
a Parity Loan..
Section 4.04. Limitations on Issuance of Subordinate Debt. The Agency may issue or
incur Subordinate Debt while the Bonds are Outstanding.
Section 4.05. Payment of Claims. The Agency will pay and discharge, or cause to be
paid and discharged, any and all lawful claims for labor, materials or supplies which, if unpaid,
might become a lien or charge upon the properties owned by the Agency or upon the Tax Revenues
or any part thereof, or upon any funds in the hands of the Trustee, or which might impair the security
of the Loan. Nothing herein contained shall require the Agency to make any such payment so long
as the Agency in good faith shall contest the validity of said claims.
Section 4.06. Books and Accounts; Financial Statement. The Agency will keep, or
cause to be kept, proper books of record and accounts, separate from all other records and accounts
of the Agency and the City, in which complete and correct entries shall be made of all transactions
relating to the Project Area and the Tax Revenues including, but not limited to, the Special Fund.
Such books of record and accounts shall at all times during business hours be subject, upon prior
written request, to the reasonable inspection of the Authority, the Trustee and the owners of any
Outstanding Bond, or their representatives authorized writing.
Section 4.07. Protection of Security and Rights. The Agency shall protect the
security of the Loan and the rights ofthe Trustee and the Owners of Outstanding Bonds with respect
to the Loan. From and after the Closing Date, the Loan shall be incontestable by the Agency.
Section 4.08. Payments of Taxes and Other Charges. The Agency will pay and
discharge, or cause to be paid and discharged, all taxes, service charges, assessments and other
governmental charges which may hereafter be lawfully imposed upon the Agency or the properties
then owned by the Agency in the Project Area, when the same shall become due. Nothing herein
contained shall require the Agency to make any such payment so long as the Agency in good faith
shall contest the validity of said taxes, assessments or charges. The Agency will duly observe and
conform to all valid requirements of any governmental authority relative to the Redevelopment
Projects or any part thereof.
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Section 4.09. Disposition of Property. The Agency will not participate in the
disposition of any land or real property in the Project Area to anyone which will result in such
property becoming exempt from taxation because of public ownership or use or otherwise except
property dedicated for public right-of-way and except property planned for public ownership or use
by the Redevelopment Plan in effect on the date of this Loan Agreement so that such disposition
shall, when taken together with other such dispositions, aggregate greater than five percent (5%) or
more of the land area in the Project Area, unless immediately after such disposition the amount of
Tax Revenues to be received in the succeeding Fiscal Year confirmed by a report of an Independent
Financial Consultant is equal to or greater than one hundred thirty percent (130%) of maximum
annual debt service on the Loan.
Section 4. I O. Maintenance of Tax Revenues. The Agency shall comply with all
requirements of the Redevelopment Law to ensure the allocation and payment to it of the Tax
Revenues, including without limitation the timely filing of any necessary statements of indebtedness
with appropriate officials of the County and (in the case of supplemental revenues and other amounts
payable by the State) appropriate officials of the State. The Agency shall not enter into any
agreement with the County or any other governmental unit, which would have the effect of reducing
the amount ofthe Tax Revenues available to the Agency for payment ofthe Loan, unless the Agency
shall first comply with the requirements of Section 4.02 and 4.03 hereof.
Section 4.11. Payment of Expenses; Indemnification. The Agency shall pay to the
Trustee from time to time all compensation for all services rendered under this Loan Agreement and
the Indenture, including but not limited to all reasonable expenses, charges, legal and consulting fees
and other disbursements and those of its attorneys, agents and employees, incurred in and about the
performance of its powers and duties hereunder and thereunder. Upon the occurrence of an Event of
Default, the Trustee shall have a first lien on the Tax Revenues and the Reserve Fund to secure the
payment to the Trustee of all fees, costs and expenses, including reasonable compensation to its
experts, attorneys and counsel incurred in declaring such Event of Default and in exercising the
rights and remedies set forth in Article V. The Agency further covenants and agrees to indemnifY
and save the Trustee and its officers, directors, agents and employees, harmless against any losses,
expenses and liabilities which it may incur arising out of or in the exercise and performance of its
powers and duties hereunder, including the costs and expenses of defending against any claim of
liability, but excluding any and all losses, expenses and liabilities which are due to the negligence or
wilful misconduct of the Trustee, its officers, directors, agents or employees. The obligations ofthe
Agency under this paragraph all survive the resignation or removal of the Trustee under the
Indenture, this Loan Agreement and payment of the Loan and the discharge ofthis Loan Agreement.
Section 4. I 2. Compliance With Arbitrage Requirements; Payment of Rebatable
Amounts. The Agency shall not take, or permit or suffer to be taken by the Trustee or otherwise, any
action with respect to the proceeds ofthe Loan which if such action had been reasonably expected to
have been taken, or had been deliberately and intentionally taken, on the Closing Date would have
caused any of the Bonds to be "arbitrage bonds within the meaning of Section 148(a) of the Tax
Code or to be "private activity bonds" within the meaning of Section 141 of the Tax Code.
10
The Agency agrees to furnish all information to, and cooperate fully with, the
Authority, the Trustee and their respective officers, employees, agents and attorneys, in order to
assure compliance with the provisions of Section 5.06 of the Indenture. In the event that the
Authority shall determine, pursuant to Section 5.06 ofthe Indenture, that any amounts are due and
payable to the United States of America thereunder and that neither the Authority nor the Trustee has
on deposit an amount of available moneys (excluding moneys on deposit in the Interest Account, the
Principal Account or the Reserve Fund and excluding any other moneys required to pay the principal
of or interest or redemption premium, if any, on the Outstanding Bonds) to make such payment, the
Authority shall promptly notify the Agency of such fact. Upon receipt of any such notice, the
Agency shall promptly pay to the Trustee from available Tax Revenues or any other source oflegally
available funds, for deposit into the Rebate Account, the sum of (a) one hundred percent (100%) of
the amounts determined by the Authority to be due and payable to the United States of America as a
result ofthe investment of amounts on deposit in any fund or account established hereunder, plus (b)
all other amounts due and payable to the United States of America.
Section 4.13. Intentionally omitted.
Section 4.14. Further Assurances. The Agency will adopt, make, execute and
deliver any and all such further resolutions, instrument and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance ofthis Loan Agreement
and for the better assuring and confirming unto the Trustee, the Authority and the Owners of the
Bonds of the rights and benefits provided in this Loan Agreement.
Section 4.15. Continuing Disclosure. The Agency has undertaken all responsibility
for compliance with continuing disclosure requirements imposed by the Securities and Exchange
Commission, and the Authority shall have no liability to the Holders of the Bonds or any other
person with respect to such disclosure matters. The Trustee hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Agreement.
Notwithstanding any other provision of the Indenture, failure ofthe Agency or the Trustee to comply
with the Continuing Disclosure Agreement shall not be considered an Event of Default; however, the
Trustee shall at the written request of any Participating Underwriter or the owners of at least 25%
aggregate principal amount of Outstanding Bonds, but only to the extent the Trustee has been
indemnified to its satisfaction from any cost, liability or expense including those it its attorneys or
any owner, may take such actions as may be necessary and appropriate, including seeking mandate or
specific performance by court order, to cause the Agency to comply with its obligations hereunder or
to cause the Trustee to comply with its obligations under the Indenture.
11
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
Section 5.01. Events of Default and Acceleration of Maturities. The following events
shall constitute Events of Default hereunder.
(a) Failure by the Agency to pay the principal of or interest or prepayment
premium (if any) on the Loan when and as the same shall become due and payable.
(b) Failure by the Agency to observe and perform any of the covenants,
agreements or conditions on its part contained in this Loan Agreement, other than as referred to in
the preceding clause (a), for a period of sixty (60) days after written notice specifYing such failure
and requesting that it be remedied has been given to the Agency by the Trustee; provided, however,
that if in the reasonable opinion of the Agency the failure stated in such notice can be corrected, but
not within such sixty (60) day period, the Trustee shall not unreasonably withhold its consent to an
extension of such time if corrective action is instituted by the Agency within such sixty (60) day
period and diligently pursued until such failure is correct.
(c) The filing by the Agency of a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law of the United States of
America, or if a court of competent jurisdiction shall approve a petition, filed with or without the
consent of the Agency, seeking reorganization under the federal bankruptcy laws or any other
applicable law ofthe United States of America, 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
Agency or of the whole or any substantial part of its property.
Immediately upon becoming aware of the occurrence of an Event of Default under
subsections (a), (b) or (c) above, the Trustee shall give notice of such Event of Default to the Agency
in connection with the Bonds by telephone, telecopier or other telecommunication device, promptly
confirmed in writing. This provision, however, is subject to the condition that if, at any time after
the principal of the Loan shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered, the Agency shall
deposit with the Trustee a sum sufficient to pay all installments of principal on the Loan matured
prior to such declaration and all accrued interest thereon, with interest on such overdue installments
of principal and interest at the net effective rate then borne by the Outstanding Bonds, and the
reasonable fees and expenses of the Trustee (including but not limited to attorneys fees and
expenses), and any and all other defaults known to the Trustee (other than in the payment of
principal and interest on the Loan 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 Owners of a majority in
aggregate principal amount of the Outstanding Bonds may, by written notice to the Trustee and the
Agency, rescind and annul such declaration and its consequences. However, no such rescission and
12
annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right
or power consequent thereon.
If an Event of Default has occurred and is continuing, at the written direction of the
Owners of a majority in aggregate principal amount of the Outstanding Bonds, the Trustee shall, to
the extent indemnified from liability or expense, including without limitation fees and expenses of its
attorneys, exercise any remedies available to the Trustee in law or at equity.
Section 5.02. Application of Funds Upon Default. After the occurrence and during
the continuance of an Event of Default, the Trustee shall have the right to control and direct all
remedies and other actions relating to default hereunder. All amounts received by the Trustee
pursuant to any right given or action taken by the Trustee under the provisions of this Loan
Agreement, otherwise held by the Trustee upon the occurrence of an Event of Default, shall be
applied by the Trustee in the following order:
First, to the payment ofthe costs and expenses of the Trustee in declaring such Event
of Default and in carrying out the provisions of this Article Y, including reasonable compensation to
its agents, attorneys and counsel and
Second, to the payment ofthe whole amount of interest on and principal ofthe Loan
then due and unpaid, with interest on overdue installments of principal and interest to the extent
permitted by law at the net effective rate of interest then borne by the Outstanding Bonds; provided,
however, that in the event such amounts shall be insufficient to pay in full the full amount of such
interest and principal, then such amounts shall be applied in the following order of priority:
(a) to the payment of all installments of interest on the Loan then due and unpaid,
(b) to the payment of principal of all installments of the Loan then due and
unpaid,
(c) to the payment of interest on overdue installments of principal and interest.
Section 5.03. No Waiver. Nothing in this Article Y or in any other provision of this
Loan Agreement, shall affect or impair the obligation of the Agency, which is absolute and
unconditional, to pay from the Tax Revenues and other amounts pledged hereunder, the principal of
and interest and premium (if any) on the Loan to the Trustee as herein provided, or affect or impair
the right of action, which is also absolute and unconditional, ofthe Trustee to institute suit to enforce
such payment by virtue of the contract embodied in this Loan Agreement.
A waiver of any default by the Trustee shall not affect any subsequent default or
impair any rights or remedies on the subsequent default. No delay or omission of the Trustee to
exercise any right or power accruing upon any default shall impair any such right or power or shall
be construed to be a waiver of any such default or a acquiescence therein, and every power and
13
remedy conferred upon the Trustee by the Act or by this Article V may be enforced and exercised
from time to time and as often as shall be deemed expedient by the Trustee.
If a suit, action or proceeding to enforce any right or exercise any remedy shall be
abandoned or determined adversely to the Trustee, the Agency and the Trustee shall be restored to
their former positions, rights and remedies as if such suit, action or proceeding had not been brought
or taken (except in the event that an action determined adversely to the Trustee was for removal
thereof).
Section 5.04. Remedies Not Exclusive. No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other remedy. Every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder 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.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Benefits Limited to Parties. Nothing in this Loan Agreement,
expressed or implied, is intended to give to any person other than the Agency, the Trustee and the
Bonds, any right, remedy or claim under or by reason of this Loan Agreement. All covenants,
stipulations, promises, or agreements in this Loan Agreement contained by and on behalf of the
Agency shall be for the sole and exclusive benefit of the Authority, the Bond Insurer and of the
Trustee acting as trustee for the benefit of the Owners of the Bonds.
Section 6.02. Successor is Deemed Included in All References to Predecessor.
Whenever in this Loan Agreement the Agency, the Authority or the Trustee is named or referred to,
such reference shall be deemed to include the successors or assigns thereof, and all the covenants and
agreements in this Loan Agreement contained or on behalf of the Agency, the Authority or the
Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so
expressed or not.
Section 6.03. Discharge of Loan Agreement. Ifthe Agency shall pay and discharge
the entire indebtedness on the Loan in anyone or more ofthe following ways:
(a) by well and truly paying or causing to be paid the principal of and interest and
prepayment premiums (if any) on the Loan, as and when the same become due and payable;
(b) by irrevocably depositing with the Trustee, in trust at or before maturity, cash
in an amount which, together with the available amounts then on deposit in any of the funds and
accounts established pursuant to the Indenture or this Loan Agreement, is fully sufficient to pay all
principal of and interest and prepayment premiums (if any on the Loan); or
14
(c) by irrevocably depositing with the Trustee or any other fiduciary, in trust,
Federal Securities in such amount as an Independent Certified Public Accountant shall determine
will, together with the interest to accrue thereon and available moneys then on deposit in the funds
and accounts established pursuant to the Indenture or pursuant to this Loan Agreement, be fully
sufficient to pay and discharge th~ indebtedness on the Loan (including all principal, interest and
prepayment premiums) at or before maturity;
then, upon sufficient notice to the Trustee (as described in Section 2.03 hereof), at the election ofthe
Agency but only if all other amounts then due and payable hereunder shall have been paid or
provision for their payment made, the pledge of a lien upon the Tax Revenues and other funds
provided for in this Loan Agreement and all other obligations ofthe Trustee, the Authority and the
Agency under this Loan Agreement with respect to the Loan shall cease and terminate, except only
the obligation ofthe Agency to payor cause to be paid to the Trustee, from the amounts so deposited
with the Trustee or such other fiduciary, all sums due with respect to the Loan and all expenses an
costs of the Trustee. Notice of such election shall be filed with the Authority and the Trustee.
Any funds thereafter held by the Trustee hereunder, which are not required for said
purpose, shall be paid over to the Agency.
Section 6.04. Amendment. This Loan Agreement may be amended by the parties
hereto but only (a) without any effect whatsoever for the purpose of issuing Refunding Bonds, or (b)
otherwise, only with the effect and under the circumstances set forth in the Indenture. The Authority
covenants that the Indenture shall not be amended without the prior written consent of the Agency.
Section 6.05. Waiver of Personal Liability. No member, officer, agent or employee
ofthe Agency shall be individually or personally liable for the payment ofthe principal of or interest
on the Loan; but nothing herein contained shall relieve any such member, officer, agent or employee
from the performance of any official duty provided by law.
Section 6.06. Payment of Business Days. Whenever in this Loan Agreement any
amount is required to be paid on a day which is not a Business Day, such payment shall be required
to be made on the Business Day immediately following such day.
