HomeMy WebLinkAbout11-14-01 1. INDENTURE OF TRUST // i °/ �.
$
CITY OF ORONO,MINNESOTA
SENIOR HOUSING REVENUE BONDS
(ORONO WOODS APARTMENT PROJECT)
SERIES 2001A
and
CITY OF ORONO,MINNESOTA
SENIOR HOUSING REVENUE BONDS
(ORONO WOODS APARTMENT PROJECT)
TAXABLE SERIES 2001B
and
CITY OF ORONO,MINNESOTA
SENIOR HOUSING REVENUE BONDS
(ORONO WOODS APARTMENT PROJECT)
SUBORDINATE SERIES 200W
INDENTURE OF TRUST
Dated as of November 1, 2001
by and between
CITY OF ORONO, MINNESOTA
And
U.S. BANK TRUST NATIONAL ASSOCIATION
TABLE OF CONTENTS
PARTIES AND RECITALS PAGE
Parties 1
Recitals 1
GRANTING CLAUSES 2
ARTICLE I Definitions and Interpretation 4
Section 1.01 Definitions 4
Section 1.02 Characteristics of Certificate or Opinion 15
Section 1.03 Additional Provisions as to Interpretation. 16
ARTICLE II Form,Execution and Registration of Bonds 17
Section 2.01 Form,Maturities; Interest Rates and other Terms of the Bonds. 17
Section 2.02 Execution of Bonds. 19
Section 2.03 Authentication of Bonds. 19
Section 2.04 Registration,Transfers and Exchange 19
Section 2.05 Payment of Interest on Bonds; Interest Rights Preserved. 20
Section 2.06 Ownership of Bonds. 21
Section 2.07 Reissuance of Mutilated,Destroyed,Stolen or Lost Bonds 21
Section 2.08 Conditions for Authentication of Bonds. 21
Section 2.09 Authorization of Additional Bonds 22
Section 2.10 Book-Entry System 23
Section 2.11 Termination of Book-Entry Only System 24
ARTICLE III Redemption of Bonds 26
Section 3.01 Redemption of Bonds 26
Section 3.02 Written Notice to Trustee. 27
Section 3.03 Mailing and Publication of Notice. 27
Section 3.04 Deposit for Redemption. 28
Section 3.05 Payment of Redeemed Bonds 28
Section 3.06 Cancellation of Redeemed Bonds 28
Section 3.07 Partial Redemption of Bonds 28
ARTICLE III-A MANDATORY TENDER AND REMARKETING OF SERIES
2001A BONDS 30
Section 3A.01. Mandatory Tender of Series 2001A Bonds 30
Section 3A.02. Duties of Trustee 30
Section 3A.03. Remarketing of 30
Section 3A.04. Purchase of Tendered 31
Section 3A.05. No Remarketing to 31
Section 3A.06. Purchase Not to Constitute a Redemption 31
Section 3A.07. Untendered Bonds 31
Section 3A.08. Bond Purchase Fund 31-32
ARTICLE IV Application of Bond Proceeds; Creation of Funds 33
Section 4.01 Establishment of Funds. 33
Section 4.02 Deposit of Series 2001 Bond Proceeds 33
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Section 4.03 Project Fund 34
Section 4.04 Application of Balance of Construction Account 35
ARTICLE V Application of Revenues; Additional Funds 36
Section 5.01 Revenue Fund. 36
Section 5.02 Bond Fund 37
Section 5.03 Optional Redemption Fund. 38
Section 5.04 Debt Service Reserve Fund. 39-38
Section 5.05 Surplus Fund. 40
Section 5.06 Taxes and Insurance Fund. 40
Section 5.07 Repair and Replacement Fund. 41
Section 5.08 Rebate Fund. 41
Section 5.09 Insurance and Award Fund 42
Section 5.10 Investment of Funds. 42
Section 5.11. Operating Reserve Fund. 43
Section 5.12. Pledge of Tax Increment Revenue. 43
ARTICLE VI Particular Covenants of the City 44
Section 6.01 Payment of Bonds. 44
Section 6.02 Extensions of Payments;No Encumbrances. 44
ARTICLE VII Remedies on Default 45
Section 7.01 Events of Default 45
Section 7.02 Acceleration of Maturity. 45
Section 7.03 Enforcement of Covenants and Conditions. 45
Section 7.04 Appointment of Receivers 46
Section 7.05 Application of Moneys 46
Section 7.06 Trustee May File Proofs of Claims. 47
Section 7.07 Right of Trustee to Act Without Possession of Bonds. 47
Section 7.08 Power of Majority of Senior Bondholders. 48
Section 7.09 Limitation on Suits by Senior Bondholders 48
Section 7.10 Waiver by Bondholders. 48
Section 7.11 Remedies Cumulative; Delay Not To Constitute Waiver. 48
Section 7.12 Restoration of Rights Upon Discontinuance of Proceedings 49
ARTICLE VIII Concerning the Trustee 50
Section 8.01 Acceptance of Trust and Prudent Performance Thereof. 50
Section 8.02 Trustee May Rely Upon Certain Documents and Opinions. 51
Section 8.03 Trustee Not Responsible for Indenture Statements,Validity 51
Section 8.04 Limits on Duties and Liabilities of Trustee 51
Section 8.05 Money Held in Trust. 52
Section 8.06 Obligation of Trustee 52
Section 8.07 Notice to Bondholders,etc. 52
Section 8.08 Intervention in Judicial Proceedings 52
Section 8.09 Further Investigation by Trustee. 52
Section 8.10 Trustee to Retain Financial Records 53
Section 8.11 Compensation of Trustee. 53
Section 8.12 Trustee May Hold Bonds. 53
Section 8.13 Appointment of Trustee 53
Section 8.14 Merger of Trustee. 53
Section 8.15 Resignation or Removal of Trustee. 53
Section 8.16 Appointment of Successor Trustee 54
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Section 8.17 Transfer of Rights and Property to Successor Trustee. 54
Section 8.18 Co-Trustee. 54
Section 8.19 Appointment of Successor or Alternate Paying Agents. 56
Section 8.20 Continuing Disclosure 56
ARTICLE IX Concerning the Bondholders 57
Section 9.01 Execution of Instruments by Bondholders. 57
Section 9.02 Waiver of Notice. 57
Section 9.03 Determination of Bondholder Concurrence. 57
Section 9.04 Revocation by Bondholders. 58
ARTICLE X Payment,Defeasance and Release 59
Section 10.01 Payment and Discharge of Indenture. 59
Section 10.02 Bonds Deemed Not Outstanding After Deposits. 60
Section 10.03 Unclaimed Money To Be Returned. 60
ARTICLE XI Supplemental Indentures 61
Section 11.01 Purposes for Which Supplemental Indentures may be Executed. 61
Section 11.02 Execution of Supplemental Indenture. 61
Section 11.03 Discretion of Trustee. 61
Section 11.04 Modification of Indenture with Consent Of Bondholders. 62
Section 11.05 Supplemental Indentures to be Part of Indenture. 62
Section 11.06 Rights of Borrower Unaffected. 63
Section 11.07 Additional Requirements for all Supplemental Indentures 63
ARTICLE XII Amendments to the Loan Agreement and Other Documents . . . 64
Section 12.01 Amendments to the Loan Agreement and Other Documents Not Requiring Consent of
Bondholders 64
Section 12.02 Amendments to Loan Agreement and other Documents Requiring Consents. 64
Section 12.03 No Amendment May Reduce Loan Repayments. 64
Section 12.04 Rights of City. 65
Section 12.05 Additional Requirements for all Amendments. 65
ARTICLE XIII Miscellaneous 66
Section 13.01 Limitation of City Liability. 66
Section 13.02 Immunity of Officers. 66
Section 13.03 No Benefits to Outside Parties. 66
Section 13.04 Separability of Indenture Provisions. 66
Section 13.05 Execution of Indenture in Counterparts. 66
Section 13.06 Headings Not Controlling. 66
Section 13.07 Notices,etc.to Trustee,City,Borrower,Etc. 66
Section 13.09 Consent by a Majority of Holders. 67
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THIS INDENTURE OF TRUST, dated as of the 1'day of November, 2001, by and between the
CITY OF ORONO,MINNESOTA,a Minnesota municipal corporation(the"City"),and U.S.BANK TRUST
NATIONAL ASSOCIATION,a national banking association with trust powers having its main offices and
place of business in the Minneapolis,Minnesota(the"Trustee"),with capitalized terms in the Recitals below
being used with the meanings ascribed thereto in Section 1.01.
WITNESSETH:
WHEREAS,the City is a duly organized and existing municipal corporation under the laws of the
state of Minnesota(the "State"), and is authorized to issue its revenue bonds and refunding revenue bonds
pursuant to the provisions of Minnesota Statutes, Chapters 462C, as amended(the "Act"); and
WHEREAS,Orono Senior Housing,LLC,a Minnesota limited liability company(the"Borrower"),
whose sole member is Wedum Foundation, a nonprofit company organized and existing under the laws of
the State and a 501(c)(3) Organization, has requested that the City make a loan to the Borrower for the
purpose of financing the costs of developing, acquiring,constructing and equipping a multifamily housing
facility designed primarily for seniors(as defined herein,the "Project"); and
WHEREAS,pursuant to the Act,the City has adopted a program for the issuance of revenue bonds
to fund a loan to the Borrower; and
WHEREAS,the City has deemed it advisable to enter into this Indenture and has duly authorized
and directed the issuance of:a series of revenue bonds in the aggregate principal amount of$
to be designated "City of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment
Project), Series 2001A" (the "Series 2001A Bonds"); a series of taxable revenue bonds in the aggregate
principal amount of$ on a parity basis with the Series 2001A Bonds to be designated"City of
Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment Project), Taxable Series
2001B" (the "Series 2001B Bonds", and together with the Series 2001A Bonds,the "Senior Bonds"); and
a series of subordinate revenue bonds in the aggregate principal amount of$ to be designated
"City of Orono,Minnesota Senior Housing Revenue Bonds(Orono Woods Apartment Project),Subordinate
Series 2001 C"(the"Subordinate Bonds",and together with the Senior Bonds,the"Series 2001 Bonds");and
WHEREAS,pursuant to the terms of the Loan Agreement of even date herewith between the City
and the Borrower(the"Loan Agreement"),the City will loan to the Borrower the proceeds of the Series 2001
Bonds to finance the costs of the Project; and
WHEREAS,the Loan Agreement requires the Borrower to make payments thereunder to pay the
principal of,premium(if any)and interest on the Series 2001 Bonds when due,which will be assigned by
the City to the Trustee(subject to the City's retention of certain rights thereunder); and
WHEREAS,the Borrower has agreed to execute and deliver to the City and cause to be assigned to
the Trustee a Combination Mortgage,Security Agreement,Fixture Financing Statement and Assignment of
Leases and Rents of even date herewith(the "Mortgage"),to secure the payment of the Senior Bonds, and
the Borrower's obligations under the Loan Agreement with respect thereto; and
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WHEREAS,the Borrower has also agreed to execute and deliver to the City and cause to be assigned
to the Trustee a Subordinate Combination Mortgage,Security Agreement,Fixture Financing Statement and
Assignment of Leases and Rents of even date herewith(the"Subordinate Mortgage"),to secure the payment
of the Subordinate Bonds,and the Borrower's obligations under the Loan Agreement with respect thereto;
and
WHEREAS,the execution and delivery of this Indenture and the Loan Agreement and the issuance
of the Series 2001 Bonds have been in all respects duly and validly authorized by the City Council of the City
pursuant to a resolution adopted by the City Council(as further described herein,the "Bond Resolution");
and
WHEREAS,the execution and delivery of this Indenture have been duly authorized by the City
Council,and all conditions,acts and things necessary and required by the Constitution and laws of the State
of Minnesota, or otherwise,to exist,to have happened or to have been performed precedent to and in the
execution and delivery of this Indenture, and in the issuance of the Series 2001 Bonds, do exist, have
happened or have been performed in regular form,time and manner,and the execution and delivery of this
Indenture have been in all respects duly authorized; and
WHEREAS,the Trustee has accepted the trust created by this Indenture and in evidence thereof has
joined in the execution;
NOW,THEREFORE,THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
To secure the payment of the principal of,premium(if any)and interest on the Bonds of all Series
issued and outstanding from time to time under this Indenture and the performance and observance of all
terms of the Bonds and this Indenture, and in consideration of the mutual covenants herein and of the
purchase and acceptance of the Bonds of all Series from time to time by the Holders(or Beneficial Owners)
thereof,and for other good and valuable consideration,the receipt whereof is hereby acknowledged,the City
hereby grants,bargains,sells,assigns,transfers,conveys,pledges and sets over,unto the Trustee,and to its
successor or successors in the trust hereby created and to its assigns forever and the Trustee hereby expressly
accepts,the following(the "Trust Estate"):
I.
All of the rights and interests of the City in the Loan Agreement,the Mortgage and the Subordinate
Mortgage,except for the rights of the City relating to expenses, indemnity,payment of attorneys' fees and
advances of the City under Sections 4.03(b), 6.01, 6.10 and 8.10 of the Loan Agreement.
II.
A first lien on and pledge of all right,title and interest in the moneys and investments in any other
fund or account to be created and maintained by the Trustee under this Indenture (other than the Rebate
Fund).
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III.
The Tax Increment Note issued by the City in favor of the Borrower and all payments made by the
City thereunder,which are to be received by the Trustee on behalf of the Borrower.
IV.
Any and all other property of every name and nature from time to time hereafter by delivery or by
writing of any kind conveyed,mortgaged,assigned or transferred,or in which a security interest is granted
by the City or the Borrower or by anyone in behalf of them or with their written consent, to the Trustee,
which is hereby authorized to receive any and all such property at any and all times and to hold and apply
the same according to the terms, including but not limited to all property subject to the Mortgage and the
Subordinate Mortgage.
TO HAVE AND TO HOLD the foregoing hereby conveyed and assigned,or agreed or intended so
to be,to the Trustee, its successor or successors in trust and its and their assigns, FOREVER.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth, for the equal and
proportionate benefit,security and protection of all Holders of the Bonds of each Series issued or to be issued
under and secured by this Indenture,without preference,priority or distinction as to lien or otherwise of any
of the Bonds of any Series over the Bonds of any other Series,except as may be otherwise herein provided.
PROVIDED,HOWEVER,that if the principal of the Bonds and the premium(if any)and interest
due or to become due thereon,shall be paid at the times and in the manner mentioned in the Bonds,or shall
have been provided for,by depositing with the Trustee sums sufficient to pay such entire amounts due or to
become due thereon, and all the covenants and conditions pursuant to the terms of this Indenture and the
Loan Agreement shall be kept, performed and observed, including without limitation all amounts payable
to the Trustee or the City thereunder,the rights hereby granted shall cease,terminate and be void;otherwise,
this Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH,and it is expressly declared that all Bonds issued
and secured hereunder are to be issued, authenticated and delivered and all said property hereby assigned
or pledged is to be dealt with and disposed of under,upon and subject to the terms,conditions,stipulations,
covenants,agreements,trusts,uses and purposes as hereinafter expressed,all subject to the following terms:
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ARTICLE I
Definitions and Interpretation
Section 1.01 Definitions. Capitalized terms defined herein and not required to be otherwise
capitalized are used with the meanings, if any, ascribed thereto in the Loan Agreement or the Mortgage.
Unless the context otherwise requires,the terms defined in this Article I and in the Recitals,Granting Clauses
and succeeding Articles of this Indenture shall, for all purposes of this Indenture and of any Supplemental
Indenture supplemental hereto,have the meanings herein specified,such definitions to be equally applicable
to both the singular and plural forms of any of the terms defined:
"Act" means the Minnesota Statutes, Chapter 462C, as in effect on the Date of Issuance or as
otherwise applicable to any Series of Bonds.
"Additional Bonds" means any bonds issued in compliance with the terms of Section 2.09 and
secured by this Indenture.
"Affiliate" means with respect to any person, any second person who controls, is controlled by or
is under common control with the firs person, directly or indirectly (including through one or more
intermediaries).
"Authorized Borrower Representative" means the same as that term is defined in the Loan
Agreement.
"Authorized City Representative"means the person at the time designated to act on behalf of the City
by written certificate furnished to the Borrower and Trustee containing the specimen signature of such person
and signed on behalf of the City by its Mayor or its City Administrator. Such certificate may designate an
alternate or alternates.
"Authorized Denomination"means,(i)in the case of Series 2001 Bonds,any multiple of$5,000,and
(ii)in the case of any Additional Bonds of any Series,the amounts designated as Authorized Denominations
in any Supplemental Indenture for the Additional Bonds.
"Average Annual Debt Service"means the average of the aggregate annual payments of principal
of and interest on all outstanding Bonds of any or all Series(in all years in which principal on outstanding
Bonds is due by maturity or sinking fund redemption) in the current and any future calendar year, but
excluding from such calculation for each year in which a Senior Bond finally matures, any amount of the
Debt Service Reserve Fund anticipated on the Date of Issuance of the Series to be applied to the payment
of principal of or interest on the Series at its maturity.
"Beneficial Owner" means with respect to any Series of Bonds while in Book-Entry Form, each
person who beneficially owns such Bond(s)and on whose behalf,directly or indirectly, such Bond is held
by the Depository pursuant to a Book-Entry System.
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"Bond Counsel"means Faegre&Benson LLP,or any other firm of Independent attorneys nationally
recognized as experienced in passing on the validity and tax status of interest on obligations of state or local
governments.
"Bond Fund" means the fund so named in Section 4.01.
"Bond Resolution" means the resolution of the City adopted by the City Council on October 22,
2001, authorizing the Series 2001 Bonds,as the same may be amended,modified or supplemented by any
amendments or modifications thereof
"Bond Year" means for the Series 2001 Bonds,the twelve-month period beginning on November
1 in any year;provided that the first Bond Year for each Series shall commence on its Date of Issuance,and
for any Series of Additional Bonds,the period so designated in the Supplemental Indenture for the Additional
Bonds.
"Bonds" means any of the Series 2001 Bonds and any Additional Bonds.
"Book-Entry Form"means Bonds of any Series that are held in the name of the Depository(or its
nominee),with each maturity of the Series evidenced by a single Bond certificate.
"Book-Entry System"means a system of record keeping,securities clearance and funds transfer and
settlement maintained for securities by the Depository and Participants.
"Borrower" means Orono Senior Housing, LLC, a Minnesota limited liability company, its
successors and assigns.
"Business Day"means any day other than a Saturday, Sunday or a day on which the Trustee is not
open for business.
"Capital Expenditure"means any costs of a type that is properly chargeable to a capital account(or
would be chargeable with a proper election)under general Federal income tax principles.
"Certificate" means a certification in writing required or permitted by the provisions of the Loan
Agreement or this Indenture signed and delivered to the Trustee or other proper person or persons. If and
to the extent required by the provisions of Section 1.02,each Certificate shall include the statements provided
for in Section 1.02.
"Certified Resolution"means a copy of a resolution of the City Council,certified by the City Clerk
to have been duly adopted by the City Council and to be in full force and effect on the date of such
certification.
"City"means the City of Orono,a Minnesota municipal corporation, its successors and assigns.
"City Council"or"Council"means the City Council of the City,or its successor as governing body
of the City.
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"Code"means the Internal Revenue Code of 1986,as amended from time to time,and as applicable
to any Series of Bonds.
"Completion Date"has,with respect to the Project,the meaning set forth in Section 3.10 of the Loan
Agreement.
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City.
"Construction Account" means the account by such name in the Project Fund created by Section
4.01.
"Costs of Issuance"means any and all sums of money required to authorize,sell and issue the Bonds,
including,but not limited to,all legal,abstracting,financial and accounting fees and expenses,underwriters'
fees or commissions, printing and engraving costs, fees, costs and expenses of the City, the initial or
acceptance fee and expenses of the Trustee,all fees and taxes required in connection with recording or filing
this Indenture,the Mortgage,the Subordinate Mortgage,and all financing statements and all other expenses
incurred in connection with the preparation of the Loan Agreement, this Indenture, the Mortgage, the
Subordinate Mortgage, and any other documents, together with any other items of costs constituting
"issuance costs" within the meaning of Section 147(g)of the Code.
"Costs of Issuance Account"means the account by such name in the Project Fund created by Section
4.01.
"Computation Date" means for all Series constituting a single issue under the Code, except as
otherwise provided in any Supplemental Indenture authorizing any Additional Bonds,the end of the fifth
Bond Year,every fifth anniversary thereof,and the date on which all principal of and interest on the Series
are finally paid.
"Continuing Disclosure Agreement" means the Continuing Disclosure Agreement, dated as of
November 1, 2001,between the Trustee and the Borrower.
"Dated Date" means in the case of Series 2001 Bonds,November 1, 2001, and in the case of any
Series of Additional Bonds,the date on which interest is deemed to first commence accruing,as established
in any Supplemental Indenture authorizing the Series.
"Date of Issuance" means,with respect to any Series of Bonds,the date on which all Bonds of the
Series are first issued are delivered to the Original Purchaser thereof.
"Debt Service Coverage Ratio"means for any or all Series of Bonds and for any period the ratio of
Net Revenues Available for Debt Service to the actual Debt Service Requirement for any or all Series of
Bonds.
"Debt Service Requirement"means,with respect to any period,the aggregate principal and interest
due on Indebtedness, including amounts due with respect to sinking fund or similar scheduled payments.
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"Debt Service Reserve Fund" means the Fund by such name created Section 4.01.
"Debt Service Reserve Requirement" means as of any date,the lesser of the maximum amount of
principal of and interest on the Senior Bonds payable in any remaining Bond Year-or, 10%of the proceeds
(par value less original issue discount, if any)received from the issuance and sale of the Senior Bonds-or,
125%of the Average Annual Debt Service of the Senior Bonds,or some lesser amount. The Initial Senior
Debt Service Reserve Requirement is $ $573,806.
"Default" means any event or condition, which, with the passage of time, notice or both, will
constitute an Event of Default.
