HomeMy WebLinkAbout1988-081
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DAB:ms
3/7/88
RESOLUTION NO. 88-81
RESOLUTION AUTHORIZING THE ACQUISITION, IMPROVEMENT AND
INSTALLATION OF CERTAIN CAPITAL EQUIPMENT FOR THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY OF SAN BERNARDINO TO ENTER INTO A
LEASE AGREEMENT WITH ASSOCIATION OF BAY AREA GOVERNMENTS FOR
PURPOSES OF FINANCING SUCH CAPITAL EQUIPMENT: AND AUTHORIZING THE
EXECUTION OF OTHER INSTRUMENTS AND THE TAKING OF OTHER ACTIONS
RELATED TO SUCH FINANCING.
WHEREAS, Association of Bay Governments ("ABAG") is a joint
powers agency created and operating under the California
Government Code Sections 6500 et seq, and as such, is authorized
under the Marks-Roos Local Bond Pooling Act of 1985 commencing
with Section 6584 of the California Government Code, as amended
(the "Act"), to issue its bonds to finance public capital
improvements for local agencies (as such terms are defined in the
Act) which are parties to the Agreement creating ABAG or
political subdivisions of such parties: and
WHEREAS, ABAG is authorized by the Act to enter into lease
agreements pursuant to which local agencies lease public capital
improvements from ABAG, and ABAG is authorized by the Act to
charge and collect rents under such lease agreements: and
WHEREAS, in response to the demand of local agencies to
finance public capital improvements and in furtherance of the
"significant public benefits" (as defined in Section 6586 of the
Act) to be gained by the entry of such local agencies into ABAG's
pooled lease financing program (the "Program"), ABAG issued its
Association of Bay Area Governments Lease Revenue Bonds (Pooled
Projects) Series 1987 (the "Bonds") in the aggregate principal
26 amount of $55,000,000 pursuant to the Act and the hereinafter
27 defined Indenture to finance the cost of public capital
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1 improvements to be leased by ABAG to local agencies of ABAG
2 (within the meaning of Section 6585 (f) of the Act) (collectively,
3 the ftLesseesft); and
4 WHEREAS, in order to accomplish the foregoing purposes,
5 ABAG proposes to use the proceeds of the Bonds to acquire,
6 construct, install and equip public capital improvements as
7 defined in section 6585(g) of the Act (collectively, the
8 ftprojectsft) and lease the Projects to the Lessees pursuant to
9 Lease Agreements to be entered into between ABAG and the Lessees
10 and, pursuant to a Trust Indenture (the ftIndentureft) dated as of
April 1, 1987, between ABAG and Seattle-First National Bank, as
trustee (the ftTrusteeft), as supplemented and amended by a First
Supplemental Trust Indenture (the ftFirst Supplemental Indentureft)
dated as of February 1, 1988, between ABAG and the Trustee (the
Original Indenture, as supplemented and amended by the First
Supplemental Indenture, being hereinafter referred to as the
ftIndentureft), ABAG has pledged and assigned the right to receive
and enforce the rental payments thereunder to the Trustee to
secure the Bonds; and
WHEREAS, the City of San Bernardino, California, a
municipal corporation and a charter city duly organized and
existing under the laws of the State of California (the ftCityft),
is a ftlocal agencyft (within the meaning of Section 6585(f) of the
Act), and the City intends to cause the acquisition and
installation of certain capital equipment as described in more
detail in Exhibit C to the proposed form of Lease Agreement (the
ftLease Agreementft) to be dated as of March 1, 1988, between ABAG,
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as lessor, and the City, as lessee (such capital equipment, as
more particularly described in the Lease Agreement, being herein
referred to as the ftprojectft), and the Project constitutes
ftpublic capital improvementsft (within the meaning of Section
6585(g) of the Act); and
WHEREAS, the Mayor and the Common Council of the City (the
ftCouncilft) find that ftsignificant public benefitsft (within the
meaning of Section 6586 of the Act) will accrue to the City if
the Project is financed with a portion of the proceeds of the
Bonds through the City's participation in the Program; and
WHEREAS, there have been reviewed by the Mayor and the
Council with the aid of its staff and are now before this meeting
the following documents entered into in connection with the
Program and the issuance of the Bonds:
(1) The Original Indenture, including as exhibits thereto
the form of Bond and the form of Lease Agreement to be entered
into by ABAG, as lessor, and each Lessee as it enters the Program
and the First Supplemental Indenture;
(2) Reimbursement Agreement dated as of April 1, 1987 (the
ftReimbursement Agreementft) between ABAG and National Westminster
Bank PLC, acting through its New York Branch (the ftBankft),
including as Exhibit X thereto the form of Irrevocable Direct Pay
Letter of Credit (the ftLetter of Creditft) issued by the Bank to
secure the bonds, as Exhibit Y thereto the Pledge Agreement
(hereinafter defined) and as Exhibit Z thereto the form of Letter
of Representation to be delivered by each Lessee to ABAG and the
Bank in connection with the execution of its Lease Agreement;
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(3) TENR Services and Remarketing Agreement dated as of
April 1, 1987 (the "Remarketing Agreement") between ABAG and
Bankers Trust Company, as remarketing agent (the "Remarketing
Agent") 1
(4) Pledge and Security Agreement dated as of April 1,
1987 (the "Pledge Agreement") between ABAG and the Bank1
(5) Tender Agent Agreement dated as of April 1, 1987 (the
"Tender Agent Agreement") among ABAG, IBJ Schroder Bank & Trust
Company, as tender agent (the "Tender Agent"), and the Trustee1
and
(6) Arbitrage Regulation Agreement dated April 21, 1987
(the "Arbitrage Agreement") between ABAG and the Trustee' and
WHEREAS, there have been prepared and are now before this
meeting the following forms of documents to be entered into in
connection with the City's participation in the Program in order
to finance the Project and such forms of documents have been
reviewed by the Mayor and the Council with the aid of its staff:
(7) Lease Agreement, including as exhibits thereto,
certain definitions, a description of Lease payments payable
under the Lease Agreement, a description of the Project,
addresses for notices pursuant to the Lease Agreement and a
description of certain contracts, if any, to be assigned by the
City to ABAG in connection with the Project, and a description of
(8) Letter of Representation (the "Letter of
Representation") to be executed and delivered by the City
and the Bank as required by the Reimbursement Agreement1
certain previously acquired portions of the Project, if anY1 and
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NOW THEREFORE, BE IT RESOLVED by the Mayor and the Common
Council of the City of San Bernardino, as follows:
Section ~ The City is hereby authorized to enter into the
Lease Agreement in substantially the form presented to this
meeting, under which the Projects shall be acquired, installed
and leased by ABAG to the City, all upon the terms and conditions
as set forth in said form of Lease Agreement, submitted to and
reviewed by the Council, on the date hereof, with such changes
from the form of Lease Agreement presented to this meeting as
shall be approved by the Authorized Representative executing the
Lease Agreement on behalf of the City, such Authorized
Representative's signature thereon being conclusive evidence of
such approval.
Section ~ The City is hereby authorized to execute and
deliver the Letter of Representation in substantially the form
submitted to and reviewed by the Mayor and the Council on the
date hereof, with such changes from the form of Letter of
Representation presented to this meeting as shall be approved by
the Authorized Representative executing the Letter of
Representation on behalf of the City, such Authorized
Representative's signature thereon being conclusive evidence of
such approval.
Section ~ The Mayor and the Council hereby find and
determine in accordance with Section 6586 of the Act that the
financing of the Project through the City's participation in the
Program as authorized by this Resolution will result in
significant public benefits for the City by demonstrable savings
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in effective interest rate expenses and financing expenses
associated with the Project. The Mayor and the Council hereby
find and determine that the Project and the leasing of the
Project as provided in this Resolution serves a governmental
function and a public purpose of the City and the Project
constitute Public Capital Improvements within the meaning of the
Indenture.
Section ~ The City is hereby authorized to comply, and
the Mayor and the Council agree that the City shall comply, with
the provisions of the Indenture, the Arbitrage Agreement, the
Reimbursement Agreement, the Pledge Agreement, the Remarketing
Agreement and the Tender Agent Agreement insofar as the
provisions of such instruments shall be applicable to the City.
Section ~ The Mayor of the City (the "Authorized
Representative") is hereby authorized and directed to execute and
deliver the Lease Agreement and the Letter of Representation, for
and on behalf of, and as the act and deed of, the City, and the
City Clerk of the City is hereby authorized and directed to
attest and impress the corporate seal of the City upon each of
the foregoing documents on behalf of the City if such attestation
is required.
Section ~ The City shall, and the officers, employees and
agents of the City are hereby authorized and directed to, take
such action and execute such other agreements, documents,
financing statements, certificates and instruments as may be
necessary or desirable to carry out and comply with the intent of
this Resolution and to carry out, comply with and perform the
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duties of the City with respect to the agreements mentioned
herein, as executed. All acts and doings of the officers and
employees of the City which are in conformity with the purposes
and intent of this Resolution and in furtherance of the financing
of the Project are hereby in all respects, authorized, ratified,
approved and confirmed.