Section 6.07. Notices. All written notices to be given under this Loan Agreement
shall be given by first class mail or personal delivery or by telecopier and promptly confirmed by
mail, to the party entitled thereto at its address set forth below, or at such address as the party may
provide to the other party in writing from time to time. Notice shall be effective 48 hours after
deposit in the United States mail, postage prepaid or, in the case of any notice to the Trustee or in the
case of personal delivery to any person, upon actual receipt at the address set forth below:
To the Agency:
Redevelopment Agency of
the City of San Bernardino
201 "E" Street, Third Floor
San Bernardino, California 92401-1507
15
To the Authority:
San Bernardino Joint Powers Financing Authority
201 "E" Street, Third Floor
San Bernardino, California 92401-1507
To the Trustee:
U.S. Bank Trust National Association
550 S. Hope Street, Suite 500
Los Angeles, California 90071
Attention: San Bernardino JPFA 2001 TABs
(Mt. Vernon Project)
Section 6.08. Partial Invalidity. If any Section, paragraph, sentence, clause or phrase
of this Loan Agreement shall for any reason be held illegal, invalid or enforceable, such holding shall
not affect the validity of the remaining portions of this Loan Agreement. The Agency hereby
declares that it would have adopted this Loan Agreement and each and every other section,
paragraph, sentence, clause or phrase hereof and authorized the Loan irrespective ofthe fact that any
one or more Sections, paragraphs, sentences, clauses, or phrases of this Loan Agreement may be held
illegal, invalid or unenforceable.
Section 6.09. Governing Law. This Agreement shall be construed and
governed in accordance with the laws ofthe State.
Section 6.10. Concerning the Trustee. The assignments of any rights or interest of
the Authority to the Trustee under this Loan Agreement solely in its capacity as Trustee and all
provisions ofthe Indenture relating to the rights, privileges, powers and protections ofthe Trustee,
including without limitation those set forth in Article VI thereof, shall apply with equal force and
effect to all actions taken by the Trustee in connection with this Loan Agreement.
16
IN WITNESS WHEREOF, the Redevelopment Agency ofthe City of San Bernardino
and the San Bernardino Joint Powers Authority, have caused this Loan Agreement to be signed by
their respective officers, all as of the day and year first above written.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
ATTEST:
By:
Assistant Secretary
SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY
By:
Chairman
ATTEST:
By:
Secretary
17
TABLE OF CONTENTS
Page
ARTICLE 1......... ... ... .............................................................. ......... ......... .... ...... ... .......... ... ....... .......3
DEFINITIONS .. ........ ... ....................... ... ... ... ...... .... ....... ........ ...... .......... .......................... .....3
Section 1.01. Definitions............................ ........ .................... ........................................... ..3
Section 1.02. Rules of Construction ...................................................................................5
ARTICLE II .. .......... ....................... .................. ........ ........ ...... ...... ... ...... ............. ... ................ .... .......6
THE LOAN; REPAYMENT; APPLICATION OF PROCEEDS........................................6
Section 2.01. Authorization.................................... ............................................................6
Section 2.02. Repayment of Loan................................. ... ... .............................................. ..6
Section 2.03. Optional Prepayment.................................... ... ..............................................6
Section 2.04. Application of Loan Proceeds.......................................................................7
ARTICLE II ....... ... ............................. ........ .......... ... ................ ...... ... .......... .......... .......... ................ ..8
SECURITY FOR LOAN; APPLICATION OF FUNDS .....................................................8
Section 3.01. Pledge of Tax Revenues...............................................................................8
Section 3.02. Special Fund; Deposit of Tax Revenues......................................................8
Section 3.03. Transfer of Tax Revenues From
Special Fund.................................. .... ... .......................... ... ...8
Section 3.06. Investment of Moneys;
Valuation of Investments............ .... .... ...................... ....... ....9
ARTICLE IV.. ................ ... ................................................... ................... .... ...... ... .................... ... ...11
OTHER COVENANTS OF THE AGENCY.................................................................................11
Section 4.01. Punctual PaymenL......................................................................................11
Section 4.02. Limitation on Superior, Parity and
Subordinate Loans................... .......................................... .11
Section 4.03. Additional Pass-Through Agreements .......................................................12
Section 4.04. Limitations on Issuance of Subordinate
Debt.................................................... ...................... .... ... ...12
Section 4.05. Payment of Claims ......................................................................................12
Section 4.06. Books and Accounts; Financial Statement..................................................12
Section 4.07. Protection of Security and Rights ...............................................................13
Section 4.08. Payments of Taxes and Other Charges .......................................................13
Section 4.09. Disposition of Property ...............................................................................13
Section 4.10. Maintenance of Tax Revenues....................................................................14
Section 4.11. Payment of Expenses; Indemnification.......................................................14
Section 4.12. Compliance With Arbitrage Requirements;
Payment of Reba table Amounts.........................................14
i
Section 4.13. Intentionally omitted. .................................................................................15
Section 4.14. Further Assurances.....................................................................................15
Section 4.15. Continuing Disclosure ...............................................................................16
ARTICLE V ...................................................................................................................................17
EVENTS OF DEFAULT AND REMEDIES ....................................................................17
Section 5.01. Events of Default and Acceleration
of Maturities..................................................................... ..17
Section 5.02. Application of Funds Upon Default............................................................18
Section 5.03. No Waiver ...................................................................................................19
Section 5.04. Remedies Not Exclusive .............................................................................19
ARTICLE VI.................. ... ........... ............................................ ......... ...... ...... ... ....... .... ......... ........ ..20
MISCELLANEOUS ..........................................................................................................20
Section 6.01. Benefits Limited to Parties..........................................................................20
Section 6.02. Successor is Deemed Included in
All References to Predecessor............................................20
Section 6.03. Discharge of Loan Agreement ....................................................................20
Section 6.04. Amendment................................................................................................ .21
Section 6.05. Waiver of Personal Liability .......................................................................21
Section 6.06. Payment of Business Days..........................................................................21
Section 6.07. Notices............ ........................................................................................... .21
Section 6.08. Partial Invalidity......................................................................................... .22
Section 6.09. Governing Law ..........................................................................................22
Section 6.10. Concerning the Trustee ..............................................................................22
ii
iii
SB2001 :32150 1
INDENTURE OF TRUST
by and between the
SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
and
U.S. BANK N.A.,
as Trustee
Dated as of April I, 2002
Relating to
$
SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
SUBORDINATE TAX ALLOCATION REFUNDING BONDS
SERIES 2002A
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS; AUTHORIZATION AND
PURPOSE OF BONDS;EQUAL SECURITY ....................................................................2
Section 1.01. Definitions.................................................................................... .......................... ...2
Section 1.02. Rules of Construction .............................................................................................12
Section 1.03. Authorization and Purpose of Bonds ......................................................................12
Section 1.04. Equal Security ................................................ .........................................................12
ARTICLE IIISSUANCE
12
OF
BONDS
Section 2.01. Authorization of Bonds.................................................................... .......................12
Section 2.02. Terms of the Bonds.................................................................................................13
Section 2.03. Redemption of Bonds .............................................................................................14
Section 2.04. Form of Bonds ........................................................................................................18
Section 2.05. Execution of Bonds.................................................................. ...............................18
Section 2.06. Transfer of Bonds................................................................................................... .19
Section 2.07. Exchange of Bonds .................................................................................................19
Section 2.08. Temporary Bonds............................... ................................................................... ..19
Section 2.09. Registration Books ..................................................................................................19
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen........................................................... 19
Section 2.11. Book Entry Provisions ............................................................................................20
PROCEEDS
ARTICLE IIIDEPOSIT AND APPLICATION OF
20
Section 3.01. Issuance of Bonds ...................................................................................................20
Section 3.02. Application of Proceeds....................................................................................... ...20
Section 3.03. Costs ofIssuance Fund ...........................................................................................23
Section 3.04. Reserve Funds........................................................................................................ .23
Section 3.05. Withdrawals from the Series A Reserve Fund........................................................26
Section 3.06. Withdrawals from the Series B Reserve Fund........................................................27
Section 3.07. Redevelopment Funds................................................................. .......................... .28
Section 3 .08. Validity of Bonds................................................................................................. ...28
ARTICLE IVREVENUES; FLOW OF FUNDS
29
Section 4.01. Pledge of Revenues; Assignment of Rights ............................................................29
Section 4.02. Receipt, Deposit and Application of Revenues ......................................................29
Section 4.03. Investments............................................................................................................ .32
SB2001 :32150.1
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ARTICLE VCOVENANTS OF THE AUTHORITY
33
Section 5.01. Punctual Payment; Extension of Payment ofBonds...............................................33
Section 5.02. Against Encumbrances................................................................ ........................... .34
Section 5.03. Power to Issue Bonds and Make Pledge and Assignment ......................................34
Section 5.04. Accounting Records and Financial Statements.......................................................34
Section 5.05. Additional Obligations................... .......................... ..................................... ........ ..34
Section 5.06. Tax Covenants................ ....................................................................................... .35
Section 5.07. Loan Agreements ............................. ...................................................................... .36
Section 5.08. Further Assurances................. .................................... .............................................37
Section 5.09. Maintenance of Project Area Loan Balances ..........................................................37
Section 5.10. Continuing Disclosure ............................................................................................37
Section 5.11. Further Covenants to Bond Insurer .........................................................................37
ARTICLE VITHE
37
TRUSTEE
Section 6.01. Appointment of Trustee ..........................................................................................37
Section 6.02. Acceptance of Trusts. ........................................................... ...................................38
Section 6.03. Fees, Charges and Expenses of Trustee ..................................................................40
Section 6.04. Notice to Bond Owners of Default .........................................................................40
Section 6.05. Intervention by Trustee ...........................................................................................41
Section 6.06. Removal of Trustee............................................ .... .............................. ...................41
Section 6.07. Resignation by Trustee.................. ................................. ....... ............................. .....41
Section 6.08. Appointment of Successor Trustee .........................................................................41
Section 6.09. Merger or Consolidation.............. ... ..................................... ......................... .... .... ..42
Section 6.10. Concerning Any Successor Trustee ........................................................................42
Section 6.11. Appointment of Co-Trustee ....................................................................................42
Section 6.12. Indemnification; Limited Liability of Trustee ........................................................43
Section 6.13. Inspection by Bond Insurer .....................................................................................43
THE INDENTURE
ARTICLE VIIMODIFICATION AND AMENDMENT OF
44
Section 7.01. Amendment Hereof.. ......... ...................... ...... ........................ ........ ..........................44
Section 7.02. Effect of Supplemental Agreement.........................................................................45
Section 7.03. Endorsement or Replacement of Bonds After Effective Date ................................45
Section 7.04. Amendment by Mutual Consent .............................................................................45
Section 7.05. Opinion of Counsel.................................................................................................45
OF BOND OWNERS
ARTICLE VIIIEVENTS OF DEFAULT AND REMEDIES
46
SB2001 :32150.1
-11-
Section 8.01. Events of Default ....................................................................................................46
Section 8.02. Remedies and Rights of Bond Owners ...................................................................46
Section 8.03. Application of Revenues and Other Funds After Defau1t.......................................47
Section 8.04. Power of Trustee to Control Proceedings ...............................................................48
Section 8.05. Appointment of Receivers ......................................................................................48
Section 8.06. Non-Waiver.............................................................................................................48
Section 8.07. Rights and Remedies of Bond Owners ...................................................................49
Section 8.08. Termination of Proceedings....................................................................................49
Section 8.09. Consent of Bond Insurer ........................................................................................49
ARTICLE IX................................. MISCELLANEOUS
50
Section 9.01. Limited Liability of Authority..................................................................................50
Section 9.02. Benefits of Indenture Limited to Parties .................................................................50
Section 9.03. Discharge of Indenture........................................................................................... .50
Section 9.04. Successor Is Deemed Included in All References to Predecessor..........................52
Section 9.05. Content of Certificates ............................................................................................52
Section 9.06. Execution of Documents by Bond Owners.............................................................52
Section 9.07. Disqualified Bonds................................................................................................. .53
Section 9.08. Waiver of Personal Liability ...................................................................................53
Section 9.09. Partial Invalidity..................................................................................................... .53
Section 9.10. Destruction of Cancelled Bonds .............................................................................53
Section 9.11. Funds and Accounts ................................................................................................53
Section 9.12. Payment on Business Days .....................................................................................54
Section 9.13. Notices.................................................................................................................. ..54
Section 9.14. Unclaimed Moneys .................................................................................................54
Section 9.15. Governing Law .......................................................................................................55
Section 9.16. Concerning the Bond Insurance Policy...................................................................55
Section 9.17. Notices to Bond Insurer ..........................................................................................56
Section 9.18. Consent of Bond Insurer .........................................................................................56
SB2001 :32150.1
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EXHIBIT A
Form of Bond
5B2001:321501
-IV-
SB2001 :32150.1
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SB2001:32150.1
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SB2001:32150.1
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST (this "Indenture"), dated as of April 1, 2002, is by
and between the San Bernardino Joint Powers Financing Authority, a joint powers authority
organized and existing under the laws of the State of California (the "Authority") and U.S. Bank
N.A., Los Angeles, California, as Trustee, a national banking association organized and existing
under the laws of the United States of America, and being qualified to accept and administer the
trusts hereby created (the "Trustee");
WIT N E SSE T H:
WHEREAS, the Authority is a joint powers authority duly organized and existing
under and pursuant to that certain Joint Exercise of Powers Agreement dated October 21,1989, by
and between the City of San Bernardino (the "City") and the Redevelopment Agency of the City of
San Bernardino (the "Agency") and under the provisions of Articles 1 through 4 (commencing with
Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of
California (the "Act") and is authorized pursuant to Article 4 of the Act to issue its bonds for the
purpose, among others, of making loans to the Agency for the purpose of financing certain permitted
projects; and
WHEREAS, in October, 1995, the Authority issued its Tax Allocation Refunding
Bonds, Series 1995A (the "1995A Bonds") and its Subordinated Tax Allocation Refunding Bonds,
Series 1995B (the "1995B Bonds") to refinance certain indebtedness incurred by the Agency for the
financing of certain public projects, to finance certain redevelopment activities, pay costs of issuance
and establish certain reserve funds; and
WHEREAS, the Authority has determined to issue $
San Bernardino Joint Powers Financing Authority Subordinate Tax Allocation Refunding Bonds,
Series 2002A (the" Bonds") all pursuant to and secured by this Indenture in the manner provided
herein; and
WHEREAS, the Bonds are being issued in order to enable the Authority to make a
loan to the Agency to refund the $17,960,000 aggregate principal amount of the 1995B Bonds; to
finance certain redevelopment activities and to pay the costs of issuance of the Bonds and establish a
reserve fund therefor; and
WHEREAS, the Bonds will be secured by payments made by the Agency to the
Authority pursuant to loans (the "Loans") under seven (7) Loan Agreements (the "Loan
Agreements"), all dated as of April 1, 2002, by and among the Authority, the Agency and the
Trustee, pursuant to which the Agency has agreed to pay the Authority amounts equal to all principal
of and interest coming due on the Bonds; and
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WHEREAS, in order to provide for the authentication and delivery ofthe Bonds, to
establish and declare the terms and conditions upon which the Bonds are to be issued and to secure
the payment of the principal thereof, premium, if any, and interest thereon, the Authority has
authorized the execution and delivery ofthis Indenture; and
WHEREAS, the Authority represents that all acts and proceedings required by law
necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the
Trustee and duly issued, the valid, binding and legal special obligations of the Authority, and to
constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in
accordance with its terms, have been done and taken, and the execution and delivery of the Indenture
have been in all respects duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment ofthe principal of and the interest and premium (if any) on all Bonds at any time issued and
Outstanding under this Indenture, 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 Bonds are to be issued and received, and in
consideration ofthe premises and ofthe mutual covenants herein contained and ofthe purchase and
acceptance of the Bonds by the Owners 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 ofthe respective Owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS;
EQUAL SECURITY
Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in
this Section shall for all purposes of this Indenture and of any Supplemental Indenture and of the
Bonds and of any certificate, opinion, request or other documents herein mentioned have the
meanings herein specified. In addition, any terms defined in the Loan Agreements and not otherwise
defined herein shall have the respective meanings given such terms in the Loan Agreements.
"Act" means Articles 1 through 4 (commencing with Section 6500) of Chapter 5,
Division 7, Title 1 of the Government Code ofthe State, as in existence on the Closing Date or as
thereafter amended from time to time.
"Agency" means the Redevelopment Agency of the City of San Bernardino, a public
body corporate and politic organized under the laws of the State, and any successor thereto.
"Agreement" means that certain Joint Exercise of Powers Agreement, dated August
21, 1989, entered into under the Act by and between the City and the Agency together with any
amendments thereof and supplements thereto.