"Deposit Date"means the 15t day of each month on which the Monthly Net Project Revenues and
any Tax Increment Revenues and the Tax Increment Revenues are required to be deposited under Section
5.01.
"Depository" means The Depository Trust Company in New York, New York, its successors or
assigns,or any other person who shall be a Holder of all Bonds of a single Series,directly or indirectly for
the benefit of Beneficial Owners,and approved by the City and the Original Purchaser for the Series to act
as the Depository;provided that any Depository shall be registered or qualified as a"clearing agency"within
the meaning of Section 17A of the Securities Exchange Act, as amended.
"Determination of Taxability" means the receipt by the Trustee of a statutory notice of deficiency
by the Internal Revenue Service,a ruling from the National Office of the Internal Revenue Service,or a final
decision of a court of competent jurisdiction which holds in effect that interest payable on the Tax-Exempt
Bonds is includable for federal income tax purposes in the gross income of a Bondholder because of any act
or omission of the Borrower(or any successor or transferee)or of the Trustee; provided,however,that the
Borrower shall have an opportunity for no more than 180 days after receipt by the Trustee to contest any such
statutory notice,ruling or final decision and that no such statutory notice,ruling or final decision shall be
deemed a"Determination of Taxability" if the Borrower is contesting the same during such 180 day period
in good faith until the earliest of(a)abandonment of such contest by the Borrower, (b)the date on which
such statutory notice,ruling or final decision becomes final,or(c)the 181st day after the initial receipt by
the Trustee of such statutory notice,ruling or final decision;and provided further than no Determination of
Taxability shall arise from the interest on the Tax-Exempt Bonds being included, for example, (1) as a
specific "tax preference" item for individual or corporate taxpayers in computing the alternative minimum
tax;(2)in income for purposes of calculating alternative minimum taxable income of any company pursuant
to Section 55 of the Code; (3) in earnings and profits of branches of foreign corporations for purposes of
calculating the "branch profits" tax; (4) within gross income of certain recipients of social security and
railroad retirement benefits;or(5)as passive investment income to certain subchapter S corporations which
have subchapter C earnings and profits.
"Development Agreement" means the Development Agreement, dated as of November 1, 2001
between the City,the : . . .. • . . . . • .. _ . . • HRA, and the Borrower, as amended
from time to time.
"Disbursing Agreement"means Disbursing Agreement,dated as of November 1,2001,between the
Borrower,the Trustee and the title insurance company named therein as the "Disbursing Agent."
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"Event of Default" means an Event of Default described in Section 7.01 of this Indenture that has
not been cured.
"Event of Nonpayment"means,with respect to Subordinated Debt,any nonpayment when scheduled
of any amount of principal or interest thereon.
"Government Obligations"means direct obligations of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged,the payment of the principal of,
premium, if any, and the interest on which is fully guaranteed as a full faith and credit obligation of the
United States of America(including any securities issued or held in book-entry form on the books of the
Treasury of the United States of America).
"Gross Revenues"means,for any period,(i)all Project Revenues,(ii)all investment income of the
Borrower or on amounts held by the Trustee(other than in the Project Fund or the Rebate Fund)under the
terms of this Indenture, (iii) all contributions to the Borrower that are available to pay all principal and
interest on all Indebtedness of the Borrower and all Operating Expenses, (iv)all Tax Increment Revenues
received from the City under the Tax Increment Note or from any other source, and (v) all other non-
operating income of the Borrower,excluding unrealized gains on investments,income from the forgiveness
of Indebtedness,proceeds of any borrowing,proceeds from the sale of any asset not occurring in the ordinary
course of business, and any item of an extraordinary or nonrecurring nature.
"Ground Lease"means the Ground Lease between the Borrower and the HRA,dated as ofNovember
1,2001,by which the HRA has conveyed a leasehold interest in the Land to the Borrower.
II, "Holder," "Bondholder" or"owner"whenever employed herein with respect to a Bond means the
person in whose name such Bond shall be registered.
"HRA" means the Orono Housing and Redevelopment Authority.
"Indebtedness"means the same as such term is defined in the Loan Agreement.
"Indenture"means this Indenture of Trust between the City and the initial Trustee,and including any
amendments or supplements thereto.
"Independent," when used with reference to an attorney, engineer, architect, certified public
accountant,consultant or other professional person,means a person who(i)is in fact independent,(ii)does
not have any material financial interest in the Borrower or the transaction to which such person's Certificate
or opinion relates(other than payment to be received for professional services rendered),and(iii)is not an
officer,director or employee of the City or the Borrower.
"Independent Counsel" means an Independent attorney duly admitted to practice law before the
highest court of any state.
"Interest Payment Date" means for all Series 2001 Bonds, May 1 and November 1 of each year,
beginning May 1, 2002, and for any Additional Bonds, the dates established for the regularly scheduled
payment of interest thereon in any Supplemental Indenture for the Additional Bonds.
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"Interest Period" means for any Series,the period of time from and including an Interest Payment
Date(or the Date of Issuance, in the case of a Series prior to the first Interest Payment Date)through and
including the day immediately preceding the next Interest Payment Date.
"Insurance and Award Fund" means the fund so named in Section 4.01.
"Land" means the land and interests in land constituting the site of the Project as described in
Exhibit A to the Mortgage and the Subordinate Mortgage.
"Letter of Representations"means the Blanket Letter of Representations between the Depository and
the City and any amendments or supplements thereto.
"Loan Agreement"means the Loan Agreement,dated as ofNovember 1,2001,between the City and
the Borrower,as amended or supplemented from time to time.
"Loan Payment Date"means the date on which a Loan Repayment is due under Section 4.02(a)of
the Loan Agreement.
"Loan Repayments"means the payments made or to be made by the Borrower pursuant to Section
4.02(a)of the Loan Agreement.
"Long-Term Indebtedness" means the same as the term is defined in the Loan Agreement.
"Majority of Holders" means Holders (or Beneficial Owners) of majority in aggregate principal
amount of outstanding Bonds.
"Manager" means any person performing management services for the Project Facilities under a
Management Contract;the initial Manager is Great Lakes Management Irteotporated Company,a Minnesota
corporation.
"Management Contract"means the Management Agreement,dated as ofNovember 1,2001,between
the Borrower and the Manager,and any other successor contract providing for management services of the
Project Facilities, as the same may be amended from time to time in accordance with the terms hereof and
the Loan Agreement.
"Management Fee" means the compensation paid to the Manager for management of the Project
Facilities,exclusive of reimbursement for costs paid by the Manager which otherwise constitute Operating
Expenses, but including both a Senior Management Fee and a Subordinated Management Fee.
"Mandatory Tender Date" means November 1, 2011,the date the Series 2001A Bonds are subject
to mandatory tender.
"Maximum Debt Service Requirement"means for any period,the largest Debt Service Requirement
that is or will be due in that period or in any future period with the same duration as that period.
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"Monthly Net Project Revenues"means as of any Deposit Date for any calendar month,all Project
Revenues received during the period from and including the last Deposit Date to but not including the current
Deposit Date,less all Operating Expenses incurred(or if permitted herein,accrued)in such period exclusive
of(a)Ordinary Trustee Fees and Expenses,(b)amounts due as real or personal property taxes or assessments
on any portion of the Project Facilities, (c)amounts due as insurance with respect to the Project Facilities
or its operations, (d)amounts required in such month to be deposited in the Repair and Replacement Fund
or the Taxes and Insurance Fund,(e)interest due on Subordinated Debt,and(f)any items payable from the
Repair and Replacement Fund,the Project Fund or the Insurance and Award Fund).
"Monthly Repair and Replacement Deposit"means for each month the amount of$775(one-twelfth
(1/12)of the product of$150 multiplied by the number of Project units(62)).
"Monthly Taxes and Insurance Deposit"means for each month one-twelfth(1/12)of one hundred
percent(100%)of the amount set forth from time to time in the Budget(as defined in the Loan Agreement)
for the current calendar year for (i) annual premiums on all insurance required to be maintained by the
Indenture and (ii) real estate taxes (or payments in lieu of such taxes), assessments or other charges for
governmental services with respect to the Project Facilities for the current year(exclusive of utility charges);
provided that during the calendar year in which the Completion Date occurs,credit shall be given against the
earliest deposits otherwise due for amounts deposited in the Taxes and Insurance Fund on the Date of
Issuance of the Series 2001 Bonds.
"Monthly Transfer Date"means,with respect to each calendar month,the 20th day of the month,or
if such day is not a Business Day,the Business Day next following.
"Mortgage"means the Combination Mortgage; Security Agreement, Fixture Financing Statement
and Assignment of . l:11
. , o . , ,, .. . •' . •.• - - i , . . • .. - ••• . I
all aiiiri,dmein3 and supplcment5 tl►ertto. Rents and Leases, dated as of November 1, 2001, from the
Borrower to the City and as assigned to the Trustee as security for the Senior Bonds.
"Mortgage Assignment"means the Assignment of Mortgage of even date herewith from the City to
the Trustee, assigning the City's rights in the Mortgage and the Subordinate Mortgage to the Trustee.
"Net Proceeds"means,when used with respect to proceeds of insurance or a condemnation award,
moneys received or receivable by the Borrower as owner or the Trustee as secured party of the Project
Facilities, less the cost of recovery(including attorneys' fees)of such moneys from the insuring company
or the condemning authority.
"Net Revenues Available for Debt Service" means, for any period, the excess of Gross Revenues
over Operating Expenses.
"Net Revenues Available for Subordinate Debt Service"means at any time,amounts then on deposit
in the Suberdinatvd Subordinate Debt Service Account of the Bond Fund.
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"Non-Cash Expenses"shall mean for any period,depreciation,amortization,bad debt expense and
all other items properly reportable under generally accepted accounting principles for the period as an
expense but for which no corresponding outlay of cash or property is required in any period.
"Operating Expenses"means for any period,as determined on a cash rather than on an accrual basis
(except as otherwise may be provided herein),(i)all non-capitalized expenses incurred in the operation or
maintenance of the Project Facilities by or on behalf of the Borrower, including, but not limited to,
administrative costs,all-the Subordinate Management Fees Fee,utility charges and routine maintenance or
repair costs(whether or not such expenses are paid from the Surplus Fund or the Repair and Replacement
Fund), (ii)amounts due and payable to the Trustee or the City as fees or reimbursement of expenses under
the terms of this Indenture,the Loan Agreement,the Mortgage or the Subordinate Mortgage,(iii)amounts
required to be deposited in the Taxes and Insurance Fund(but not amounts required to be deposited in the
Repair and Replacement Fund),and(iv)principal paid and accrued interest on Short-Term Indebtedness(as
defined in the Loan Agreement),excluding(a)items otherwise constituting Operating Expenses paid from
the Taxes and Insurance Fund,(b)interest due and payable or accrued on outstanding Bonds,(b)Non-Cash
Expenses,(c)any loss or expense resulting from or related to any extraordinary and nonrecurring items,(d)
any losses or expenses related to the sale of assets, the proceeds of which sale are not included in Project
Revenues,and(e)any Subordinated Management Fees.
"Operating Reserve Fund" means the fund established under Section 5.11 of this Indenture.
"Operating Reserve Requirement"means an amount equal to$250,000,which amount may be funded
by cash,a bank letter of credit,or any combination thereof.
"Opinion of Counsel" means a written opinion of counsel (who need not be Independent counsel
unless so specified)appointed by the Borrower or the City and acceptable to the Trustee or appointed by the
Trustee. If and to the extent required by the provisions of Section 1.02, each Opinion of Counsel shall
include the statements provided for in said Section 1.02.
"Optional Redemption Fund" means the fund so named in Section 4.01.
"Original Purchaser" means, with respect to the Series 2001 Bonds, Miller Johnson Steichen
Kinnard,Inc.,and with respect to any Additional Bonds,the Original Purchaser identified in a Supplemental
Indenture for the Additional Bonds.
"Ordinary Trustee Fees and Expenses"means all fees and expenses chargeable by the Trustee for
its services hereunder rendered;exclusive of fees and expenses incurred as a result of a Default or an Event
of Default.
"Outstanding" when used as of any particular time with reference to Bonds of any Series (and
whether or not the term is capitalized) means (subject to the provisions of Section 9.03 of this Indenture
pertaining to any Bonds held by the City and the Borrower)all Bonds of the Series theretofore authenticated
and delivered by the Trustee under the Indenture or any Supplemental Indenture except: (i)Bonds or the
Series theretofore canceled by the Trustee or surrendered to the Trustee for cancellation; (ii)Bonds of the
Series for the payment or redemption of which funds or direct obligations of or obligations fully guaranteed
by the United States of America in the necessary amount shall have theretofore been deposited with the
Trustee(whether upon or prior to the maturity or the redemption date of such Bonds),provided that if such
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Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given
pursuant to Article III of this Indenture,or provision satisfactory to the Trustee shall have been made for the
giving of such notice; and(iii)Bonds of the Series in lieu of or in substitution for which other Bonds shall
have been authenticated and delivered by the Trustee pursuant to the terms of Section 2.07 pertaining to
replacement of Bonds.
"Participants"means persons who are designated as participants of the Depository in connection with
the operation of a Book-Entry System.
"Participating Underwriter" has the meaning ascribed in the Continuing Disclosure Agreement.
"Permitted Investments"means any of the following,to the extend permitted by law:
(a) Government Obligations;
(b) direct and general obligations of any state of the United States of America or any
municipality or political subdivision of such state, or obligations of any corporation, if such
obligations are in one of the two highest rating categories by a Rating Agency;
(c) negotiable or non-negotiable certificates of deposit,time deposits,or other similar
banking arrangements, issued by any nationally or state-chartered bank(including the Trustee)or
trust company or any loan association,domiciled in the United States, if either:
(i) the long-term obligations of such bank or trust company are rated in one of the
two highest rating categories by a Rating Agency; or
(ii) the deposits are continuously secured as to principal,but only to the extent not
insured by the Federal Deposit Insurance Corporation,or similar corporation chartered by
the United States of America, (1) by lodging with a bank or trust company, as collateral
security,obligations described in paragraph(a)above or,with the approval of the Trustee,
other marketable securities eligible as security for the deposit of trust funds under applicable
regulations of the Comptroller of the Currency of the United States of America or applicable
state law or regulations,having a market value(exclusive of accrued interest)not less than
the amount of such deposit,or(2)if the furnishing of security as provided in clause(1)of
this paragraph is not permitted by applicable law, in such manner as may then be required
or permitted by applicable state or federal laws and regulations regarding the security for
the deposit of trust funds;
(d) investment agreements continuously secured by the obligations listed in paragraphs
(a),(b)or(c)above,with any nationally or state-chartered bank domiciled in the United States,trust
company domiciled in the United States or broker or dealer(as defined by the Securities Exchange
Act of 1934,as amended)which is a member of the Securities Investors Protection Corporation if
(i) such obligations are delivered to the Trustee or supported by a safekeeping receipt issued by a
depository to the Trustee,provided that such investment agreements must provide that the value of
the underlying obligations shall be maintained at a current market value, calculated no less
frequently than monthly, of not less than the amount deposited thereunder, (ii) a prior perfected
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security interest in the obligations which are securing such agreement has been granted to the
Trustee,(iii)such agreement has been granted to the Trustee,and(iv)such obligations are free and
clear of any adverse third-party claims;
(e) investment agreements with any nationally or state-chartered bank, financial
institution, insurance company or trust company, domiciled in the United States, which has long-
term debt obligations rated in one of the two highest rating categories by a Rating Agency; and
(f) money market mutual funds invested solely in obligations listed in paragraphs(a),
(b)or(c)above;
provided that "Investments" shall not include a financial instrument, commonly known as a "derivative,"
whose performance is derived, at least in part, from the performance of any underlying asset, including,
without limitation, futures, options on securities, options on futures, forward contracts, swap agreements,
structure notes and participations in pools of mortgages or other assets.
"Predecessor Bonds"of any particular Bond means every previous Bond evidencing all or a portion
of the same debt as that evidenced by such particular Bond, and for purposes of this definition, any Bond
authenticated and delivered under Section 2.07 in lieu of a lost,destroyed or stolen Bond shall be deemed
to evidence the same debt as the lost, destroyed or stolen Bond.
"Principal Payment Dates" means for any Series the regularly scheduled dates on which principal
of the Series is due by maturity or sinking fund redemption;for the Series 2001 Bonds,the Principal Payment
Dates are November 1 of each year, commencing on November 1,200_2004.
"Principal Period"means for any Series,the period of time from and including a Principal Payment
Date(or the Date of Issuance, in the case of a Series prior to the first Principal Payment Date)through and
including the day immediately preceding the next Principal Payment Date.
"Prohibited Costs" means Costs of Issuance and any costs related to an airplane, skybox or other
private luxury box, a facility primarily used for gambling, or a store the principal business of which is the
sale of alcoholic beverages for consumption off premises.
"Project" means the development,acquisition, construction and equipping on the Land of a single
multifamily housing facility designed for senior residents that contains 62 units,all in accordance with the
Loan Agreement.
•
•
. I . . . .V . P. . • .' . •• • . ••' . . . . ., . . . .
at-any-time:
"Project Costs"means any of the following that are not Prohibited Costs,to the extent permitted by
the Act:
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(a) all Capital Expenditures which the Borrower shall be required to pay under the terms
of any contract or contracts for the development, acquisition, construction or equipping of the
Project Facilities or improving the Land;
(b) all Capital Expenditures of the Borrower incurred for labor and materials(including
labor or materials furnished by the Borrower) in connection with the acquisition, construction or
equipping of the Project Facilities or improving the Land;
(c) the cost of payment and performance bonds and any and all types of insurance that
may be necessary or appropriate to have in effect during the course of the acquisition or construction
of the Project Facilities or improving the Land, to the extent the same shall constitute a Capital
Expenditure;
(d) all costs of engineering and architectural services, including the costs of the
Borrower for test borings,surveys,estimates,plans and specifications and preliminary investigations
therefor,and for supervising construction,as well as for the performance of all other duties required
by or consequent to the Project;
(e) any other Capital Expenditures heretofore or hereafter incurred by the Borrower in
connection with the Project defined as and constituting a proper cost under the Act and approved by
the Authorized Borrower Representative; and
(0 Capitalized interest owing on the Series 2001 Bonds through and including April
30, 2003.
"Project Facilities"means the Land and all Project Buildings and Project Equipment to be acquired,
constructed or installed as part of the Project or which is otherwise located on the Land as the same may exist
at any time.
"Project Fund" means the fund so named in Section 4.01.
"Project Revenues" means, for a period, as determined in accordance with generally accepted
accounting principles, all operating revenues received by or on behalf of the Borrower for the ownership,
lease or other operation of the Project Facilities,from any source,including all rent,charges or fees derived
from the use or occupancy thereof, and proceeds of business or rent interruption insurance, excluding
security deposits from tenants, proceeds of insurance (other than from business or rent interruption
insurance), interest income, gain from the sale of any investment, and any item of an extraordinary or
nonrecurring nature.
"Rating Agency"means either of Moody's Investors Service or Standard&Poor's Ratings Group,
a division of McGraw-Hill.
"Redeem,""redeem"or"redemption"means and includes"prepay"or"prepayment"as the case may
be.
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"Regular Record Date"for the interest payable on any Interest Payment Date for all Series of Bonds
means the 15t day of the calendar month immediately preceding such date,and for interest payable on any
Interest Payment Date for Additional Bonds shall be date established therefor in the Supplemental Indenture
for the Additional Bonds.
"Remarketing Agent" means Miller Johnson Steichen Kinnard, Inc. or a successor Remarketing
Agent appointed and serving in such capacity pursuant to this Indenture;.
"Repair and Replacement Fund" means the fund so named in Section 4.01.
"Responsible Officer" of any Trustee hereunder means and includes the chairman of the board of
directors, the president, every vice president, every assistant vice president,the secretary, every assistant
secretary,every corporate trust officer,and every officer and assistant officer of such trustee,other than those
specifically above mentioned, to whom any corporate trust matter is referred because of such officer's
knowledge of,and familiarity with, a particular subject.
"Revenue Fund" means the fund so named in Section 4.01.
. - - - -
Indknta.c.
"Senior Bonds" means the Series 2001A Bonds and the Series 2001B Bonds.
"Senior Debt Service Account"means the fund so named under the Bond Fund created in Section
4.01.
"Senior Indebtedness"means Bonds and any Long-Term Indebtedness consented to by a Majority
of Holders which is permitted to be incurred by the Borrower under the Loan Agreement(other than a loan,
the payments of which pay any one or more Series of Bonds)and is secured equally and ratably on parity
with the Bonds pursuant to an agreement satisfactory to the Majority of Holders.
"Senior Debt Service Requirements"means,with respect to any period,the aggregate principal and
interest due on Senior Indebtedness,including amounts due with respect to sinking fund or similar scheduled
payments.
"Series"means any series for one or more Bonds as designated by this Indenture or a Supplemental
Indenture.
"Series 2001A Bonds" means the $ in aggregate principal amount of the City of Orono,
Minnesota Senior Housing Revenue Bonds(Orono Woods Apartment Project), Series 2001A.
"Series 2001B Bonds"means the$ in aggregate principal amount ofthe City of Orono,Minnesota
Senior Housing Revenue Bonds(Orono Woods Apartment Project), Taxable Series 2001B.
"Series 2001 Bonds" means the Senior Bonds and the Subordinate Bonds.
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"Series 2001 Tax-Exempt Bonds" means the Series 2001A Bonds and the Subordinate Bonds.
"Sole Member"means Wedum Foundation,a Minnesota nonprofit corporation and 501(cx3)Organization.
"Special Record Date"for the payment of any Defaulted Interest(as defined in Section 2.05)on fully
registered Bonds means a date fixed by the Trustee pursuant to Section 2.05.
"State" means the state of Minnesota.
"Subordinate Bonds"means the City of Orono,Minnesota Senior Housing Revenue Bonds(Orono
Woods Apartment Project), Subordinate Series 2001C.