Section ~ The provisions of this Resolution are hereby
declared to be separable, and if any section, phrase or provision
shall for any reason be declared invalid, such declaration shall
not affect the validity of the remainder of the sections, phrases
and provisions hereof.
Section ~ All resolutions and orders, or parts thereof,
in conflict with the provisions of this Resolution are, to the
extent of such conflict, hereby repealed.
Section ~ The provisions of this Resolution shall
constitute a contract binding between the City and the owners of
the Bonds, and this Resolution shall not be repealed or amended
in any respect which would adversely affect the rights of such
owners so long as any of the Bonds or the interest thereon
remains unpaid.
Section 10. This Resolution shall be in full force and
effect immediately upon its passage.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
reqular
meeting thereof, held on
the 7th
day of
March
, 1988, by the
following vote, to wit:
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AYES:
Council Members Estrada, Flores, Maudsley,
Minor, Miller
NAYS:
None
ABSENT:
Council Members Reilly, Pope-Ludlam
~~/~M
./ City Clerk
The foregoing resolution is hereby approved this f~ day
March
, 1988.
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Approved as to form
13 and legal content:
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3/7/88
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y Attorney
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LEASE AGREEMENT
dated as of March 1. 1988
by and between
ASSOCIATION OF BAY AREA GOVENHENTS,
as Lessor
and
CITY OF SAN BERNARDINO, CALIFORNIA,
as Lessee
The rights of the Association of Bay Area Governments (the "Lessor")
under this Lease Agreement, including the rights to enforce the
covenants, agreements, representations and warranties of the City of
San Bernardino hereunder and all other rights and remedies of the
Lessor hereunder (except the rights to expenses, fees and
indemnification as provided herein), has been pledged and assigned by
the Lessor to Seattle-First National Bank, as trustee, under a Trust
Indenture dated as of April I, 1987, between the Lessor and said
trustee.
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TABLE OF CONTENTS
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1.1.
SECTION 1.2.
SECTION 1.3.
SECTION 1.4.
SECTION 1.5.
SECTION 2.1.
SECTION 2.2.
ARTICLE I
DEFINITIONS AND EXHIBITS
Definitions................................ .
Exhibits................................... .
Agreement to Lease..........................
Lease Payments..............................
Term of Lease... . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Representations, Covenants and Warranties
of the Lessee. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Representations, Covenants and Warranties
of the Lessor..... . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III
FUNDING FOR THE PROJECT; ACQUISITION, CONSTRUCTION
AND INSTALLATION OF THE PROJECT
SECTION 3.1.
SECTION 3.2.
SECTION 3.3.
SECTION 4.1.
SECTION 4.2.
SECTION 4.3.
SECTION 4.4.
SECTION 4.5.
SECTION 4.6.
SECTION 4.7.
Availability of Monies............. .... .....
Acquisition, Construction and Installation
of the Project............................
Payment of Acquisition Costs.. ...... ... .....
ARTICLE IV
AGREEMENT TO LEASE, TERMINATION OF LEASE;
LEASE PAYMENTS; TITLE TO THE PROJECT
Agreement to Lease...... .,. .... ..... ... .....
Termination of Lease.. ...... .... ........ ....
Lease Payments..............................
Possession and Enjoyment....... .... ... ......
Title to the Project.. ... ... .... .... .... ....
Security Deposit............................
Abatement of Rental in the Event of Failure
to Have Use and Possession of the
Pro j ec t. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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SECTION
SECTION 5.2.
SECTION 5.3.
SECTION 5.4.
SECTION 5.5.
SECTION 5.6.
SECTION 5.7.
SECTION 5.8.
SECTION 5.9.
SECTION 5.10.
SECTION 5.11.
SECTION 5.12.
SECTION 5.13
SECTION 6.1.
SECTION 6.2.
SECTION 6.3.
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SECTION 7.1.
SECTION 7.2.
SECTION 7.3.
SECTION 8.l.
SECTION 8.2.
SECTION 8.3.
SECTION 8.4.
SECTION 8.5.
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ARTICLE V
MAINTENANCE, TAXES, INSURANCE; AND
OTHER MATTERS
Maintenance and Taxes....................... 12
Modification of Project................. .... 13
Public Liability and Property Damage
Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fire and Extended Coverage Insurance.... .... 15
Rental Interruption Insurance.... ....... .... 15
Net Proceeds of Insurance; Form of
Policies; Retaining of Insurance
Consultant................................ 16
Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Condemnation. . . . . . .. .. . .. .. . . .. . . . . . . . . . . . . . 18
Application of Net Proceeds................. 19
Agreement to Pay Program Expenses........... 19
Pledged Bonds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI
DISCLAIMER OF WARRANTIES; ACCESS
Disclaimer of Warranties............ .... ....
Lessee's Right to Enforce Warranties........
Lessor and Credit Issuer Access
to the Pro j ec t. . . . . . . . .. . . . . . . . . . . . . . . . . . .
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ARTICLE VII
ASSIGNMENT, SUBLEASING AND INDEMNIFICATION
Assignment by Lessor........ ... ........ .....
Assignment and Subleasing by the Lessee.....
Release and Indemnification Covenants.. ,....
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ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Events of Default Defined... ... ..... ... ..... 22
Remedies on Default..... .... ... .... .... ..... 23
No Remedy Exclusive.. ..... ......... .... ..... 24
Agreement to Pay Attorneys' Fees and
Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
No Additional Waiver Implied by
One Waiver... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 9.1.
SECTION 9.2.
SECTION 9.3.
SECTION 9.4.
SECTION 10.1.
SECTION 10.2.
SECTION 10.3.
SECTION 10.4.
SECTION 10.5.
SECTION 10.6.
SECTION 10.7.
SECTION 10.8.
SECTION 10.9.
SECTION 10.10.
ARTICLE IX
OPTION TO PURCHASE; OPTION TO PREPAY
Purchase Option......................... . . . .
Exercise of Option. . . . . . . . . . . . . . . . . . . . . . . . . .
Transfer of Title and Release of
Lessor's Interest.........................
Option to Prepay............................
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ARTICLE X
MISCELLANEOUS
Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Binding Effect.............................. 27
Severability. .. . . . . . . . . . . . . .. . . .. . . . . . . . . . . . 27
Amendments, Changes and Modifications....... 27
Net-net-net Lease........... . . . . . . . . . . . . . . . . 27
Further Assurances and Corrective
Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Execution in Counterparts........ ... .... .... 27
Applicable Law...................... . . . . . . . . 27
Lessor and Lessee Representatives....... .... 28
Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Exhibit A -
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Definitions
Description of Lease Payments
Description of Project
Addresses for Notices
Contracts Assigned to Lessor
Description of Previously Acquired Portion of Project
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LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of the Dated Date
(hereinafter defined), by and between Association of Bay Area
Governments, a joint powers agency duly organized and existing under
the laws of the State of California, as lessor (the "Lessor"), and
the Lessee (hereinafter defined), a Political Subdivision
(hereinafter defined) duly organized and existing under the laws of
the State of California.
WITNESSETH:
WHEREAS, the Lessor has issued $55,000,000 in aggregate
principal amount of its Lease Revenue Bonds (Pooled Projects) Series
1987 (the "Bonds") pursuant to the Marks-Roos Local Bond Pooling Act
of 1985, commencing with Section 6584 of the California Government
Code, as amended (the "Act"), for the purpose of providing funds
under a program (the "Program") to finance the "cost" of the various
"public capital improvements" (within the respective meanings of such
terms in Sections 6585(d) and (g) of the Act) (collectively, the
"Projects") to be leased by the Lessor to the Lessees pursuant to
lease agreements (collectively, the "Leases") to be entered into
between the Lessor, as lessor, and "local agencies" (within the
meaning of such term in Section 6585 (f) of the Act), as lessees
(collectively, the "Lesseestl); and
WHEREAS, the Bonds have been issued and are secured under a
Trust Indenture (the "Original Indenture") dated as of April 1, 1987,
between the Lessor and Seattle-First National Bank, as trustee
(together with its successors in said trust, the "Trustee") I as
amended by a First Supplemental Trust Indenture (the "First
Supplemental Indenture") dated as of February 1, 1988, between the
Lessor and the Trustee (the Original Indenture, as supplemented and
amended by the First Supplemental Indenture, being herein referred to
as the "Indenture"); and
WHEREAS, National Westminster Bank PLC (the "Initial Credit
Issuer"), acting through its New York Branch, has executed and
delivered its Transferable Irrevocable Direct Pay Letter of Credit
(the "Initial Credit Facility") to provide security for the Bonds,
and the Indenture provides that a letter of credit, insurance policy,
guaranty, surety bond or other agreement (a "Substitute Credit
Facility") satisfying the conditions contained in the Indenture may
be delivered in substitution for the Initial Credit Facility or any
Substitute Credit Facility, at the time securing the Bonds is herein
referred to as the "Credit Facility" and the issuer of such Credit
Facility is herein referred to as the "Credit Issuer"; and
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WHEREAS, the Initial Credit Facility has been issued
pursuant to a Reimbursement Agreement (the "Initial Credit
Agreement") dated as of April 1, 1987, between the Lessor and the
Initial Credit Issuer, and the agreement pursuant to which the Credit
Facility at the time securing the Bonds is issued is herein referred
to as the IICredit Agreement"; and
WHEREAS, the Lessee. is a "local agency" (within the meaning
of such term in Section 6585(f) of the Act, a "Local Agency"), and
the Governing Body (hereinafter defined) of the Lessee has determined
that it desires that certain "public capital improvements" (within
the meaning of such term in Section 6585(g) of the Act, "Public
Capital Improvements") identified in Exhibit C attached hereto and
hereby made a part hereof (the "Project") be financed under the
Program and leased by the Lessor to the Lessee pursuant to this Lease
Agreement (this "Lease"), and the Lessor and the Lessee are
authorized under the laws of the State of California (the "State") to
execute, deliver and perform this Lease; and
WHEREAS, the Lessor has assigned all of its rights, title
and interest under this Lease (except its rights to receive payment
of its fees and expenses and indemnification as herein provided) to
the Trustee under the Indenture as security for the Bonds and the
obligations of the Lessor under the Credit Agreement;
NOW, THEREFORE, in consideration of the above premises and
of the mutual covenants hereinafter contained and for other good and
valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1.1 Definitions. Unless the context otherwise
requires, capitalized terms used herein and in the Exhibits hereto,
have the meanings specified in the preambles hereto or in Exhibit A
hereto. All capitalized terms not defined herein shall have the
meanings ascribed to them in the Indenture.