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"Authority" means the San Bernardino Joint Powers Financing Authority, a joint
powers authority duly organized and existing under the Agreement and the laws of the State.
"Board" means the Board of Directors of the Authority.
"Bond Counsel" means Lewis, D' Amato, Brisbois & Bisgaard LLP, San Bernardino,
California, or any other nationally recognized attorney or firm of attorneys qualified to provide
opinions regarding the federal tax exempt status of the Bonds.
"Bond Law" means the Marks-Roos Local Bond Pooling Act of 1985, constituting
Article 4 of the Act (commencing with Section 6584), as in existence on the Closing Date or as
thereafter amended from time to time.
"Bonds" means, collectively, the San Bernardino Joint Powers Financing Authority
Subordinate Tax Allocation Refunding Bonds, Series 2002A.
"Bond Year" means each twelve-month period extending from April 2 in one calendar
year to April I of the succeeding calendar year, both dates inclusive.
"Business Day" means a day of the year on which banks in New York, New York,
and Los Angeles, California, are not required or authorized to remain closed and on which The New
York Stock Exchange is not closed.
"Certificate of the Authority" means a certificate in writing signed by the Chairman,
Secretary or Treasurer of the Authority, or by any other officer of the Authority duly authorized by
the Board for that purpose.
"City" means the City of San Bernardino, a municipal corporation and a charter city,
duly organized and existing under its charter and the Constitution and laws of the State.
"City Council" means the Mayor and Common Council of the City of
San Bernardino, as the legislative body of the City.
"Closing Date" means the date of delivery of the Bonds to Kinsell, Newcomb & De
Dios, Inc., as the original purchaser thereof.
"Computation Date," for purposes of calculating and paying over to the United States
of America the amount of any arbitrage rebate required to be paid in connection with the Bonds,
means any date selected by the Agency by written notice to the Trustee and the Authority, provided
the first Computation Date is no later than the fifth anniversary of the date of issue of the Bonds, a
subsequent Computation Date is no later than five years after the previous Computation Date and the
final Computation Date is the date the last outstanding Bond is retired.
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"Continuing Disclosure Agreement" means that certain Continuing Disclosure
Agreement between the Agency and the Trustee dated the date of issuance and delivery of the Bonds,
as originally executed and as it may be amended from time to time in accordance with the terms
thereof.
"Costs ofIssuance" means all expenses incurred in connection with the authorization,
issuance, sale and delivery of the Bonds and the making of the Loans pursuant to the Loan
Agreements, including but not limited to all initial compensation, fees and expenses (including but
not limited to fees and expenses for legal counsel) ofthe Authority and the Trustee, compensation to
any financial consultants or underwriters (including but not limited to underwriter's discount), legal
fees and expenses, filing and recording costs, costs of preparation and reproduction of documents
and costs of printing.
"Costs of Issuance Fund" means, singularly or collectively, the fund by that name
established and held by the Trustee for the Bonds pursuant to Section 3.03 herein.
"Debt Service" means during any period of computation, the amount obtained for
such period by totaling (a) the principal amount of all Outstanding Bonds coming due and payable by
their terms in such period, and (b) the interest which would be due during such period on the
aggregate principal amount of Bonds which would be Outstanding in such period ifthe Bonds are
retired as scheduled, but deducting and excluding from such aggregate amount the amount of Bonds
no longer Outstanding.
"Depository" means DTC, or any successor or substitute Depository.
"DTC" means the Depository Trust Company, located in New York, New York, a
limited purpose trust company organized under the laws ofthe State of New York.
"DTC Letter of Representations" means the Letter of Representations addressed to
DTC from the Issuer and as accepted by DTC.
"DTC Participant," "Direct Participant," or "Participant" shall mean those broker-
dealers, banks and other financial institutions from time to time for which the Depository holds
Bonds as securities depository and for whom the Depository effects book-entry transfers and pledges
of securities deposited with the Depository.
"Escrow Agent" means U.S. Bank N. A. and its successors and assigns, and any other
corporation or association which may at any time be substituted in its place as provided under the
Escrow Agreement.
"Escrow Agreement" means that certain escrow agreement dated as of April!, 2002,
by and among the Authority, the Agency and the Trustee relating to the Bonds.
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"Escrow Fund" mean the accounts established by the Escrow Agent as provided under
the Escrow Agreement.
"Event of Default" means any of the events described in Section 8.01 herein.
"Federal Securities" means any direct, noncallable general obligations of the United
States of America (including obligations issued or held in book entry form on the books of the
Department ofthe Treasury ofthe United States of America), or other noncallable obligations of any
entity the payment of principal of and interest on which are directly or indirectly guaranteed by the
United States of America.
"Fiscal Year" means any twelve-month period extending from July 1 in one calendar
year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve-month
period selected and designated by the Authority as its official fiscal year period.
"Indenture" means this Indenture of Trust, as originally executed or as it may from
time to time be supplemented, modified or amended by any Supplemental Indenture pursuant to the
provisions hereof.
"Independent Certified Public Accountant" means any certified public accountant or
firm of certified public accountants appointed and paid by the Authority, and who, or each of whom:
(a) is in fact independent and not under domination ofthe Authority, the City or
the Agency;
(b) does not have any substantial interest, direct or indirect, in the Authority, the
City or the Agency; and
(c) is not connected with the Authority, the City or the Agency as an officer or
employee of the Authority, the City or the Agency, but who may be regularly retained to make
annual or other audits ofthe books of or reports to the Authority, the City or the Agency.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond
Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor;
Kenny Information Services' "Called Bond Service," 65 Broad Street, 16th Floor, New York, New
York 10004; Moody's Investors Service's "Municipal and Government," 99 Church Street, 8th Floor,
New York, New York 10007, Attention: Municipal News Reports; Standard & Poor's Ratings Group
"Called Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; and, in accordance
with then current guidelines of the Securities and Exchange Commission, such other addresses
and/or such other services providing information with respect to called bonds as the Authority may
designate in a Certificate of the Authority delivered to the Trustee.
"Interest Account" means the account by that name established and held by the
Trustee pursuant to Section 4.02(a) herein.
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"Interest Payment Date" means April I and October I in each year, commencing on
April I, 2002, and continuing thereafter so long as any Bonds remain Outstanding.
"Loans" means the loan made by the Authority to the Agency under and pursuant to
the Loan Agreements.
"Loan Agreement" or " Loan Agreements" means, singularly or collectively, the
seven (7) Loan Agreements relating to the Project Areas, dated as of April I ,2002, by and between
the Authority and the Agency, as originally entered into or as amended or supplemented pursuant to
the provisions thereof.
"Maximum Annual Debt Service" means the largest of the sums obtained for any
Bond Year after the computation is made, by totaling the principal and interest of, and sinking fund
payments due for, Bonds payable in such Bond Year.
"Outstanding," when used as of any particular time with reference to Bonds, means
(subject to the provisions of Section 9.07) all Bonds theretofore executed, issued and delivered by
the Authority under this Indenture, except:
(a) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for
cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of Section 9.03;
and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
executed, issued and delivered pursuant to this Indenture or any Supplemental Indenture.
"Owner", "Bondowner," "owner" or "Bondholder" when used with respect to any
Bond, means the person in whose name the ownership of such Bond shall be registered on the
Registration Books.
"Parity Loan" means any additional loans incurred for the purpose of paying the debt
service requirements on any tax allocation bonds (including, without limitation, bonds, notes, interim
certificates, debentures or other obligations) issued by the Agency and outstanding as permitted by
Section 4.02 of the Loan Agreements.
"Participating Underwriter" shall have the meaning ascribed thereto in the Continuing
Disclosure Agreement.
"Permitted Investments" means any of the following to the extent permitted by law
with an appropriate market value and of an appropriate maturity as determined by the Authority:
S82001:321501
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1. Obligations of, or guaranteed as to principal and interest by the United States
of America, or by any agency or instrumentality thereof hereinafter designated when such obligations
are backed by the full faith and credit of the United States of America. These are limited to:
U.S. Treasury obligations (all direct or fully guaranteed obligations)
Farmers Home Administration Certificates of Beneficial Ownership
General Services Administration Participation Certificates
U.S. Maritime Administration (Guaranteed Title XI financing)
Small Business Administration (Guaranteed Participation Certificates and
Guaranteed Pool Certificates)
GNMA Guaranteed Mortgage Backed Securities
GNMA Guaranteed Participation Certificates
U.S. Department of Housing & Urban Development Local Authority Bonds
Washington Metropolitan Area Transit Authority Guaranteed Transit Bonds
2. The following obligations of instrumentalities or agencies ofthe United States
of America:
Federal Home Loan Mortgage Corporation (FHLMC) Participation Certificates Debt
Obligations
Federal Home Loan Banks (FHL Banks) (Consolidated Debt Obligation and Letter of
Credit backed issues)
Federal National Mortgage Association (FNMA) (Debt Obligations and Mortgage
Backed Securities, but excluding Stripped Mortgage Securities which are valued
greater than par on the portion of unpaid principal)
Book entry securities listed in 1 and 2 above must be held in a trust account with the Federal Reserve
Bank or with a clearing corporation or chain of clearing corporations which has an account with the
Federal Reserve Bank.
3. Federal Housing Administration debentures.
4. Commercial paper, payable in the United States of America, having original
maturities of not more than 92 days and which are rated and maintain a rating in the highest rating
SB2001 :32150.1
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category by Standard & Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc., and
Moody's Investors Service.
5. Interest bearing demand or time deposits issued by state banks or trust
companies, savings and loan associations, federal savings banks or any national banking associations
(including the Trustee or any of its affiliates), which deposits are insured by the Bank Insurance Fund
(BIF) or the Savings Association Insurance Fund (SAIF) of the Federal Deposit Insurance
Corporation (FDIC) or any successors thereto. These deposits: (a) must be continuously and fully
insured by BIF or SAIF or (b) must have maturities of less than 366 days and be deposited with
banks the short timer obligations of which are rated and maintain a rating of A-I + by Standard &
Poor's Ratings Group, a division of The McGraw-Hill Companies, Inc., and P-l by Moody's
Investors Service.
6. Money market mutual funds rated AAAm or AAAm-G by Standard & Poor's
Ratings Group, a division of The McGraw-Hill Companies, Inc. (including any money market fund
for which the Trustee or any of its affiliates provided management, sponsorship or investment
advisory services).
7. Pre-refunded municipals rated AAA by Standard & Poor's Ratings Group, a
division of The McGraw-Hill Companies, Inc.
"Principal Corporate Trust Office" means the office ofthe Trustee at the address set
forth in Section 9.13 or as otherwise specified in writing by the Trustee, except for purposes of
transfer, exchange, registration, payment and surrender of Bonds means clo the Corporate Trust
Office of U.S. Bank N.A. in St. Paul, Minnesota.
"Prior Bonds" means the Series1995B Bonds.
"Project Area" or "Project Areas" means, individually or collectively, as applicable,
the territory within the Central City North Project Area, State College Project No.4, Southeast
Industrial Park, Northwest Project Area, Tri-City Project Area, South Valle Project Area and Uptown
Project Area, described and defined in the Redevelopment Plans.
"Rating Agency" means, as of any date, either of the following entities which then
maintains a rating on the Bonds:
(a) Moody's Investors Service, its successors and assigns;
(b) Standard & Poor's Ratings Group, its successors and assigns; and
(c) Fitch Investors Service, Inc., its successors and assigns.
"Rebate Account" means the account by that name established and held by the
Trustee pursuant to Section 4.02(h).
SB2001 :32150.1
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"Record Date" means, with respect to any Interest Payment Date, the fifteenth
(15th) calendar day ofthe month immediately preceding such Interest Payment Date, whether or not
such day is a Business Day.
"Redevelopment Fund" means the fund by that name established pursuant to Section
3.07 hereof.
"Redevelopment Plans" means the Redevelopment Plan for the Central City North
Redevelopment Project Area, adopted on February 23, 1965 by the City Council ofthe City pursuant
to Ordinance No. 2649, including any amendment thereof heretofore or hereafter made pursuant to
the Redevelopment Law; the Redevelopment Plan for the State College Project No.4 Project Area,
adopted on April 27 , 1970 by the City Council of the City pursuant to Ordinance No. 3067, including
any amendment thereof heretofore or hereafter made pursuant to the Redevelopment Law; the
Southeast Industrial Park Redevelopment Project Area, adopted on June 21, 1976 by the City
Council ofthe City pursuant to Ordinance No. 3578, including any amendment thereofheretofore or
hereafter made pursuant to the Redevelopment Law; the Redevelopment Plan for the Northwest
Project Area, adopted on July 6, 1982 by the City Council of the City pursuant to Ordinance No.
MC-189, including any amendment thereof heretofore or hereafter made pursuant to the
Redevelopment Law; the Redevelopment Plan for the Tri-City Redevelopment Project Area, adopted
on June 20, 1983 by the City Council of the City pursuant to Ordinance No. MC-283; the
Redevelopment Plan for the South Valle Redevelopment Project Area, adopted on July 9, 1984 by
the City Council ofthe City pursuant to Ordinance No. MC-387; and the Redevelopment Plan for the
Uptown Redevelopment Project Area, adopted on June 16, 1986 by the City Council of the City
pursuant to Ordinance No. MC-527.
"Redemption Date" means the date set for redemption of any Bonds pursuant to a
notice of redemption in accordance with Section 2.03 hereof.
"Reserve Fund" means the fund established and held hereunder by the Trustee
pursuant to Section 3.04 hereof.
"Reserve Requirement" means an amount equal to Maximum Annual Debt Service on
the Bonds in any Bond Year; provided, however, that at no time shall the Reserve Requirement
exceed an amount equal to the lesser of (i) ten percent (10%) of the original principal amount of the
Bonds, (ii) the maximum annual principal and interest requirements on the Bonds, or (iii) 125% of
the average annual principal and interest requirements on the Bonds determined with respect to debt
service on the Bonds Outstanding on the date of deposit of amounts in the Reserve Fund. For
purposes of (ii) and (iii) above, "annual" shall mean the Bond Year.
"Refunding Bonds" means any bonds, notes or other obligations issued by the
Authority for the purpose of refunding any or all of the Outstanding Bonds, in accordance with
Section 5.01.
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"Registration Books" means the records maintained by the Trustee pursuant to
Section 2.09 for the registration and transfer of ownership of the Bonds.
"Request of the Agency" means a request or requisition in writing signed by the
Chairman, Executive Director, Secretary or Treasurer ofthe Agency, or by any other officer ofthe
Agency duly authorized by the Board for that purpose.
"Request of the Authority" means a request or requisition in writing signed by the
Chairman, Executive Director, Secretary or Treasurer ofthe Authority, or by any other officer ofthe
Authority duly authorized by the Board for that purpose.
"Revenue Fund" means the fund by that name established pursuant to Section 4.02
hereof.
"Revenues" means: (a) all amounts payable by the Agency pursuant to the Loan
Agreements, other than (i) administrative fees and expenses and indemnity against claims payable to
the Authority and the Trustee and (ii) amounts payable to the United States of America pursuant to
Section 4.11 of the Loan Agreements; (b) any proceeds of Bonds originally deposited with the
Trustee and all moneys deposited and held from time to time by the Trustee in the funds and
accounts established hereunder, other than the Rebate Account, except that moneys and securities on
deposit in the funds and accounts established with respect to the Bonds shall be held solely for the
Owners thereof Bonds; and (c) income and gains with respect to the investment of amounts on
deposit in the funds and accounts established hereunder or under the Loan Agreements, other than
the Rebate Account.
"Securities Depositories" means The Depository Trust Company, 711 Stewart
Avenue, Garden City, New York 11530, Fax - (516) 227-4039 or4190, and, in accordance with then
current guidelines of the Securities and Exchange Commission, such other addresses and/or such
other securities depositories as the Authority may designate in a Certificate of the Authority
delivered to the Trustee.
"Senior Liens" means the $97,825,000 San Bernardino Joint Powers Financing
Authority Tax Allocation Refunding Bonds, Series 1995A, and any bonds or other debt obligations
issued to refund said bonds.