"Subordinate Debt" means the Subordinate Bonds and any Subordinated Additional Debt secured
equally and ratably on parity with any other Subordinate Debt.
"Subordinate Debt Service Account" means the fund so named under the Bond Fund created in
Section 4.01.
"Subordinate Mortgage"means the Subordinate Combination Mortgage,Security Agreement,Fixture
Financing Statement and Assignment of Leases and Rents,between the Borrower,as mortgagor,and the City,
and assigned by the City to the Trustee,as mortgagee,pursuant to the Mortgage Assignment,all of even date
herewith and all amendments and supplements thereto.
"Subordinated Additional Debt" means any debt incurred by the Borrower with the consent of a
Majority of Holders that, so long as any Senior Indebtedness is outstanding, is entitled to be paid solely on
parity with the Subordinate Bonds from Net Revenues Available for Subordinated Debt Service,or which
is subordinate in right of payment to the Subordinate Bonds or any other Subordinated Additional Debt.
"Supplemental Indenture" means any amendment, modification or supplement to this Indenture
designated as a Supplemental Indenture and entered into in compliance with Article XI.
"Surplus Fund" means the fund so named in Section 4.01.
"Tax Increment Note" means the Tax Increment Revenue Note of 2001, dated as of November 1,
2001, from the HRA to the Borrower;
"Tax Increment Revenue"means all collections of tax increments which the HRA is required under
the Tax Increment Note to pay to the Borrower and which are pledged and assigned by the Borrower under
the Assignment of TIF Note and directed to be transmitted to the Trustee for deposit in the Revenue Fund;
"Taxes and Insurance Fund"means the fund so named in Section 4.01.
"Tax-Exempt Bonds"means any Series of Bonds for which on the Date of Issuance and opinion of
Bond Counsel was delivered to the effect that the interest thereon is not included in gross income for federal
income tax purposes.
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"Trust Estate" means the Trust Estate defined in the Granting Clauses to this Indenture.
"Trustee" means U.S. Bank Trust National Association, or any successor or assign permitted
hereunder servicing as the trustee under this Indenture.
"Working Capital Costs"means any cost that is not a Capital Expenditure.
Section 1.02 Characteristics of Certificate or Opinion. Every Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for in this Indenture or the Loan Agreement,
and except for certificates and opinions given pursuant to Section 2.08, shall include: (i)a statement that
the person or persons making such Certificate or opinion have read such covenant or condition and the
definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Certificate or opinion are based;(iii)
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 (iv) a statement as to whether, in the opinion of the
signers, such condition or covenant has been complied with.
Any Certificate made or given by an officer of the City or the Borrower or by an Independent
engineer, architect, consultant or other person may be based, insofar as it relates to legal matters,upon an
Opinion of Counsel,unless such person knows that the Opinion with respect to the matters upon which the
Certificate may be based as aforesaid is erroneous,or,in the exercise of reasonable care,should have known
that the same was erroneous. Any such Certificate or Opinion of Counsel may be based,insofar as it relates
to factual matters, information with respect to which is in the possession of the City or the Borrower,upon
a supporting Certificate of an officer or officers of the City or the Borrower,unless the signer knows that the
supporting Certificate with respect to the matters upon which the Certificate or opinion may be based as
aforesaid is erroneous, or, in the exercise of reasonable care, should have known that the same was
erroneous.
Section 1.03 Additional Provisions as to Interpretation. This Indenture shall be construed and
applied in accordance with the laws of the State.
Unless the context indicates otherwise, words importing the singular number include the plural
number,and vice versa. Words of any gender include the correlative words of the other gender. "Articles"
and "Sections" mentioned by number only are the respective Articles and Sections of this Indenture so
numbered. The terms "hereof," "hereby," "herein," "hereto," "hereunder," "hereinafter,"and similar terms
refer to this Indenture;and the term"hereafter"mean after,and the term"heretofore"mean before,the date
on which this Indenture was fully executed. Reference to a "person" shall include any natural individual,
corporation, association, partnership,joint venture, trust, limited liability company or partnership or any
other legally recognized entity.
Unless otherwise expressly provided herein,any terms pertaining to accounting or financial matters
shall be interpreted in accordance with generally accepted accounting principles.
Reference to any person includes reference to any successor or assign of such person to the extent
not in contravention herewith. Reference to any person in any position, office or capacity refers to any
person who succeeds to such position,office or capacity or is otherwise authorized to act in such position,
- 17 -
office or capacity due to the absence or incapacity of such person,who regularly holds such position,office
or capacity. Reference to any instrument or document includes reference to any amendment or modification
thereof not made in contravention of the Indenture or the Loan Agreement.
The captions or headings herein are for convenience only and in no way define,limit or describe the
scope or intent of any provisions or sections of this Indenture.
[The balance of this page is intentionally left blank.]
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ARTICLE II
Form,Execution and Registration of Bonds
Section 2.01 Form,Maturities.,Interest Rates and other Terms of the Bonds.
(a) General. The Bonds of each Series to be issued and secured under this Indenture
from time to time shall each be designated a"City of Orono, Minnesota Senior Housing Revenue
Bonds(Orono Woods Apartment Project),Series 2001_".The Series 2001 Bonds and Certificates
of Trustee and Assignment shall be substantially in the form set forth in Appendix A-1,Appendix
A-2 and Appendix A-3,and the form of any Additional Bonds shall be set forth in any Supplemental
Indenture for the Additional Bonds. The Bonds shall be issued in fully registered form and all Bonds
of a Series within a single maturity shall be in an Authorized Denomination,initially numbered from
R-1 upwards in order of maturity(with any designation deemed appropriate to evidence a particular
Series),and the Bonds originally issued,and not in exchange for Predecessor Bonds,shall be dated
as of the Dated Date. Bonds issued in exchange for Predecessor Bonds shall be dated the date to
which interest has been paid on the Bonds being surrendered for exchange, or the Dated Date if
issued prior to the first Interest Payment Date. No Bond shall represent principal payable or
maturing in different years.
(b) Nature of City Payment Obligations. No Bond shall be a general or moral obligation
of the City,and the taxing power of the City shall not be pledged to the payment of the Bonds or the
interest thereon. All Bonds shall be special limited revenue obligations of the City. Principal of,
premium,if any,and interest on all Bonds shall be payable solely out of the revenues derived from
the Loan Agreement or other amounts derived from the Trust Estate, including amounts received
under the Mortgage,the Subordinate Mortgage,and Net Proceeds. Neither the Bonds nor any of the
agreements or obligations of the City relating thereto shall be construed to constitute an indebtedness
of the State, the County of Hennepin (the "County") or the City within the meaning of any
constitutional,home rule charter or statutory provisions whatsoever,nor constitute or give rise to
a pecuniary liability or be a charge against the general credit or taxing powers of the State, the
County or the City.
(c) Accrual and Payment of Interest. The Series 2001 Bonds shall bear interest from
the most recent date to which interest has been paid or provided for(or if prior to the first date on
which interest is payable,from the Date of Issuance),payable semiannually on each Interest Payment
Date occurring on and after May 1,2002. Interest for the Series 2001 Bonds shall be calculated on
the basis of a 360-day year,consisting of twelve 30-day months,and,to the extent unpaid,accrued
interest shall compound on each Interest Payment Date thereafter. Additional Bonds shall bear
interest from their Date of Issuance that is payable on such Interest Payment Dates and calculated
in such manner as shall be established by any Supplemental Indenture authorizing the issuance of
the Additional Bonds.
(d) Methods of Payment. Except as may be otherwise provided with respect to
Additional Bonds in the Supplemental Indenture for such Bonds,the principal and redemption price
of all Bonds shall be payable to the registered owner upon presentation at the office of the Trustee
in such coin or currency of the United States of America as may be, on the respective dates of
payment thereof,legal tender for the payment of public and private debts,and interest on all Bonds
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shall be paid by check or draft mailed to the registered owner at the owner's registered address.
Notwithstanding the foregoing,(i)any interest due on any Bond shall be paid by wire transfer to any
Holder of not less than $500,000 aggregate principal amount of such Bonds(or, if less, all Bonds
of any Series),upon such Holder providing satisfactory instructions therefor to the Trustee,and(ii)
the redemption price or any prepayment of any Bond(but not payment upon final maturity)shall be
paid by wire transfer to any Holder of not less than$500,000 aggregate principal amount of such
Bonds (or, if less, all Bonds of any Series), upon such Holder providing satisfactory instructions
therefor to the Trustee and delivery to the Trustee not less than five(5)Business Days prior to any
date on which such a payment is due,the Bond or Bonds with respect to which such payment is to
be made.
(e) Principal Amount, Maturities and Interest Rates of Series 2001 Bonds. (i) The
Series 2001A Bonds shall be designated"City of Orono,Minnesota Senior Housing Revenue Bonds
(Orono Woods Apartment Project), Series 2001A". The Series 2001A Bonds shall be in the
aggregate principal amount of$ ,and shall mature on November 1 of the years set forth
below and bear interest at the rates per annum,according to years of maturity,until the Mandatory
Tender Date or earlier date on which it is paid or discharged as provided herein:
Date Principal Amount Interest Rate
November 1,200_2006 $
November 1,2002007
November 1, 2008
November 1,2009
November 1, 2010
November 1,2036
From and after the Mandatory Tender Date until the their maturity,the Series 2001A Bonds
shall bear interest at the interest rate,which,in the determination of the Remarketing Agent,would
result as nearly as practicable in the market value of the Series 2001A Bonds on the Mandatory
Tender Date,giving effect to the principal payment schedule and optional redemption provisions to
be in effect thereafter,being 100%of the principal amount thereof. In determining the rate pursuant
to this paragraph,the Remarketing Agent shall have due regard for general financial conditions and
such other or special conditions as in the judgment of the Remarketing Agent may have a bearing
on the rate. The Remarketing Agent shall determine the rate, and shall give notice of such
determination to the City,the Trustee and the Borrower,not less than five(5)Business Days prior
to the Mandatory Tender Date.
(ii)The Series 2001B Bonds shall be designated"City of Orono,Minnesota Senior Housing
Revenue Bonds (Orono Woods Apartment Project), Taxable Series 2001B". The Series 2001B
Bonds shall be in the aggregate principal amount of$ ,and shall mature on November
1 of the years and bear interest at the rates per annum, according to years of maturity, as follows:
Date Principal Amount Interest Rate
November 1,2004 $
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November 1, 2005
November 1, 2006
Nuvcnrher 1, 2007
(iii)The Subordinate Bonds shall be designated"City of Orono,Minnesota Senior Housing
Revenue Bonds (Orono Woods Apartment Project), Subordinate Series 2001C".The Subordinate
Bonds shall be in the aggregate principal amount of$ , and shall mature on November
1 of the years and bear interest at the rates per annum, according to years of maturity, as follows:
Date Principal Amount Interest Rate
November 1,2031 $
Section 2.02 Execution of Bonds. All Bonds shall be signed in the name of the City by the manual
or the facsimile signatures of the Mayor and the City Clerk or other officers of the City,said signatures shall
be authenticated by.the Trustee,which is hereby designated as authenticating agent. In the event that any
of the officers whose signatures appear on any Bonds shall cease to be officers of the City before such Bonds
shall have been authenticated or delivered by the Trustee, such Bonds may,nevertheless,be authenticated,
delivered, and issued, and upon such authentication,delivery and issue, shall be binding upon the City as
though those officers who signed the same had continued to be such officers of the City;and,also,any Bond
may be signed on behalf of the City by such person who,at the actual date of execution of such Bond,shall
be the proper officer of the City,although at the date of such Bond such person shall not have been such an
officer of the City. Upon the execution and delivery of this Indenture the City shall execute and deliver the
Series 2001 Bonds to the Trustee for authentication.
Section 2.03 Authentication of Bonds. No Bonds shall be valid or obligatory for any purpose or
shall be entitled to any right or benefit hereunder or under the Loan Agreement unless a Responsible Officer
of the Trustee or its authorized agent shall manually endorse and execute on such Bond a certificate of
authentication substantially in the form of the Certificate of Trustee set forth in Appendices A-1, A-2 and
A-3 hereto (or in the form set forth in a Supplemental Indenture in the case of Additional Bonds). Such
Certificate of Trustee upon any Bond shall be conclusive evidence that such Bond so authenticated has been
duly issued under this Indenture and that the Holder thereof is entitled to the benefits of this Indenture and
the Loan Agreement.
No Bonds shall be authenticated by the Trustee except in accordance with this Article.
The Trustee shall not be required to authenticate any Series 2001 Bond unless provided with the
documents referred to in Section 2.08 and such further Certified Resolutions, Certificates, instruments or
Opinions of Counsel as the Trustee may reasonably require with respect to the validity of the Series 2001
Bonds to be issued and the right and authority of the Trustee to authenticate such Bonds.
Section 2.04 Registration, Transfers and Exchange. As long as any Bonds issued hereunder shall
remain outstanding, the Trustee shall keep, as paying agent, an office or agency for the payment of the
principal of and interest on such Bonds, as in this Indenture provided,and for the registration and transfer
of such Bonds, and shall also keep at said office of the Trustee records for such registration and transfer.
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Upon surrender for transfer of any fully registered Bond at the office of the Trustee with a written
instrument of transfer satisfactory to the Trustee,duly executed by the registered owner or the owner's duly
authorized attorney,and upon payment of any tax,fee or other governmental charge required to be paid with
respect to such transfer,the City shall execute and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more fully registered Bonds of the same Series, of any
authorized denominations and of a like aggregate principal amount, interest rate and maturity.
Except as the right of exchange may be limited as to Bonds of any Series, fully registered Bonds,
upon surrender thereof at the office of the Trustee may, at the option of the registered owner thereof, be
exchanged for an equal aggregate principal amount of fully registered Bonds of the same Series, maturity
and interest rate of any authorized denominations.
In all cases in which the privilege of exchanging Bonds or transferring fully registered Bonds is
exercised,the City shall execute and the Trustee shall deliver Bonds in accordance with the provisions of
this Indenture. For every such exchange or transfer of Bonds,whether temporary or definitive,the City or
the Trustee may make a charge sufficient to reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or transfer,which sum or sums shall be paid by the person
requesting such exchange or transfer as a condition precedent to the exercise of the privilege of making such
exchange or transfer. Notwithstanding any other provision of this Indenture,the cost of preparing each new
Bond upon each exchange or transfer, and any other expenses of the City or the Trustee incurred in
connection therewith (except any applicable tax, fee or other governmental charge) shall be paid by the
Borrower pursuant to the Loan Agreement. The Trustee shall not be obligated to make any such exchange
or transfer of Bonds during the fifteen(15)days next preceding the date of the first publication or the mailing
(if there is no publication)of notice of redemption in the case of a proposed redemption of Bonds. The City
and Trustee shall not be required to make any transfer or exchange of any Bonds called for redemption.
Section 2.05 Payment of Interest on Bonds; Interest Rights Preserved. Interest on any fully
registered Bond of any Series which is payable,and is punctually paid or duly provided for,on any Interest
Payment Date shall be paid to the person in whose name that Bond(or one or more Predecessor Bonds) is
registered at the close of business on the Regular Record Date for such interest payment.
Any interest on Bonds which is payable,but is not punctually paid or duly provided for,on any date
on which interest is so payable under the terms hereof or any Supplemental Indenture("Defaulted Interest")
shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date solely by
virtue of such Holder having been such Holder; and such Defaulted Interest may be paid by the Trustee as
provided in Subsection(a)or(b)below:
(a) The Trustee may elect to make payment of any Defaulted Interest on the Bonds of
any Series to the persons in whose names such Bonds(or their respective Predecessor Bonds)are
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest,which shall be fixed in the following manner. The Trustee shall first determine the amount
of Defaulted Interest to be paid on each Bond and the date of the proposed payment(which date shall
be such as will enable the Trustee to comply with the next sentence). Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the funds for the proposed payment. The Trustee shall promptly notify the
Borrower of such Special Record Date and,at the expense of the Borrower,shall cause notice of the
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proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed,first
class postage prepaid, to each Holder of a fully registered Bond of such Series at the Holder's
address as it appears in the registration records not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Bonds of such Series(or their respective Predecessor Bonds)are registered on such
Special Record Date and shall no longer be payable pursuant to the following Subsection B.
(b) The Trustee may make payment of any Defaulted Interest on the fully registered
Bonds of any Series in any other lawful manner,if such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section,each Bond delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Bond shall carry all the rights to interest accrued and
unpaid,and to accrue,which were carried by such other Bond and each such Bond shall bear interest from
such date that neither gain nor loss in interest shall result from such transfer,exchange or substitution.
Section 2.06 Ownership of Bonds. As to any Bond,the City,the Borrower and the Trustee and their
respective successors,each in its discretion,may deem and treat the person in whose name the same for the
time being shall be registered as the absolute owner thereof for all purposes and neither the City nor the
Trustee nor their respective successors shall be affected by any notice to the contrary. Payment of or on
account of the principal of any such Bond shall be made only to or upon the order of the registered owner
thereof, but such registration may be changed as above provided. All such payments shall be valid and
effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid.
Section 2.07 Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds. In case any outstanding
Bond shall become mutilated or be destroyed,stolen or lost,the Trustee shall authenticate and deliver a new
Bond of like tenor, number and amount and Series as the Bond so mutilated, destroyed, stolen or lost, in
exchange and substitution for such mutilated Bond,upon surrender of such mutilated Bond or in lieu of and
substitution for the Bond destroyed, stolen or lost,upon filing with the Trustee evidence satisfactory to the
Trustee that such Bond has been destroyed,stolen or lost and upon furnishing the Trustee and the Borrower
with indemnity satisfactory to them and complying with such other reasonable regulations as the Trustee and
the Borrower may establish and payment of any expenses which the City,the Trustee or the Borrower may
incur in connection therewith. In the event any such Bond shall have matured,instead of issuing a substitute
Bond,the Trustee may pay the same without surrender thereof.
Section 2.08 Conditions for Authentication of Bonds. The Trustee shall not authenticate and deliver
Additional Bonds of any Series unless the conditions for the issuance set forth in Section 2.09 have been
satisfied, together with any conditions for the issuance thereof contained in the applicable Supplemental
Indenture. The Trustee shall not issue and deliver any Series 2001 Bonds pursuant to the Indenture unless
theretofore or simultaneously therewith there shall have been delivered to the Trustee the following:
(a) Certified copies of the Bond Resolution authorizing the issuance of all Series 2001
Bonds and the execution and delivery of the Loan Agreement and this Indenture,and the acceptance
and assignment to the Trustee of the Mortgage and the Subordinate Mortgage.
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(b) Executed counterparts of this Indenture, the Letter of Representations, the Loan
Agreement,the Continuing Disclosure Agreement, the Mortgage, the Subordinate Mortgage, the
Mortgage Assignment,the Disbursing Agreement,the Development Agreement,the Ground Lease,
the Tax Increment Note,the Assignment of TIF Note,a UCC-1 financing statement executed by the
Borrower as debtor and describing as collateral any tangible personal property described in the
granting clauses of the Mortgage and the Subordinate Mortgage, and UCC-1 financing statement
executed by the City as debtor and describing as collateral all rights of the City under the Loan
Agreement(except certain rights to indemnity and repayment of expenses,advances and legal fees).
(c) The manually signed approving opinion of Faegre & Benson, LLP, Minneapolis,
Minnesota, as Bond Counsel, concerning the validity and legality of the Series 2001 Bonds and
exclusion of interest on the Series 2001 Tax-Exempt Bonds from gross income for purposes of
federal income taxation under the Code.
(d) An order of the City directing the Trustee to deliver the Bonds described therein to
or upon the order of the Original Purchaser upon payment of the purchase price set forth therein.
(e) A policy of title insurance or commitment therefor to the effect that the Borrower
has good and marketable fee simple title to or a valid leasehold interest in the Mortgaged Property
(as defined in the Mortgage), that the Mortgage constitutes a valid first mortgage lien against the
Mortgaged Property,subject only to Permitted Encumbrances(as defined in the Loan Agreement),
and that the Subordinate Mortgage constitutes a valid second mortgage lien against the Mortgaged
Property.
(f) A Certificate by the Borrower pursuant to Section 148 of the Code as to absence of
arbitrage expectation.
(g) Such further certifications,documents and Opinions of Counsel as the Trustee,the
City,the Original Purchaser or Bond Counsel may require.