SECTION 1. 2 Exhibits. The following Exhibits are
attached to, and by reference made a part of, this Lease;
Exhibit A:
Definitions.
Exhibit B:
Description of Lease Payments to be paid by
the Lessee to the Trustee, as assignee of
the Lessor.
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Exhibit C: Description of the Project.
. Exhibit D: Addresses for Notices.
Exhibit E: Contracts Assigned to Lessor.
Exhibit F: Description of Previously Acquired Portion
of proj ect
SECTION 1. 3 All:reement to Lease. The Lessor leases the
Project to the Lessee, and the Lessee hereby leases the Project from
the Lessor upon the terms and conditions as herein provided.
SECTION 1.4 Lease Pavments.
the Lessee agrees to pay to the Lessor
Payments as described in Exhibit B.
As rental for the Project,
or its assigns, the Lease
SECTION 1.5 Term of Lease. The Term of this Lease shall
commence as of the Dated Date and shall end on the Termination Date.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2.1.ReDresentations. Covenants and Warranties of the
Lessee. The Lessee represents, covenants and warrants to the Lessor
as follows.
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(a) The Lessee is a duly organized and validly existing
Political Subdivision of the State and is a Local Agency.
(b) The constitution and the laws of the State authorize
the Lessee to enter into this Lease and to enter into the
transactions contemplated by and to carry out its obligations under
this Lease and the Lessee has duly authorized and executed this Lease
in accordance with the laws of the State.
(c) Neither the execution and delivery of this Lease nor
the fulfillment of nor compliance with the terms and conditions
hereof, nor the consummation of the transactions contemplated hereby,
conflicts with or results in a breach of the terms, conditions or
provisions of any restriction or any charter, agreement or instrument
to which the Lessee is now a party or by which the Lessee is bound,
or constitutes a default under any of the foregoing, or results in
the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the Lessee, or upon
the Project, except Permitted Encumbrances.
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(d) The Project constitutes Public Capital Improvements,
and all disbursements from the Program Fund for the proj ect or to
satisfy the obligations of the Lessee under this Lease will be for a
Cost of the Project.
(e) The Lessee is not in default under any provisions of
the laws of the State which would adversely affect its existence or
its powers referred to in Subsection (b) of this Section.
(f) The Estimated Cost of the Project is as set forth in
Exhibit C hereto and has been determined in accordance with
generally accepted accounting principles.
(g) The Lessee will comply in all respects with the terms
of the Arbitrage Agreement and the Indenture (including
particularly, without limitation, Section 4.02 thereof) and will not
take any action which will adversely affect, and will not fail to
take any action if such failure would adversely affect, the
exemption from federal income taxation of the interest on the Bonds.
(h) Neither the Lessee nor any related person (as defined
in the Regulations, as defined in the Arbitrage Agreement) shall
purchase governmental obligations in an amount related to the amount
of the Bonds or the Principal Component under this Lease.
SECTION 2.2. Representations. Covenants and Warranties of
the Lessor. The Lessor represents, covenants and warrants to the
Lessee as follows:
.
(a) The Lessor is a joint powers agency duly organized,
existing and in good standing under and by virtue of the laws of the
State, including, particularly, without limitation, Section 6500 et
seq., of the California Government Code, as amended, has power to
enter into this Lease, the Indenture and the Arbitrage Agreement; is
possessed of full power to own and hold real and personal property
and to lease and sell the same, and has duly authorized the execution
and delivery of each of the aforesaid instruments.
(b) The Lessor will not pledge the Lease Payments or other
amounts derived from the Project and from its other rights under
this Lease, and will not encumber the Proj ect, except as provided
under the terms of the Indenture.
(c) Neither the execution and
Indenture or the Arbitrage Agreement,
compliance with the terms and conditions
delivery of this Lease, the
nor the fulfillment of or
hereof or thereof, nor the
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consummation of the transactions contemplated hereby or thereby,
conflicts with or results in a breach of the terms, conditions or
provisions of any restriction or any agreement or instrument to which
the Lessor is now a party or by which the Lessor is bound, including,
particularly, without limitation, the ABAG Agreement and the Bylaws,
or constitutes a default under any of the foregoing, or results in
the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the Lessor, or upon
the Project, except Permitted Encumbrances.
(d) Except as provided in this Lease and in the Indenture,
the Lessor will not assign this Lease, its right to receive Lease
Payments from the Lessee, or its rights, duties and obligations under
this Lease to any other person, firm or corporation so as to impair
or violate the representations, covenants and warranties contained in
this Section 2.2.
ARTICLE III
FUNDING FOR THE PROJECT; ACQUISITION, CONSTRUCTION AND
INSTALLATION OF THE PROJECT
SECTION 3.1. Availabilitv of Monies. The Lessor hereby
agrees to pay for the Costs of the Project as provided herein and in
the Indenture. The Lessor has caused an amount equal to the
Estimated Cost to be transferred to the Designated Program Account in
accordance with the Indenture. The Lessor hereby agrees to cause the
Trustee to disburse funds from the Designated Program Account to pay,
or to reimburse the payment of, certain Costs of the Proj ect as
provided in the Indenture.
SECTION 3.2. Acauisition. Construction and Installation
of the Proiect. The Lessee will, as agent of the Lessor, enter into
purchase orders and contracts, and will supervise and provide for, or
cause to be supervised and provided for, as agent for the Lessor, the
complete acquisition, construction and installation of the Proj ect.
The Lessee agrees that it will cause the work under said contracts to
be diligently performed and that the Project will be acquired,
constructed and installed in accordance with the specifications
approved by the Lessee on or prior to the Acceptance Deadline. The
Lessee may, with the approval of the Credi t Issuer, change the
specifications of the Project, so long as such change does not reduce
the value of the Project or substantially alter the nature of the
Project or impair the exemption of interest on the Bonds from federal
income taxation, and that any increase in costs of the Project above
the Estimated Cost shall not result from such change, unless the
Lessee deposits an amount sufficient to pay such increased costs
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in an account (the "Restricted Account") with a bank acceptable to
the Lessor and the Credit Issuer with restrictions acceptable to the
Lessor and the Credit Issuer to make certain that amounts on deposit
in the Restricted Account may only be used to pay such increased
costs of the Project. In addition, in the event that the costs of
acquiring, constructing and installing the Project are greater than
the amount of the Estimated Cost plus any amounts deposited in or
transferred to the Restricted Account, together with investment
earnings thereon, the Lessee agrees to deposit into the Restricted
Account an amount of money necessary to pay such increased costs, but
only from funds arising in the fiscal year in which the Lessee has
entered into this Lease. The Lessee agrees that upon substantial
acquisition, construction and installation of any discrete portion of
the Project, it will take possession of that portion of the Project
under the terms and provisions of this Lease.
The Lessee does hereby sell, assign and transfer to the
Lessor all of its rights under the contracts with respect to any
portion of the Project for which the Lessee has contracted prior to
the date of the Closing of this Lease, which contracts are attached
to this Lease as Exhibit E.
Upon completion of acquisition, construction and
installation of the Proj ect reasonably satisfactory to the Lessee,
but in any event not later than the Acceptance Deadline, the Lessee
shall deliver to the Lessor, the Trustee and the Credit Issuer, a
Certificate of Completion.
The parties agree that this Lease shall be deemed to be
effective as to each component of the Project as it is acquired,
constructed or installed. Upon substantial acquisition, construction
or installation of a discrete portion of the proj ect, the Lessee
agrees to deliver to the Lessor, the Trustee and the Credit Issuer a
certificate of acceptance (a "Certificate of Acceptance"). Such
Certificate of Acceptance shall indicate the proportionate amount of
the Lessee's Project so accepted and the Lessee agrees that a portion
of the Lease Payments shown on Exhibit B to this Lease (in an amount
proportionate to the discrete portion of the Project accepted and as
indicated in the Certificate of Acceptance) represent valid rental
value for such discrete portion of the Project.