"Special Funds" means the funds by that name established for each Project Area
pursuant to the Loan Agreements and held by the Agency.
"State" means the State of California.
"Supplemental Indenture" means any indenture, agreement or other instrument
hereafter duly executed by the Authority and the Trustee in accordance with the provisions of the
Indenture.
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"Surplus Tax Revenues" means Tax Revenues available after the payment of Senior
Liens.
"Tax Code" means the Internal Revenue Code of 1986, as amended, or any future
Federal tax code. Any reference to a provision of the Tax Code shall include the applicable Tax
Regulations with respect to such provision.
"Tax Regulations" means temporary and permanent regulations promulgated under or
with respect to the Tax Code.
Tax Revenues" means Tax Revenues of the Central City North Project Area, State
College Project No.4, Southeast Industrial Park, Northwest Project Area, Tri-City Project Area,
South Valle Project Area and Uptown Project Area as further defined in the Loan Agreements.
"Trustee" means U.S. Bank, N.A. and its successors and assigns, and any other
corporation or association which may at any time be substituted in its place as provided in Article VI.
Section 1.02. Rules of Construction. All references in this Indenture to "Articles,"
"Sections," and other subdivisions are to the corresponding Articles, Sections or subdivisions ofthis
Indenture; and the words "herein," "hereof," "hereunder," and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
Section 1.03. Authorization and Purpose of Bonds. The Authority has reviewed all
proceedings heretofore taken relative to the authorization ofthe Bonds and has found, as a result of
such review, and hereby finds and determines that all things, conditions, and acts required by law to
exist, happen and be performed precedent to and in the issuance of the Bonds do exist, have
happened and have been performed in due time, form and manner as required by law, and the
Authority is now authorized under the Agreements and the Bond Law and each and every
requirement of law, to issue the Bonds in the manner and form provided in this Indenture.
Accordingly, the Authority hereby authorizes the issuance of the Bonds pursuant to the Bond Law
and this Indenture for the purpose of providing funds to make the Loans to the Agency under the
Loan Agreements.
Section 1.04. Equal Security. In consideration ofthe acceptance ofthe Bonds by the
Owners thereof, this Indenture shall be deemed to be and shall constitute a contract between the
Authority and the Trustee on behalf of the Owners from time to time of the Bonds; and the covenants
and agreements herein set forth to be performed on behalf of the Authority shall be for the equal and
proportionate benefit, security and protection of all Owners of the Bonds without preference, priority
or distinction as to security or otherwise of any ofthe Bonds over any ofthe others by reason ofthe
number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause
whatsoever, except as expressly provided therein or herein.
ARTICLE II
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ISSUANCE OF BONDS
Section 2.01. Authorization of Bonds. The Bonds authorized to be issued by the
Authority under and subj ect to the Bond Law and the terms of this Indenture shall be designated the
"San Bernardino Joint Powers Financing Authority, Subordinate Tax Allocation Refunding Bonds,
Series 2002A" and shall be issued in the original aggregate principal amount of
$ . The Bonds shall be held in book entry form as provided in Section 2.11
hereof. The Bonds shall be in denominations of $5,000 or any integral multiple thereof.
Section 2.02. Payment ofthe Bonds.
(a) The Bonds. The Bonds shall be dated as of April 1,2002. The Bonds shall mature on the
dates and in the principal amounts, and shall bear interest, payable semiannually on April 1 and
October 1 in each year commencing on April 1, 2002 at the respective rates per annum, shown
below:
Maturity
Date
(April 1)
Maturity
Amount
InterestDate
Rate (April 1)
Interest
Amount Rate
The Bonds maturing April 1 , 200_ to April 1 , 20_ inclusive are serial Bonds. The
Bonds maturing April 1, 20_, April 1, 20_ and April 1, 20_ are term Bonds.
(b) Term Bonds.
as follows:
The term Bonds shall mature in the principal amounts and shall bear interest
Maturity Date
Amount
Interest Rate
20
20
20
$
%
(c) General Provisions. Interest on the Bonds shall be calculated on the basis of a 360-day year of
twelve 30-day months. Interest on the Bonds shall be payable on each Interest Payment Date to the
person whose name appears on the Registration Books as the Owner thereof as of the Record Date
immediately preceding each such Interest Payment Date, such interest to be paid by check of the
Trustee mailed by first class mail, postage prepaid, to the Owner at the address of such Owner as it
appears on the Registration Books as ofthe preceding Record Date; provided, however, that at the
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written request of the Owner of at least $1,000,000 in aggregate principal amount of Outstanding
Bonds filed with the Trustee prior to any Record Date, interest on such Bonds shall be paid to such
Owner on each succeeding Interest Payment Date by wire transfer of immediately available funds to
an account in the continental United States designated in such written request. Principal of and
premium, if any, on any Bond shall be paid upon presentation and surrender thereof, at maturity or
the prior redemption thereof, at the Principal Corporate Trust Office. The principal of and interest
and premium, if any, on the Bonds shall be payable in lawful money ofthe United States of America.
Each Bond shall bear interest from the Interest Payment Date next preceding the date of
authentication thereof, unless (a) it is authenticated after a Record Date and on or before the
following Interest Payment Date, in which event it shall bear interest from such Interest Payment
Date; or (b) it is authenticated on or before the first Record Date, in which event it shall bear interest
from its dated date; provided, however, that if, as ofthe date of authentication of any Bond, interest
thereon is in default, such Bond shall bear interest from the Interest Payment Date to which interest
has previously been paid or made available for payment thereon.
Section 2.03. Redemption of Bonds.
(a) Redemption From Optional Loan Prepayments. Bonds maturing on or prior to April 1, 200_
shall not be subject to call and redemption prior to maturity. Bonds maturing on or after April 1,
20_ shall be subject to redemption on and after 1, 20_ and any Interest Payment
Date thereafter as a whole, or in part by lot, from prepayments ofthe Loans made at the option of the
Agency pursuant to Section 2.03 of the Loan Agreements, at the respective redemption prices
(expressed as percentages of the principal amount of the Bonds or portions thereof to be
redeemed) set forth below, together with accrued interest thereon to the date of redemption, provided
that any optional partial redemption shall be proportionate among all Project Areas:
Redemption Dates
(all dates inclusive)
Redemption
Price
April!, 20_ to March 31,20_
April 1, 20_ to March 31, 20_
April 1, 20_ and thereafter
102%
101%
100%
The Authority shall notify the Trustee in writing at least sixty (60) days prior to any optional
redemption, specifying the principal amount of Bonds to be redeemed.
(b) Sinking Fund Installments.
The Bonds maturing on April!, 20_ shall be redeemed from mandatory sinking fund installments
made by the Authority into the Principal Account pursuant to Section 4.02(b) hereof at par on April!
of each ofthe years and in the amounts as follows:
Redemption
Principal
SB2001 :32150.1
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Year
Amount
20
20
20
20
20 *
(iii) The Bonds maturing on 1,20 shall be redeemed from
mandatory sinking fund installments made by the Authority into the Principal Account pursuant to
Section 4.02(b) hereof at par on 1 of each of the years and in the amounts as
follows:
Redemption
Year
Principal
Amount
20
20
20
20
20
20
20
20
20
20 *
* Maturity
(c) General Redemption Provisions. The Trustee on behalf and at the expense of
the Authority shall mail (by first class mail) notice of any redemption to the respective Owners of
any Bonds designated for redemption at their respective addresses appearing on the Registration
Books, and to the Securities Depositories and to the Information Services, at least thirty (30) but not
more than sixty (60) days prior to the date fixed for redemption; provided, however, that neither
failure to receive any such notice so mailed nor any defect therein shall affect the validity of the
proceedings for the redemption of such Bonds or the cessation of the accrual of interest thereon.
Such notice shall state the date of the notice, the redemption date, the redemption place and the
redemption price and shall designate the CUSIP numbers, the Bond numbers and the maturity or
maturities (in the event of redemption of all ofthe Bonds of such maturity or maturities in whole) of
the Bonds to be redeemed, and shall require that such Bonds be then surrendered at the Principal
Corporate Trust Office of the Trustee for redemption at the redemption price, giving notice also that
further interest on such Bonds will not accrue from and after the redemption date.
5B2001:32150.1
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(d) Selection of Bonds for Redemption. Whenever provision is made in this
Indenture for the redemption ofless than all of the Bonds, the Trustee shall select the Bonds to be
redeemed from all Bonds not previously called for redemption, by lot in any manner which the
Trustee in its sole discretion shall deem appropriate and fair. For purposes of such selection, all
Bonds shall be deemed to be comprised of separate $5,000 portions and such portions shall be
treated as separate Bonds which may be separately redeemed.
(e) Partial Redemption of Bonds. In the event only a portion of any Bond is
called for redemption, then upon surrender of such Bond the Authority shall execute and the Trustee
shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or
Bonds of the same series and maturity date, of authorized denominations in aggregate principal
amount equal to the unredeemed portion of the Bond to be redeemed.
(f) Effect of Redemption. From and after the date fixed for redemption, if funds
available for the payment of the principal of and interest (and premium, if any) on the Bonds so
called for redemption shall have been duly provided, such Bonds so called shall cease to be entitled
to any benefit under this Indenture other than the right to receive payment of the redemption price,
and no interest shall accrue thereon from and after the redemption date specified in such notice. All
Bonds redeemed pursuant to this Section 2.03 shall be cancelled and destroyed.
Section 2.04. Form of Bonds. The Bonds and the form of Trustee's certificate of
authentication and the form of assignment to appear thereon, shall be substantially in the form set
forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or
appropriate variations, omissions and insertions, as permitted or required by this Indenture.
Section 2.05. Execution of Bonds. The Bonds shall be signed in the name and on
behalf of the Authority with the manual or facsimile signatures of its Chairman or Vice Chairman
and attested with the manual or facsimile signature of its Secretary or any assistant duly appointed by
the Board, under the printed seal of the Authority, and shall be delivered to the Trustee for
authentication by it. In case any officer of the Authority who shall have signed any of the Bonds
shall cease to be such officer before the Bonds so signed shall have been authenticated or delivered
by the Trustee or issued by the Authority, such Bonds may nevertheless be authenticated, delivered
and issued and, upon such authentication, delivery and issue, shall be as binding upon the Authority
as though the individual who signed the same had continued to be such officer of the Authority.
Also, any Bond may be signed on behalf of the Authority by any individual who on the actual date of
the execution of such Bond shall be the proper officer although on the nominal date of such Bond
such individual shall not have been such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in
substantially the form set forth in Exhibit A, manually executed by the Trustee, shall be valid or
obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the
Trustee shall be conclusive evidence that the Bonds so authenticated have been duly authenticated
and delivered hereunder and are entitled to the benefits of this Indenture.
SB2001:321S01
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Section 2.06. Transfer of Bonds. Any Bond may, in accordance with its terms, be
transferred, upon the Registration Books, by the person in whose name it is registered, in person or
by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by
delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed.
Whenever any Bond shall be surrendered for transfer, the Authority shall execute and the Trustee
shall thereupon authenticate and deliver to the transferee a new Bond or Bonds oflike tenor, maturity
and aggregate principal amount. The Trustee shall not be required to transfer, pursuant to this
Section, either (a) all Bonds during the period established by the Trustee for the selection of Bonds
for redemption, or (b) any Bonds selected for redemption.
Section 2.07. Exchange of Bonds. Bonds may be exchanged at the Principal
Corporate Trust Office for Bonds of the same tenor and maturity and of other authorized
denominations. The Trustee shall not be required to exchange, pursuant to this Section, either (a) all
Bonds during the period established by the Trustee for the selection of Bonds for redemption, or
(b) any Bonds selected for redemption.
Section 2.08. Temporary Bonds. The Bonds may be issued initially in temporary
form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such denominations as may be determined by the
Authority and may contain such reference to any of the provisions of this Indenture as may be
appropriate. Every temporary Bond shall be executed by the Authority and be registered and
authenticated by the Trustee upon the same conditions and in substantially the same manner as the
definitive Bonds. If the Authority issues temporary Bonds, it will execute and furnish definitive
Bonds without delay, and thereupon the temporary Bonds shall be surrendered, for cancellation, in
exchange therefor at the Principal Corporate Trust Office, and the Trustee shall authenticate and
deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive
Bonds of authorized denominations. Until so exchanged, the temporary Bonds shall be entitled to the
same benefits under this Indenture as definitive Bonds authenticated and delivered hereunder.
Section 2.09. Registration Books. The Trustee will keep or cause to be kept at its
Principal Corporate Trust Office sufficient records for the registration and transfer of the Bonds,
which shall at all times during regular business hours be open to inspection by the Authority with
reasonable prior notice; and, upon presentation for such purpose, the Trustee shall, under such
reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred,
on said records, Bonds as hereinbefore provided.
Section 2.10. Bonds Mutilated, Lost. Destroyed or Stolen. If any Bond shall become
mutilated, the Authority, at the expense of the Owner of said Bond, shall execute, and the Trustee
shall thereupon authenticate and deliver, a new Bond of like series, tenor and authorized
denomination in exchange and substitution for the Bond so mutilated, but only upon surrender to the
Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be
cancelled by it. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such
loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to it
and indemnity satisfactory to it shall be given, the Authority, at the expense ofthe Bondowner, shall
582001:32150.1
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execute, and the Trustee shall thereupon authenticate and deliver, a new Bond oflike series and tenor
in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have
matured or shall have been called for redemption, instead of issuing a substitute Bond the Trustee
may pay the same without surrender thereof upon receipt of indemnity satisfactory to the Trustee).
The Authority may require payment of a reasonable fee for each new Bond issued under this
Section and of the expenses which may be incurred by the Authority and the Trustee. Any Bond
issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen
shall constitute an original contractual obligation on the part of the Authority whether or not the
Bond alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be
equally and proportionately entitled to the benefits ofthis Indenture with all other Bonds secured by
this Indenture.
Section 2.11. Book Entry Provisions. Notwithstanding any provision of this
Indenture to the contrary, for as long as DTC or its nominee, Cede & Co., is the Owner ofthe Bonds,
payment of the principal of, premium, if any, and interest on such Bonds will be made directly to
such Owner in accordance with the terms of the DTC Letter of Representations. Disbursal of such
payments to the DTC Participants is the responsibility of DTC; disbursal of such payment to the
Beneficial Owners (as defined in the DTC Letter of Representations ) is the responsibility ofthe DTC
Participants. Notwithstanding anything to the contrary set forth herein, at all times when the Bonds
are held in book-entry form, all payments of principal, premium, if any, and interest on the Bonds
shall be made in accordance with the DTC Letter of Representations.
ARTICLE III
DEPOSIT AND APPLICATION OF PROCEEDS
Section 3.01. Issuance of Bonds. Upon the execution and delivery of this Indenture,
the Authority shall execute and deliver the Bonds in the principal amount of$ and
shall deliver the Bonds to the Trustee for authentication and delivery to the original purchaser thereof
upon receipt ofa Request of the Authority.
Section 3.02. Ap?lication of Proceeds.
(a) Application of Proceeds ofthe Bonds. Upon delivery of the Bonds on the Closing
Date, the Trustee shall deposit or transfer, as applicable, the proceeds thereof, including accrued
interest, if any, as follows:
(1)
To the Costs ofIssuance Fund, the sum of$
(2)
To the Interest Account, the sum of$
(3)
To the Escrow Agent for deposit into the Escrow Fund created under the
Escrow Agreement, the sum of$
S82001 :32150.1
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SB2001 :32150.1
(4) To the Reserve Fund, the amount of$ to be attributable
to the following Project Areas in the following amounts:
(i) Central City North Redevelopment Account, the sum of
$
(ii) State College Redevelopment Account, the sum of
$
(iii) Southeast Industrial Park Redevelopment Account, the sum
of$
(iv) Northwest Redevelopment Account, the sum of
$
(v)South Valle Redevelopment Account, the sum of
$
(vi) Tri-City Redevelopment Account, the sum of
$
(vii) Uptown Redevelopment Account, the sum of
$
Deposits totaling $ from the reserve fund and accounts
established for the 1995B Bonds, which amount is percent
L%) of said reserve fund and accounts, shall also be deposited in the
Reserve Fund.