Section 2.09 Authorization of Additional Bonds. In addition to the Series 2001 Bonds,the City may
issue, in its discretion, upon request of the Borrower, and the Trustee shall authenticate and deliver,
Additional Bonds that shall be secured equally and ratably with either all outstanding Series 2001 Bonds(and
all other outstanding Bonds or unpaid Senior Indebtedness),to(i)provide funds to complete the Project,(ii)
provide financing for improvements or additions to the Project Facilities, (iii) provide financing for the
development, acquisition,construction and equipping of related senior residential or health care facilities,
or(iv)subject to applicable law,refund any Bonds or other Senior Indebtedness then outstanding and,in case
of an advance refunding,the interest thereon to maturity or a specified redemption date. Any such Additional
Bonds shall be authorized by resolution of the City and described in a Supplemental Indenture executed by
the City and the Trustee and,when so issued, authorized and described, shall be secured by this Indenture
and the Trust Estate on a parity with the applicable Series of Bonds then outstanding under this Indenture;
provided,that no such Additional Bonds shall be issued under the Indenture or secured by the Trust Estate
on a parity with any Series of outstanding Bonds unless the Trustee shall receive each of following:
(a) A written request from an Authorized Borrower Representative requesting the
issuance of such Additional Bonds,stating that no default has occurred under the Loan Agreement
which has not been cured,or that such default will be cured or waived as a result of the issuance of
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the Additional Bonds; and that all conditions precedent in this Indenture and the Loan Agreement
relating to the authentication and delivery of such Additional Bonds and the Borrower's incurrence
of Long-Term Indebtedness with respect thereto have been complied with;
(b) A Resolution adopted by the City Council in its sole and absolute discretion
authorizing the issuance of the Additional Bonds, the sale thereof to the purchaser or purchasers
named therein for the purchase price or consideration set forth therein;and the City's execution and
delivery of a Supplemental Indenture setting forth the terms of the Additional Bonds,and approving
an amendment or supplement to the Loan Agreement, if an amendment or supplement is proposed
by the Borrower to be entered into in connection with the issuance of the Additional Bonds;
(c) An order of the City signed by an Authorized City Representative directing the
authentication of such Additional Bonds and the delivery thereof to or upon the order of the
purchaser or purchasers named therein upon payment of the purchase price set forth therein;
(d) To the extent required to provide for additional Loan Repayments sufficient to
timely pay principal,premium,if any,and interest on all Bonds to be outstanding immediately after
the issuance of such Additional Bonds, a counterpart of an amendment to the Loan Agreement
executed on behalf of the City by an Authorized City Representative and on behalf of the Borrower
by an Authorized Borrower Representative;
(e) A counterpart of a Supplemental Indenture executed on behalf of the City by an
Authorized City Representative setting forth,among other things,the amount,interest rate or rates,
maturity dates, and redemption dates for the Additional Bonds;
(f) If necessary to secure the payment of the Additional Bonds by the Mortgage and/or
the Subordinate Mortgage to the same extent that the Series 2001 Bonds or amounts due under the
Loan Agreement with respect thereto are secured,counterparts of any amendments or supplements
to the Mortgage and/or the Subordinate Mortgage executed on behalf of the Borrower by an
Authorized Borrower Representative,and in any case an Opinion of Counsel that such amendments
or supplements are valid and binding on the Borrower(subject to customary qualifications),and/or
that no amendment or supplement is required to the Mortgage and/or the Subordinate Mortgage,as
the case may be,to secure the Additional Bonds by such instrument to the same extent as outstanding
Series 2001 Bonds or other then outstanding Additional Bonds are secured;
(g) Cash in the amount necessary to make the balance in the Debt Service Reserve Fund
equal to the Debt Service Reserve Requirement immediately after the issuance of the Additional
Bonds,which cash may be from proceeds of such Additional Bonds; and
(h) An Opinion of Bond Counsel:
(A) stating that all conditions precedent provided in this Indenture and the Loan
Agreement relating to the authentication and delivery of such Additional Bonds have been
complied with;
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(B) stating that the Additional Bonds whose authentication and delivery are then
applied for,when issued and executed by the City and authenticated and delivered by the
Trustee,will be the valid and binding obligations of the City in accordance with their terms
and entitled to the benefits of and secured by the lien of this Indenture,the Loan Agreement,
the Mortgage and/or the Subordinate Mortgage,equally and ratably,as applicable,with all
then outstanding Bonds; and
(C) stating that the issuance of such Additional Bonds will not affect the federal
income tax treatment of any then unpaid Bonds.
Any Additional Bonds shall be dated,shall bear interest at a rate or rates not exceeding the maximum
rate, if any,permitted by law, shall have stated maturities, and may be subject to redemption prior to their
stated maturities at such times and prices and on such terms and conditions as may be provided by the
Supplemental Indenture authorizing their issuance. As designated by the Borrower,with respect to the Loan
Agreement, the Mortgage and/or the Subordinate Mortgage, all Additional Bonds shall be payable and
secured equally and ratably and on a parity with all Outstanding Bonds.
Section 2.10 Book-Entry System. Series 2001 Bonds shall be initially issued in Book-Entry Form
by delivering to the Depository one typed executed and authenticated Bond for each stated maturity of the
each Series of the Series 2001 Bonds, registered to CEDE & Co., and by entering into the Letter of
Representations, if not previously entered into. While the Series 2001 Bonds remain issued in Book-Entry
Form,the provisions of this Indenture which conflict with the operation of the Book-Entry System shall not
apply, and the provisions of the Letter of Representations and the Operational Arrangements referenced
therein relating to such Book-Entry System and the following provisions shall prevail.
(a) Registration, Recording and Transfer of Ownership. The Depository (or its
nominees)shall be and remain recorded on the registration records maintained by the Trustee as the
Holder of all Bonds which are in Book-Entry Form. No transfer of any Bond in Book-Entry Form
shall be made, except from one Depository to another(or its nominee)or except to terminate the
Book-Entry Form. All Bonds of each Series and stated maturity in Book-Entry Form shall be issued
and remain in a single Bond certificate registered in the name of the Depository(or its nominee);
provided, however, that upon termination of the Book-Entry Form with respect to any Series of
Bonds pursuant to the Letter of Representations or as otherwise directed by written notice from the
Borrower to the City,Trustee and Depository,the City shall,upon delivery of all Bonds of the Series
from the Depository, promptly execute, and the Trustee shall thereupon authenticate and deliver,
Bonds to all persons who were Beneficial Owners thereof immediately prior to such termination;and
the Trustee shall register such Beneficial Owners as Holders of the applicable Bonds. The Trustee,
as bond registrar and paying agent, shall maintain accurate books and records of the principal
balance,if any,of each such outstanding Bond in Book-Entry Form,which shall be conclusive for
all purposes whatsoever. Upon the authentication of any new Bond in Book-Entry Form in exchange
for a Predecessor Bond,the Trustee shall designate thereon the principal balance remaining on such
Bond according to the Trustee's books and records.
(b) Notices. The Trustee shall give notice to the Depository of such matters and at such
times as are required by the Letter of Representations. All notices of any nature required or
permitted hereunder to be delivered to a Holder of a Bond in Book-Entry Form shall be transmitted
to Beneficial Owners of such Bonds at such times and in such manner as shall be determined by the
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Depository and the Participants in accordance with the Book-Entry System and Letter of
Representations.
(c) Payments. All payments of principal of, premium, if any, and interest on Bonds
while in Book-Entry Form shall be paid to the Depository in accordance with the Book-Entry System
and Letter of Representations in same day funds by wire transfer. All payments of principal of,
premium, if any, and interest on any Bonds in Book-Entry Form due Beneficial Owners shall be
made at such times and in such manner as shall be determined by the Depository and the Participants
in accordance with the Book-Entry System and Letter of Representations.
(d) Limitations on Liability. With respect to Bonds in Book-Entry Form, and any
Beneficial Owners thereof, except as expressly provided to the contrary herein, the City and the
Trustee shall have no responsibility,liability or obligation of any nature whatsoever with respect to
(i)the non-payment to any Beneficial Owner or any other person,other than the Depository,of any
amount due for principal or interest; (ii)the failure to give any notice or other information to the
applicable Beneficial Owner;(iii)the inaccuracy of the records of the Depository or any Participant,
or(iv)the failure in any manner of the Depository or any Participant to timely or properly comply
with procedures or requirements of the Book-Entry System. No such payment,failure or inaccuracy
shall cause an Event of Default under the Indenture.
Section 2.11 Termination of Book-Entry Only System. DTC may determine to discontinues
providing its services with respect to the Series 2001 Bonds at any time by giving written notice to the
Borrower,the Trustee and the City and discharging its responsibilities with respect thereto under applicable
law. The Borrower may terminate the services of DTC with respect to the Series 2001 Bonds,with. the prior
written consent of the City,if it determines that DTC is no longer able to carry out its functions as security
depository as contemplated herein.
Upon the termination of the services of DTC as provided in the preceding paragraph,the Borrower
shall take all reasonable and diligent steps as may be necessary to find an alternate book-entry depository,
but if(and only if) no such substitute securities depository willing to undertake the functions of DTC
hereunder can be found which,in the opinion of the Borrower,is willing and able to undertake such functions
upon reasonable or customary terms, then the Series 2001 Bonds, as the case may be, shall no longer be
restricted to being registered in the Bond Register in the name of Cede&Co.,as nominee of DTC,but may
be registered in whatever name or names the Bondowners shall designate at that time, in accordance with
Section 2.04. To the extent that the Beneficial Owners are designated as the transferee by the Bondowners,
in accordance with Section 2.04 the Series 2001 Bonds will be delivered in appropriate form, content and
Authorized Denomination to the Beneficial Owners.
[The balance of this page is intentionally left blank.]
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ARTICLE III
Redemption of Bonds
Section 3.01 Redemption of Bonds. Additional Bonds shall be subject to redemption on the dates
and upon the condition as may be provided in the Supplemental Indenture for the Additional Bonds. The
Series 2001 Bonds shall be subject to redemption prior to maturity only as follows:
(a) Optional Redemption. The Series 2001 Tax-Exempt Bonds maturing on or after
November 1,2007 are subject to optional redemption in advance of their stated maturities,in whole
or in part on any Business Day on or after November 1, 2006, and if in part in accordance with
Section 3.07 herein, in Authorized Denominations and stated maturities, at the direction of the
Borrower,at a redemption price equal to the principal amount to be redeemed,plus accrued interest,
plus a premium, expressed as a percentage of the principal amount redeemed, as follows:
Redemption Date Price
November 1,2006 through October 31,2007 102%
November 1, 2007 through October 31,200 101%
November 1, 2008 and thereafter 100%
The Series 2001 Tax-Exempt Bonds shall be redeemed the following order or priority: (i)first,the
Series 2001A Bonds; and(ii)second,the Subordinate Bonds.
(b) Extraordinary Redemption. The Series 2001 Bonds are subject to extraordinary
redemption on any business day as a whole,but not in part,at a redemption price equal to par,plus
accrued interest to the redemption date, upon the happening of certain events of damage to or
destruction or condemnation of the Project or change of law rendering the Loan Agreement
unenforceable or impossible of performance,all as more fully provided in Section 4.06 of the Loan
Agreement; provided, however, that any Net Proceeds received from casualty insurance or
condemnation awards used to redeem Series 2001 Bonds shall be applied in the following order:(i)
first,to redeem the Senior Bonds; and(ii)second,to redeem the Subordinate Bonds.
(c) Mandatory and Scheduled Sinking Fund Redemption. The Seili0i-Series 2001B
Bonds are subject to mandatory sinking fund redemption on the following spcctivc Principal
Payment Dates and in the following principal amounts at a redemption price equal to the principal
amount of the Bonds to be so redeemed plus accrued interest to the redemption date, as set forth
below, on each such date to the extent that Bond, of such Series 2001B Bonds have not been
redeemed other than pursuant to this Section 3.01(c):
Series 2001A 2001B Bonds Maturing November 1,2036-2006
Principal Principal
Payment Date Amount Payment Date Amount
November 1,20 $ $ November 1, 2006* $
November 1,2011 $
2004
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November 1, 2005
*Final Maturity
In connection with the Mandatory Tender Date,the Remarketing Agent shall establish a schedule
for mandatory sinking fund redemption payments such that the scheduled annual debt service on the
Series 2001A Bonds will be approximately level, taking into account the interest rate to go into
effect on the Mandatory Tender Date.
Merit Data.,Priacipa'
Amount
Amount Nuva mbax 1, 20 $Nuve,lrbvr 1,2007* $
*I'iaal Mata,qty
(d) Redemption upon a Determination of Taxability. The Series 2001 Bonds are also
subject to mandatory redemption upon the occurrence of a Determination of Taxability with respect
to the Series 2001 Tax-Exempt Bonds. In such event, each of the outstanding Series 2001 Bonds
shall be subject to mandatory redemption and shall be redeemed on the first Business Day for which
notice can be duly given hereunder after the Borrower receives notice that a Determination of
Taxability has occurred, and the Borrower shall cause notice thereof to be given to the Holders of
the Bonds, as more fully provided in Section 4.07 of the Loan Agreement, at a redemption price
equal to par,plus accrued interest,and,unless the Borrower shall cause to be delivered to the Trustee
a written opinion of Bond Counsel to the effect that the Determination of Taxability was not caused
by an action taken or not taken by the Borrower,plus a premium equal to five percent(3%)of the
principal amount of each Series 2001 Bond redeemed. If the Series 2001 Bonds are redeemed as
provided in this subsection, Bonds shall be redeemed in the following order: (i) first, the Senior
Bonds;and(ii)second,the Subordinate Bonds.
(e) Special Redemption of Subordinate Bonds. On each Na,vombvr December 1,
beginning Nvvvaibei'December 1, 20 2003,the Subordinate Bonds are subject to redemption
at a redemption price of 100% of the outstanding principal amount thereof to be redeemed plus
accrued interest to the redemption date. Subordinate Bonds shall be redeemed with moneys
transferred from the Surplus Fund to the Optional Redemption Account,as provided in Section 5.05
hereof, and available for such purpose.
Notice of any such redemption of Series 2001 Bonds shall be mailed in the form provided by Section
3.02 and in the manner and to the extent required by Section 3.03. On or prior to the date fixed for
redemption,funds shall be deposited with the Trustee sufficient to pay the Bonds called and accrued interest
thereon,plus any premium required.
Upon the happening of the above conditions,any Bonds thus called and for which such moneys have
been deposited with or are held by the Trustee shall not bear interest after the redemption date,and except
for the purpose of payment by application of the funds so deposited, shall no longer be secured by this
Indenture.
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Section 3.02 Written Notice to Trustee. If the Bonds are to be redeemed pursuant to Section 3.01,
the Borrower shall give written direction to the Trustee 60 days prior to the date of Redemption of its intent
to redeem,and the Trustee shall then prepare a notice in the name of the City or in its own name describing
the outstanding Bonds to be redeemed,the date of redemption,and the redemption price and the manner in
or place at which Bonds are to be tendered for payment.
Section 3.03 Mailing and Publication of Notice. Notice of redemption (including when only a
portion of the Bonds is to be redeemed,the Series and numbers of such Bonds or the maturities thereof)shall
be mailed by the Trustee,not earlier than sixty days(60)nor later than thirty(30)days before the redemption
date by first class, certified or registered mail, to the registered owners of any Bonds which are to be
redeemed,at their last addresses appearing upon the registry books for the Bonds maintained by the Trustee.
If required by the Act or other applicable law a similar notice shall also be published by the Trustee in such
manner as may be required by the Act or other applicable law. No notice of redemption need be given if the
Holders of all Bonds called for redemption waive notice thereof in writing and such waiver is filed with the
Trustee. In addition, at the request of the Authorized Borrower Representative,notice for any redemption
not occurring as a result of sinking fund redemption or as a mandatory requirement of the terms of the Bonds,
shall include a statement that the redemption so noticed is conditioned on sufficient funds being held by the
Trustee in the Bond Fund or Optional Redemption Fund on or before noon, Minneapolis time, on the
applicable redemption date to pay the full redemption price, and if at such time the amount so held is not
sufficient to pay all amounts required to effect the noticed redemption in full, the redemption shall be
cancelled,with all Bonds tendered for such redemption being returned to the Holders thereof,and no Event
of Default or liability on the part of the Borrower shall arise as a result of such cancellation. The Borrower
shall pay all extraordinary fees and expenses incurred in connection with a rescinded call.
Section 3.04 Deposit for Redemption. Upon deposit with the Trustee of the aggregate amount of
any redemption price and interest(in addition to payments of Loan Repayments or amounts withdrawn from
the Revenue Fund), such moneys shall be set aside by the Trustee and held by it for the account of the
respective Holders of the Bonds being redeemed.
Section 3.05 Payment of Redeemed Bonds. After notice of redemption shall have been given as
provided in Section 3.03,the Bonds specified in such notice shall become due and payable on the redemption
date. Payment of the redemption price and interest shall be made to or upon order of each registered owner,
upon the surrender of the Bonds(except as otherwise herein provided). Any installment of interest maturing
on or prior to the redemption date shall be payable to the registered owners of Bonds on the relevant Record
Dates according to the terms of such Bonds and the provisions of Section 2.05 and the notice of redemption
herein provided for may so state. If sufficient moneys are available for the payment of all of the Bonds called
for redemption on the redemption date,the Bonds so called shall cease to bear interest after the redemption
date, and such Bonds shall not be deemed to be outstanding hereunder for any purpose, except that the
Holders thereof,on presentation,as herein provided,shall be entitled to receive payment of the redemption
price and interest accrued thereon to the redemption date from the moneys held by the Trustee as herein
provided. If funds sufficient for the payment in full of any redemption (other than a sinking fund
redemption) are not on deposit in the Bond Fund or Optional Redemption Fund on or before noon,
Minneapolis time, on the redemption date,the redemption shall be cancelled with respect to all Bonds for
which notice of such redemption on such redemption date shall have been given, and the Trustee shall
promptly return to the Holders thereof all Bonds theretofore and thereafter received by the Trustee for such
redemption date.
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Section 3.06 Cancellation of Redeemed Bonds. All Bonds redeemed in accordance with this
Indenture or any applicable Supplemental Indenture shall forthwith be canceled and destroyed by the Trustee
and a certificate of destruction furnished to the City;and no further Bonds shall be executed or authenticated
or issued hereunder in exchange or substitution therefor.
Section 3.07 Partial Redemption of Bonds. If less than all of the Bonds of a particular Series and
maturity at the time outstanding are to be called for prior redemption,the particular Bonds or portions thereof
of such Series or maturity to be redeemed shall be selected by lot,except as otherwise provided herein,by
the Trustee in such manner as the Trustee, in its discretion, may determine. In the event less than all the
Bonds are to be redeemed,the Trustee shall select the Bonds to be redeemed on a reasonably proportionate
basis among all outstanding Series of the Bonds,such basis for each Series to be determined and effectuated
as nearly as practicable by the Trustee by multiplying the total amount of money available to redeem Bonds
on the redemption date by the ratio which the original principal amount of all Bonds in each bears to the total
original principal amount of Bonds redeemed within a Series and shall be selected by random selection in
any manner deemed fair by the Trustee.
In the case of Bonds of denominations greater than $5,000, if less than all of such Bonds then
outstanding are to be called for redemption,then for all purposes in connection with redemption,each$5,000
of principal amount shall be treated as though it was a separate Bond of the denomination of$5,000.If it is
determined that one or more,but not all of the$5,000 units of principal amount represented by any such fully
registered Bond is to be called for redemption,then upon notice of intention to redeem such$5,000 unit or
units, the owner of such fully registered Bond shall forthwith surrender such Bond to the Trustee (1) for
payment of the redemption price(including the redemption premium, if any, and interest to the date fixed
for redemption)of the$5,000 unit or units of principal amount called for redemption and(2)exchange for
a new Bond or Bonds of the aggregate principal amount of the unredeemed balance of the principal amount
of such fully registered Bond shall be issued to the registered owner thereof,without charge therefor. If the
owner of any such fully registered Bond of a denomination greater than $5,000 shall fail to present such
Bond to the Trustee for payment and exchange as aforesaid,such Bond shall nevertheless become due and
payable on the date fixed for redemption to the extent of the$5,000 unit or units of principal amount called
for redemption(and to that extent only). Interest shall cease to accrue on the portion of the principal amount
of such Bond represented by such $5,000 unit or units of principal amount on and after the date fixed for
redemption provided that funds sufficient for the payment of the redemption price shall have been deposited
with the Trustee and shall be available for the redemption of said$5,000 unit or units on the date fixed for
redemption,and in such event,such Bond shall not be entitled to the benefit or security of this Indenture,the
Loan Agreement,the Mortgage(if a Senior Bond),the Subordinate Mortgage(if a Subordinate Bond)or the
Bond Resolution to the extent of the portion of its principal amount(and accrued interest thereon to the date
fixed for redemption and applicable premium, if any)represented by such $5,000 unit or units of principal
amount,nor shall new Bonds be thereafter issued corresponding to said unit or units.
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ARTICLE III-A
MANDATORY TENDER AND REMARKETING OF SERIES 2001A BONDS
Section 3A.01. Mandatory Tender of Series 2001A 2001 Tax-Exempt Bonds.
(1) Subject to the provisions of subsection (3)below, the Holder of each Series 2001A 2001
Tax-Exempt Bond shall tender such Series 2001-A 2001 Tax-Exempt Bond to the Trustee for purchase on
the Mandatory Tender Date, all as more fully provided in this Section 3A.01.
(2) Notice of the Mandatory Tender Date(a"Mandatory Tender Notice")shall be given by the
Trustee,by first-class mail,postage prepaid,to the Holders of all Series 2001 A 2001 Tax-Exempt Bonds at
their addresses appearing on the Bond Register maintained by the Trustee not less than 15 days prior to the
Mandatory Tender Date. Such Notice shall specify the Mandatory Tender Date and state(i)that all Series
2901A 2001 Tax-Exempt Bonds shall be purchased on the Mandatory Tender Date at a purchase price equal
to the principal amount thereof plus accrued interest thereon,and(ii)that all Series 290-1-A 2001 Tax-Exempt
Bonds must be tendered for purchase at or before 12:00 noon,Minneapolis time,on the Business Day prior
to the Mandatory Tender Date together with an appropriate instrument of transfer executed in blank,and the
Holder of any such Series 2001A 2001 Tax-Exempt Bond which is not so tendered but for which there has
been irrevocably deposited with the Trustee an amount sufficient to pay the purchase price thereof(an
"Untendered Bond")shall not be entitled to receive interest on such Series 2001 A 2001 Tax-Exempt Bond
for any period beginning on or after the Mandatory Tender Date. A copy of any Mandatory Tender Notice
shall be delivered by the Trustee to the Remarketing Agent and the Borrower.
(3) All Series 2001A 2001 Tax-Exempt Bonds shall be tendered to the Trustee for purchase at
or before 12:00 noon Minneapolis time on the Business Day prior to the Mandatory Tender Date, by
delivering such Series 290 2001 Tax-Exempt Bonds to the Trustee together with an appropriate instrument
of transfer duly executed in blank. On the Mandatory Tender Date, the Trustee acting on behalf of the
Borrower and for the benefit of the Holders of the Series 2001 A 2001 Tax-Exempt Bonds from time to time,
shall purchase or cause to be purchased all Series 2001 A 2001 Tax-Exempt Bonds at a purchase price equal
to the principal amount thereof plus accrued interest thereon. Funds for the payment of the purchase price
of such Series 2001A 2001 Tax-Exempt Bonds shall be drawn by the Trustee from the Bond Purchase Fund
as provided in Section 3A.08.