SECTION 3.3. Payment of Acauisition Costs. Payment to the
Contractors of the cost of acquiring, constructing and installing
the Project shall be made from the monies deposited in the Designated
Program Account as provided in Section 5.02 of the Indenture and from
the Restricted Account in accordance with the restrictions applicable
thereto.
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ARTICLE IV
AGREEMENT TO LEASE, TERMINATION OF LEASE;
LEASE PAYMENTS; TITLE TO THE PROJECT
SECTION 4. 1.
Project by the Lessor to
terms and conditions set
A2reement to Lease. The lease of the
the Lessee is made expressly subject to the
forth herein.
SECTION 4.2. Termination of Lease.
Lease will terminate upon the earliest of any
events (the "Termination Date"):
The Term of this
of the following
(a) the payment or prepayment by the Lessee of all Lease
Payments due during the Term of this Lease;
(b) the occurrence of an event of default under this Lease
and the termination of this Lease by the Lessor or its assignee
pursuant to Section 8.2(c) hereof, or
(c) the Project is taken in whole pursuant to the power of
condemnation and termination of this Lease pursuant to Section 5.9
of this Lease.
Upon the occurrence of an event which will result in the
termination of this Lease, the Trustee will not make any further
disbursements for the Project from the Designated Program Account.
SECTION 4.3. Lease Pavments. The Lessee agrees to pay to
the Lessor or its successors and assigns, as rental for the use and
possession of the Project, the Lease Payments on the dates when due
and in the amounts specified in Exhibit B hereto, provided that the
Lessee shall receive credits toward such Lease Payments as provided
in the Indenture.
Lease Payments for each annual rental period during the
Term of this Lease shall constitute the total rental for said rental
period and shall be paid by the Lessee in each rental period for and
in consideration of the right of the use and possession of, and the
continued quiet use and enjoyment of, the Project during each such
period for which said rental is to be paid. The parties hereto have
agreed and determined that such total rental represents the fair
rental value of the Project. In making such determination,
consideration has been given to the costs of acquisition,
construction, delivery, installation and financing of the Project,
other obligations of the parties under this Lease, the uses and
purposes which may be served by the Project and the benefits
therefrom which will accrue to the Lessee and the general public.
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Each Lease Payment shall be paid in lawful money of the
United States of America to or upon the order of the Lessor at the
Principal Office of the Trustee. Any such installment of rental
accruing under this Lease which shall not be paid when due shall
bear interest at the rate of one percent (1%) per annum in excess of
the interest rate per annum then borne by the Bonds related to this
Lease (but not in excess of the Maximum Interest Rate) from the date
when the same is due under this Lease until the same shall be paid.
Lease Payments shall be paid from any source of legally
available funds of the Lessee, and so long as the proj ect is
available for the Lessee' s use, the Lessee covenants to take such
action as may be necessary to include all Lease Payments due under
this Lease in its budgets, and to make the necessary appropriations
for all such Lease Payments; which covenants of the Lessee shall be
deemed to be, and shall be, ministerial duties imposed by law, and
it shall be the duty of each and every public official of the Lessee
to take such action and do such things as are required by law in the
performance of the official duty of such officials to enable the
Lessee to carry out and perform the covenants made by the Lessee in
this Lease. During the Term of this Lease, the Lessee will furnish
to the Trustee, no later than 20 days following adoption of the
budget for that fiscal period, a certificate of the Authorized
Representative of the Lessee that the Lease Payments due in that
fiscal period have been included in the budget approved by the
Governing Body of the Lessee for such fiscal period. For purposes
of adopting a budget and appropriating funds as provided in this
Section, the Lessee will calculate the interest portion of the Lease
Payments coming due hereunder in any fiscal period by assuming that
the Floating Rate during such fiscal period will equal a rate per
annum no less than the greater of (i) TENR in effect on the date of
such appropriation plus one percent (1%) per annum or (ii) four
percent (4%) per annum but not in excess of the Maximum Rate.
To the extent that funds are on deposit in the Designated
Reserve Account, the Designated Principal Payment Account, the
Designated Interest Payment Account, the Designated Capitalized
Interest Account, the Designated Program Account, the Designated
Insurance and Condemnation Account and the Excess Funds Redemption
Account established with respect to this Lease, the Lessee agrees to
pay Lease Payments coming due hereunder from such sources,
regardless of whether or not the Project has been completed.
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SECTION 4.4. Possession and EnJovment. During the Term
of this Lease, the Lessor shall provide the Lessee with quiet use
and enj oyment of the Proj ect, and the Lessee shall, during such
Term, peaceably and quietly have and hold and enjoy the Project,
without suit, trouble or hindrance from the Lessor, except as
expressly set forth in this Lease. The Lessor will, at the request
of the Lessee and at the Lessee's cost, join in any legal action in
which the Lessee asserts its right to such possession and enjoyment
to the extent the Lessor may lawfully do so. Notwithstanding the
foregoing, the Lessor shall have the right to inspect the Project as
provided in Section 6.3 hereof.
SECTION 4.5. Title to the Prolect. During the Term of this
Lease, title to the Project and any and all additions, replacements
or modifications to the proj ect will be retained by the Lessor,
except as provided below and except for those modifications which are
added to the Project by the Lessee and which may be removed without
damaging the Project. Upon receipt of title to any component of the
Project for which a bill of sale is delivered from a Contractor, the
Lessee shall deliver to the Lessor a bill of sale to such component
of the Project. The Lessee shall not have any right, title or
interest in the Project or in any additions, repairs, replacements or
modifications thereto except as expressly provided in this Lease.
If the Lessee has paid all Lease Payments during the Term
of this Lease, or upon deposit of the security deposit as provided in
Section 4.6 hereof, all right, title and interest of the Lessor in
and to the Project shall be transferred to and vest in the Lessee.
Additionally, if necessary, the Lessor shall authorize, execute and
deliver to the Lessee a bill of sale in order to release any and all
liens created under the provisions of this Lease and the Indenture,
and any other documents required to terminate this Lease and
consummate such transfer of title and release of liens. The Lessor
agrees to defend and eliminate any claims adverse to the title to the
Project, and to save and hold the Lessee harmless therefrom; provided
that the Lessor's obligations under this sentence shall not extend to
claims arising. out of actions by the Lessee or persons asserting
claims under it; provided that the Lessee shall reimburse the Lessor
for any costs incurred by the Lessor in defending or eliminating such
claims, including reasonable attorneys' fees.
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SECTION 4.6. Security Deoosit. Notwithstanding any other
provision of this Lease, the Lessee may, on any date I secure the
payment of Lease Payments by a deposit with the Trustee of: (a) an
amount which, together with amounts on deposit under the Indenture
which are to be credited to the Lessee's obligations hereunder to
make Lease Payments, is sufficient to pay all unpaid Lease Payments,
including the principal and interest components thereof, in
accordance with the Lease Payment schedule set forth in Exhibit B
hereto, or (b) United States Government Obligations, together with
Available Moneys, if required, in such amount as will, in the
opinion of an independent certified public accountant, together with
interest to accrue thereon, be fully sufficient to pay all unpaid
Lease Payments when due. Such deposit may not be made unless, prior
to such deposit, the Lessee delivers to the Lessor, the Credit
Issuer and the Trustee an opinion of Bond Counsel that such deposit
will not adversely affect the exemption of interest on the Bonds
from federal and state income taxation. In the event of a deposit
pursuant to this Section, all obligations of the Lessee under this
Lease and all security provided by this Lease for said obligations,
shall cease and terminate, excepting only the obligation of the
Lessee to make, or cause to be made, Lease Payments from the deposit
made by the Lessee pursuant to this Section, and title to the
Project shall vest in the Lessee on the date of said deposit
automatically and without further action by the Lessee or the
Lessor, provided that title shall be subject to the subsequent
payment of Lease Payments from said deposit in accordance with the
provisions of this Lease. Said deposit shall be deemed to be and
shall constitute a special fund for the payment of Lease Payments in
accordance with the provisions of this Lease.
SECTION 4.7. Abatement of Rental in the Event of Failure
to Have Use and Possession of the Project. The Lease Payments shall
be abated in whole or in part during any period during which by
reason of damage or destruction (other than by condemnation which is
provided for in Section 5.9 of this Lease) there is substantial
interference with the use and possession of the Project by the
Lessee. The extent of such abatement shall be in proportion to the
portions of the Project damaged or destroyed; provided, however, that
in the event such damage or destruction results in redemption of
Bonds, the remaining Lease Payments (including credits to be applied
thereto as provided in the Indenture) will be sufficient to pay all
of that portion of principal and interest on the remaining
Outstanding Bonds which are payable out of the Lessee's Lease
Payments. Such abatement shall not result so long as moneys held by
the Trustee under the Indenture which are to be credited toward the
Lessee's Lease Payments under the terms of the Indenture (including,
particularly, without limitation, the Lessee's Designated Reserve
Account, Designated Principal Payment Account, Designated Interest
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Payment Account and Designated Capitalized Interest Account) and Net
Proceeds of insurance and rental interruption insurance are
sufficient to make Lease Payments when and as due, it being hereby
declared that such moneys and Net Proceeds constitute special funds
for the payment of the Lessee's Lease Payments. Such abatement or
adjustment, if any, shall continue for the period commencing with
such damage or destruction and ending with the substantial completion
of the work of repair or reconstruction, if any. In the event of any
such damage or destruction, this Lease shall continue in full force
and effect and the Lessee waives any right to terminate this Lease by
virtue of any such damage and destruction.