(5) To the Agency, the sum of $ for deposit into the
Redevelopment Fund for disbursement as follows:
(i) Central City North Redevelopment Account, the sum of
$
(ii) State College Redevelopment Account, the sum of
$
(iii) Southeast Industrial Park Redevelopment Account, the sum of
$
(iv) Northwest Redevelopment Account, the sum of
$
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(v) South Valle Redevelopment Account, the sum of
$
(vi) Tri-City Redevelopment Account, the sum of
$
(vii) Uptown Redevelopment Account, the sum of
$
Section 3.03. Costs ofIssuance Fund. There is hereby established a fund to be held
by the Trustee known as the "Costs ofIssuance Fund". The moneys in the Costs ofIssuance Fund
shall be used to pay Costs ofIssuance on the Bonds, from time to time upon receipt of a Request of
the Authority. On the date which is one hundred eighty (180) days following the Closing Date, or
upon the earlier receipt by the Trustee of a Request of the Authority stating that all Costs ofIssuance
for the Bonds have been paid, the Trustee shall transfer all remaining amounts in the Costs of
Issuance Fund to the Interest Account.
Section 3.04. Reserve Fund.
(a) Reserve Fund. There is hereby established a separate fund to be known as the
"Reserve Fund", which shall be held by the Trustee in trust for the benefit of the Authority and the
Owners of the Bonds. The amount on deposit in the Reserve Fund shall be maintained at the
Reserve Requirement at all times prior to the payment ofthe Loans in full pursuant to Section 6.03
ofthe Loan Agreements, except to the extent required for the purposes set forth in this Section. The
Reserve Fund shall be funded initially in cash and securities and invested in Permitted
Investments.(CREDIT INSTRUMENT HELD IN RESERVE???]
Section 3.05. Withdrawals from the Reserve Fund. In the event that the Agency fails
to deposit with the Trustee the full amount required to be deposited pursuant to Section 4.02(a) or (b)
on or before the Business Day preceding any Redemption Date or Interest Payment Date, as
applicable, the Trustee shall provide any notice required with respect to the timely liquidation of
securities invested in the Reserve Fund and one Business Day prior to the next Interest Payment
Date or Redemption Date, the Trustee shall withdraw from the Reserve Fund and transfer to the
Interest Account and the Principal Account, in such order, an amount equal to the difference
between the amount required to be deposited pursuant to Section 4.02(a) or (b) and the amount
actually deposited by the Agency. To the extent of any deficiencies in the payments required under
Section 4.02(a) and (b), the Trustee may withdraw from the Reserve Fund, as required, all amounts
necessary to make the payments required under said sections. The amounts withdrawn from the
Reserve Fund to compensate for a deficiency caused by one Project Area, shall first be deducted
from the deficient Project Area's contribution to the Reserve Fund and then on a pro rata basis from
the contributions made to the Reserve Fund by each Project Area as determined by the Authority.
The amounts withdrawn from the Reserve Fund shall, to the extent possible and in
accordance with the foregoing sentence, be withdrawn first from cash held therein, second
SB200l :32150.1
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from any Permitted Investment other than any Reserve Fund credit instrument and third and
last from any such Reserve Fund credit instrument available for such withdrawal; provided,
that if there is more than one such Reserve Fund credit instrument available for such
withdrawal, any such Reserve Fund credit instrument provided by National Westminster
Bank PLC shall be the last to be drawn upon.
In the event that the Authority notifies the Agency or if the Agency has actual notice
that the amount on deposit in the Reserve Fund is less than the Reserve Requirement due to either a
devaluation of the collateral held in the Reserve Fund, or to the extent of any draws on the Reserve
Fund attributable to the Project Area, the Agency shall deposit amounts required hereunder to restore
said balance to the Reserve Requirement as provided in Section 4.02 hereof.
In the event that the amount on deposit in the Reserve Fund on the fifteenth (15th)
day preceding any Interest Payment Date exceeds the Reserve Requirement, the Trustee shall
thereupon withdraw from the Reserve Fund all amounts in excess ofthe Reserve Requirement and
credit first to the payment of interest and then to principal coming due, if any, such amounts towards
the deposit then required to be made by the Agency pursuant to Section 4.02(a) or (b). Pursuant to
the Loan Agreements, the Agency shall determine which Project Area( s) have accumulated a surplus
in the Reserve Fund and said Project Area(s) shall then be credited for such deposits.
The Trustee shall withdraw all amounts in the Reserve Fund on the Business Day
immediately preceding the final Interest Payment Date and shall transfer such amounts to the Interest
Account and the Principal Account to the extent required to make the deposits then required to be
made pursuant to this Indenture or, if the Agency shall have previously deposited in those accounts
amounts sufficient to make the deposits required under this Indenture, then to the Agency to be used
for any lawful purpose.
For the purpose of determining at any given time the balance in the Reserve Fund,
any such investment constituting a part of the Reserve Fund shall be valued by the Trustee as
provided in Section 4.03 hereof.
Section 3.06. Redevelopment Fund. There is hereby established a fund to be held
by the Agency known as the "Redevelopment Fund." The moneys set aside shall be withdrawn by
the Agency upon a Request of the Agency and expended on redevelopment projects as further
provided in Section 3.04 of the Loan Agreements.
Section 3.07. Validitv of Bonds. The validity ofthe authorization and issuance of the
Bonds shall not be affected in any way by any proceedings taken by the Agency with respect to the
application of the proceeds of the Loans, and the recital contained in the Bonds that the same are
issued pursuant to the Bond Law shall be conclusive evidence of their validity and ofthe regularity
of their issuance.
ARTICLE IV
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REVENUES; FLOW OF FUNDS
Section 4.01. Pledge of Revenues; Assignment of Rights.
(a) Bonds. Subject to the provisions of Section 6.03, the Bonds shall be secured
by a first lien on and pledge (which shall be effected in the manner and to the extent
hereinafter provided) of all of the Revenues which includes a pledge of all Surplus Revenues
and the moneys in the Interest Account and the Principal Account and all amounts derived
from the investment of such moneys. The Bonds shall be equally secured by a pledge, charge and
lien upon the Revenues without priority for number, date of Bonds, date of execution or date of
delivery; and the payment ofthe interest on and principal ofthe Bonds and any premiums upon the
redemption of any thereof shall be and are secured by an exclusive pledge, charge and lien upon the
Revenues. So long as any of the Bonds are Outstanding, the Revenues shall not be used for any
other purpose; except that out of the Revenues there may be apportioned such sums, for such
purposes, as are expressly permitted by Section 4.02.
(c) General Assignment Provisions. The Authority hereby transfers in trust and
assigns to the Trustee, for the benefit of the Owners from time to time of the Bonds, all of the
Revenues and all of the right, title and interest of the Authority in the Loan Agreements. The
assignment hereunder is to the Trustee solely in its capacity as Trustee under this Indenture and not
in its individual or personal capacity. The Trustee is not responsible for any representations,
warranties or covenants made by the Authority under the Loan Agreements. The Trustee shall be
entitled to and shall receive all of the Revenues, and any Revenues collected or received by the
Authority shall be deemed to be held, and to have been collected or received, by the Authority as the
agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. The Trustee also
shall be entitled to and shall, subject to the provisions ofthis Indenture, take all steps, actions and
proceedings reasonably necessary in its judgment to enforce, either jointly with the Authority or
separately, all of the rights of the Authority and all ofthe obligations ofthe Agency under the Loan
Agreements.
Section 4.02. Receipt Deposit and Application of Revenues. There are hereby
created by the Authority and ordered established the following funds and accounts to be held by the
Trustee for the benefit of the Owners ofthe Bonds; provided, however, that the Revenue Fund and
the Reserve Fund shall be held solely for the benefit ofthe Owners of the Bonds:
(1) A Revenue Fund and therein a Principal Account and a Interest Account;
(2) A Rebate Account; and
(3) A Surplus Fund.
At least thirty (30) days prior to each Interest Payment Date, the Trustee shall provide
written notice to the Agency ofthe amounts due under this Section. On or before the fifteenth (15th)
day prior to each Interest Payment Date, the Agency shall deposit from the Special Fund amounts
882001:32150.1
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coming due under this Section on the next Interest Payment Date. Upon receipt, the Trustee shall
deposit the Revenues into the following accounts, in the following amounts and in the following
order of priority:
(a) Interest Account. The Trustee shall deposit in the Interest Account from
transfers received from the Agency as provided in the Loan Agreements an amount required to cause
the aggregate amount on deposit in the Interest Account to equal the amount of interest coming due
and payable on the Bonds on such Interest Payment Date. No deposit need be made into the Interest
Account if the amount contained therein is at least equal to the interest coming due and payable upon
all Outstanding Bonds on the next succeeding Interest Payment Date. All moneys in the Interest
Account shall be applied and withdrawn by the Trustee solely for the purpose of paying the interest
on the Bonds as the same shall become due and payable (including accrued interest on any Bonds
redeemed prior to maturity). All amounts on deposit in the Interest Account on the first day of any
Bond Year, to the extent not required to pay any interest then having come due and payable on the
Outstanding Bonds, shall be withdrawn therefrom by the Trustee and, after payment of amounts due
to the Trustee pursuant to Section 4.01 of the Loan Agreements, transferred to the Surplus Fund.
(b) Principal Account. The Trustee shall deposit in the Principal Account from
transfers received from the Agency as provided in the Loan Agreements an amount required to cause
the aggregate amount on deposit in the Principal Account to equal the principal amount of the
Bonds coming due and payable on such Interest Payment Date pursuant to Section 2.02 hereof or the
redemption price of the Bonds (consisting of the principal amount thereof and any applicable
redemption premiums) required to be redeemed on such Interest Payment Date pursuant to the
provisions of Section 2.03. All moneys in the Principal Account shall be withdrawn and applied by
the Trustee solely for the purpose of (i) paying the principal of the Bonds at the maturity thereof, or
(ii) paying the principal and redemption premium, as applicable, of any Bonds upon the redemption
thereof pursuant to Section 2.03. All amounts on deposit in the Principal Account on the first day of
any Bond Year, to the extent not required to pay the principal of any Outstanding Bonds then having
come due and payable, shall be withdrawn therefrom and, after payment of amounts due to the
Trustee pursuant to Section 4.10 of the Loan Agreements, transferred to the Surplus Fund.
(c) Reserve Fund. The Trustee shall deposit into the Reserve Fund the amount
required to be deposited from anyone or more Project Areas pursuant to Section 3.05 hereof to
restore the Reserve Requirement.
(d) Trustee's Fees and Costs. The Trustee shall pay its fees, expenses and
advances pursuant to Section 6.03 hereof.
(e) Rebate Account. Periodically, in the manner and at the times required under
the Tax Code and as provided in the Loan Agreements, the Agency shall instruct the Trustee, in a
Request of the Agency, to deposit in the Rebate Account an amount determined by the Agency to be
subject to rebate to the United States of America in accordance with Section 5.06(b), which amount
the Agency shall pay to the Trustee for such purpose pursuant to Section 4.11 of the Loan
Agreements. Amounts in the Rebate Account shall be applied and disbursed by the Trustee solely for
5B2001 :32150.1
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the purposes and at the times set forth in Requests ofthe Agency filed with the Trustee pursuant to
Section 5.06(b) and neither the Authority, the Agency nor the Owners ofthe Bonds shall have any
rights in or claim to such money. Any moneys remaining in the Rebate Account after the retirement
of the last Bond and payment and satisfaction of any arbitrage rebate shall be disbursed to the
Agency.
(f) Surplus Fund. (a) Amounts shall be deposited in the Surplus Fund from
amounts in the Revenue Fund in accordance with the terms of Sections (a), (b) and (c) hereof. In the
event that amounts in the Revenue Fund are insufficient on any Interest Payment Date to pay the
principal of or interest on the Bonds prior to transferring any sums from the Reserve Fund to the
Revenue Fund the Trustee shall apply the funds, if any, on deposit in the Surplus Fund to first, pay
any deficiency in the Revenue Fund, or so much of the deficiency as may be paid with amounts in
the Surplus Fund.
On April 2 of each year to the extent not required to pay Debt Service on the Bonds
and as long as the Reserve Fund is fully funded to the Reserve Requirement and there is no
reimbursement required from any Project Area, the Trustee shall disburse to the Agency any
remaining funds in the Surplus Fund.
Section 4.03. Investments. All moneys in any ofthe funds or accounts established
with the Trustee pursuant to this Indenture shall be invested by the Trustee solely in Permitted
Investments pursuant to the written direction ofthe Authority given to the Trustee in advance of the
making of such investments (which shall be promptly confirmed in writing, as to any such direction
given orally). Moneys in the Reserve Fund and the Revenue Fund (including the Principal Account
and the Interest Account established therein) and the Rebate Account shall be invested by the Trustee
in Permitted Investments, subject to the following restrictions:
(a) Moneys in the Revenue Fund (including the Interest Account and the Principal
Account) shall be invested only in obligations which will by their terms mature on such dates as to
ensure that before each Interest Payment Date there will be in such fund and the accounts established
therein, from matured obligations and other moneys already in such fund and the accounts
established therein, amounts equal to the interest and principal due and payable on the Bonds on such
dates.
(b) Moneys in the Reserve Fund shall be invested only in obligations which will
by their terms mature in not more than five (5) years, but in no event mature after the maturity date
of the respective Bonds. [It is understood that the Reserve Fund shall be invested in
government obligations with terms of greater than five (5) years pursuant to an agreement
with which is for a term greater than five (5) years
pursuant to Section 8 of the definition of Permitted Investments]; and
(c) Moneys in the Rebate Account shall be invested in Federal Securities which
will by their terms mature not later than the earlier of (i) one year, or (ii) the date the Agency expects
to pay such amounts to the United States of America.
S82001:32150.1e
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In the absence of any such direction from the Authority, the Trustee shall invest any
such moneys in obligations described in paragraph (6) of the definition of Permitted Investments.
Obligations purchased as an investment of moneys in any fund shall be deemed to be part of such
fund or account. The Trustee may commingle any amounts in any of the funds held hereunder with
any other amounts held by the Trustee for purposes of making any investment at the direction of the
Agency, provided that the Trustee shall maintain separate accounting procedures for the investment
of all funds held hereunder.
All interest or gain derived from the investment of amounts in any of the funds or
accounts established hereunder shall be deposited in the fund or account from which such investment
was made. For purposes of acquiring any investments hereunder, the Trustee may commingle funds
held by it hereunder. The Trustee may act as principal or agent in the acquisition of any investment.
For the purpose of determining the amount in any fund established hereunder, all
funds and accounts shall be valued at market value by the Trustee on a semiannual basis on or before
each Interest Payment Date. The Trustee may utilize such computer pricing services as may be
available to it. The Trustee shall incur no liability for losses arising from any investments made
pursuant to this Section. The Authority acknowledges that to the extent regulations of the
Comptroller of the Currency or other applicable regulatory entity grant the Authority the right to
receive brokerage confirmations of security transactions as they occur, the Authority specifically
waives receipt of such confirmations to the extent permitted by law. The Trustee will furnish the
Authority periodic cash transaction statements which include detail for all investment transactions
made by the Trustee hereunder.
ARTICLE V
COVENANTS OF THE AUTHOIDTY
Section 5.01. Punctual Payment; Extension of Payment of Bonds. The Authority
shall punctually payor cause to be paid the principal, interest and premium (if any) to become due in
respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Indenture,
according to the true intent and meaning thereof, but only out of Revenues and other assets pledged
for such payment as provided in this Indenture.
The Authority shall not directly or indirectly extend or assent to the extension of the
maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of
such Bonds or by any other arrangement, and in case the maturity of any ofthe Bonds or the time of
payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not
be entitled, in case of any default hereunder, to the benefits ofthis Indenture, except subject to the
prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for
interest thereon which shall not have been so extended. Nothing in this Section shall be deemed to
limit the right of the Authority to issue Bonds for the purpose of refunding any Outstanding Bonds,
and such issuance shall not be deemed to constitute an extension of maturity of the Bonds.