Section 3A.02. Duties of Trustee. The Trustee agrees, and will cause each of its agents to agree,
that it will:
(1) hold all Series 2001 A 2001 Tax-Exempt Bonds delivered to it pursuant to Section
3A.01 hereunder in trust solely for the benefit of the respective Bondholders which shall have so
tendered such Series 2001A 2001 Tax-Exempt Bonds for purchase until the payment of the purchase
price with respect to such Series 2001A 2001 Tax-Exempt Bonds; and
(2) hold all moneys delivered to it hereunder for the purchase of such Series 2001A
2001 Tax-Exempt Bonds in trust solely for the benefit of the Holders which shall have so tendered
such Series 2001A 2001 Tax-Exempt Bonds for purchase until such moneys shall have been
delivered to or for the account of such Bondholders.
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Section 3A.03. Remarketing of Series 2001 A 2001 Tax-Exempt Bonds.
(1) The Remarketing Agent shall offer for sale and use its best efforts to sell the Series 2001A
2001 Tax-Exempt Bonds for delivery on the Mandatory Tender Date at a purchase price of par plus accrued
interest,provided that the Remarketing Agent shall not sell the Series 200-1-24r 2001 Tax-Exempt Bonds to the
Borrower or the City.
(2) At or prior to 10:00 a.m.,Minneapolis,Minnesota,time,on the third Business Day prior to
the Mandatory Tender Date, the Remarketing Agent shall give notice (the "Remarketing Notice"), by
telephone,telex or telecopier,promptly confirmed in writing,to the Borrower and the Trustee specifying the
total principal amount and denominations of the Series 2001A Bonds, if any, sold for settlement on such
Mandatory Tender Date and shall include in the Remarketing Notice given to the Trustee the name,address
and taxpayer identification number of the purchaser. On or prior to 12:00 noon,Minneapolis,Minnesota
time, on the Mandatory Tender Date, the Remarketing Agent shall deliver to the principal office of the
Trustee,in immediately available funds,an amount equal to the purchase price of the total principal amount
of Series 200-1-A 2001 Tax-Exempt Bonds so specified in the Remarketing Notice,plus accrued interest,if
any. If in the Remarketing Notice,the Remarketing Agent shall have specified the name(s) in which each
remarketed Series 2001A 2001 Tax-Exempt Bond is to be registered together with the purchaser's address
and taxpayer identification number of the purchaser,and the denomination in which each remarketed Series
2001A 2001 Tax-Exempt Bond is to be issued, delivery of such Series 200IA 2001 Tax-Exempt Bonds,
properly executed on behalf of the City and authenticated by the Trustee,registered in the name(s)and issued
in the denomination(s) so specified, shall be made to the Remarketing Agent by 12:00 noon,Minneapolis,
Minnesota time, at its Minneapolis address on the Mandatory Tender Date against payment by the
Remarketing Agent as aforesaid.
Section 3A.04. Purchase of Tendered Series 2001A 2001 Tax-Exempt Bonds. On the Mandatory
Tender Date,the Trustee shall pay,but only from funds in the Bond Purchase Fund,the purchase price for
all Series 2001A 2001 Tax-Exempt Bonds properly tendered, (or deemed tendered)for purchase pursuant
to Section 3A.01 hereof, at a purchase price equal to 100% of the principal amount thereof plus accrued
interest thereon.
Section 3A.05. No Remarketing to Borrower. The Bonds shall not be remarketed to the Borrower,
or its Insiders or Affiliates, as such terms are defined in the Federal Bankruptcy Code.
Section 3A.06. Purchase Not to Constitute a Redemption. The City and the Trustee recognize and
acknowledge that, in carrying out their responsibilities under this Article III-A, the Trustee and the
Remarketing Agent shall be acting solely for the benefit of the Holders from time to time of the Series 2991A
2001 Tax-Exempt Bonds and the Borrower. No delivery of Series 2001A Bonds to the Trustee or purchase
of Series 2001A 2001 Tax-Exempt Bonds under this Article shall constitute a redemption of the Bonds or
an extinguishment of the debt evidenced thereby.
Section 3A.07. Untendered Bonds. Any Series 2001A 2001 Tax-Exempt Bonds which is not
tendered on or prior to the Mandatory Tender Date with respect to such Series 2001A 2001 Tax-Exempt
Bonds(an"Untendered Bond"),as to which there has been irrevocably deposited with the Trustee an amount
sufficient to pay the purchase price thereof shall be "deemed tendered" for purposes of this Indenture and
shall cease to accrue interest on such Mandatory Tender Date, as the case may be, and the Holder thereof
shall not be entitled to any payment other than the purchase price for such Untendered Bond, and shall no
longer be entitled to the benefits of this Indenture, except for payment of the purchase price therefor and
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interest thereon through the Mandatory Tender Date from moneys held by the Trustee for such purpose upon
presentment of such Series 2-00-1-A 2001 Tax-Exempt Bond to the Trustee. In lieu of and in substitution for
such Untendered Bonds, Series 2001A Brock 2001 Tax-Exempt Bond shall be issued in accordance with
Section 2 2.07 hereof.
Section 3A.08. Bond Purchase Fund.
(1) There is hereby created a Bond Purchase Fund which shall be used to pay the purchase price
of the Series 2001 Tax-Exempt Bonds to be purchased pursuant to Section 3A.01.
(2) Payments Into the Bond Purchase Fund.
There shall be paid into the Bond Purchase Fund,as and when received:
(i) the proceeds of the remarketing of Series 2001A 2001 Tax-Exempt Bonds
by the Remarketing Agent pursuant to Section 3A.03 (which proceeds(together with any
investments thereof and the income therefrom and proceeds thereof) shall at all times be
traceable by the Trustee to their source and shall not be derived directly or indirectly from
the Borrower); and
(ii) all other moneys received by the Trustee under and pursuant to any of the
provisions of this Indenture or the Loan Agreement or otherwise which are required or
accompanied by directions that such moneys are to be credited to the Bond Purchase Fund.
(3) Use of Moneys in the Bond Purchase Fund.
(i) Except as provided in subsection(5)hereof and this subsection(3),money
in the Bond Purchase Fund shall be used solely for the payment of the purchase price of the
Series 2001A 2001 Tax-Exempt Bonds to be purchased pursuant to Section 3A.01.
(ii) On the Mandatory Tender Date,the Trustee shall disburse from the Bond
Purchase Fund sufficient moneys to pay the purchase price of all Series 2001A 2001 Tax-
Exempt Bonds to be purchased on such date pursuant to Section 3A.01.
(4) Money to be Held in Trust. All moneys paid over to the Trustee for the account of the Bond
Purchase Fund under any provision hereof shall be held(subject to the provisions of subsection(5))in trust
by the Trustee for the benefit of the Holders of the Series 2001 A 2001 Tax-Exempt Bonds.
(5) Payments to the Borrower from the Bond Purchase Fund. Any moneys held by the Trustee
in the Bond Purchase Fund shall be retained by the Trustee for the benefit of Holders of Series 2901A 2001
Tax-Exempt Bonds not yet presented for payment of the purchase price thereof until paid to such Holders.
Such moneys shall not be paid to the Borrower or to any Person other than the Holders of Series 200-1-A 2001
Tax-Exempt Bonds entitled thereto,and such Holders shall look only to such moneys for the payment of the
purchase price of such Series 2001A 2001 Tax-Exempt Bonds; provided,however,that excess amounts if
any in the Bond Purchase Fund after payment or provision for payment of the purchase price of all Series
2001A 2001 Tax-Exempt Bonds shall be paid to the Borrower.
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ARTICLE IV
Application of Bond Proceeds; Creation of Funds
Section 4.01 Establishment of Funds. On or before the Date of Issuance for the Series 2001 Bonds,
the Trustee shall establish the following separate trust funds to be held and maintained by the Trustee as
herein provided,which funds shall not be subject to lien or attachment of any creditor of the City,the Trustee
or the Borrower:
(a) a City of Orono(Orono Woods Apartment Project)Revenue Fund(the "Revenue
Fund");
(b) a City of Orono(Orono Woods Apartment Project)Bond Fund(the"Bond Fund"),
and therein an account to be designated the "Senior Debt Service Account" and an account
designated the "Subordinate Debt Service Account";
(c) a City of Orono(Orono Woods Apartment Project)Optional Redemption Fund(the
"Optional Redemption Fund");
(d) a City of Orono(Orono Woods Apartment Project)Debt Service Reserve Fund(the
"Debt Service Reserve Fund");
(e) a City of Orono (Orono Woods Apartment Project) Project Fund (the "Project
Fund"),and therein an account to be designated the "Cost of Issuance Account" and an account to
be designated the "Construction Account";
(0 a City of Orono(Orono Woods Apartment Project)Taxes and Insurance Fund(the
"Taxes and Insurance Fund");
(g) a City of Orono(Orono Woods Apartment Project)Repair and Replacement Fund
(the "Repair and Replacement Fund");
(h) a City of Orono (Orono Woods Apartment Project) Surplus Fund (the "Surplus
Fund");
(i) a City of Orono(Orono Woods Apartment Project)Insurance and Award Fund(the
"Insurance and Award Fund");
(j) a City of Orono (Orono Woods Apartment Project) Rebate Fund (the "Rebate
Fund"); and
(k) a City of Orono(Orono Woods Apartment Project) Operating Reserve Fund(the
"Operating Reserve Fund").
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Section 4.02 Deposit of Series 2001 Bond Proceeds. On the Date of Issuance of all Series 2001
Bonds,the Original Purchaser shall be instructed to deposit all sale proceeds of the Series 2001 Bonds(par
amount of$ ,less the Original Purchaser's discount of$ ,plus accrued interest in
the amount of$ ),together with other available funds of the Borrower,with the Trustee,and the
Trustee shall deposit such net proceeds as follows:
(a) $ in the Senior Debt Service Account as the accrued interest on the
Senior Bonds;
(b) $ in the Subordinate Debt Service Account as the accrued interest on
the Subordinate Bonds;
(c) $ in the Debt Service Reserve Fund as the Debt Service Reserve
Requirement;
(d) $ in the Cost of Issuance Account of the Project Fund; and
(e) $ in the Construction Account of the Project Fund.
Section 4.03 Project Fund. On the Date of Issuance of the Series 2001 Bonds, amounts shall be
deposited in the Project Fund and the accounts therein as set forth in Section 4.01. In addition,the Trustee
shall deposit in the Fund(or any account therein)any other amounts which are delivered to the Trustee by
or on behalf of the Borrower with instructions to deposit such amounts therein. Amounts on deposit in the
Project Fund shall be applied as follows:
(a) Costs of Issuance Account. Upon receipt by the Trustee of a written request of the
Borrower,from time to time,amounts in the Costs of Issuance Account shall be withdrawn and paid
to the persons designated by the Borrower in payment of Costs of Issuance.Any amounts remaining
in the Costs of Issuance Account on the first day of the month which is three whole calendar months
after the Date of Issuance of the Series 2001 Bonds shall be transferred to the Construction Account.
All investment income from amounts in the Costs of Issuance Account shall be upon receipt
deposited by the Trustee in the : . - .. . :. . Reserve Fund.
(b) Construction Account. Amounts in the Construction Account shall be withdrawn
and paid by the Trustee for Project Costs or to reimburse the Borrower for payment of Project Costs
in accordance with the terms of the Disbursing Agreement. Amounts in the Construction Account
may be withdrawn by the Trustee for the forgoing purposes only in accordance with the terms of the
Disbursing Agreement. All investment income on amounts in the Construction Account shall be
deposited upon receipt in Construction Account.
The Trustee is hereby authorized and directed to make each disbursement required by the provisions
of the Agreement and this Section and to issue its checks therefor. The Trustee shall keep and maintain
adequate records pertaining to the Project Fund and all disbursements therefrom,showing the amounts paid
and the purpose for which the obligations were paid, . . . . . . . .age.
Borrower. For purposes of complying with the requirements of this Section,the Trustee may conclusively
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rely and shall be protected in acting or refraining from acting upon the Draw Request of the Borrower,which
may be submitted in facsimile form. The Trustee shall not be bound to make an investigation into the facts
or matters stated in any Draw Request of the Borrower. The Trustee shall not be responsible for determining
whether the funds on hand in the Project Fund are sufficient to complete the Project. The Trustee shall not
be responsible to collect lien waivers.
Notwithstanding the foregoing, upon the occurrence of any Event of Default, whether or not any
Bonds are accelerated,the Trustee shall withdraw amounts from any account in the Project Fund selected
by the Trustee to the extent necessary to pay principal, interest or redemption price on any Bond which is
due and payable and for which other amounts held by the Trustee are not sufficient therefor.
The Completion Date of the Project shall be established by the filing with the Trustee of the
Authorized Borrower Representative's certificate and such other instruments as are required by Section 3.10
of the Loan Agreement.
Section 4.04 Application of Balance of Construction Account. When the Project shall have been
completed, as evidenced by a certificate signed by the Project Supervisor pursuant to Section 3.10 of the
Loan Agreement,any balance in the Construction Account(after reserving such amount as the Authorized
Borrower Representative shall deem necessary for the payment of any remaining amounts due or to become
due as proper Project Costs)shall be deposited in the Optional Redemption Fund,provided that at the request
of the Borrower, all or any of such balance may be deposited in the Bond Fund to meet Loan Repayments
due or to become due if the Borrower shall furnish to the Trustee an Opinion of Counsel, who shall be
nationally recognized bond counsel acceptable to the City and the Trustee,that application of such deposit
to pay principal of and interest on the Series 2001 Bonds does not violate the Act or adversely affect the tax
exempt status of interest on the Series 2001 Tax-Exempt Bonds. Any Certificate given pursuant to this
Section may state that it is given without prejudice to any rights against third parties which may exist or
subsequently arise.
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ARTICLE V
Application of Revenues; Additional Funds
Section 5.01 Revenue Fund. Under the terms of the Loan Agreement,on or before the 15th day of
each calendar month(or if such date is not a Business Day,the next succeeding Business Day),the Borrower
is required to deposit with the Trustee all Monthly Net Project Revenues and all Tax Increment Revenues.
Upon receipt,the Trustee shall deposit such amounts in the Revenue Fund. After the Completion Date,all
investment income from any fund or account created herein,shall be deposited upon receipt in the Revenue
Fund to the extent not otherwise directed herein. On each Monthly Transfer Date of each calendar month
during and after which any portion of the Project Facilities is placed in use(for these purposes the Borrower
shall immediately notify the Trustee), the Trustee shall transfer amounts in the Revenue Fund(first from
investment income deposited therein and then from other amounts)to the following funds and accounts in
the following priority:
(a) First, to the Rebate Fund, any amount required to be deposited therein under the
terms of the Loan Agreement or Section-5714 5.08 hereof;
(b) Second,to the Trustee to pay any unpaid due and owing Ordinary Trustee Fees and
Expenses;
(c) Third,to the Taxes and Insurance Fund,an amount equal to the Monthly Taxes and
Insurance Deposit for such month,plus any unpaid Monthly Taxes and Insurance Deposit previously
due and not deposited, . . • ..
Insurance Fund fur t,ansf r t.,the Bald Fuld as provided in Section 5.02 and Sctio,i 5.06;provided
that credit shall be given against such Monthly Taxes and Insurance Deposit to the extent of any
amounts deposited therein which are not proceeds of a prior Monthly Taxes and Insurance Deposit
(and to the extent such amounts have not been credited against any prior Monthly Taxes and
Insurance Deposit);
(d) Fourth,to the Senior Debt Service Account of the Bond Fund for the Senior Bonds,
an amount equal to the sum of one-sixth (1/6t) of the interest coming due on the next Interest
Payment Date and one-twelfth (1/12t) of the principal coming due on the next Principal Payment
Date (including mandatory sinking fund payments), plus any unpaid interest and/or principal
previously due and not deposited, plus any unrestored amounts previously withdrawn from the
Senior Debt Service Account for transfer to the Taxes and Insurance Fund as provided in Section
5.02 and Section 5.06;
(e) Fifth,to the Debt Service Reserve Fund,the amount, if any,required to restore the
balance of the funds therein to an amount equal to the Debt Service Reserve Requirement;
(f) Sixth, commencing in November 2003, to the Repair and Replacement Fund, an
amount equal to the Monthly Repair and Replacement Deposit,plus any unpaid Monthly Repair and
Replacement Deposit previously due and not paid, plus any unrestored amounts previously
withdrawn from such fund for transfer to any fund as provided in Section 5.07; provided that as
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against the Monthly Repair and Replacement Deposits the Borrower shall be given credit for the
amount of costs that are properly payable from the Repair and Replacement Fund but which the
Borrower has paid from sources other than amounts in the Repair and Replacement Fund,but only
if the Borrower delivers to the Trustee written evidence of the payment of such costs,along with a
written statement signed by the Authorized Borrower Representative that no person shall seek
reimbursement or other payment for such costs from amounts in the Repair and Replacement Fund;
(g) Seventh,to the Operating Reserve Fund,amounts sufficient to replace the bank letter
of credit on deposit to the Operating Reserve Fund which was issued in an amount equal to the
Operating Reserve Requirement,as provided further in Section 5.11,and then such amount,if any,
required to restore the balance therein to an amount equal to the Operating Reserve Requirement;;
(h) Eighth, to the Subordinate Debt Service Account of the Bond Fund for the
Subordinate Bonds,an amount equal to the sum of one-sixth(1/6th)of the interest coming due on the
next Interest Payment Date : • . - . ' .: . _ . . .
Principal Payment Date (including niandatury sinking fund payments), plus any unpaid interest
andioi principal previously due and not deposited, plus any unrestored amounts previously
withdrawn from the Subordinate Debt Service Account for transfer to the Taxes and Insurance Fund
as provided in Section 5.02 and Section 5.06;
and(i) Ninth,to the Manager,any accrued and unpaid Subordinated Management Fee; and
(i)Niiith(i) Tenth,to the Surplus Fund, all remaining amounts in the Revenue Fund.
Section 5.02 Bond Fund.
(a) On the Date of Issuance of the Series 2001 Bonds, proceeds of the Senior Bonds shall be
deposited in the Senior Debt Service Account to the extent provided in Section 4.02;thereafter amounts shall
be deposited in the Bond Fund as provided in Section 5.01. In addition, any Loan Repayments paid to the
Trustee by the Borrower under the Section 4.02 (a) of the Loan Agreement (other than from amounts
described in Section 5.01)shall be deposited in the Senior Debt Service Account, together with any other
amounts permitted to be deposited therein on behalf of the Borrower and delivered to the Trustee for such
deposit. On the Monthly Transfer Date,if amounts in the Senior Debt Service Account are not sufficient to
pay in full the monthly principal and interest requirements on the Senior Bonds, the amount of such
deficiency,to the extent of available funds, shall by transferred: from the following funds in the following
priority: first, from amounts in the Surplus Fund; second, from amounts in the Subordinate Debt Service
Account, third, from amounts in the Operating Reserve Fund; fourth, from amounts in the Repair and
Replacement Fund; fifth, from amounts in the Optional Redemption Fund; and sixth, from amounts in the
Debt Service Reserve Fund, . . • , ' .' . ' •• ' ' : . • : • • • . . . , .
Insaiance Fan&
The moneys and investments in the Senior Debt Service Account are irrevocably pledged and shall
be used by the Trustee, from time to time,to the extent required:
FIRST: For the payment of interest whenever due and payable and for the payment of
principal of Senior Bonds when due at maturity or upon sinking fund redemption;
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SECOND: For transfer to the Taxes and Insurance Fund to restore any deficiency therein;
lAd Only to the c,.t�rd aj,p.iiv..d by a-Majvr;ty of IIvldLlz,; and
THIRD: Upon direction by the Borrower,to purchase outstanding Senior Bonds at purchase
prices not exceeding par plus accrued interest, but only to the extent amounts therein are
sufficient to pay all principal of and interest on the Bonds scheduled to become due in the
then current Bond Year either at maturity or upon sinking fund redemption, as reduced by
the amount of credit which will be given as against such payments for such purchase of
Senior Bonds.
(-a)(b) On the Date of Issuance of the Series 2001 Bonds,proceeds of the Subordinate Bonds shall.
be deposited in the Subordinate Debt Service Account to the extent provided in Section 4.02; thereafter
amounts shall be deposited in the Subordinate Debt Service Account as provided in Section 5.01.In addition,
any Loan Repayments paid to the Trustee by the Borrower under the Section 4.02(a)of the Loan Agreement
(other than from amounts described in Section 5.01) shall be deposited in the Subordinate Debt Service
Account,together with any other amounts permitted to be deposited therein on behalf of the Borrower and
delivered to the Trustee for such deposit. On the Monthly Transfer Date,if amounts in the Subordinate Debt
Service Account are not sufficient to pay in full the monthly priin,ipal and interest requirements on the
Subordinate Bonds,the amount of such deficiency,to the extent of available funds,shall by transferred from
amounts in the Surplus Fund.
The moneys and investments in the Subordinate Debt Service Account are irrevocably pledged and
shall be used by the Trustee, from time to time,to the extent required, for;
FIRST. For the payment of interest whenever due and payable . . . .. • . . '
•
nut ,..xt.tcding par plas accrued interest, bat only to the ex1tnt amounts therein arc saffrcierit to pay all
1,r;rr.ipal of and interest on the Subordinate Bonds . . . . . . . . • :. • •.
•
. . • . . .. _ U. . • • . , • V . - -. . . - - II . . .. .. . _•.
•
as against.7-uc .. • - . . .. . . . .. . . :. . .
, and to make up deficiencies in the Rebate Fund,the Taxes and Insurance Fund, the Senior Debt Service
Account of the Bond Fund, the Debt Service Reserve Fund, the Repair and Replacement Fund and the
Operating Reserve Fund, in such order and as described herein.