There shall be no abatement of Lease Payments to the extent
that moneys derived from any Person as a result of any defect or
delay in the acquisition, construction or installation of the Project
are available therefor. Notwithstanding the foregoing, in the event
that any portion of the Project constitutes improvements to or
construction of roads or streets ("Road Improvements"), in the event
of damage to or destruction of such Road Improvements, there shall be
no abatement of Lease Payments with respect to such Road Improvements
except to the extent that such Road Improvements are impassable for a
period of at least thirty days. In such event, only the Lease
Payments relating to the Road Improvements which are so impassable
shall be abated, and such Lease Payments shall be abated only so long
as such impassability persists. The amount of the Lease Payments
which shall be subject to such abatement shall be agreed upon by the
Lessor and the Lessee with the written consent of the Credit Issuer,
which consent shall not be unreasonably withheld. In the event that
Road Improvements are temporarily impassable due to flooding, there
shall be no abatement of Lease Payments with respect to such Road
Improvements due to such temporary impassability no matter how long
such impassability persists.
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ARTICLE V
MAINTENANCE, TAXES, INSURANCE; AND OTHER MATTERS
SECTION 5.1. Maintenance and Taxes. Throughout the Term
of this Lease, as part of the consideration for the rental of the
Project, all improvement, repair and maintenance of the Project shall
be the responsibility of the Lessee, and the Lessee shall pay for or
otherwise arrange for the payment of the cost of the repair and
replacement of the Project resulting from ordinary wear and tear or
want of care on the part of the Lessee thereof. The Lessee shall
comply with the manufacturer's and vendor's requirements with respect
to proper maintenance of the Proj ect, if any. In exchange for the
Lease Payments herein provided, the Lessor agrees to provide only
the Project, as hereinbefore more specifically set forth.
The Lessee shall also payor cause to be paid to the Lessor
all taxes of any type or nature charged to the Lessor or affecting
the Project or the respective interests or estates therein, including
any sales and property taxes, or affecting the amount available to
the Trustee from Lease Payments received under this Lease for the
payment of the Bonds (including taxes or assessments assessed or
levied by any governmental agency or district having power to levy
taxes or assessments); provided, that with respect to governmental
charges that may lawfully be paid in installments over a period of
years, the Lessee shall be obligated to pay only such installments as
are required to be paid during the Term of this Lease as and when the
same shall become due.
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The Lessee, at the Lessee's expense and in its name, may in
good faith contest any such taxes and other charges and, in the event
of any such contest, may permit the taxes or other charges so
contested to remain unpaid during the period of such contest and any
appeal therefrom unless the Lessor or the Credit Issuer shall notify
the Lessee that, in the opinion of Counsel, by nonpayment of any such
items, the interest of the Lessor in the Project will be materially
endangered or the Project or any part thereof will be subject to loss
or forfeiture, in which event the Lessee shall promptly pay such
taxes or charges or provide the Lessor with full security against any
loss which may result from nonpayment, in form satisfactory to the
Lessor and the Credit Issuer.
SECTION 5.2. Modification of Proiect. The Lessee shall,
at its own expense, have the right to remodel the Project or to make
additions and modifications thereto. All such additions and
modifications shall thereafter comprise part of the Project and be
subject to the provisions of this Lease. Such additions and
modifications shall not adversely affect the exemption of the
interest on the Bonds from federal income taxation and shall not in
any way damage the Project, substantially alter its nature or cause
it to be used for purposes other than those authorized under the Act
and the provisions of State and federal law, and the Project, upon
completion of any additions and modifications made pursuant to this
Section, shall be of a value which is not substantially less than the
value of the Proj ect immediately prior to the making of such
additions or modifications.
The Lessee may. at any time, add or substitute items of
equipment listed on Exhibit C to this Lease Agreement for other items
of equipment if such addition or substitution does not require an
expenditure of amounts in excess of the Estimated Cost plus any
amounts on deposit in the Restricted Account, if the items of
equipment added or substituted have a useful life equal to or greater
than the items of equipment listed on Exhibit C hereto, and if the
Lessee files with the Lessor, the Credit Issuer and the Trustee a
certificate of an Authorized Representative of the Lessee notifying
the Lessor, the Credit Issuer and the Trustee of such addition or
substitution, identifying the equipment added or the equipment
deleted and the equipment substituted therefor, and certifying that
the cost of the Project after such addition, substitution or deletion
will not exceed the Estimated Cost plus any amounts on deposit in the
Restricted Account, together with interest earnings thereon, will be
sufficient to pay all Acquisition Costs including Acquisition Costs
relating to such substituted item.
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If the total costs of equipment identified in Exhibit C
hereto exceed the amount estimated therefor, the Lessor and the
Lessee acknowledge that the Lessee shall delete items of equipment in
Exhibit C hereto (unless the Lessee shall determine to pay costs
thereof from its general funds or unless the Trustee shall determine
that amounts sufficient to pay such excess costs are available in the
Designated Program Account and the Credit Issuer approves such use of
funds) and the Lessee shall so notify the Trustee as assignee of the
Lessor.
The Lessee will not permit any mechanic's or other lien to
be established or remain against the Project for labor or materials
furnished in connection with any remodeling, additions,
modifications, repairs, renewals or replacements made by the
Lessee pursuant to this Section, provided that if any such lien is
established and the Lessee shall first notify the Lessor and the
Credit Issuer of the Lessee's intention to do so, the Lessee may, in
good faith, contest any lien filed or established against the Project
and in such event may permit the items so contested to remain
undischarged and unsatisfied during the period of such contest and any
appeal therefrom, and shall provide the Lessor with full security
against any loss or forfeiture which might arise from the nonpayment
of any such item, in form satisfactory to the Lessor and the Credit
Issuer. The Lessor will cooperate fully in any such contest, upon the
request and at the expense of the Lessee.
SECTION 5.3. Public Liabilitv and Prooertv Damal!e
Insurance. The Lessee shall maintain or cause to be maintained,
throughout the Term of this Lease (but during the period of
acquisition, construction and installation of the Project only if and
to the extent such insurance is not provided by the Contractors), a
standard comprehensive general insurance policy or policies in
protection of the Lessor, the Lessee, the Credit Issuer, the Trustee
and their Executive Board members, officers, agents and employees.
Said policy or policies shall provide for indemnification of said
parties against direct or contingent loss or liability for damages
for bodily and personal injury, death or property damage occasioned
by reason of the acquisition or operation of the Project. Said
policy or policies shall provide coverage in the minimum liability
limits of $1,000,000 for personal injury or death of each person and
$3,000,000 for personal inj ury or deaths of two or more persons in
each accident or event (subject to a deductible clause of not to
exceed $500,000) and $500,000 for damage to property resulting from
each accident or event. Such public liability and property damage
insurance may, however, be in the form of a single limit policy in
the amount of not less than $3,000,000 covering all such risks. Such
liability insurance may be maintained as part of or in conjunction
with any other liability insurance coverage carried or required to be
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carried by the Lessee, and may be maintained in the form of self-
insurance by the Lessee so long as (a) the Lessee provides evidence
to the Trustee, the Lessor and the Credit Issuer that the Lessee has
segregated amounts in a special insurance reserve meeting the
requirements of this Section 5.3 and (b) the Trustee, the Lessor and
the Credit Issuer receive a certificate of an Insurance Consultant
that such reserve is actuarially sound. In such event, the Lessee
covenants to maintain such reserve until the Termination Date, and
the Lessee covenants to adjust any casualty claims within 14 days.
SECTION 5.4. Fire and Extended Covera2e Insurance. The
Lessee shall procure, or cause to be procured, and maintain
throughout the Term of this Lease (but during the period of
acquisition, construction and installation of the Project only if and
to the extent such insurance is not provided by the Contractors),
insurance against loss or damage to any part of the Project by fire
and lightning, with extended coverage and vandalism and malicious
mischief insurance. Said extended coverage insurance shall, as
nearly as practicable, cover loss or damage by explosion, windstorm,
riot, aircraft, vehicle damage, smoke, sprinkler damage, boiler
explosion and such other hazards as are normally covered by such
insurance. Such insurance shall be in an amount equal to 100% of the
replacement cost of the Project or the Principal Component of the
Lease Payments of the Lessee then remaining unpaid, whichever is
greater (subject to a deductible clause of not to exceed $250,000).