8B2001:32150.\
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Section 5.02. Against Encumbrances. The Authority shall not create, or permit the
creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets
pledged or assigned under this Indenture while any ofthe Bonds are Outstanding, except the pledge
and assignment created by this Indenture. Subject to this limitation, the Authority expressly reserves
the right to enter into one or more other indentures for any of its corporate purposes, including other
programs under the Bond Law, and reserves the right to issue other obligations for such purposes.
Section 5.03. Power to Issue Bonds and Make Pledge and Assignment. The
Authority is duly authorized pursuant to law to issue the Bonds and to enter into this Indenture and to
pledge and assign the Revenues, the Loan Agreements and other assets purported to be pledged and
assigned, respectively, under this Indenture in the manner and to the extent provided in this
Indenture. The Bonds and the provision ofthis Indenture are and will be the legal, valid and binding
special obligations ofthe Authority in accordance with their terms, and the Authority and the Trustee
shall at all times, subject to the provisions of this Indenture, and to the extent permitted by law,
defend, preserve and protect said pledge and assignment of Revenues and other assets and all rights
ofthe Bond Owners under this Indenture against all claims and demands of all persons whomsoever.
Section 5.04. Accounting Records and Financial Statements. The Trustee shall at all
times keep, or cause to be kept, proper books of record and account, prepared in accordance with
industry standards, in which complete and accurate entries shall be made of all transactions made by
the Trustee relating to the proceeds of Bonds, the Revenues, the Loan Agreements and all funds and
accounts held by it pursuant to this Indenture. Such books of record and account shall be available
for inspection by the Authority and the Agency, during regular business hours with reasonable prior
notice.
Section 5.05. Additional Obligations. The Authority covenants that no additional
bonds, notes or other indebtedness shall be issued or incurred which are payable out of Revenues
derived under this Indenture in whole or in part, except that the Authority may at any time issue
refunding bonds in accordance with applicable provisions oflaw and Section 5.01 hereof. Nothing
contained herein shall prohibit the Agency from issuing or incurring obligations in the form of
bonds, notes or other indebtedness which constitute Parity Loans as provided in Section 4.02 and
4.03 of the Loan Agreements.
Section 5.06. Tax Covenants. The parties hereby covenant to and for the benefit of
the Owners ofthe Bonds as follows:
(a) Arbitrage. The Authority will not directly or indirectly use or permit the use
of proceeds of the Bonds, or any other funds of the Authority from whatever source derived, to
acquire any investment, and it will not take or permit to be taken any other action, which would
cause the Bonds to be characterized as "arbitrage bonds" within the meaning of Section 148 of the
Code or which would otherwise cause the interest on the Bonds to be includable in gross income for
federal income tax purposes. To this end, in the event that at anytime the Authority is of the opinion
that, for purposes of this paragraph, it is necessary to restrict or limit the yield on the investment of
SB200 1:32150.1
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any moneys held by the Trustee under this Indenture, the Authority shall take such action as may be
necessary.
(b) Rebate. Under the Loan Agreements, the Agency has agreed that within forty-
five (45) days after each Computation Date it will (i) provide the Trustee with a calculation of the
rebate amount for the Bonds for the period commencing on the date of issue ofthe Bonds and ending
on such Computation Date, such rebate amount to be calculated in the manner required by Section
148 of the Code and the Tax Regulations thereunder, and (ii) transfer to the Trustee for deposit in the
Rebate Account an amount equal to such rebate amount. If the Agency fails to provide such
calculation or make such payment to the Trustee, the Trustee shall notify the Authority and the
Agency of such fact, and the Trustee shall demand that: the Agency provide such calculation or make
such payment pursuant to Section 4.11 ofthe Loan Agreements, such that payments are made to the
Rebate Account from any funds lawfully available therefor.
At the Request of the Agency, within sixty (60) days after each Computation Date
(other than the final Computation Date), the Trustee, on behalf of the Authority, will pay to the
United States government an amount equal to 90% ofthe rebate amount calculated as of such date,
and within sixty (60) days after the final Computation Date, the Trustee, on behalf ofthe Authority,
will pay over to the United States government an amount equal to 100% of the rebate amount
calculated as of such date. Such payments shall be made in accordance with Section 148 ofthe Code
and the Tax Regulations thereunder, but only from amounts on deposit in the Rebate Account. The
Issuer shall cooperate with the Trustee in the filing of any forms required by the Code to be
submitted with the rebate payments described in this Section 5 .06(b).
For purposes of calculating the amount of any arbitrage rebate required to be paid to
the United States government under this Section 5 .06(b), the Trustee shall furnish to the Agency, or a
qualified arbitrage rebate consultant engaged by the Agency, such investment information as the
Agency or arbitrage rebate consultant requests from time to time relating to any funds held by the
Trustee under this Indenture. The Trustee may rely upon and shall not be responsible for any
calculations provided by the Agency under this Section 5.06(b). The Authority shall keep and retain
for a period of six (6) years following the retirement ofthe Bonds records of the determinations made
pursuant to this Section 5.05(b). Notwithstanding any other provision in this Indenture, the
obligation to pay rebatable arbitrage to the United States of America and to comply with all other
requirements ofthis Section shall survive the defeasance or payment in full of the Bonds.
(c) Information Reporting. The Authority will timely file a federal information
return with respect to the Bonds as required by section 149(e) of the Code.
(d) Federal Guarantee Prohibition. The Authority will take no action, nor permit
or suffer any action to be taken, if the result ofthe same would be to cause the Bonds to be "federally
guaranteed" within the meaning of Section 149(b) of the Code.
(e) Further Actions. The Authority will take all actions within its power and
permitted by law which are or may be necessary to assure that interest on the Bonds at all times
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remains excludable from gross income for federal income tax purposes, including complying with
the provisions of the Authority's Arbitrage and Tax Matters Certificate, the covenants set forth herein
and all requirements ofthe Code that must be satisfied subsequent to the issuance of the Bonds for
interest on the Bonds to be, or continue to be, excluded from gross income for federal income tax
purposes.
Notwithstanding any prOVISIon of this Section 5.06, the Authority may rely
conclusively on an opinion of Bond Counsel in complying, or in any deviation from complying, with
the provisions hereof.
Section 5.07. Loan Agreements. Subject to the provisions of this Indenture, the
Trustee, as assignee of the Authority's rights pursuant to Section 4.01, shall promptly collect all
amounts due from the Agency pursuant to the Loan Agreements and shall diligently enforce, and
take all steps, actions and proceedings reasonably necessary for the enforcement of all ofthe rights of
the Authority thereunder and for the enforcement of all of the obligations ofthe Agency thereunder.
The Authority, the Trustee and the Agency may at any time amend or modify the
Loan Agreements pursuant to Section 6.04 thereof, but only (a) ifthe Trustee first obtains the written
consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding to
such amendment or modification, or (b) without the consent of any of the Bond Owners, if such
amendment or modification is for anyone or more of the following purposes:
( a) to add to the covenants and agreements of the Agency contained in any ofthe
Loan Agreements, other covenants and agreements thereafter to be observed, or to limit or surrender
any rights or power therein reserved to or conferred upon the Agency; or
(b) to make such provisions for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained in any ofthe Loan Agreements, or in
any other respect whatsoever as the Agency may deem necessary or desirable, provided under any
circumstances that such modifications or amendments shall not materially adversely affect the
interests of the Owners of the Bonds; or
(c) to amend any provision thereof relating to the Tax Code, to any extent
whatsoever but only if and to the extent such amendment will not adversely affect the exclusion from
gross income of interest on any of the Bonds under the Tax Code, in the opinion of nationally-
recognized Bond Counsel.
Section 5.08. Further Assurances. The Authority will adopt, make, execute and
deliver any and all such further resolutions, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance of this Indenture, and
for the better assuring and confirming unto the Owners of the Bonds the rights and benefits provided
in this Indenture.
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Section 5.09. Maintenance ofProiect Area Loan Balances. The Authority shall cause
the Agency to maintain records of the deficiencies in the payment of Tax Increment Revenues for
each Proj ect Area as required by the laws of the State.
Section 5.10. Continuing Disclosure. Pursuant to Section 4.13 of each Loan
Agreement, the Agency has undertaken all responsibility for compliance with continuing disclosure
requirements, and the Authority shall have no liability to the Owners of the Bonds or any other
person with respect to such disclosure matters. The Trustee hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Agreement and Section
4.13 ofthe Loan Agreements. Notwithstanding any other provision ofthis Indenture, failure ofthe
Agency or the Trustee to comply with the Continuing Disclosure Agreement shall not be considered
an Event of Default; however, the Trustee shall at the written request of any Participating
Underwriter or the Owners of at least 25% aggregate principal amount of Outstanding Bonds, but
only to the extent the Trustee has been indemnified to its satisfaction from any cost, liability or
expense including those of its attorneys, or any Owner may take such actions as may be necessary
and appropriate, including seeking mandate or specific performance by court order, to cause the
Agency to comply with its obligations under Section 4.13 of the Loan Agreements or to cause the
Trustee to comply with its obligations under this Section 5.10.
ARTICLE VI
THE TRUSTEE
Section 6.01. Appointment of Trustee. U.S. Bank Trust National Association, a
national banking association, is hereby appointed Trustee by the Authority for the purpose of
receiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and
apply the same as provided in this Indenture. The Authority agrees that it will maintain a Trustee
having a corporate trust office in the State, with a combined capital and surplus of at least Seventy
Five Million Dollars ($75,000,000), and subject to supervision or examination by federal or State
authority, so long as any Bonds are Outstanding. If such bank, trust company or federally chartered
savings institution 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 ofthis
Section 6.01 the combined capital and surplus of such bank 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 is hereby authorized to pay the principal of and interest and redemption
premium (if any) on the Bonds when duly presented for payment at maturity, or on redemption or
purchase prior to maturity, and to cancel all Bonds upon payment thereof. The Trustee shall keep
accurate records of all funds administered by it and of all Bonds paid and discharged.
Section 6.02. Acceptance of Trusts. The Trustee hereby accepts the trusts imposed
upon it by this Indenture, and warrants that (i) it is a trust company or bank in good standing located
in or incorporated under the laws of a State of the United States, (ii) is duly authorized to exercise
trust powers, (iii) is subject to examination by federal or state authority, and (iv) will maintain a
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combined capital and surplus as provided in Section 6.01, and the Trustee agrees to perform said
trusts, but only upon and subject to the following express terms and conditions:
(a) The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default hereunder has occurred (which
has not been cured or waived), the Trustee may exercise such ofthe rights and powers vested in it by
this Indenture, and shall use the same degree of care and skill and diligence in their exercise, as a
reasonable person would exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) The Trustee may execute any of the trusts or powers hereof and perform the
duties required of it hereunder by or through attorneys, agents, or receivers, and shall be entitled to
advice of counsel concerning all matters of trust and its duty hereunder. The Trustee may
conclusively rely on an opinion of counsel as full and complete protection for any action taken or
suffered by it hereunder.
(c) The Trustee shall not be responsible for any recital herein, or in the Bonds, or
for any ofthe supplements thereto or instruments offurther assurance, or for the sufficiency ofthe
security for the Bonds issued hereunder or intended to be secured hereby and the Trustee shall not be
bound to ascertain or inquire as to the observance or performance of any covenants, conditions or
agreements on the part of the Authority hereunder. The Trustee may conclusively rely on an opinion
of counsel as full and complete protection for any action taken or suffered by it hereunder.
(d) The Trustee (or any of its affiliates) may become the Owner of Bonds secured
hereby with the same rights which it would have if it were not the Trustee; may acquire and dispose
of other bonds or evidences of indebtedness of the Authority with the same rights it would have if it
were not the Trustee; and may act as a depositary for and permit any of its officers or directors to act
as a member of, or in any other capacity with respect to, any committee formed to protect the rights
of Owners of Bonds, whether or not such committee shall represent the Owners of the majority in
aggregate principal amount of the Bonds then Outstanding.
( e) The Trustee shall be protected in acting, in good faith and without negligence,
upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or
document believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons. Any action taken or omitted to be taken by the Trustee in good faith and without
negligence pursuant to this Indenture upon the request or authority or consent of any person who at
the time of making such request or giving such authority or consent is the Owner of any Bond, shall
be conclusive and binding upon all future Owners of the same Bond and upon Bonds issued in
exchange therefor or in place thereof. The Trustee shall not be bound to recognize any person as an
Owner of any Bond or to take any action at his request unless the ownership of such Bond by such
person shall be reflected on the Registration Books.
(f) As to the existence or non-existence of any fact or as to the sufficiency or
validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a Certificate
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ofthe Authority as sufficient evidence ofthe facts therein contained and prior to the occurrence of an
Event of Default hereunder of which a Responsible Officer ofthe Trustee has been given notice or is
deemed to have notice, as provided in Section 6.02(h) hereof, shall also be at liberty to accept a
Certificate of the Authority to the effect that any particular dealing, transaction or action is necessary
or expedient, but may at its discretion secure such further evidence deemed by it to be necessary or
advisable, but shall in no case be bound to secure the same.
(g) The permissive right ofthe Trustee to do things enumerated in this Indenture
shall not be construed as a duty and it shall not be answerable for other than its negligence or willful
misconduct. The immunities and exceptions from liability of the Trustee shall extend to its officers,
directors, employees and agents.
(h) The Trustee shall not be required to take notice or be deemed to have notice of
any Event of Default hereunder except failure by the Authority to make any ofthe payments to the
Trustee required to be made by the Authority pursuant hereto or failure by the Authority to file with
the Trustee any document required by this Indenture to be so filed subsequent to the issuance of the
Bonds, unless the Trustee shall be specifically notified in writing of such default by the Authority or
by the Owners of at least twenty- five percent (25%) in aggregate principal amount ofthe Bonds then
Outstanding and all notices or other instruments required by this Indenture to be delivered to the
Trustee must, in order to be effective, be delivered to a Responsible Officer of the Trustee at the
Trust Office of the Trustee, and in the absence of such notice so delivered the Trustee may
conclusively assume there is no Event of Default hereunder except as aforesaid.
(i) At any and all reasonable times the Trustee, and its duly authorized agents,
attorneys, experts, accountants and representatives, shall have the right, but no duty, to fully to
inspect all books, papers and records of the Authority pertaining to the Bonds, and to make copies of
any such books, papers and records such as may be desired but which is not privileged by statute or
by law.
(j) The Trustee shall not be required to give any bond or surety in connection
with the execution of the said trusts and powers or otherwise in connection with the premises hereof
(k) Notwithstanding anything elsewhere in this Indenture with respect to the
execution of any Bonds, the withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, the Trustee shall have the right, but shall not be
required, to demand any showings, certificates, opinions, appraisals or other information, or
corporate action or evidence thereof, as may be deemed desirable for the purpose of establishing the
right of the Authority to the execution of any Bonds, the withdrawal of any cash, or the taking of any
other action by the Trustee.
(1) Before taking the action referred to in Section 8.02, the Trustee may require
that a satisfactory indemnity bond be furnished for the reimbursement of all expenses to which it
may be put and to protect it against all liability, except liability which is adjudicated to have resulted
from its negligence or willful misconduct in connection with any such action.
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(m) All moneys received by the Trustee shall, until used or applied or invested as
herein provided, be held in trust for the purposes for which they were received but need not be
segregated from other funds except to the extent required by law.
(n) Every provision of this Indenture and the Loan Agreements relating to the
conduct or liability of the Trustee shall be subject to the provisions of this Indenture, including
without limitation, this Article.
(0) The Trustee shall not be responsible for any official statement or any other
disclosure material prepared and distributed in connection with the Bonds.
(p) The Trustee shall not be liable for any action taken or not taken by it in
accordance with the direction of the Bondowners of a majority (or other percentage provided for
herein) in aggregate principal amount of Bonds outstanding relating to the exercise of any right or
remedy available to it or the exercise of any trust or power available to the Trustee.