(c) Investment income on amounts in the accounts of the Bond Fund, upon receipt by the
Trustee, shall be deposited in the respective accounts. After the Completion Date, upon receipt by the
Trustee, investment income on amounts in the Bond Fund shall be deposited in the Revenue Fund.
The Borrower shall have no right, title or interest in any amounts from time to time in the Bond
Fund.
Section 5.03 Optional Redemption Fund. The Trustee shall deposit into the Optional Redemption
Fund all amounts deposited for the payment of amounts due upon a redemption of outstanding Bonds(other
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than because of mandatory sinking fund redemption),and as may be required by any provision of the Loan
Agreement or this Indenture.
Amounts on deposit to the credit of the Optional Redemption Fund shall be used,first,to make up
deficiencies in the Senior Debt Service Account ofthe Bond Fund(to the extent described in Section 5.02(a))
and, second, for the payment of principal of or, premium, if any, and interest on Bonds as a result of the
redemption of outstanding Bonds at the request or direction of the Borrower pursuant to Article III or,at the
request of the Borrower, for the purchase of outstanding Bonds on the market at prices not exceeding the
redemption price on the next available date for redemption.
Upon receipt by the Trustee,investment income on amounts in the Optional Redemption Fund shall
be deposited in the Revenue Fund.
The Borrower shall have no right,title or interest in any amounts from time to time in the Optional
Redemption Fund.
Section 5.04 Debt Service Reserve Fund.
On the Date of Issuance for the Series 2001 Bonds, a sum equal to the Debt Service Reserve
Requirement shall be deposited into the Debt Service Reserve Fund as provided in Section 4.02, and
thereafter amounts shall be deposited in the Debt Service Reserve Fund as provided in Section 5.01 and this
Section. : . .. - , .. - . .. - - ; - • - - • - - - • . . . - • :
-
•
- -
•. . . 11 . .. 11 . gh
. . - .. •
. ••• • . II • . I . . . I
•
. • . - •. , I . •. - - . • ■ . I, . •, . . .. - • . •. I• . I
Service Account; and third, f,o,n amounts in the Repair and Replacement Fund: The Trustee shall also
deposit into the Debt Service Reserve Fund all installments of Loan Repayments or portions thereof required
to be paid under Section 4.02(e)of the Loan Agreement. The Trustee shall also deposit into the Debt Service
Reserve Fund all other amounts required to be deposited into the Debt Service Reserve Fund under the Loan
Agreement.
On any date on which amounts in the Debt Service Reserve Fund are less than the Debt Service
Reserve Requirement,the amount of such deficiency(to the extent of available funds and after any transfers
required to be made to the Senior Debt Service Account of the Bond Fund or the Taxes and Insurance Fund)
shall be transferred:first,from amounts in the Surplus Fund;second,from amounts in the Subordinate Debt
Service Account of the Bond Fund;and third,from amounts in the Repair and Replacement Fund. If,after
such transfers from the Surplus Fund, the Subordinate Debt Service Account of the Bond Fund and the
Repair and Replacement Fund,the amounts in the Debt Service Reserve Fund are less than$285,000, the
Trustee shall declare the existence of an Event of Default and shall take any and all actions as described in
Article VII herein to remedy such default.
Each investment credited to the Debt Service Reserve Fund shall mature or be callable at the option
of the holder within three(3)years. In computing the amount in the Debt Service Reserve Fund,investments
credited thereto shall be valued at face value if purchased at par or at the amortized value if purchased at
other than par; provided,however,that such investments in the Debt Service Reserve Fund are required to
be valued only on each November 1.For purposes of this Section,"amortized value,"when used with respect
to an obligation purchased at a premium above or at a discount below par, means the value as of any given
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time obtained by dividing the total premium or discount at which such obligation was purchased by the
number of days remaining to maturity for such obligation at the date of such purchase and by multiplying
the quotient thus calculated by the number of days having passed since such purchase; and(1) in the case
of an obligation purchased at a premium by deducting the product thus obtained from the purchase price,and
(2)in the case of an obligation purchased at a discount by adding the product thus obtained to the purchase
price. Valuation on any particular date shall include the amount of interest then earned or accrued to such
date on any moneys or investments in the Debt Service Reserve Fund.
The funds and investments in the Debt Service Reserve Fund are irrevocably pledged to and shall
be used by the Trustee,from time to time,as may be required,for the payment of principal of,premium(if
any)on and interest on the Senior Bonds as and when the same shall become due and payable, and to that
end, amounts shall be transferred to the Senior Debt Service Account of the Bond Fund as provided in
Section 5.02.
Notwithstanding the foregoing,if amounts on deposit in the Debt Service Reserve Fund exceed the
Debt Service Reserve Requirement, at the request of the Borrower,the Trustee shall transfer the excess to
the Revenue Fund.
Amounts in the Debt Service Reserve Fund also shall be applied to pay the last principal due on
outstanding Senior Bonds;provided that with respect to any issue of Bonds,the amount by which the Debt
Service Reserve Requirement increased as of the Date of Issuance of the Senior Bonds shall be applied to
pay the final maturing principal of such Bonds,but only to the extent that the amount remaining in the Debt
Service Reserve Fund immediately after such payment is not less than the Debt Service Reserve Requirement
for any Bonds remaining outstanding hereunder immediately after such payment.
Investment income on amounts in the Debt Service Reserve Fund,upon receipt by the Trustee,shall
be credited to the Debt Service Reserve Fund(but only to the extent amounts therein are less than the Debt
Service Reserve Requirement), and otherwise deposited in the - .. . : . .
Reserve Fund.
Notwithstanding the foregoing, the Trustee, in its discretion, and based upon an opinion of Bond
Counsel to the effect that the exclusion from gross income of interest on the Tax-Exempt Bonds shall not
be adversely affected thereby,is authorized to use funds and investments in the Debt Service Reserve Fund
to pay the amount of any rebate due the United States in respect of any Bonds under Section 148 of the Code
if the Borrower shall have failed to pay or provide for the payment thereof under Section 4.01(d)of the Loan
Agreement.
Amounts withdrawn from the Debt Service Reserve Fund for the payment of principal of or premium
or interest on Senior Bonds shall be deemed first drawn from proceeds of the Senior Bonds,and investment
income thereon, and then from any other amounts in the Debt Service Reserve Fund.
The Borrower shall have no right, title or interest in any amounts from time to time in the Debt
Service Reserve Fund.
Section 5.05 Surplus Fund. Amounts shall be deposited in the Surplus Fund as provided in Section
5.01.Amounts in the Surplus Fund shall be withdrawn for transfer to the Bond Fund as provided in Section
5.02, for transfer to the Operating Reserve Fund as provided in Section 5.11, for transfer to the Taxes and
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Insurance Fund as provided in Section 5.06, for transfer to the Debt Service Reserve Fund as provided in
Section 5.04,for transfer to the Repair and Replacement Fund as provided in Section 5.07,and for transfer
to the Rebate Fund as provided in Section 5.08. Moneys in the Surplus Fund shall be disbursed by the
Trustee whenever necessary to remedy any deficiency in any fund in the following order of priority: the
Rebate Fund,the Taxes and Insurance Fund, the Senior Debt Service Account, the Debt Service Reserve
Fund, the Repair and Replacement Fund, the Operating Reserve Fund and the Subordinate Debt Service
Account. On or before Nvvvnibe►-December 1 of each year, commencing December 1, 2002,the Trustee
shall distribute any t.Accss amounts in the Surplus Fund as follows: one-half(V2)of thv vx�vss any amounts
shall be applied to the redemption of Subordinate Bonds as described in Section 3.01(e)herein,and
one-half('/2) of tlm .x- ss any amounts shall be distributed to the Borrower;provided, however, that the
Trustee may not redeem Subordinate Bonds or distribute money to the Borrower if(i)the Borrower is in
default under any provisions of the Loan Agreement(including,without limitation,satisfying the debt service
coverage requirement of Section 6.13 of the Loan Agreement and submitting all necessary forms and reports
required by Section 6.02 of the Loan Agreement), the Mortgage or this Indenture, vi if(ii) there is a
deficiency in any of the funds or accounts described above, or (iii) the Manager has made a loan to the
Borrower as described in Section 5.11 herein to replace the bank letter of credit initially deposited to the
Operating Reserve Fund and any portion of the loan remains unpaid.
All investment income on amounts in the Surplus Fund, upon receipt by the Trustee, shall be
deposited in the Revenue Fund.
Section 5.06 Taxes and Insurance Fund. On the Date of Issuance for the Series 2001 Bonds, an
amount shall be deposited into the Taxes and Insurance Fund as provided in Section 4.02, and thereafter
amounts shall be deposited in the Taxes and Insurance Fund as provided in Section 5.01. In addition,there
shall be deposited in the Taxes and Insurance Fund any amounts deposited by the Borrower under Section
4.02(c)of the Loan Agreement. On any date on which amounts in the Taxes and Insurance Fund are less
than the amounts required to be deposited therein,the amount of such deficiency(to the extent of available
funds and after any tians&rs raquirvd to be madam-t thc-Bund Fund))shall be transferred first,from amounts
in the Surplus Fund; second, from amounts in the Subordinate Debt Service Account;third, from amounts
in the Operating Reserve Fund; fourth, from amounts in the Repair and Replacement Fund; fifth, from
amounts in the Optional Redemption Fund,and sixth,if dircctd in--writing by a Majority of Ilo1das,from
amounts in the Senior Debt Service Account. The Trustee shall also deposit into the Taxes and Insurance
Fund all other amounts required to be deposited into the Taxes and Insurance Fund under this Indenture or
the Loan Agreement.
The Trustee shall disburse any amount in the Taxes and Insurance Fund to the Borrower or the
Manager to pay(or reimburse the Borrower or the Manager for prior payment of)all taxes(or payments in
lieu of taxes), assessments or governmental charges (except charges for utility services) and insurance
premiums due for insurance coverage related to the Project Faci I ities that is required under any provision of
the Loan Agreement, upon written certification by the Authorized Borrower Representative that amounts
therefor are due and payable.
On and after the Completion Date,upon receipt by the Trustee,all investment income from amounts
on deposit in the Taxes and Insurance Fund shall be deposited in the Revenue Fund.
Section 5.07 Repair and Replacement Fund. Amounts shall be deposited in the Repair and
Replacement Fund as provided in Section 5.01. On any date on which amounts in the Repair and
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Replacement Fund are less than the amount required to be deposited therein,the amount of such deficiency
(to the extent of available funds and after any transfers required to be made to the Senior Debt Service
Account,the Taxes and Insurance Fund or the Debt Service Reserve Fund)shall be transferred: first,from
amounts in the Surplus Fund, second, from amounts in the Subordinate Debt Service Account, and third,
from amounts in the Operating Reserve Fund.The Trustee shall deposit in the Repair and Replacement Fund
all amounts paid by the Borrower under Section 4.02(d) of the Loan Agreement and all other amounts
required to be deposited into the Repair and Replacement Fund under this Indenture or the Loan Agreement.
Amounts shall be transferred to the Senior Debt Service Account for the payment of principal,
premium or interest on the Senior Bonds to the extent required by Section 5.02(a),to the Taxes and Insurance
Fund as provided in Section 5.06,and to the Debt Service Reserve Fund as provided in Section 5.04(a). In
addition,if a Majority of Holders shall consents or if(i)no Event of Default has occurred and is continuing,
(ii) all reports of the Borrower required to be provided to the Trustee under Section 6.02 of the Loan
Agreement have been so provided,and (iii)the budget as required by Section 6.03 of the Loan Agreement
has been provided to the Trustee and the Original Purchaser,and(iv)all deposits described in Section 5.01
to the Taxes and Insurance Fund,the Bond Fund and its accounts,the Debt Service Reserve Fund,and the
Repair and Replacement Fund are current(or credit for such deposits shall have been given in accordance
herewith for other amounts in such funds), the Trustee shall disburse any amount in the Repair and
Replacement Fund to the Borrower or the Manager to pay any costs of capital improvements or extraordinary
items of maintenance with respect to the Project Facilities upon the Trustee's receipt of written certification
by the Authorized Borrower Representative that amounts therefor are due and payable, and a written
statement from an independent certified public accounting firm that such costs are properly payable from the
Repair and Replacement Fund. Amounts may also be disbursed to the Borrower to reimburse such costs
previously paid by or on behalf of the Borrower (but only if the payment of such costs was not credited
against a Monthly Repair and Replacement Deposit otherwise due under Section 5.01(g)).
Upon receipt by the Trustee, all investment income from amounts on deposit in the Repair and
Replacement Fund shall be deposited in the Revenue Fund.
Section 5.08 Rebate Fund. Amounts shall be deposited in the Rebate Fund as provided in Section
5.01, and as described in Sections 2.03(s) and 4.02(h) of the Loan Agreement. If on the thirtieth day
following any Computation Date for any issue of Tax-Exempt Bonds,the Trustee has not received from the
Borrower written evidence from a Rebate Analyst as to the amount,.if any, of rebatable arbitrage required
to be paid to the United States in connection with such Computation Date and such Tax-Exempt Bonds(the
"Rebate Report"),the Trustee, at the expense of the Borrower shall engage a Rebate Analyst to prepare a
Rebate Report,notifying the Borrower of such engagement and promptly providing to the Borrower a copy
of the Rebate Report after its delivery to the Trustee,and making demand on the Borrower to pay any amount
of rebate required to be paid to the United States as set forth in the Rebate Report.
If the Borrower shall fail to remit to the Trustee the amount of rebate owing to the United States in
accordance with the Rebate Report within five days after Borrower's receipt of such report, thereafter,
notwithstanding any other provisions hereof,the Trustee shall transfer the amount required to be paid to the
United States the Rebate Fund from the following funds: first from the Surplus Fund, second from the
Subordinate Debt Service Account, third, from the Operating Reserve Fund, fourth, from the Repair and
Replacement Fund,fifth,from the Senior Debt Service Account,sixth,from the Senior Debt Service Reserve
Account(to the extent permitted by Section 5.04),seventh,from the Taxes and Insurance Fund,and eighth,
from the Revenue Fund. To the extent of amounts in the Rebate Fund, the Trustee shall make available to
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the Borrower the amount of rebatable arbitrage due upon the Trustee's receipt of an executed form 8038T,
or copy thereof satisfactory to the Trustee(or such other form as shall be appropriate for reporting the rebate
due)duly completed with respect to the applicable issue of Tax-Exempt Bonds and representations by the
Borrower that it will apply such amounts to the payment of rebate due.
In construing this Section all terms used in this Section shall have the meanings provided in Section
148 of the Code and regulations thereunder. Notwithstanding any other provision of this Section 5.11,any
requirement imposed hereunder may be deemed inapplicable and of no force or effect if an written opinion
of Bond Counsel is rendered to the Trustee to the effect that the failure to impose such requirement will not
adversely affect the exclusion of interest on any Tax-Exempt Bonds from gross income for federal income
tax purposes.
Section 5.09 Insurance and Award Fund There shall be deposited into the Insurance and Award
Fund all Net Proceeds of condemnation awards or insurance relating to condemnation,damage or destruction
of the Project Facilities if in excess of$250,000. Amounts in the Insurance and Award Fund shall be
disbursed by the Trustee to pay the cost of replacement,repair, reconstruction or restoration of the Project
Facilities or transferred to the Bond Fund in accordance with Sections 5.10(and applicable provisions of the
Disbursing Agreement)or 5.11 ofthe Loan Agreement and used to redeem Bonds pursuant to Section 3.01(b)
hereof. Any amounts remaining in the Insurance and Award Fund after payment of all costs of replacement,
repair, reconstruction, or restoration relating to the condemnation, damage or destruction to which such
amounts relate, shall be transferred to the Optional Redemption Fund. All income realized from the
investment of the Insurance and Award Fund shall be credited to the Insurance and Award Fund and
transferred to the Revenue Fund.
Section 5.10 Investment of Funds. To the extent authorized by the Act or other applicable law,
moneys on deposit to the credit of any fund or account established under this Indenture shall,upon request
by the Authorized Borrower Representative,be invested by the Trustee in Permitted Investments,which may
be purchased from the Trustee or from any of its Affiliates. To the extent the Trustee receives no investment
instructions from the Authorized Borrower Representative,amounts in the funds and accounts herein shall
be invested in the Trustee's"AAA"rated treasury money market fund. Investments so made shall be deemed
at all times to be a part of the respective account or fund, but may from time to time be sold or otherwise
converted into cash,whereupon the proceeds derived from such sale or conversion shall be credited to such
Account or Fund. Any interest accruing on and any profit realized from such investment shall be credited
to the respective account or fund except as otherwise herein provided. Any investments purchased with
amounts on deposit in any account or fund under this Indenture may be exchanged for cash or investments
of equal value credited to any other account or fund. The Trustee shall redeem or sell, at the best price
obtainable,any investments so made,whenever it shall be necessary to do so in order to provide moneys to
meet any payment from the respective account or fund. Neither the Trustee nor the City shall be liable for
any loss resulting from any such investment, nor from failure to preserve rights against endorsers or other
prior parties to instruments evidencing any such investment. Monies credited to any account or fund
maintained hereunder which are uninvested pending disbursement or receipt of proper investment directions
or as directed herein, may be deposited to and held in a non-interest bearing demand deposit account
established with the Commercial Banking Department of the Trustee or with any bank affiliated with the
Trustee,without the pledge of securities to or other collateralization of such deposits accounts.
Section 5.11. Operating Reserve Fund. On the •. . . :: :. . Date of
Issuance,the Trustee shall deposit in the Operating Reserve Fund monks or a bank letter of credit equal to
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the Operating Reserve Requirement.Tln,Nafto Such bank letter of credit will have a stated expiration date
of April 1,2003.Commencing after the Date of Issuance,the Trustee shall deposit
and utl,v, fu,n&in the Rzvznne Fli„dz-c.,L,5saulo maintain or restore the balance of tl lc Operating Reserve
Fund to(i)all rental income and fees arising from the operation of the Project Facilities and received on or
before April 1,2003,and(ii)the amounts transferred from the Revenue Fund as provided in section 5.01(g)
herein, until such deposits equal the Operating Reserve Requirement. :. . • II
fu„nlcd on the Dat%,As amounts are deposited therein, the stated amount of Issuance with a bank kttv, of
- '--
provided-in-Sti,ctie►i 5.01(g), and the Trustee shall rcl,,as,„the bank letter of credit, or portion thoeof, will
be reduced by a corresponding amount,and the Trustee will release such portion of the bank letter of credit
from the Trust Estate. If the rental income and the transfers from the Revenue Fund do not equal the
Operating Reserve Requirement and are not sufficient to fully replace the bank letter of credit on April 1,
2003,the Manager shall loan the difference to the Borrower,who shall transfer the proceeds of the loan to
the Trustee for deposit to the Operating Reserve Fund. Such loan shall bear simple interest at nine percent
(9%)and shall be repaid out of the Surplus Fund,to the extent that funds are available. Repayments of this
loan shall be made prior to any distributions to the Borrower or redemptions of Subordinate Bonds as
provided in Section 5.05.
Commencing April 1,2003,the Trustee shall deposit to the Operating Reserve Fund any Loan Repayments
and other funds in the Revenue Fund as provided ill section 5.01(g)herein as necessary to maintain or restore
the balance to the Operating Reserve Requirement.
Moneys on deposit in the Operating Reserve Fund are pledged to and shall be used by the Trustee
for the payment of(i) principal of and interest on the Senior Bonds when due, in the event amounts on
deposit in the Senior Debt Service Account of the Bond Fund are insufficient therefor, and(ii)Operating
Expenses(including deposits to the Taxes and Insurance Fund as provided in Section 5.05 and the Repair
and Replacement Fund as provided in Section 5.07).Amounts in the Operating Reserve Fund shall be valued
in the manner and at the times as provided for the Debt Service Reserve Fund in Section 5.04 hereof.
Investment earnings from the Operating Reserve Fund in excess of the Operating Reserve Requirement shall
be transferred to the Senior Debt Service Account of the Bond Fund.
Upon final payment,redemption or defeasance of all Series 2001 Bonds and the satisfaction of all
obligations under the Loan Agreement,and so long as there is no default ongoing under the Loan Agreement,
the Mortgage or this Indenture,then upon the release of this Indenture the Trustee shall remit all amounts
on deposit in the Operating Reserve Fund to the Borrower(including the release of any bank letter of credit
in its entirety).
Section 5.12. Pledge of Tax Increment Revenue. At On or before the Date of Issuance,the City will
execute and deliver the Tax Increment Note, whereby the City will agree to pay to the Borrower the Tax
Increment Revenue,and the Borrower will deliver the Assignment of TIF Note to the Trustee as additional
security for the Bonds, and will direct the City to make the payments of Tax Increment Revenue to the
Trustee. The Trustee shall deposit the Tax Increment Revenue,as received,in the Revenue Fund,to be used
as provided in Section 5.01 hereof.
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ARTICLE VI
Particular Covenants of the City
Section 6.01 Payment of Bonds. Principal of and premium, if any,and interest on the Bonds shall
be paid when due, but solely to the extent of amounts from Loan Repayments, revenues derived from the
Loan Agreement or other amounts derived from the Trust Estate, including amounts received under the
Mortgage,the Subordinate Mortgage,and Net Proceeds;provided that neither such payment obligations nor
any of the agreements or obligations of the City relating thereto shall be construed to constitute a general or
moral obligation or an indebtedness of the City or constitute or give rise to a pecuniary liability or be a
charge against the general credit or taxing powers of the City
Section 6.02 Extensions of Payments;No Encumbrances. No consent to the extension of the time
at which any principal,interest or premium is due on any Bond unless an amendment to this Indenture would
be permitted to be made to reflect such extension under Article XI.