Such insurance may be maintained as part of or in conjunction with
any other fire and extended coverage insurance carried or required to
be carried by the Lessee, and may be maintained in the form of self-
insurance by the Lessee so long as (a) the Lessee provides evidence
to the Trustee, the Lessor and the Credit Issuer that the Lessee has
segregated amounts in a special insurance reserve meeting the
requirements of this Section 5.4 and (b) the Trustee, the Lessor and
the Credit Issuer receive a certificate of an Insurance Consultant
that such reserve is actuarially sound. In such event, the Lessee
covenants to maintain such reserve until the Termination Date I and
the Lessee covenants to adjust any casualty claims within 14 days.
SECTION 5.5. Rental InterruDtion Insurance. The Lessee
shall procure, and maintain throughout the Term of this Lease, rental
interruption insurance to cover loss, total or partial, of the use of
any part of the Project as the result of any of the hazards covered
in the insurance required by Section 5.4 hereof and the resulting
loss of rental income to the Trustee, as assignee of the Lessor and
the Issuer, in an amount sufficient to pay the maximum annual
principal and interest portions of Lease Payments due under this
Lease in any year plus the Lessee's Allocable Share of the quarterly
fees payable to the Credit Issuer. The Net Proceeds of such
insurance shall be paid to the Trustee for deposit in the Debt
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Service Fund and shall be credited towards the payment of the Lease
Payments of the Lessee in the order in which such Lease Payments
become due and payable. In lieu of obtaining insurance coverage as
required by this Section 5.5, such coverage may be maintained by the
Lessee in the form of self-insurance so long as (a) the Lessee
provides evidence to the Trustee, the Lessor and the Credit Issuer
that the Lessee has segregated amounts in a special insurance reserve
meeting the requirements of this Section 5.5 and (b) the Trustee, the
Lessor and the Credit Issuer receive a certificate of an Insurance
Consultant that such reserve is actuarially sound. In such event,
the Lessee covenants to maintain such reserve until the Termination
Date, and the Lessee covenants to adjust any casualty claims within
14 days.
SECTION 5.6. Net Proceeds of Insurance: Form of Policies:
Retainin2 of Insurance Consultant. The policies of insurance
required by Sections 5.4 and 5.5 of this Lease shall provide that all
proceeds thereunder shall be payable to the Trustee pursuant to a
lender's loss payable endorsement substantially in accordance with
the form approved by the Insurance Services Office and the California
Bankers Corporation. The Net Proceeds of policies of insurance under
Section 5.4 hereof shall be paid to the Trustee to be applied as
provided in Section 5.10 hereof. All policies of insurance required
by this Lease and any statements of self-insurance, shall be in form
satisfactory to the Trustee and the Credit Issuer. The Lessee shall
payor cause to be paid when due the premiums for all insurance
policies required by this Lease and shall promptly furnish or cause
to be furnished evidence of such payments to the Trustee and the
Credit Issuer. All such policies shall provide that the Trustee and
the Credit Issuer shall be given thirty (30) days' notice of each
expiration, any intended cancellation thereof or reduction of the
coverage provided thereby; provided that if the Lessee shall have
delivered to the Trustee and the Credit Issuer a written report of an
Insurance Consultant stating that the cost of obtaining an insurance
policy or policies containing such 30 day notice provision is
prohibitively expensive or that such policy may not be obtained,
failure of the Lessee to comply with this covenant shall not
constitute a default hereunder. The Trustee shall not be responsible
for the sufficiency of any insurance herein required or payment of
premium and shall be fully protected in accepting payment on account
of such insurance or any adjustment, compromise or settlement of any
loss agreed to by the Trustee and the Credit Issuer.
The Lessee shall promptly notify the Trustee, the Credit
Issuer and the Program Administrator of any substantive change in the
insurance required to be maintained by the Lessee under this Lease;
provided, however, that if the Lessee determines that neither
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maintaining the insurance coverage required by Sections 5.4 and 5.5,
including a self insurance program as permitted under said Sections,
is in its best interest, then the Lessee shall retain an Insurance
Consultant. Such Insurance Consultant shall either (i) furnish to
the Trustee and the Credit Issuer a certificate of such Insurance
Consultant or other evidence satisfactory to the Trustee and the
Credit Issuer that the insurance so provided by the Lessee accords
the greatest amount of coverage available for the risk being insured
against at rates which in the judgment of the Insurance Consultant
are reasonable in connection with reasonable and appropriate risk
management, or (ii) make recommendations regarding alternatives to
such insurance. If the Insurance Consultant determines that an
alternative risk management program is sound and recommends its
adoption, the Governing Body may adopt such program which may
include, without limitation, the organization of captive insurance
companies either solely or in connection with other Members;
participation in programs of the captive insurance companies
organized by others; participation in mutual or cooperative insurance
or other risk management programs with other Members; participation
in or entry into agreements with State and federal governments in
order to achieve such insurance; taking advantage of State or federal
statutes or law now or hereafter in existence limiting liability; or
participation in other alternative risk management programs as shall
be recommended by the Insurance Consultant; provided, that such
alternative risk management program shall require an annual review by
an Insurance Consultant.
If the Credit Issuer shall have received notice of a
substantive change in the insurance coverage as above provided or if
the Credit Issuer shall not be furnished evidence of the payment of
the premiums due on the above policies as required in the first
paragraph of this Section 5.6, then at the request of the Credit
Issuer the Lessee shall retain, or of its own volition the Lessee may
retain, an Insurance Consultant reasonably satisfactory to the Credit
Issuer to review the adequacy of the insurance coverage maintained by
the Lessee as required under this Lease. The Lessee shall, subject
to applicable "requirements or restrictions imposed by law, and
subject to a good faith determination of its Governing Body, that
such recommendations, in whole or in part are in the best interest of
the Lessee, comply with all of such Insurance Consultant's
recommendations to increase the amounts of such coverage or to expand
the risks so covered. The Lessee shall deliver to the Lessor, the
Credit Issuer and the Trustee a certificate signed by an Authorized
Officer of the Lessee that such recommendations, in whole or in part,
are in the best interests of the Lessee and will not materially
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adversely affect the Owners of the Bonds or the Credit Issuer. If
the Lessee determines not to comply with such recommendations, it
shall file with the Trustee and the Credit Issuer a certified copy of
a resolution of the Governing Body determining not to comply with
such recommendations and stating in reasonable detail the reasons
therefor.
SECTION 5.7. Advances. If the Lessee shall fail to
perform any of its obligations under this Article, the Lessor may,
but shall not be obligated to, take such action as may be necessary
to cure such failure, including the advancement of money to the
Lessee, and the Lessee shall be obligated to repay all such advances
as soon as possible, with interest at the rate of ten percent (10%)
per annum from the date of the advance to the date of repayment, but
in no event shall such rate exceed the maximum legal rate of
interest.
SECTION 5.8. Liens. The Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any pledge,
lien, charge, encumbrance or claim on or with respect to the Project,
other than the respective rights of the Lessor, the Trustee, the
Credit Issuer and the Lessee as herein provided and Permitted
Encumbrances. Except as expressly provided in this Article, the
Lessee shall promptly, at its own expense, take such action as may be
necessary to duly discharge or remove any such mortgage, pledge,
lien, charge, encumbrance or claim for which it is responsible, if
the same shall arise at any time. The Lessee shall reimburse the
Lessor for any expense incurred by it in order to discharge or remove
any such pledge, lien, charge, encumbrance or claim.
SECTION 5.9. Condemnation. If all or part of the Project
is taken under the power of condemnation, the Net Proceeds from any
award resulting therefrom shall be deposited with the Trustee
pursuant to Section 5.l0(b) hereof. If the Project is taken in whole
pursuant to such condemnation proceedings or is taken in part to such
extent that the remaining portion of the Project is no longer useful
for the purposes originally intended, the remaining Lease Payment
obligations of ,the Lessee will be abated in full and this Lease shall
thereupon be terminated. Otherwise, (a) this Lease shall continue in
full force and effect and shall not be terminated by virtue of such
taking and the parties waive the benefit of any law to the contrary,
and (b) there shall be a proportionate abatement of Lease Payments
such that the resulting Lease Payments will be sufficient to pay all
of that portion of principal and interest with respect to the
Outstanding Bonds which represent interests in the Lessee's Lease
Payments.
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SECTION 5.10.
Annlication of Net Proceeds.
(a) From Insurance Award. The Net Proceeds of any
insurance award resulting from any damage to or destruction of the
Project by fire or other casualty shall be deposited in the Insurance
and Condemnation Fund to be held and applied by the Trustee pursuant
to Section 5.15 of the Indenture. Upon such deposit, the Authorized
Representative of the Lessee shall file a certificate with the
Trustee as provided in such Section and such Net Proceeds shall be
applied by the Trustee as provided in such Section.
(b) From Condemnation or Eminent Domain Award. The Net
Proceeds of any condemnation or eminent domain award resulting from
any event described in Section 5.9 of this Lease shall be deposited
in the Insurance and Condemnation Fund to be held and applied by the
Trustee pursuant to Section 5.15 of the Indenture. Upon such
deposit, the Authorized Representative of the Lessee shall file a
certificate with the Trustee as provided in such Section and such Net
Proceeds shall be applied by the Trustee as provided in such Section.