(q) The Trustee is authorized and directed to execute in its capacity as Trustee the
Loan Agreements, the Amended and Restated Debt Service Agreement dated as of April _,
2002, between the Trustee and , and the Continuing Disclosure
Agreement.
Section 6.03. Fees. Charges and Expenses of Trustee. The Trustee shall be entitled to
payment and reimbursement for reasonable fees for its services rendered hereunder and all advances,
counsel fees (including the allocated costs of in-house counsel and expenses) and other expenses
reasonably and necessarily made or incurred by the Trustee in connection with such services. Upon
the occurrence of an Event of Default hereunder, but only upon an Event of Default, the Trustee shall
have a first lien with right of payment prior to payment of any Bond upon the amounts held
hereunder for foregoing fees, charges and expenses incurred by it respectively, together with interest
thereon at the maximum rate permitted by law.
Section 6.04. Notice to Bond Owners of Default. If an Event of Default hereunder
occurs with respect to any Bonds of which the Trustee has been given or is deemed to have notice, as
provided in Section 6.02(h) hereof, then the Trustee shall promptly give written notice thereof by
first-class mail to the Owner of each such Bond, unless such Event of Default shall have been cured
before the giving of such notice; provided, however, that unless such Event of Default consists of the
failure by the Authority to make any payment when due, the Trustee may elect not to give such
notice if and so long as the Trustee in good faith determines that it is in the best interests ofthe Bond
Owners not to give such notice.
Section 6.05. Intervention by Trustee. In any judicial proceeding to which the
Authority is a party which, in the opinion of the Trustee and its counsel, has a substantial bearing on
the interests of Owners of any of the Bonds, the Trustee may intervene on behalf of such Bond
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Owners, and subject to Section 6.02(1) hereof, shall do so if requested in writing by the Owners of at
least twenty-five percent (25%) in aggregate principal amount of such Bonds then Outstanding.
Section 6.06. Removal of Trustee. The Owners of a majority in aggregate principal
amount of the Outstanding Bonds may at any time, and the Authority may (and at the request ofthe
Agency shall) so long as no Event of Default shall have occurred and then be continuing, upon not
less than thirty (30) days prior written notice, remove the Trustee initially appointed, and any
successor thereto, by an instrument or concurrent instruments in writing delivered to the Trustee.
The Authority or such Owners, as the case may be, shall appoint a successor or successors thereto;
provided that any such successor shall be a bank, trust company or federally chartered savings
institution meeting the requirements set forth in Section 6.01.
Section 6.07. Resignation by Trustee. The Trustee and any successor Trustee may at
any time give written notice of its intention to resign as Trustee hereunder such notice to be given to
the Authority and the Agency by registered or certified mail. Upon receiving such notice of
resignation, the Authority shall promptly appoint a successor Trustee. No resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective until a successor Trustee
has been appointed and has accepted the duties of Trustee. Upon such acceptance, the Authority
shall cause notice thereof to be given by first class mail, postage prepaid, to the Bond Owners at their
respective addresses set forth on the Registration Books.
Section 6.08. Appointment of Successor Trustee. In the event of the removal or
resignation of the Trustee pursuant to Sections 6.06 or 6.07, respectively, with the prior written
consent of Agency, the Authority shall promptly appoint a successor Trustee. In the event the
Authority shall for any reason whatsoever fail to appoint a successor Trustee following the delivery
to the Trustee of the instrument described in Section 6.06 or following the receipt of notice by the
Authority pursuant to Section 6.07, the Trustee may, at the expense of the Authority, apply to a court
of competent jurisdiction for the appointment of a successor Trustee meeting the requirements of
Section 6.01 hereof. Any successor Trustee must have combined capital, surplus and undivided
profits of at least $75 million. Any such successor Trustee appointed by such court shall become the
successor Trustee hereunder notwithstanding any action by the Authority purporting to appoint a
successor Trustee.
Section 6.09. Merger or Consolidation. Any company into which the Trustee may be
merged or converted or with which it may be consolidated or any company resulting from any
merger, conversion or consolidation to which it shall be a party or any company to which the Trustee
may sell or transfer all or substantially all of its corporate trust business, provided that such company
shall meet the requirements set forth in Section 6.01, shall be the successor to the Trustee and vested
with all ofthe title to the trust estate and all ofthe trusts, powers, discretions, immunities, privileges
and all other matters as was its predecessor, without the execution or filing of any paper or further
act, anything herein to the contrary notwithstanding.
Section 6.10. Concerning Anv Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the Authority an
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instrument in writing accepting such appointment and warranting certain funds as provided in
Section 6.02 hereof. Thereupon such successor, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of
its predecessors; but such predecessor shall, nevertheless, on the Request of the Authority, or of the
Trustee's successor, execute and deliver an instrument transferring to such successor all the estates,
properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee
shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should
any instrument in writing from the Authority be required by any successor Trustee for more fully and
certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to
be vested in the predecessor Trustee, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Authority.
Section 6.11. Appointment of Co-Trustee. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction (including particularly the law ofthe State)
denying or restricting the right of banking corporations or associations to transact business as Trustee
in such jurisdiction. It is recognized that in the case of litigation under this Indenture, and in
particular in case of the enforcement of the rights of the Trustee on default, or in the case the
Authority or Trustee deem that by reason of any present or future law of any jurisdiction the Trustee
may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold title to
the properties, in trust, as herein granted or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Authority or Trustee appoint an
additional individual or institution as a separate co-trustee. The following provisions ofthis Section
6.11 are adopted to these ends.
Any co-trustee must have combined capital, surplus and undivided profits of at least
$75 million.
In the event that the Authority or Trustee appoint an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of
action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be
exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and
vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-
trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to
the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Authority be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly vesting in and
confirming to it such properties, rights, powers, trusts, duties and obligations, any and all such
instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority.
In case any separate trustee or co-trustee, or a successor to either, shall become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee so far as permitted by law, shall vest in and be exercised by the Trustee
until the appointment of a new trustee or successor to such separate trustee or co-trustee.
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Section 6.12. Indemnification; Limited Liability of Trustee. The Authority further
covenants and agrees to indemnify and save the Trustee and its officers, directors, agents and
employees, harmless against any loss, expense and liabilities which it may incur arising out of or in
the exercise and performance of its powers and duties hereunder, including the costs and expenses of
defending against any claim of liability, but excluding any and all losses, expenses and liabilities
which are due to the negligence or wilful misconduct of the Trustee, its officers, directors, agents or
employees. No provision in this Indenture shall require the Trustee to risk or expend its own funds
or otherwise incur any financial liability hereunder if repayment of such funds or adequate indemnity
against such liability or risk is not assured to it. The Trustee shall not be liable for any action taken
or omitted to be taken by it in accordance with the direction of the Owners of at least twenty-five
percent (25%) in aggregate principal amount of Bonds Outstanding relating to the time, method and
place of conducting any proceeding or remedy available to the Trustee under this Indenture. The
obligations or any trust or power of the Authority under this paragraph shall survive discharge ofthe
Bonds and the resignation or removal ofthe Trustee under this Indenture.
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE
Section 7.01. Amendment Hereof. This Indenture and the rights and obligations of
the Authority and of the Owners of the Bonds may be modified or amended at any time by a
Supplemental Indenture which shall become binding upon adoption, without consent of any Bond
Owners to the extent permitted by law but only for anyone or more ofthe following purposes:
(a) to add to the covenants and agreements of the Authority in this Indenture
contained, other covenants and agreements thereafter to be observed, or to limit or surrender any
rights or powers herein reserved to or conferred upon the Authority so long as such limitation or
surrender of such rights or powers shall not materially adversely affect the Owners ofthe Bonds; or
(b) to make such provisions for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained in this Indenture, or in any other
respect whatsoever as the Authority may deem necessary or desirable, provided under any
circumstances that such modifications or amendments shall not materially adversely affect the
interests of the Owners of the Bonds in the reasonable judgment ofthe Authority; or
(c) to amend any provision hereof relating to the Tax Code, to any extent
whatsoever but only of and to the extent such amendment will not adversely affect the exclusion
from gross income of interest on any of the Bonds under the Tax Code, in the opinion of nationally-
recognized bond counsel.
(d) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Bonds of one or more series and to add to or change any
provisions of this Indenture as shall be necessary to provide for or facilitate the administration ofthe
trusts hereunder by more than one Trustee.
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Except as set forth in the preceding paragraph ofthis Section 7.01, and subject to the
prior written consent of the Agency, this Indenture and the rights and obligations ofthe Authority
and of the Owners of the Bonds may only be modified or amended at any time by a Supplemental
Indenture which shall become binding when the written consent of the Owners of a majority in
aggregate principal amount of the Bonds then Outstanding, are filed with the Trustee. No such
modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or
otherwise alter or impair the obligation of the Authority to pay the principal, interest or redemption
premiums at the time and place and at the rate and in the currency provided therein of any Bond
without the express written consent ofthe Owner of such Bond, (b) reduce the percentage of Bonds
required for the written consent to any such amendment or modification, or (c) without its written
consent thereto, modify any of the rights or obligations of the Trustee.
Any rating agency rating the Bonds must receive notice of each amendment and a
copy thereof at least 15 days in advance of its execution or adoption.
Section 7.02. Effect of Supplemental Agreement. From and after the time any
Supplemental Indenture becomes effective pursuant to this Article VII, this Indenture shall be
deemed to be modified and amended in accordance therewith, the respective rights, duties and
obligations ofthe parties hereto or thereto and all Owners of Outstanding Bonds, as the case may be,
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any Supplemental Indenture shall
be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 7.03. Endorsement or Replacement of Bonds After Effective Date. After the
effective date of any action taken as hereinabove provided, the Authority may determine that the
Bonds shall bear a notation, by endorsement in form approved by the Authority, as to such action,
and in that case upon demand of the Owner of any Bond Outstanding at such effective date and
presentation of his Bond for that purpose at the Trust Office ofthe Trustee, a suitable notation as to
such action shall be made on such Bond. If the Authority shall so determine, new Bonds so modified
as, in the opinion of the Authority, shall be necessary to conform to such Bond Owners' action shall
be prepared and executed, and in that case upon demand of the Owner of any Bond Outstanding at
such effective date such new Bonds shall be exchanged at the Trust Office of the Trustee, without
cost to each Bond Owner, for Bonds then Outstanding, upon surrender of such Outstanding Bonds.
Section 7.04. Amendment by Mutual Consent. The provisions of this Article VII
shall not prevent any Bond Owner from accepting any amendment as to the particular Bond held by
him, provided that due notation thereof is made on such Bond.
Section 7.05. Opinion of Counsel. The Trustee shall be furnished with an opinion of
Bond Counsel to the effect that any supplement or amendment to be executed by the Trustee is
permitted by the terms of this Indenture and all conditions precedent to such execution have been
satisfied and such supplement or amendment does not adversely affect the tax-exempt status ofthe
Bonds.
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section 8.01. Events of Default. The following events shall be Events of Default
hereunder:
(a) Default in the due and punctual payment of the principal of any Bond when
and as the same shall become due and payable, whether at maturity as therein expressed, by
proceedings for redemption, by declaration or otherwise.
(b) Default in the due and punctual payment of any installment of interest on any
Bond when and as such interest installment shall become due and payable.
(c) Failure by the Authority to observe and perform any of the covenants,
agreements or conditions on its part in this Indenture or in the Bonds contained, other than as
referred to in the preceding clauses (a) and (b), for a period of sixty (60) days after written notice,
specifying such failure and requesting that it be remedied has been given to the Authority by the
Trustee, or to the Authority and the Trustee by the Owners of not less than twenty-five percent (25%)
in aggregate principal amount ofthe Outstanding Bonds; provided, however, that ifin the reasonable
opinion of the Authority the failure stated in such notice (other than failure to pay the Trustee's fees
and expenses as provided herein) can be corrected, but not within such sixty (60) day period, the
Trustee and such Owners shall not unreasonably withhold their consent to an extension of such time
if corrective action is instituted by the Authority within such sixty (60) day period and diligently
pursued until such failure is corrected.
(d) The filing by the Authority of a petition or application seeking reorganization
or arrangement under the federal bankruptcy laws or other debtor relief under the laws of any
jurisdiction, or the Authority becomes a subj ect of such petition or application which is not contested
by the Authority or otherwise dismissed or discharged within sixty (60) days.
( e) The occurrence of an event of default under any of the Loan Agreements
which has not been cured during the applicable cure period provided therein.
Section 8.02. Remedies and Rights of Bond Owners. Upon the occurrence and
during the continuance of an Event of Default, the Trustee may pursue any available remedy at law
or in equity to enforce the payment of the principal of, premium, if any, and interest on the
Outstanding Bonds, and to enforce any rights of the Trustee under or with respect to this Indenture.
If an Event of Default shall have occurred and be continuing and if requested so to do
by the Owners of at least twenty-five percent (25%) in aggregate principal amount of Outstanding
Bonds and indemnified as provided in Section 6.02(1), the Trustee shall be obligated to exercise such
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one or more of the rights and powers conferred by this Article VIII, as the Trustee, being advised by
counsel, shall deem most expedient in the interests of the Bond Owners.
No remedy by the terms ofthis Indenture conferred upon orreserved to the Trustee or
to the Bond Owners is intended to be exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bond
Owners hereunder 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 of any such Event
of Default or acquiescence therein; such right or power may be exercised from time to time as often
as may be deemed expedient.
Section 8.03. Application of Revenues and Other Funds After Default. (a) All
amounts received by the Trustee pursuant to any right given or action taken by the Trustee under the
provisions ofthis Indenture shall be applied by the Trustee in the following order upon presentation
of the several Bonds, and the stamping thereon of the amount of the payment if only partially paid, or
upon the surrender thereof if fully paid:
First, to the payment of the costs and expenses of the Trustee in declaring
such Event of Default and in carrying out the provisions of this Article VIII in
connection with the Bonds, including reasonable compensation to its agents,
attorneys and counsel;
Second, to the payment of the whole amount of interest on and principal of
the Bonds then due and unpaid, with interest on overdue installments of principal
and interest to the extent permitted by law at the net effective rate of interest then
borne by the Outstanding Bonds; provided, however, that in the event such amounts
shall be insufficient to pay in full the full amount of such interest and principal, then
such amounts shall be applied in the following order of priority:
(a) first. to the payment of all installments of interest on the Bonds then
due and unpaid, on a pro rata basis in the event that the available amounts are
insufficient to pay all such interest in full,
(b) second, to the payment of principal of all installments of the Bonds
then due and unpaid, on a pro rata basis in the event that the available amounts are
insufficient to pay all such principal in full, and
(c) third, to the payment of interest on overdue installments of principal
and interest of the Bonds, on a pro rata basis in the event that the available amounts
are insufficient to pay all such interest in full.
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(b) Remedies With Respect to the Senior Liens. So long as any Senior Liens
remain Outstanding, the Trustee may exercise only limited remedies with respect to the Bonds
upon the occurrence of an Event of Default with respect to the Bonds and under no
circumstances may a remedy be exercised by either the Trustee or the Bondholders that has
the effect of diminishing the security of the Senior Liens. Upon payment in full of the Senior
Liens, or provision for payment in full having been made in accordance with the terms of the
Indenture, the Trustee may exercise with respect to the Bonds any and all remedies set forth
above as provided in this Indenture.
Section 8.04. Power of Trustee to Control Proceedings. In the event that the Trustee,
upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or
otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of
the Owners of at least a majority in aggregate principal amount of the Bonds then Outstanding, it
shall have full power, in the exercise of its discretion for the best interests of the Owners of the
Bonds, with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other
disposal of such action; provided, however, that the Trustee shall not, unless there no longer
continues an Event of Default, discontinue, withdraw, compromise or settle, or otherwise dispose of
any litigation pending at law or in equity, if at the time there has been filed with it a written request
signed by the Owners of a majority in aggregate principal amount of the Outstanding Bonds
hereunder opposing such discontinuance, withdrawal, compromise, settlement or other disposal of
such litigation.