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ARTICLE VII
Remedies on Default
Section 7.01 Events of Default. Each of the following events is hereby defined as,and is declared
to be and to constitute, an "Event of Default":
(a) Any nonpayment when due of the principal of or any premium or interest on any
outstanding Senior Bonds (whether due at maturity or upon redemption, declaration or
otherwise);or
(b) Any nonpayment when due of the principal of or any premium or interest on any
Senior Indebtedness other than Senior Bonds(whether due at maturity or upon redemption,
declaration or otherwise); or
(c) Any failure in the due and timely performance of any of the other covenants,
conditions, agreements and provisions contained in the Senior Bonds or in this Indenture,
or in any indenture supplemental hereto to be performed, and such default shall have
continued for a period of sixty days after written notice, specifying such default and
requiring the same to be remedied,shall have been given to the Borrower by the Trustee,or
if such notice is given to the Trustee and the Borrower by Holders of not less than twenty-
five percent(25%) in principal amount of outstanding Senior Bonds; or
(d) The occurrence and continuation of any"Event of Default"as that term is defined
in the Loan Agreement or the occurrence of any acceleration of Senior Indebtedness because
of a default or nonperformance or noncompliance by the Borrower under any document
governing such indebtedness.
Default in the due and punctual payment of any interest on or principal of any Outstanding
Subordinate Bonds shall also constitute an Event of Default under this Indenture; provided,however,that
the Trustee shall not be entitled to exercise any remedies upon an Event of Default with respect to the
Suburdiaut..Subordinate Bonds set forth herein unless the Senior Bonds are no longer Outstanding Bonds.
Section 7.02 Acceleration of Maturity. Upon the occurrence of an Event of Default,the Trustee
may, and upon written request of Holders of twenty-five percent(25%) in aggregate principal amount of
outstanding Senior Bonds, the Trustee shall, by notice in writing delivered to the Borrower declare the
principal of all Senior Bonds hereby secured then outstanding and the interest accrued thereon immediately
due and payable, and such principal and interest shall thereupon become and be immediately due and
payable;subject,however,to the right of a Majority of Holders,by written notice to the Borrower and to the
Trustee,to annul such declaration and destroy its effect at any time if all covenants with respect to which
default shall have been made shall be fully performed or made good, and all arrears of interest upon all
outstanding Senior Bonds and the reasonable expenses and charges of the Trustee, its agents and attorneys
shall be paid, or the amount thereof shall be paid to the Trustee for the benefit those entitled thereto.
Section 7.03 Enforcement of Covenants and Conditions. In any case of Default or breach of any
of the covenants and conditions of this Indenture,or to protect the Trust Estate,the Trustee,anything herein
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contained to the contrary notwithstanding and without any request from any holder of Senior Bonds(subject,
however,to the provisions of Section 8.06),may take such action or actions for the enforcement of its rights
and the rights of the holders of Senior Bonds and the rights of the City under the Loan Agreement as due
diligence,prudence and care would require and to pursue the same with like diligence,prudence and care.
Upon the happening and continuance of an Event of Default, the Trustee may, and shall upon the
written request of Holders of not less than twenty-five percent(25%) in aggregate principal amount of all
outstanding Senior Bonds,proceed forthwith by suit or suits at law or in equity or by any other appropriate
remedy to enforce payment of the Senior Bonds, to enforce application to such payment of the funds,
revenues and income appropriated thereto by this Indenture and by the Senior Bonds, to enforce remedies
under the Loan Agreement,to foreclose enforce the Mortgage and/or enforce the provisions of the Mortgage
and any such other appropriate legal or equitable remedy as the Trustee,being advised by counsel,shall deem
most effectual to protect and enforce any of its rights or any of the rights of the holders of Senior Bonds.
Notwithstanding the foregoing, the Trustee need not proceed upon any such written request of such
Bondholders,as aforesaid,unless such Bondholders shall have offered to the Trustee surety and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby.
For as long as any Senior Bonds are outstanding, neither the Trustee nor any holder of
the Subordinate Bonds shall take any action or remedies hereunder in the event of default in payment of
the Subordinate Bonds or other Events of Default relating to the Subordinate Bonds.
Section 7.04 Appointment of Receivers. Upon the occurrence of an Event of Default,and upon the
filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and the
Holders of Bonds under this Indenture,the Trustee shall be entitled,as a matter of right,to the appointment
of a receiver or receivers of the Trust Estate and of the revenues, issues, payments and profits thereof,
pending such proceedings,with such powers as the court making such appointment shall confer.
Section 7.05 Application of Moneys.
(a) Unless the principal of all the Bonds shall have become or shall have been declared
due and payable, all moneys received by the Trustee pursuant to any right given or action taken
under the provisions of this Indenture,the Loan Agreement,or the Mortgage shall,after payment of
the cost and expenses of the proceedings resulting in the collection of such moneys and of the
expenses, liabilities and advances incurred or made by the Trustee, be deposited in the Revenue
Fund for application as provided in Section 5.01.
(b) If the principal of all the Bonds shall have become or shall have been declared due
and payable, all moneys received by the Trustee pursuant to any right given or action taken under
the provisions of this Indenture, the Loan Agreement, the Mortgage or the Subordinate Mortgage
shall,after payment of the cost and expenses of the proceedings resulting in the collection of such
moneys and of the expenses, liabilities and advances incurred or made by the Trustee,together with
all other moneys constituting a part of the Trust Estate be applied to the payment of the principal and
interest then due and unpaid upon the Bonds and any other Senior Indebtedness,without preference
or priority of principal over interest or of interest over principal,or of any instal I ment of interest over
any other installment of interest,or of any Bond or such indebtedness over any other Bond or such
Indebtedness, ratably, according to the amounts due respectively for principal and interest, to the
persons entitled thereto without any discrimination or privilege.
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If the principal of all the Bonds of any Series shall have been declared due and payable,and
if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article,
then, subject to the provisions of paragraph (b) of this Section in the event that the principal of all of the
Bonds shall later become due or be declared due and payable,moneys described herein shall be applied in
accordance with the provisions of paragraph (a)of this Section.
Whenever moneys are to be applied by the Trustee pursuant to the provisions of paragraph(b)of this
Section, such moneys shall be applied by it at such times, and from time to time, as the Trustee shall
determine,having due regard to the amount of such moneys available for application and the likelihood of
additional moneys becoming available for such application in the future;provided that all such moneys to
be applied shall be applied first to payment in full of Senior Bonds then due prior to payment of any
Subordinate Bonds. Whenever the Trustee shall so apply such funds, it shall fix the date(which shall be
an Interest Payment Date unless it shall deem another date more suitable)upon which such application is to
be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to
accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such
moneys and of the fixing of any such date, and shall not be required to make payment to the holder of any
unpaid Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all Bonds and interest thereon have been paid under the provisions of this Section and all
expenses and charges of the Trustee and any amounts owed the City under this Indenture or the Loan
Agreement have been paid,any balance remaining shall be paid to the persons entitled to receive the same;
if no other person shall be entitled thereto,then the balance shall be paid to the Borrower.
Section 7.06 Trustee May File Proofs of Claims. In case of the pendency of any receivership,
insolvency,liquidation,bankruptcy,reorganization,arrangement,adjustment,composition or other judicial
proceeding relative to the City or the Borrower or any other obligor upon the Bonds or the property of the
City or the Borrower or of such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Bonds shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the City and/or the Borrower for the
payment of overdue principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
A. to file and prove a claim for the whole amount of principal,premium, if any,and interest
owing and unpaid in respect of the Bonds then outstanding and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee(including
any claim for the reasonable compensation, expenses,disbursements and advances of the Trustee,
its agents and counsel)and of the Bondholders allowed in such judicial proceedings, and
B. to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Bondholder to make such payments to the Trustee,and,in the event
that the Trustee shall consent to the making of such payments directly to the Bondholders, to pay to the
Trustee any amount due to it for the reasonable compensation,expenses,disbursements,and advances of the
Trustee, its agents and counsel.
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Section 7.07 Right of Trustee to Act Without Possession of Bonds. All rights of action(including
the right to file proof of claim)under or pursuant to this Indenture,the Loan Agreement,the Mortgage,the
Subordinate Mortgage or the Bond Resolution, or under any of the Bonds, may be enforced by the Trustee
without the possession of any of the Bonds or the production thereof in any trial or other proceeding relating
thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee,
without the necessity of joining as plaintiffs or defendants any Holders of the Bonds hereby secured,and any
recovery of judgment shall be for the equal benefit of the Holders of the outstanding Bonds, subject to the
provisions of Section 6.02 with respect to extended Bonds and claims for interest.
Section 7.08 Power of Majority of Senior Bondholders. Anything in this Indenture to the contrary
notwithstanding,a Majority of Holders of Senior Bonds shall have the right,at any time, by an instrument
or instruments in writing executed and delivered to the Trustee,to direct the method and place of conducting
all proceedings to be taken under this indenture,the Loan Agreement,or the Mortgage; provided that such
direction shall not be otherwise than in accordance with the provisions of law and that the Trustee shall be
indemnified as provided in Section 8.06.
Section 7.09 Limitation on Suits by Senior Bondholders. No Holder of any Senior Bond shall have
any right to institute any suit,action or proceeding in equity or at law for the enforcement of this Indenture,
or for the execution of any trust or for any other remedy hereunder or under the Loan Agreement or the
Mortgage,unless either(a)such action shall be approved by Holders of not less than - fifty-
one percent(51%)in aggregate principal amount of Senior Bonds outstanding,or(b)a Default has occurred
of which the Trustee has been notified or of which it is deemed to have notice,the Trustee shall have failed
to take action in respect thereof and the Holders of one-fourth(1/4) in aggregate principal amount of Senior
Bonds outstanding hereunder shall have (i) made written request to the Trustee and shall have offered it
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such
action,suit or proceeding in its own name;and(ii)offered to the Trustee indemnity as provided hereinafter.
Notwithstanding the foregoing, no one or more Holders of the Senior Bonds shall have any right in any
manner whatsoever to affect,disturb,or prejudice the lien of this Indenture,the or Mortgage by their action
or to enforce any right hereunder or thereunder except in the manner herein and therein provided, and that
all proceedings at law or in equity shall be instituted,had and maintained in the manner herein provided and
for the equal benefit of the Holders of all Senior Bonds outstanding hereunder.
Except with respect to express limitations on holders of Subordinate Bonds to take actions
and pursue remedies hereunder, nothing in this Indenture shall, however, affect or impair the right of any
Bondholder,which is absolute and unconditional,to enforce and bring suit for the payment of the principal
of and interest on any Senior Bond at and after the maturity thereof to the respective Holders thereof at the
time and place in said Senior Bonds expressed, in accordance with the terms of the Senior Bonds.
Section 7.10 Waiver by Bondholders. The Trustee, upon the written request of a Majority of
Holders of Senior Bonds,shall waive any Event of Default hereunder and its consequences,except an Event
of Default in the payment of the principal of the Bonds at the date of maturity specified therein; provided,
however,that an Event of Default caused by the nonpayment of interest on any Series of Senior Bonds shall
not be waived unless,prior to such waiver,all arrears of such interest,and all expenses of the Trustee shall
have been paid or shall have been provided for by deposit with the Trustee of a sum sufficient to pay the
same. In case of any such waiver,the City,the Trustee and the Holders of the Senior Bonds shall be restored
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to their former positions and rights hereunder respectively. No such waiver shall extend to any subsequent
or other Default or any Event of Default or impair any right consequent thereon.
Section 7.11 Remedies Cumulative; Delay Not To Constitute Waiver. No remedy by the terms of
this Indenture, the Loan Agreement, the Mortgage, the Subordinate Mortgage or the Bond Resolution
conferred upon or reserved to the Trustee (or to the Bondholders) is intended to be exclusive of any other
remedy,but each and every such remedy shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any Default or Event of Default
shall impair any such right or power or shall be construed to be a waiver of any such Default or Event of
Default or acquiescence therein,and every such right and power may be exercised from time to time and as
often as may be deemed expedient.
No waiver of any Default or Event of Default hereunder, whether by the Trustee or by the Senior
Bondholders,shall extend to or shall affect any subsequent Default or Event of Default or shall impair any
rights or remedies consequent thereon.
Section 7.12 Restoration of Rights Upon Discontinuance of Proceedings. In case the Trustee or
Bondholders shall have proceeded to enforce any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or
Bondholders,then and in every such case the City,the Borrower,the Trustee and the Bondholders shall be
restored to their former positions and rights hereunder with respect to the Trust Estate, and all rights,
remedies and powers of the Trustee or Bondholders shall continue as if no such proceedings had been taken.
[The balance of this page is intentionally left blank.]
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ARTICLE VIII
Concerning the Trustee
Section 8.01 Acceptance of Trust and Prudent Performance Thereof. The Trustee, prior to the
occurrence of an Event of Default and after the curing of all such Events of Default as may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. The
Trustee shall during the existence of any such Event of Default(which has not been cured)exercise such of
the rights and powers vested in it by this Indenture,and use the same degree of care and skill in its exercise,
as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
The Trustee shall not be required to take notice or be deemed to have notice of any Default or Event
of Default hereunder except Default in the deposits or payments specified,or failure by the Borrower to file
with it any of the documents required, unless the Trustee shall be specifically notified in writing of such
Default or Event of Default by the Borrower or by the Holders of at least twenty-five percent (25%) in
aggregate principal amount of Bonds outstanding hereunder, and all notices or other instruments required
by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the office of
the Trustee, and in the absence of such notice so delivered,the Trustee may conclusively assume that there
is no Default or Event of Default except as aforesaid.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful misconduct, except that
(a) prior to such an Event of Default hereunder,and after the curing of all such Events
of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this Indenture,and
no implied covenants or obligations shall be read into this Indenture against the Trustee;and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and to the correctness of the opinions
expressed therein, upon any certificate or opinion furnished to the Trustee conforming to
the requirements of this Indenture; but in the case of any such certificate or opinion which
by any provision is specifically required to be furnished to the Trustee,the Trustee shall be
under a duty to examine the same to determine whether or not it conforms to the
requirements of this Indenture; and
(b) at all times, regardless of whether or not any such Event of Default shall exist:
(1) the Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer or Officers of the Trustee unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts, and
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(2) the Trustee shall not be liable with respect to anyaction taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders of not less
than a Majority of Holders relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur individual financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 8.02 Trustee May Rely Upon Certain Documents and Opinions. Except as otherwise
provided in Section 8.01,
(a) the Trustee may rely and shall be protected in acting upon any resolution,certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, election, order, certification or demand of the City or the
Borrower shall be sufficiently evidenced by an instrument signed by an Authorized City
Representative, an Authorized Borrower Representative (unless otherwise in this Indenture
specifically prescribed), and any resolution of the City may be evidenced to the Trustee by a
Certified Resolution;
(c) the Trustee may consult with counsel (who may be counsel for the City or the
Borrower)and the opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel; and
(d) whenever,in the administration ofthe trusts ofthis Indenture,the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking or suffering any action
hereunder, such matter(unless other evidence in respect thereof be herein specifically prescribed)
may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by a Certificate of the City and such Certificate of the City
shall, in the absence of negligence or bad faith on the part of the Trustee, be full warrant to the
Trustee for any action taken or suffered by it under the provisions of this Indenture upon the faith
thereof.
Section 8.03 Trustee Not Responsible for Indenture Statements,Validity. The Trustee shall not be
responsible for any recital or statement herein,or in the Bonds or any other document in connection with the
sale of the Bonds(except in respect of the Certificate of the Trustee endorsed on Bonds),or for the validity
of the execution by the City of this Indenture or the validity or execution of the Loan Agreement, the
Mortgage, or the Bond Resolution or of any supplemental instrument,or for the sufficiency of the security
of the Bonds issued hereunder or intended to be secured hereby,or for the value or title of any of the Trust
Estate,or otherwise as to the maintenance of the security;and the Trustee shall not be bound to ascertain or
inquire as to their performance or observance of any covenant,condition or agreement except as herein set
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forth,but the Trustee may require of the Borrower full information and advice as to the performance of the
covenants,conditions and agreements aforesaid and of the condition of the physica I property included in the
Trust Estate. The Trustee shall not be accountable for the use of any Bonds authenticated or delivered
hereunder.
Section 8.04 Limits on Duties and Liabilities of Trustee. The permissive right of the Trustee to do
things enumerated in this Indenture shall not be construed as a duty of the Trustee and the Trustee shall be
answerable only for its own negligence or willful default. The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises.
Section 8.05 Money Held in Trust. Money held by the Trustee hereunder is held in trust but need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise agreed with the City or the
Borrower.
Section 8.06 Obligation of Trustee. The Trustee shall be under no obligation to institute any suit,
or to take any proceeding under this Indenture,or to enter any appearance or in any way defend in any suit
in which it may be defendant, or to take any steps in the execution of the trusts hereby created or in the
enforcement of any rights and powers hereunder, until it shall have reasonable grounds for believing that
repayment of all costs and expenses, outlays and counsel fees and other reasonable disbursements in
connection therewith and adequate indemnity against all risk and liability is reasonably assured to it; the
Trustee may,nevertheless,begin suit,or appear in and defend suit,or do anything else in its judgment proper
to be done by it as such Trustee, without assurance of reimbursement or indemnity, and in such case the
Trustee shall be reimbursed for all costs and expenses, outlays and counsel fees and other reasonable
disbursements properly incurred in connection therewith. If the Borrower shall fail to make such
reimbursement,the Trustee may reimburse itself from any moneys in its possession under the provisions of
this Indenture and shall be entitled to a preference therefor over any of the Bonds outstanding hereunder.
Section 8.07 Notice to Bondholders,etc. The Trustee shall give to the Holders of the Bonds whose
names and addresses are known to it written notice of all Events of Default known to the Trustee by virtue
of actual knowledge of a Responsible Officer, within sixty(60) days after the occurrence of the Event of
Default unless such Event of Default shall have been cured before the giving of such notice;provided that,
except in the case of Events of Default in the payment of principal or interest on any of the Bonds, the
Trustee shall be protected in withholding such notice if and so long as its board of directors, an executive
committee or trust committee of the Trustee in good faith determines that the withholding of such notice is
in the interest of the Bondholders; and further provided that no such notice shall be given unless and until
any Default becomes an Event of Default.
Section 8.08 Intervention in Judicial Proceedings. In any judicial proceeding to which the City or
the Borrower is a party and which, in the opinion of the Trustee, based upon an Opinion of Counsel which
shall be reasonably satisfactory to the Borrower,has a substantial bearing on the interest of owners of Bonds
issued hereunder,the Trustee may intervene on behalf of Bondholders and shall do so if requested in writing
by the owners of at least twenty-five percent (25%) in aggregate principal amount of Bonds outstanding
hereunder. The rights and obligations of the Trustee under this Section are subject to the approval of the
court having jurisdiction in the premises.
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Section 8.09 Further Investigation by Trustee. The resolutions, opinions, certificates and other
instruments provided for in this Indenture may be accepted by the Trustee as conclusive evidence of the facts
and conclusions stated therein and shall be in full warrant, protection and authority to the Trustee for its
actions hereunder;but the Trustee may, in its unrestricted discretion,and shall,if requested in writing so to
do by the Holders of not less than twenty-five per centum (25%) in aggregate principal amount of Bonds
outstanding hereunder,cause to be made such independent investigation as it may see fit,and in that event
may decline to release any property, or pay over cash, or take other action unless satisfied by such
investigation of the truth and accuracy of the matters so investigated. The expense of such investigation shall
be paid by the Borrower,or, if paid by the Trustee,shall be repaid to it,with interest a rate equal to 10%per
annum by the Borrower or from the Trust Estate.
Section 8.10 Trustee to Retain Financial Records. The Trustee shall retain all financial statements
furnished by the Borrower in accordance with this Indenture or the Loan Agreement so long as any of the
Bonds shall be outstanding,and such statements,together with all other records of the Trustee pertaining to
the administration of this Indenture or the issuance and payment of amounts on the Bonds,and the security
therefor, shall be made available for inspection or, at their expense, copying at all reasonable times by any
Holder,Beneficial Owner, by the Original Purchaser, or their representatives.
Section 8.11 Compensation of Trustee. All advances,counsel fees,agent's fees and other expenses
reasonably made or incurred by the Trustee in and about the execution of the trust hereby created and
reasonable compensation to the Trustee for its services in the premises shall be paid by the Borrower. The
compensation of the Trustee shall not be limited to or by any provision of law in regard to the compensation
of trustees of an express trust. If not paid by the Borrower,the Trustee shall have a first lien, with right of
payment prior to payment on account of interest or principal of any Bond issued hereunder,for reasonable
compensation,expenses,advances and counsel fees incurred in and about the execution of the trusts hereby
created and exercise and performance of the powers and duties of the Trustee hereunder and the cost and
expense incurred in defending against any liability in the premises of any character whatsoever(unless such
liability is adjudicated to have resulted from the negligence or willful default of the Trustee).
Section 8.12 Trustee Mav Hold Bonds. The Trustee and its officers and directors may acquire and
own,or become the pledgee of,Bonds and otherwise deal with the City or the Borrower in the same manner
and to the same extent and with like effect as though it were not Trustee hereunder.
Section 8.13 Appointment of Trustee. Except for the initial Trustee, and any successor or assign
to such Trustee,there shall at all times be a trustee hereunder which shall be an association or a corporation
organized and doing business under the laws of the United States or any State thereof,authorized under such
laws to exercise corporate trust powers, having a combined capital,surplus and undivided profits of at least
Seventy-Five Million Dollars($75,000,000)and subject to supervision or examination by Federal or State
authority. If such association or corporation publishes reports of condition at least annually,pursuant to law
or to the requirements of any supervising or examining authority above referred to,then for the purposes of
this Section the combined capital, surplus and undivided profits of such corporation shall be deemed to be
its combined capital as set forth in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this Section,and another association
or corporation is eligible,the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.16.
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Section 8.14 Merger of Trustee. Any corporation or national banking association into which the
Trustee may be converted or merged,or with which it may be consolidated,or to which it may sell or transfer
its trust business and assets as a whole or substantially as a whole, or any corporation or national banking
association resulting from any such conversion,sale,merger,consolidation or transfer to which it is a party,
ipso facto,shall be and become successor trustee hereunder and vested with all of the title to the Trust Estate
and all the trusts, powers, discretions, immunities, privileges and all other matters as was its Predecessor,
without the execution or filing of any instrument or any further act, deed or conveyance on the part of any
of the parties hereto,anything herein to the contrary notwithstanding.