SECTION 5.11. Aereement to Pay Proeram Exnenses. The
Lessee agrees to pay to the Trustee, as the assignee of the Lessor,
the Lessee's Allocable Share of Program fees and expenses charged to
the Lessee by the Trustee as provided in the Indenture and the
Lessee's Allocable Share of amounts payable to the Credit Issuer
under the Credit Agreement. The Lessee shall not be obligated to pay
any portion of the fees or expenses of the Program or amounts payable
to the Credit Issuer under the Credit Agreement readily attributable
to another Lessee.
SECTION 5.12. Pledeed Bonds. The Lessee acknowledges that
Bonds purchased with monies drawn under the Credit Facility as
provided in Article III of the Indenture will be registered in the
name of the Lessor for the account of the Lessees and will be pledged
to the Credit Issuer under the Pledge Agreement. The Lessee hereby
agrees to such pledging of Pledged Bonds. The Lessee agrees that it
shall not purchase any Bonds being remarketed by the Remarketing
Agent unless the Credit Issuer has defaulted under the Credit
Facility upon a drawing thereunder to pay the Purchase Price for such
Bonds. The Lessee acknowledges that it has received and reviewed a
copy of the Reimbursement Agreement and the Pledge Agreement and is
familiar with the provisions of such documents regarding Pledged
Bonds, inclUding, without limitation, the provisions of Section 3 of
the Reimbursement Agreement.
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SECTION 5.13. Books and Records. The Lessee will at all
times during the Term of this Lease keep proper books of record and
account in which full, true and correct entries in conformity with
generally accepted accounting principles shall be made of all
dealings and transactions in relation to its activities. The Lessee
will permit the Lessor, the Credit Issuer, any authorized
representatives of the Lessor or the Credit Issuer and the Lessor's
successors and assigns at reasonable times and intervals upon prior
written notice to examine and make abstracts, subject to proprietary
and confidentiality policies and agreements of or binding upon the
Lessee, from the Lessee's books and records and to discuss the
Lessee's affairs, finances and accounts with the Lessee's officers
and independent accountants. The Lessee will promptly notify the
Lessor and the Credit Issuer if at any time the Lessee shall not
maintain a positive fund balance in its general fund.
ARTICLE VI
DISCLAIMER OF WARRANTIES; ACCESS
SECTION 6.1. Disclaimer of Warranties. THE LESSOR MAKES
NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE LESSEE
OF THE PROJECT OR ANY ITEM THEREOF OR ANY OTHER REPRESENTATION OR
WARRANTY WITH RESPECT TO THE PROJECT OR ANY ITEM THEREOF. IN NO
EVENT SHALL THE LESSOR, THE CREDIT ISSUER OR THE TRUSTEE BE LIABLE
FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THIS LEASE OR FOR THE EXISTENCE,
FURNISHING, FUNCTIONING OR THE LESSEE'S USE OF THE PROJECT.
SECTION 6.2. Lessee' s Riszht to Enforce Warranties. The
Lessee shall have all rights with respect to the warranties of the
Contractors with respect to the Project, and the right to enforce
such warranties against the Contractors. If the Lessor is ever
required or re'quested by the Lessee to enforce any warranty with
respect to the Proj ect on behalf of the Lessee, the Lessee shall
reimburse the Lessor for any costs incurred by the Lessor in the
enforcement of such warranty, including reasonable attorneys' fees.
SECTION 6.3. Lessor and Credit Issuer Access to the
Pro;ect. The Lessee agrees that the Lessor, the Credit Issuer, any
authorized representative of the Lessor or the Credit Issuer and the
Lessor's successors or assigns, shall have the right at all
reasonable times to examine and inspect the Proj ect. The Lessee
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further agrees that the Lessor, the Credit Issuer, any such
representative, and the Lessor's successors or assigns shall have
such rights of access to the Project as may be reasonably necessary
to cause the proper maintenance of the Project in the event of
failure by the Lessee to perform its obligations under this Lease, or
to enforce the remedies provided in this Lease.
ARTICLE VII
ASSIGNMENT, SUBLEASING AND INDEMNIFICATION
SECTION 7.1. Assi2nment bv Lessor. The Lessee and the
Lessor acknowledge that this Lease, including the rights to receive
the Lease Payments hereunder and the rights to enforce the
covenants, agreements, representations and warranties of the Lessee
hereunder and all other rights and remedies of the Lessor hereunder
(except the rights to expenses, fees and indemnification of the
Lessor provided herein), has been pledged and assigned by the Lessor
to the Trustee under the Indenture as security for the Bonds and the
obligations of the Lessor under the Credit Agreement. It is
expressly agreed that, notwithstanding such pledge and assignment,
the Lessor shall retain title to the Project and all duties and
obligations of the Lessor hereunder.
SECTION 7.2. Assi2nment and Subleasin2 bv the Lessee.
This Lease may be assigned or the Project may be subleased by the
Lessee, provided, that any such assignment sublease shall be subject
to all of the following conditions:
(a) This Lease and the obligation of the Lessee to make
Lease Payments under this Lease shall remain obligations of the
Lessee; and
(b) The sublessee or assignee shall assume the obligations
of the Lessee under this Lease to the extent of the interest
subleased or assigned; and
(c) The Lessee shall, within thirty (30) days after the
delivery thereof, furnish or cause to be furnished to the Lessor,
the Credit Issuer and the Trustee a true and complete copy of such
sublease or assignment; and
(d) No such sublease or assignment by the Lessee shall
cause the Project to be used for a purpose other than a governmental
or proprietary function authorized under the provisions of the Act
and the Constitution and laws of the State; and
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(e) The Lessee shall have delivered to the Trustee an
op1n1on of Bond Counsel to the effect that such sublease or assignment
shall not cause the interest on the Bonds to become subject to federal
or State income taxes.
SECTION 7.3. Release and Indemnification Covenants. The
Lessee shall and hereby agrees to indemnify and save the Lessor, the
Credit Issuer and the Trustee and the Executive Board members,
members, officers and employees of each of the foregoing harmless
from and against all claims, losses and damages, including legal fees
and expenses, arising out of (a) the use, maintenance, condition or
management of, or from any work or thing done on the Project by the
Lessee or at its direction or request, (b) any breach or default on
the part of the Lessee in the performance of any of its obligations
under this Lease, (c) any act or negligence of the Lessee or of any of
its agents, contractors, servants, employees or licensees with respect
to the Project, (d) any act or negligence of any assignee or sublessee
of the Lessee, or of any agents, contractors, servants, employees or
licensees of any assignee or sublessee of the Lessee with respect to
the Project, or (e) the acquisition, construction and installation of
the Project or the authorization of payment of the Acquisition Costs
by the Lessee or authorization of payment of costs of repairs to the
Project. No indemnification to the Lessor, the Credit Issuer or the
Trustee is required to be made by the Lessee under this Section or
elsewhere in this Lease for willful misconduct, negligence, or breach
of duty under this Lease by the Lessor, the Credit Issuer, the
Trustee, their officers, agents, employees, successors or assigns.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default Defined. The following
shall be l1events of default" under this Lease and the terms lIevents
of default" and "default" shall mean, whenever they are used in this
Lease, anyone or more of the following events.
(a) Failure by the Lessee to pay any Lease Payment or other
payment required to be paid under this Lease at the time
specified herein.
(b) Failure by the Lessee to observe and perform any
covenant, condition or agreement on its part to be observed or
performed, other than as referred to in clause (a) of this
Section, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied has
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been given to the Lessee by the Lessor, the Trustee, the Credit
Issuer or the Owners of not less than twenty-five percent (25%)
in aggregate principal amount of Bonds then outstanding;
provided, however, if the failure stated in the notice cannot
be corrected within the applicable period, the Lessor, the
Trustee, the Credit Issuer and such Owners will not
unreasonably withhold their consent to an extension of such
time if corrective action is instituted by the Lessee within
the applicable period and diligently pursued until the default
is corrected.
(c) The filing by the Lessee of a voluntary petition in
bankruptcy, or failure by the Lessee promptly to lift any
execution, garnishment or attachment, or the filing of an
involuntary petition in bankruptcy against the Lessee which
petition shall not have been withdrawn within sixty (60) days,
or assignment by the Lessee for the benefit of creditors, or
the entry by the Lessee into an agreement of composition with
creditors, or the approval by a court of competent jurisdiction
of a petition applicable to the Lessee in any proceedings
instituted under the provisions of the federal bankruptcy law
or under any similar acts which may hereafter be enacted.