Section 8.05. Appointment of Receivers. Upon the occurrence of an Event of Default
hereunder, and upon the filing of a suit or other commencement of judicial proceedings to enforce
the rights ofthe Trustee and ofthe Bond Owners under this Indenture, the Trustee shall be entitled,
as a matter of right, to the appointment of a receiver or receivers ofthe Revenues and other amounts
pledged hereunder, pending such proceedings, with such powers as the court making such
appointment shall confer.
Section 8.06. Non-Waiver. Nothing in this Article VIII or in any other provision of
this Indenture, or in the Bonds, shall affect or impair the obligation of the Authority, which is
absolute and unconditional, to pay the interest on and principal of the Bonds to the respective
Owners ofthe Bonds at the respective dates of maturity, as herein provided, out ofthe Revenues and
other moneys herein pledged for such payment.
A waiver of any default or breach of duty or contract by the Trustee or any Bond
Owners shall not affect any subsequent default or breach of duty or contract, or impair any rights or
remedies on such subsequent default or breach. No delay or omission of the Trustee or any Owner of
any of the Bonds to exercise any right or power accruing upon any default shall impair any such right
or power or shall be construed to be a waiver of any such default or an acquiescence therein; and
every power and remedy conferred upon the Trustee or Bond Owners by the Bond Law or by this
Article VIII may be enforced and exercised from time to time and as often as shall be deemed
expedient by the Trustee or the Bond Owners, as the case may be.
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Section 8.07. Rights and Remedies of Bond Owners. No Owner of any Bond issued
hereunder shall have the right to institute any suit, action or proceeding at law or in equity, for any
remedy under or upon this Indenture, unless (a) such Owner shall have previously given to the
Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in
aggregate principal amount of all the Bonds then Outstanding shall have made written request upon
the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding
in its own name; (c) said Owners shall have tendered to the Trustee indemnity reasonably acceptable
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 written 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 Owner of Bonds of any
remedy hereunder; it being understood and intended that no one or more Owners of Bonds shall have
any right in any manner whatever by his or their action to enforce any right under this Indenture,
except in the manner herein provided, and that all proceedings at law or in equity to enforce any
provision of this Indenture shall be instituted, had and maintained in the manner herein provided and
for the equal benefit of all Owners of the Outstanding Bonds.
The right of any Owner of any Bond to receive payment of the principal of and
interest and premium (if any) on such Bond as herein provided or to institute suit for the enforcement
of any such payment, shall not be impaired or affected without the written consent of such Owner,
notwithstanding the foregoing provisions of this Section or any other provision of this Indenture.
Section 8.08. Termination of Proceedings. In case the Trustee shall have proceeded
to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case, the Authority, the Trustee and the Bond Owners
shall be restored to their former positions and rights hereunder, respectively, with regard to the
property subject to this Indenture, and all rights, remedies and powers ofthe Trustee shall continue
as if no such proceedings had been taken.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Limited Liabilitv of Authoritv. Notwithstanding anything in this
Indenture contained, the Authority shall not be required to advance any moneys derived from any
source of income other than the Revenues for the payment of the principal of or interest on the
Bonds, or any premiums upon the redemption thereof, or for the performance of any covenants
herein contained (except to the extent any such covenants are expressly payable hereunder from the
Revenues or otherwise from amounts payable under the Loan Agreements). The Authority may,
however, advance funds for any such purpose, provided that such funds are derived from a source
legally available for such purpose and may be used by the Authority for such purpose without
incurring indebtedness.
The Bonds shall be revenue bonds, payable exclusively from the Revenues and other
funds as in this Indenture provided. The general fund ofthe Authority is not liable, and the credit of
the Authority is not pledged, for the payment of the interest and premium (if any) on or principal of
the Bonds. The Owners of the Bonds shall never have the right to compel the forfeiture of any
property of the Authority. The principal of and interest on the Bonds, and any premiums upon the
redemption of any thereof, shall not be a legal or equitable pledge, charge, lien or encumbrance upon
any property of the Authority or upon any of its income, receipts or revenues except the Revenues
and other funds pledged to the payment thereof as in this Indenture provided.
Section 9.02. Benefits of Indenture Limited to Parties. Nothing in this Indenture,
expressed or implied, is intended to give any person other than the Authority, the Trustee, the
Agency and the Owners of the Bonds, any right, remedy or claim under or by reason of this
Indenture. Any covenants, stipulations, promises or agreements in this Indenture contained by and
on behalf ofthe Authority shall be for the sole and exclusive benefit ofthe Trustee, the Agency and
the Owners of the Bonds.
Section 9.03. Discharge of Indenture. If the Authority shall pay and discharge any or
all ofthe Outstanding Bonds in anyone or more of the following ways:
(a) by and well and truly paying or causing to be paid the principal of and interest
and premium (if any) on such Bonds, as and when the same become due and payable;
(b) by irrevocably depositing with the Trustee, in trust, at or before maturity, cash
which, together with the available amounts then on deposit in the funds and accounts established
with the Trustee pursuant to this Indenture and the Loan Agreements, is fully sufficient to pay such
Bonds, including all principal, interest and redemption premiums; or
(c) by irrevocably depositing in escrow certain noncallable investments referred to
in this section. The deposit in the escrow must be sufficient to pay all principal and interest and call
premium, if any, as scheduled on the Bonds to and including the dates of redemption. At least ten
(10) Business Days prior to closing of such refunding, the Trustee shall be provided with the
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following: (i) verification by an Independent Certified Public Accountant of the accuracy of the
mathematical computation of the adequacy and timeliness of all payments without reinvestment of
the escrow established to provide for the payment ofthe Bonds in accordance with the terms of the
escrow agreement; (ii) a draft of the proposed escrow agreement, (iii) a draft of the preliminary
official statement relating to the refunding issue; and (iv) the form of opinion of bond counsel
addressed to the Trustee (or a reliance letter addressed thereto) to the effect that, the legal defeasance
ofthe Bonds has occurred in conformance with the provisions of the Indenture.
The investments for a defeasance must consist solely of one or more ofthe following:
(i) State and Local Government Series issued by the United States Treasury ("SLGS"); (ii) United
States Treasury bills, notes and bonds, as traded on the open market; (iii) Zero Coupon United States
Treasury Bonds; and (iv) Refcorp Interest Strips (stripped by the Federal Reserve Bank of New
York).
If, in the case of Bonds that are to be redeemed prior to the maturity thereof notice of
redemption shall have been mailed pursuant to Section 2.03(c) or provision satisfactory to the
Trustee shall have been made for the mailing of such notice, then, at the Request of the Authority,
and notwithstanding that any of such Bonds shall not have been surrendered for payment, the pledge
of the Revenues and other funds provided for in this Indenture with respect to such Bonds, and all
other pecuniary obligations of the Authority under this Indenture with respect to all such Bonds, shall
cease and terminate, except only the obligation of the Authority to payor cause to be paid to the
Owners of such Bonds not so surrendered and paid all sums due thereon from amounts set aside for
such purpose as aforesaid, and all expenses and costs of the Trustee. Any funds held by the Trustee
following any payment or discharge ofthe Outstanding Bonds pursuant to this Section 9.03, which
are not required for said purposes, shall be paid over to the Authority after payment of amounts due
to the Trustee under this Indenture.
Execution copies ofthe escrow agreement, defeasance opinion, official statement and
verification shall be delivered to the Trustee within ten (10) Business Days following the defeasance,
and if such Bonds are to be redeemed prior to the maturity thereof notice of such redemption shall
have been mailed pursuant to Section 2.03( c) or provision satisfactory to the Trustee shall have been
made for the mailing of such notice, then, at the Request ofthe Authority, and notwithstanding that
any of such Bonds shall not have been surrendered for payment, the pledge of the Revenues and
other funds provided for in this Indenture with respect to such Bonds, and all other pecuniary
obligations of the Authority under this Indenture with respect to all such Bonds, shall cease and
terminate, except only the obligation of the Authority to payor cause to be paid to the Owners of
such Bonds not so surrendered and paid all sums due thereon from amounts set aside for such
purpose as aforesaid, and all expenses and costs of the Trustee. Any funds held by the Trustee
following any payment or discharge of the Outstanding Bonds pursuant to this Section 9.03, which
are not required for said purposes, shall be paid over to the Authority after payment of amounts due
to the Trustee under this Indenture.
Section 9.04. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Indenture or any Supplemental Indenture the Authority is named or referred to,
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such reference shall be deemed to include the successor to the powers, duties and functions, with
respect to the management, administration and control of the affairs of the Authority, that are
presently vested in the Authority, and all the covenants, agreements and provisions contained in this
Indenture by or on behalf of the Authority shall bind and inure to the benefit of its successors
whether so expressed or not.
Section 9.05. Content of Certificates. Every certificate with respect to compliance
with a condition or covenant provided for in this Indenture except the certificate of destruction
pursuant to Section 9.10 hereof, shall include (a) a statement that the person or persons making or
giving such certificate have read such covenant or condition and the definitions herein relating
thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate are based; (c) a statement that, in the
opinion of the signers, they have made or caused to be made such examination or investigation as is
necessary to enable them to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (d) a statement as to whether, in the opinion of the signers,
such condition or covenant has been complied with.
Any such certificate made or given by an officer of the Authority may be based,
insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of reasonable
care should have known that the same were erroneous. Any such certificate or opinion or
representation made or given by counsel may be based, insofar as it relates to factual matters, on
information which is in the possession of the Authority, or upon the certificate or opinion of or
representations by an officer or officers of the Authority, unless such counsel knows that the
certificate or opinion or representations with respect to the matters upon which his certificate,
opinion or representation may be based, as aforesaid, are erroneous, or in the exercise of reasonable
care should have known that the same were erroneous.
Section 9.06. Execution of Documents bv Bond Owners. Any request, consent or
other instrument required by this Indenture to be signed and executed by Bond Owners may be in any
number of concurrent writings of substantially similar tenor and may be signed or executed by such
Bond Owners in person or by their agent or agents duly appointed in writing. Proof of the execution
of any such request, consent or other instrument or of a writing appointing any such agent, shall be
sufficient for any purpose ofthis Indenture and shall be conclusive in favor ofthe Trustee and ofthe
Authority if made in the manner provided in this Section 9.06.
The fact and date of execution by any person of any such request, consent or other
instrument or writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to
take acknowledgments of deeds, certifying that the person signing such request, consent or other
instrument or writing acknowledged to him the execution thereof.
The ownership of Bonds shall be proved by the Registration Books. Any request,
consent or vote of the Owner of any Bond shall bind every future Owner of the same Bond and the
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Owner of any Bond issued in exchange therefor or in lieu thereof, in respect of anything done or
suffered to be done by the Trustee or the Authority in pursuance of such request, consent or vote. In
lieu of obtaining any demand, request, direction, consent or waiver in writing, the Trustee may call
and hold a meeting of the Bond Owners upon such notice and in accordance with such rules and
obligations as the Trustee considers fair and reasonable for the purpose of obtaining such action.
Section 9.07. Disqualified Bonds. In determining whether the Owners of the
requisite aggregate principal amount of Bonds have concurred in any demand, request, direction,
consent or waiver under this Indenture, Bonds which are owned or held by or for the account of the
Agency or the Authority (but excluding Bonds held in any employees' retirement fund) shall be
disregarded and deemed not to be Outstanding for the purpose of any such determination; provided,
however, that for the purpose of determining whether the Trustee shall be protected in relying on any
such demand, request, direction, consent or waiver, only Bonds which the Trustee actually knows to
be so owned or held shall be disregarded.
Section 9.08. Waiver of Personal Liability. No officer, agent or employee of the
Authority shall be individually or personally liable for the payment ofthe interest on or principal of
the Bonds; but nothing herein contained shall relieve any such officer, agent or employee from the
performance of any official duty provided by law.
Section 9.09. Partial Invalidity. If anyone or more of the covenants or agreements,
or portions thereof, provided in this Indenture on the part of the Authority (or of the Trustee) to be
performed should be contrary to law, then such covenant or covenants, such agreement or
agreements, or such portions thereof, shall be null and void and shall be deemed separable from the
remaining covenants and agreements or portions thereof and shall in no way affect the validity of this
Indenture or ofthe Bonds; but the Bond Owners shall retain all rights and benefits accorded to them
under the Bond Law or any other applicable provisions oflaw. The Authority hereby declares that it
would have entered into this Indenture and each and every other section, paragraph, subdivision,
sentence, clause and phrase hereof and would have authorized the issuance of the Bonds pursuant
hereto irrespective of the fact that anyone or more sections, paragraphs, subdivisions, sentences,
clauses or phrases of this Indenture or the application thereof to any person or circumstance may be
held to be unconstitutional, enforceable or invalid.
Section 9.10. Destruction of Cancelled Bonds. Whenever in this Indenture provision
is made for the surrender to the Authority of any Bonds which have been paid or cancelled pursuant
to the provisions ofthis Indenture, the Trustee shall destroy such Bonds and furnish to the Authority
a certificate of such destruction.
Section 9.11. Funds and Accounts. Any fund or account required by this Indenture to
be established and maintained by the Authority or the Trustee may be established and maintained in
the accounting records of the Authority or the Trustee, as the case may be, either as a fund or an
account, and may, for the purpose of such records, any audits thereof and any reports or statements
with respect thereto, be treated either as a fund or as an account. All such records with respect to all
such funds and accounts held by the Authority shall at all times be maintained in accordance with
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generally accepted accounting principles and all such records with respect to all such funds and
accounts held by the Trustee shall be at all times maintained in accordance with industry practices; in
each case with due regard for the protection of the security of the Bonds and the rights of every
Owner thereof.
Section 9.12. Payment on Business Days. Whenever in this Indenture any amount is
required to be paid on a day which is not a Business Day, such payment shall be required to be made
on the Business Day immediately following such day.
Section 9.13. Notices. Any notice, request, complaint, demand, communication or
other paper shall be sufficiently given and shall be deemed given when delivered or mailed by first
class mail, postage prepaid, or sent by telegram, or sent by telecopier and promptly confirmed by
mail, addressed as follows:
If to the Authority:
San Bernardino Joint Powers
Financing Authority
201 North "E" Street, Third Floor
San Bernardino, California 92401
Attention: Chair
If to the Agency:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Third Floor
San Bernardino, California 92401
Attention: Executive Director
If to the Trustee:
U.S. Bank N.A.
550 South Hope Street, Suite 500
Los Angeles, California 90071
Attention: San Bernardino JPF A Subordinate T ABs/2002A
The Authority and the Trustee may designate any further or different addresses to
which subsequent notices, certificates or other communications shall be sent.
Section 9.14. Unclaimed Moneys. Anything in this Indenture to the contrary
notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any ofthe
Bonds which remain unclaimed for two (2) years after the date when such Bonds have become due
and payable, either at their stated maturity dates or by call for earlier redemption, if such moneys
were held by the Trustee at such date, or for two (2) years after the date of deposit of such moneys if
deposited with the Trustee after said date when such Bonds become due and payable, shall, at the
Request of the Authority, be repaid by the Trustee to the Authority, as its absolute property and free
from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the
Bond Owners shall look only to the Authority for the payment of such Bonds; provided, however,
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that before being required to make any such payment to the Authority, the Trustee shall, at the
expense of the Authority, cause to be mailed to the Owners of all such Bonds, at their respective
addresses appearing on the Registration Books, a notice that said moneys remain unclaimed and that,
after a date named in said notice, which date shall not be less than thirty (30) days after the date of
mailing of such notice, the balance of such moneys then unclaimed will be returned to the Authority.
Section 9.15. Governing Law. This Agreement shall be construed and governed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the SAN BERNARDINO JOINT POWERS FINANCING
AUTHORITY has caused this Indenture to be signed in its name by its Chair and Secretary and U.S.
BANK N.A. in token of its acceptance ofthe trust created hereunder, has caused this Indenture to be
signed in its corporate name by its officer identified below, all as of the day and year first above
written.
SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY
By:
Chair
ATTEST:
By:
Authority Secretary
U.S. BANK N.A., as Trustee
By:
Its Authorized Officer
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EXHIBIT A
FORM OF BOND
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