SECTION 8.2. Remedies on Default. So long as the Credit
Issuer is not in default under the Credit Facility, upon the
occurrence of any event of default specified in Section 8.1 hereof,
the Trustee, as assignee of the Lessor, shall exercise any or all of
the remedies provided in this Section as directed by the Credit
Issuer. If the Credit Issuer is in default under the Credit
Facility securing the Bonds, upon the occurrence and continuance of
any event of default specified in Section 8.1(a) or 8.1(c) of this
Lease, the Trustee, as assignee of the Lessor and the Lessor, shall
proceed, and upon the occurrence of an event of default specified in
Section 8.1(b) of this Lease, may proceed, and upon written request
of the Owners of not less than a majority in aggregate principal
amount of Bonds then outstanding, shall proceed, to:
(a) Protect and enforce this Lease by such judicial
proceeding as the Credit Issuer or the Trustee, as the case may
be, shall deem most effectual, either by suit in equity or by
action at law, whether for the specific performance of any
covenant or agreement contained in this Lease, or in aid of the
exercise of any power granted in this Lease, or to enforce any
other legal or equitable right vested in the Lessor or its
assignee by this Lease or by law; or
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(b) Take possession of the Project and exclude the Lessee
from using it until the default is cured, holding the
Lessee liable for the Lease Payments and other amounts payable
by the Lessee prior to such taking of the Project under and
pursuant to this Lease and the curing of such default; or
(c) Take whatever action at law or in equity may appear
necessary or desirable to enforce the Lessor's rights as the
owner of the Project including termination of this Lease and
the repossession and lease and sale of the Project.
SECTION 8.3. No Remedv Exclusive. No remedy herein
conferred upon or reserved to the Lessor or its assignee is intended
to be exclusive, and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Lease or now or
hereafter existing at law or in equity. No delay or omission 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 thereof,
but any such right and power may be exercised from time to time and
as often as may be deemed expedient. In order to entitle the Lessor
or its assignee to exercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice, other than
such notice as may be required in this Article or by law.
SECTION 8.4. Al!reement to Pay Attorneys' Fees and
Expenses. In the event that either party to this Lease should
default under any of the provisions hereof, if the nondefaulting
party should employ attorneys or incur other expenses for the
collection of monies or the enforcement or performance or observance
of any obligation or agreement on the part of the defaulting party
herein contained, the defaulting party agrees that it will on demand
therefor pay to the nondefaulting party the reasonable fees of such
attorneys and such other expenses so incurred by the nondefaulting
party.
SECTION 8.5. No Additional Waiver Implied by One Waiver.
In the event any covenant contained in this Lease should be breached
by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach under this Lease.
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ARTICLE IX
OPTION TO PURCHASE; OPTION TO PREPAY
SECTION 9.1. Purchase Ontion.
option to purchase the Project in the
Article.
The Lessee shall
manner provided
have the
in this
SECTION 9.2. Exercise of Ontion.
(a) The Lessee may exercise its option to purchase the
Project by paying a purchase price equal to the amount necessary to
prepay the unpaid Principal Component of Lease Payments payable
hereunder in whole, plus the accrued interest on the Bonds relating
to such Principal Component to the date set for redemption of such
Bonds from such prepayment plus the Lessee's Allocable Share or
Floating Rate Allocable Share, as the case may be, of expenses of the
Program accruing under the Indenture to such redemption date plus the
Lessee's Allocable Share or Floating Rate Allocable Share, as the
case may be, of amounts payable to the Credit Issuer under the Credit
Agreement to such redemption date. Such principal and interest
portions of such purchase price shall be deposited by the Trustee in
the Designated Principal Payment Account and Designated Interest
Payment Account of the Debt Service Fund, respectively, established
under the Indenture with respect to this Lease to be applied to
reimburse the Credit Issuer for the drawing under the Credit Facility
to redeem Bonds as provided in Section 7.01(b) of the Indenture, and
the Program expense portions of such purchase price shall be paid by
the Trustee to the parties entitled thereto and the portion of such
purchase price relating to amounts payable to the Credit Issuer under
the Credit Agreement shall be deposited in the Credit Issuer Fund.
(b) The Lessee shall give the Lessor, the Credit Issuer and
the Trustee notice of its intention to exercise its option not less
than forty (40) days in advance of the date of exercise and shall
deposit with the Trustee on the date which is 30 days or more prior
to the date of the redemption an amount equal to such purchase price.
If the Lessee exercises its option to purchase the Project pursuant
to this Section, any amount then on hand in the Lessee's Designated
Reserve Account and the Lessee's Designated Insurance and
Condemnation Account shall be applied towards the payment of the
applicable purchase price to be paid by the Lessee. If the Lessee
shall have given notice to the Trustee of its intention to purchase
the Project, but shall not have deposited the purchase price with the
Trustee on the date specified in such notice, the Lessee shall
continue to pay Lease Payments as if no such notice had been given.
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Notwithstanding any provision of this Lease or the Indenture to the
contrary, if all Bonds relating to this Lease are Pledged Bonds, no
advance notice of the exercise by the Lessee of its election to
exercise the options granted to the Lessee in this Section shall be
required and the Lessee shall be permitted to purchase the Project as
provided in this Section without any advance notice.
SECTION 9.3. Transfer of Title and Release of Lessor's
Interest. Upon exercise by the Lessee of its option to purchase the
Project, all right, title and interest of the Lessor in and to the
Project shall be transferred to the Lessee.
SECTION 9.4. ODtion to PreDav. The Lessee shall have the
option to prepay in whole or in part and, if in part, in integral
multiples of $100,000, the Principal Component of Lease Payments
hereunder. Said prepayment shall be applied to reimburse the Credit
Issuer for the drawing under the Credit Facility to redeem Bonds as
provided in Section 7.0l(b) of the Indenture.
The Lessee shall give the Lessor, the Credit Issuer and the
Trustee notice of its intention to exercise its option not less than
forty (40) days in advance of the date of exercise and shall deposit
with the Trustee on or prior to 30 days prior to the redemption
resulting from such prepayment an amount equal to the Principal
Component of Lease Payments being prepaid, plus accrued interest to
the date of redemption.
In the event of the Lessee's exercise of its option to
prepay in part the Principal Component of Lease Payments, the amount
of Lease Payments to be paid by the Lessee over the remaining Term of
this Lease Agreement shall be adjusted so as to reflect such
prepayment of the Principal Component of Lease Payments.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed to have been received 48 hours after deposit in the United
States mail in registered or certified form with postage fully
prepaid when sent to the addresses shown on Exhibit D hereto.
The Trustee, the Lessor, the Credit Issuer, the Program
Administrator, the Remarketing Agent, the Tender Agent and the
Lessee, by notice given hereunder, may designate different addresses
to which subsequent notices, certificates or other communications
will be sent.
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SECTION 10.2. Bindin2 Effect This Lease shall inure to the
benefit of and shall be binding upon the Lessor and the Lessee and
their respective successors and assigns, and the Trustee shall be
deemed a third party beneficiary of this Lease.
SECTION 10.3. Severability In the event any provision of
this Lease shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
SECTION 10.4. Amendments. Chan2es and Modifications. This
Lease may be amended or any of its terms modified with the written
consent of the Lessee and the Lessor; provided, that no such
amendment shall become effective unless approved by the Trustee and
the Credit Issuer.
SECTION 10.5. Net-net-net Lease. This Lease shall be
deemed and construed to be a "net-net-net lease I" and the Lessee
hereby agrees that the Lease Payments shall be an absolute net return
to the Lessor or its successors or assigns, free and clear of any
expenses, charges or set-offs whatsoever.
SECTION 10.6. Further Assurances and Corrective Instru-
~. The Lessor and the Lessee agree that they will, from time to
time, execute. acknowledge and deliver I or cause to be executed,
acknowledged and delivered, such supplements hereto and such further
instruments as may reasonably be required for correcting any
inadequate or incorrect description of the Project hereby leased or
intended so to be or for carrying out the expressed intention of this
Lease.
SECTION 10.7. Execution in Counteroarts. This Lease may be
executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
SECTION 10.8. Aoolicable Law. This Lease shall be governed
by and construeo in accordance with the laws of the State.
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SECTION 10.9. Lessor and Lessee Representatives.
Whenever under the provisions of this Lease the approval of the
Lessor or the Lessee is required, or the Lessor or the Lessee is
required to take some action at the request of the other, such
approval or such request shall be given for the Lessor by an
Authorized Representative of the Lessor and for the Lessee by an
Authorized Representative of the Lessee, and any party hereto shall
be authorized to rely upon any such approval or request.
SECTION 10.10. Captions. The captions or headings in
this Lease are for convenience only and in no way define, limit
or describe the scope or intent of any provisions or Section of
this Lease.
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IN WITNESS WHEREOF, the Lessor has caused this Lease to
be executed in its name by its duly authorized representative and
to be attested by its duly authorized representative; and the
Lessee has caused this Lease to be executed in its name by its duly
authorized officer and to be attested and its official seal to be
impressed hereon by its duly authorized officer, all as of the
Dated Date.
ASSOCIATION OF BAY AREA
GOVERNMENTS, as Lessor
/~,?~
By: D ty E utive Direc
AD: e jJ
gy: Financial ~ices Manager
CITY OF SAN BERNARDINO, CALIFORNIA,
,y" 'J~ )~
Title: Mayor r
Authorized Representative
(S E A L)
Attest:
BY~/./fnt?/~.$
~Title: City Clerk
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