Section 8.15 Resignation or Removal of Trustee. The Trustee may resign and be discharged from
the trusts created by this Indenture by giving to the City and all Holders thirty days' notice in writing, and
to the Bondholders notice by certified or registered mail at their addresses as set forth on the registration
books,of such resignation,specifying a date when such resignation shall take effect. Such resignation shall
take effect on the day specified in such notice unless previously a successor trustee shall have been appointed
by the Bondholders as hereinafter provided, in which event such resignation shall take effect immediately
on the appointment of such successor trustee.
Any Trustee hereunder may be removed at any time by an instrument or instruments in writing,
appointing a successor to the Trustee so removed, filed with the Trustee and executed by the a Majority of
Holders.
Section 8.16 Appointment of Successor Trustee. In case at any time the Trustee shall resign or shall
be removed or otherwise shall become incapable of acting,or shall be adjudged a bankrupt or insolvent,or
if a receiver of the Trustee or of its property shall be appointed, or if a public supervisory office shall take
charge or control of the Trustee or of its property or affairs, a vacancy shall forthwith and ipso facto be
created in the office of such Trustee hereunder,and a successor may be appointed by a Majority of Holders
by an instrument or instruments in writing filed with the Trustee and executed by such Bondholders,
notification thereof being given to the City,but until a new Trustee shall be appointed by the Bondholders
as herein authorized,the City shall, subject to the provisions,appoint a Trustee to fill such vacancy. After
any such appointment by the City, it shall cause notice of such appointment to be mailed within 30 days of
such appointment to the Holders of all outstanding Bonds,but any new Trustee so appointed by the City shall
immediately and without further act be superseded by a Trustee appointed in the manner above provided by
a Majority of Holders whenever such appointment by said Bondholders shall be made.
If,in a proper case, no appointment of a successor Trustee shall be made pursuant to the foregoing
provisions of this Section within six months after a vacancy shall have occurred in the office of Trustee,the
Holder of any Bond hereby secured or any retiring Trustee may apply to any court of competent jurisdiction
to appoint a successor Trustee. Said court may thereupon,after such notice, if any,as such court may deem
proper and prescribe, appoint a successor Trustee.
Section 8.17 Transfer of Rights and Property to Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the City an
instrument in writing accepting such appointment hereunder, and 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 predecessor; but such predecessor shall, nevertheless, on the written
request of the City or of its successor execute and deliver an instrument transferring to such successor all the
estate,properties,rights,powers and trusts of such predecessor hereunder,and every predecessor trustee shall
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deliver all securities and moneys held by it as Trustee hereunder to its successor. Should any assignment,
conveyance or instrument in writing from the City be required by any successor Trustee for more fully and
certainly vesting in such successor Trustee the estates, rights,powers and duties hereby vested or intended
to be vested in the predecessor Trustee, any and all such assignments, conveyances and instruments in
writing shall, on request, be executed, acknowledged and delivered by the City. The resignation of any
Trustee and the instrument or instruments removing any Trustee and appointing a successor hereunder,
together with all assignments, conveyances and other instruments provided for in this Article shall, at the
expense of the City, be forthwith filed and/or recorded by the successor Trustee in each recording office
where the Indenture shall have been filed and/or recorded.
Section 8.18 Co-Trustee. In addition to the conditions expressed in Section 7.09, at any time or
times,for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust
Estate may at the time be located,the City and the Trustee shall have power to appoint one or more persons
approved by the Trustee either to act as co-trustee or co-trustees,jointly with the Trustee of all or any part
of the Trust Estate,or to act as separate trustee or separate trustees of all or any part of the Trust Estate,and
to vest in such person or persons,in such capacity,such title to the Trust Estate or any part thereof,and such
rights,powers,duties,trusts or obligations as the City and the Trustee may consider necessary or desirable,
subject to the remaining provisions of this Section. Notwithstanding the foregoing, a Majority of Holder
shall approve the appointment of any co-trustee, unless the City or the Trustee shall determine that to wait
for such approval will materially adversely affect a Majority of Holders.
Upon the request of the Trustee or of the Holders of at least twenty-live per cent(25%)in aggregate
principal amount of Bonds outstanding hereunder,the City shall for such purpose join with the Trustee in
the execution, delivery and performance of all instruments and agreements necessary or proper to appoint
the co-trustee. If the City shall not have joined in such appointment within fifteen(15)days after the receipt
by it of a request so to do,or in case an Event of Default shall have occurred and be continuing,the Trustee
alone shall have power to make such appointment.
The City shall execute,acknowledge and deliver all such instruments as may be required by any such
co-trustee or separate trustee for more fully confirming such title, rights, powers, trusts, duties and
obligations to such co-trustee or separate trustee.
Every co-trustee or separate trustee shall,to the extent permitted by law but to such extent only, be
appointed subject to the following terms, namely:
(a) The Bonds shall be authenticated and delivered and all rights,powers,trusts,duties
and obligations by this Indenture conferred upon the Trustee in respect of the custody, control or
management of moneys,papers, securities and other personal property shall be exercised solely by
the Trustee.
(b) All rights, powers, trusts, duties and obligations conferred or imposed upon the
trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the
Trustee and such co-trustees or separate trustee or separate trustees jointly,as shall be provided in
the instrument appointing such co-trustee or co-trustees or separate trustee or separate trustees,
except to the extent that, under the law of any jurisdiction in which any particular act or acts are to
be performed,the Trustee shall be incompetent or unqualified to perform such act or acts,in which
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event such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or
separate trustees.
(c) Any request in writing by the Trustee to any co-trustee or separate trustee to take
or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the
refraining from taking, of such action by such co-trustee or separate trustee.
(d) Any co-trustee or separate trustee may delegate to the Trustee the exercise of any
right,power,trust,duty or obligation, discretionary or otherwise.
(e) The Trustee at any time, by an instrument in writing, with the concurrence of the
City,may accept the resignation of or remove any co-trustee or separate trustee appointed under this
Section and in case an Event ofDefault shall have occurred and be continuing,the Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the City. Upon the request of the Trustee,the City shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal.
(1) No trustee hereunder shall be personally liable by reason of any act or omission of
any other trustee hereunder.
(g) Any demand,request, direction, appointment,removal,notice,consent,waiver or
other action in writing delivered to the Trustee shall be deemed to have been delivered to each such
co-trustee or separate trustee.
(h) Any moneys,papers,securities or other items of personal property received by any
such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by law,be
turned over to the Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or separate trustee,he,
she or it shall be vested with such title to the Trust Estate or any part thereof,and with such rights,powers,
duties and obligations,as shall be specified in the instrument of appointment jointly with the Trustee(except
insofar as local law makes it necessary for any such co-trustee or separate trustee to act alone)subject to all
the terms of this Indenture. Every such acceptance shall be filed with the Trustee. Any co-trustee or separate
trustee may,at anytime byan instrument in writing,constitute the Trustee as attorney-in-fact and agent,with
Y g
full power and authority to do all acts and things and to exercise all discretion on the co-trustee's or separate
trustee's behalf and in the co-trustee's or separate trustee's name.
In case any co-trustee or separate trustee shall die,become incapable of acting,resign or be removed,
the title to the Trust Estate,and all rights,powers,trusts,duties and obligations of said co-trustee or separate
trustee shall,so far as permitted by law,vest in and be exercised by the Trustee unless and until a successor
co-trustee or separate trustee shall be appointed in the manner herein provided.
Section 8.19 Appointment of Successor or Alternate Paying Agents. In the event the initial Trustee
shall also have been appointed paying agent for the Bonds, a successor Trustee shall become successor
paying agent with respect to such Bonds unless otherwise provided in the instrument appointing such
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successor Trustee. If any paying agent other than the initial Trustee shall resign or become incapable of
acting,or shall be removed under a supplemental indenture entered into pursuant to the terms, the Trustee
may appoint a successor paying agent which is a bank or trust company qualified to act as paying agent under
the Act and which is willing to accept the office on reasonable and customary terms approved by an
Authorized Borrower Representative. The Trustee may appoint successor paying agents. "Paying agent"
as used in this Section refers to the bank or trust company named in the form of Bond provided for the Bonds
in the recitals,where principal of and interest on Bonds may be paid.
[The halanec of this page is intentionally kft blank] Section 8.20 Continuing Disclosure. Pursuant
to Section 6.22 of the Loan Agreement,the Borrower has undertaken all responsibility for compliance with
certain continuing disclosure requirements,and the City shall have no liability to the Holders of the Bonds
or any other person with respect to Rule 15c2-12 promulgated under the Securities and Exchange Act of 1934
(the "Rule"). 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 6.22 of the Loan Agreement.
Notwithstanding any other provision of this Indenture,failure of the Borrower or the Trustee to comply with
the Continuing Disclosure Agreement shall not be considered an Event of Default;however,the Trustee may
(and, at the request of any Participating Underwriter or the Holders of at least twenty-five percent(25%)
aggregate principal amount of the Outstanding Bonds,shall),or any Bondholder or Beneficial Owner may,
take such actions as may be necessary and appropriate, including seeking specific performance by court
order,to cause the Borrower to comply with its obligations under Section 6.22 of the Loan Agreement or to
cause the Trustee to comply with its obligations under this Section. For purposes of th is Section, "Beneficial
Owner" means any person who(i) has the power, directly or indirectly,to vote or consent with respect to,
or to dispose of ownership of,any Bonds(including persons holding Bonds through nominees,depositories
or other intermediaries), or(ii) is treated as the owner of any Bonds for federal income tax purposes.
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ARTICLE IX
Concerning the Bondholders
Section 9.01 Execution of Instruments by Bondholders. Any request, direction, consent or other
instrument in writing required by this Indenture to be signed or executed by Bondholders may be in any
number of concurrent instruments of similar tenor and may be signed or executed by such Bondholders in
person or by agent duly appointed by an instrument in writing. Proof ofthe execution of any such instrument
and of the ownership of Bonds shall be sufficient for any purpose of this hndenture and shall be conclusive
in favor of the Trustee with regard to any action taken by it under such instrument if made in the following
manner:
(a) The fact and date of the execution by any person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who, by the laws thereof, has power to
take acknowledgments of deeds to be recorded within such jurisdiction,to the effect that the person
signing such instrument acknowledged the execution thereof,or by an affidavit of a witness to such
execution.
(b) The ownership of Bonds shall be proved by the registration records kept under the
provisions of this Indenture.
Nothing contained in this Article shall be construed as limiting the Trustee to the proof above specified,it
being intended that the Trustee may accept any other evidence of the matters herein stated which to it may
seem sufficient.
Section 9.02 Waiver of Notice. Any notice or other communication required by this Indenture to
be given by delivery,publication or otherwise to the Bondholders or any one or more thereof may be waived,
at any time before such notice or communication is so required to be given,by a writing mailed or delivered
to the Trustee by the Holder or Holders of all of the Bonds entitled to such notice or communication.
Section 9.03 Determ i nation of Bond ho I der Concurrence. In determining whether the Holders of the
requisite aggregate principal amount of Bonds have concurred in any demand,request,direction,consent or
waiver under this Indenture, any Bonds which are owned by the City or the Borrower shall be disregarded
and deemed not to be outstanding for the purpose of any such determination,provided 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 knows to be so owned shall be disregarded. Bonds so
owned which have been pledged in good faith may be regarded as outstanding for the purposes of this
Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Bonds
and that the pledgee is not a person directly or indirectly controlling or controlled by or under common
control with the City or the Borrower. In case of a dispute as to such right,any decision by the Trustee taken
upon the advice of counsel shal I be full protection to the Trustee.
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Section 9.04 Revocation by Bondholders. At any time prior to(but not after)the evidencing to the
Trustee of the taking of any action by the Holders of the percentage in aggregate principal amount of the
Bonds specified in this Indenture in connection with such action,any Holder of any such Bond may,by filing
written notice with the Trustee at its principal office revoke any consent given by such Holder or the
predecessor Holder of such Bond. Except as aforesaid,any such consent given by the Holder of any Bond
shall be conclusive and binding upon such Holder and upon all future Holders of such Bond and of any Bond
issued in exchange therefor or in lieu thereof, irrespective of whether or not any notation in regard thereto
is made upon such Bond. Any action taken by the Holders of the percentage in aggregate principal amount
of the specified in this Indenture in connection with such action shall be conclusively binding upon the City,
the Trustee and the Holders of all the Bonds.
[The balance of this page is intentionally left blank.]
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ARTICLE X
Payment, Defeasance and Release
Section 10.01 Payment and Discharge of Indenture. If the Borrower shall
(a) pay or cause to be paid the principal of and premium, if ally, and interest on the
Bonds at the time and in the manner stipulated therein and herein, or
(b) provide for the payment of principal and premium, if any,of the Bonds and interest
thereon by depositing with the Trustee at or at any time before maturity amounts sufficient either in
cash or in Government Obligations (not callable, except at the option of the holder thereof), the
principal and interest on which when due and payable (or redeemable at the option of the holder
thereof)and without consideration of any reinvestment thereof shall be sufficient,to pay the entire
amount due or to become due thereon for principal and premium, if any,and interest to maturity of
all said Bonds outstanding, or
(c) deliver to the Trustee(1)proof satisfactory to the Trustee that notice of redemption
of all of the outstanding callable Bonds not surrendered or to be surrendered to it for cancellation
has been given or waived as provided in Article III,or that arrangements satisfactory to the Trustee
have been made insuring that such notice will be given or waived,or(2)a waiver of such notice of
redemption signed by the holders of all of such outstanding Bonds, and in any such case, deposit
with the Trustee before the date on which such Bonds are to be redeemed,as provided in said Article
III,the entire amount of the redemption price,including accrued interest and premium, if any,either
in cash or in Government Obligations (not callable, except at the option of the holder thereof) in
such aggregate face amount, bearing interest at such rates and maturing or being callable at the
option of the holder thereof on such dates as shall be sufficient to provide for the payment of such
redemption price on the date such Bonds are to be redeemed,and on such prior dates when principal
of and interest on the outstanding Bonds is due and payable,or
(d) surrender to the Trustee for cancellation all Bonds for which payment is not so
provided,
and shall also pay all other sums due and payable hereunder and under the Loan Agreement by the Borrower,
provided that if Bonds are to be defeased under either paragraph (b) or (c) above, an opinion of Bond
Counsel shall be rendered to the Trustee to the effect that the tax-exempt status of interest on the Tax-Exempt
Bonds shall not be impaired thereby and a written report from an Independent certified public accounting
firm shall be delivered to the Trustee in form and substance satisfactory to the Trustee verifying the
sufficiency of the cash and Government Obligations to pay all principal, interest and redemption price
described above,then and in that case,all the Trust Estate shall revert to the Borrower and the entire estate,
right, title and interest of the Trustee and of the registered owners of the Bonds in respect thereof shall
thereupon cease, determine and become void; and the Trustee in such case, upon the cancellation of all
Bonds for the payment of which cash or securities shall not have been deposited in accordance with the
provisions of this Indenture, shall, upon receipt of an opinion of Bond Counsel as to compliance with
conditions precedent,and at its cost and expense,execute proper instruments acknowledging satisfaction of
this Indenture and surrender to the Borrower all cash and deposited securities, if any (other than cash or
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securities for the payment of the Bonds and interest thereon), which shall then be held hereunder as a part
of the Trust Estate.
Nothing contained in this Section 10.01 shall be construed to prohibit the defeasance of one or more,
but not all, Bonds by any of the methods set forth in clauses (a), (b), (c) or(d) above, as the same would
apply to the particular Series of Bonds being discharged.
Section 10.02 Bonds Deemed Not Outstanding After Deposits. When there shall have been
deposited at any time with the Trustee in trust for the purpose,cash or non-callable Government Obligations
the principal and interest on which shall be sufficient to pay the principal of any Bonds(and premium,if any)
when the same become due, either at maturity or otherwise, or at the date fixed for the redemption thereof
and to pay all interest with respect thereto at the due dates for such interest or to the date fixed for
redemption,for the use and benefit of the Holders thereof,then upon such deposit all such Bonds shall cease
to be entitled to any lien, benefit or security of this Indenture except the right to receive the funds so
deposited and such rights of transfer and exchange of Bonds as are provided herein, and such Bonds shall
be deemed not to be outstanding hereunder; and it shall be the duty of the Trustee to hold the cash and
securities so deposited for the benefit of the Holders of such Bonds,and from and after such date,redemption
date or maturity, interest on such Bonds shall cease to accrue.
Section 10.03 Unclaimed Money To Be Returned. Any moneys deposited with the Trustee pursuant
to the terms of this Indenture, for the payment or redemption of Bonds and remaining unclaimed by the
Holders of such Bonds on the date fixed for redemption of the same,as the case may be,for a period of two
years after the due date, shall, upon the written request of the Borrower, be applied as directed by the
Borrower,and such Holders of the Bonds shall thereafter look only to the Seller for payment and then only
to the extent of the amounts so received without interest thereon;PROVIDED,1-10 that within thirty
days prior to the expiration of the two year period mentioned above, the Trustee, before being required to
make any such repayment, may, at the expense of the Seller cause to be published in a financial journal,a
notice that after a date named therein said moneys will be returned to the Borrower.
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ARTICLE XI
Supplemental Indentures
Section 11.01 Purposes for Which Supplemental Indentures may be Executed. The City, upon
resolution,and the Trustee from time to time and at any time,subject to the conditions and restrictions in this
Indenture contained, may enter into such indentures supplemental hereto without the consent of any
Bondholder for any one or more of the following purposes; provided that no such supplemental indenture
shall modify Article V in a manner which materially adversely affects the interest of the holders or creditors
of any Subordinated Debt:
(a) To correct the description of any property hereby pledged or intended so to be,or
to assign, convey, pledge or transfer and set over unto the Trustee, subject to such liens or other
encumbrances as shall be therein specifically described, additional property or properties of the
Borrower for the equal and proportional benefit and security of the Holders of all Bonds,at any time
issued and outstanding under this Indenture,subject,however,to the provisions hereinabove set forth
with respect to extended Bonds;
(b) To evidence removal or appointment of any trustee or paying agent hereunder;
(c) To cure any ambiguity or to correct or supplement any provision contained herein
or in any supplemental indentures which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture;
(d) To modify, eliminate and/or add to the provisions of this Indenture to such extent
as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act of
1939, as then amended, or under any similar Federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly permitted by said Trust Indenture Act of 1939,
excluding,however, the provisions referred to in Section 316(a)(2)of said Trust Indenture Act of
1939.
(e) To permit the issuance of Additional Bonds in compliance with the requirements
of Section 2.09.
Neither the City nor the Trustee shall have a duty to determine the need for or desirability of any
supplemental indenture hereto.
Section 11.02 Execution of Supplemental Indenture.The Trustee is authorized to join with the City
in the execution of any such supplemental indenture,to make the further agreements and stipulations which
may be therein contained,and to accept the conveyance,transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental indenture which affects its rights,
duties or immunities under this Indenture.
Section 11.03 Discretion of Trustee. In each and every case provided for in this Article(other than
a supplemental indenture approved by a Majority of Holders pursuant to Section 11.04),the Trustee shall
be entitled to exercise its unrestricted discretion in determining for itself whether or not any proposed
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supplemental indenture or any term or provisions therein contained is necessary or desirable,having in view
the needs of the City and the respective rights and interests of the Holders of Bonds theretofore issued
hereunder; and the Trustee shall be under no responsibility or liability to the City or to the Borrower or to
any Holder of any such Bond,or to anyone whatever, for any act or thing which it may do or decline to do
in good faith subject to the provisions of this Article, in the exercise of such discretion. In determining
whether or not a supplemental indenture does or does not require the consent of bondholders,the trustee may
conclusively rely on an Opinion of Counsel.
Section 11.04 Modification of Indenture with Consent Of Bondholders. Subject to the terms and
provisions contained in this Section,a Majority of Holders shall have the right,from time to time,to consent
to and approve the execution of indenture or indentures supplemental hereto;PROVIDED,HOWEVER,that
nothing herein contained shall permit or be construed as permitting, without the consent of the Holders of
all outstanding Bonds,(a)an extension of the maturity of any Bond issued hereunder, or(b)a reduction in
the principal amount of any Bond or the redemption premium or the rate of interest thereon, or (c) the
creation of a lien upon or a pledge of revenues ranking prior to or on a parity with the lien or pledge created
by this Indenture and the Mortgage (except as provided in Section 2.09), or(d) a preference or priority of
any Bond or Bonds over any others, or (e) a reduction in the aggregate principal amount of the Bonds
required to consent to supplemental indentures,amendments to the Loan Agreement or amendments to the
Mortgage, or(f)a reduction in the aggregate principal amount of the Bonds required to waive an Event of
Default;PROVIDED FURTHER,that nothing herein contained shall permit or be construed as permitting,
without the consent of the holders or creditors of all outstanding Subordinated Debt,the elimination of any
consent of a holder or creditor of Subordinated Debt to any modification to this Indenture, the Loan
Agreement or the Subordinate Mortgage.
Whenever there shall be delivered to the Trustee a resolution of Bondholders adopted at a
Bondholders'meeting approved by,or an instrument or instruments purporting to be executed by a Majority
of Holders,which resolution or instrument or instruments shall refer to the proposed supplemental indenture
and shall specifically consent to and approve the execution thereof,thereupon,the City and the Trustee may
execute such supplemental indenture without liability or responsibility to any Holder of any Bond,whether
or not such Holder shall have consented thereto.
If a Majority of Holders at the time of the execution of such supplemental indenture shall have
consented to and approved the execution thereof as herein provided, no Holder of any Bond shall have any
right to object to the execution of such supplemental indenture, or to object to any of the terms and
provisions contained therein or the operation thereof, or in any manner to question the propriety of the
execution thereof,or to enjoin or restrain the Trustee or the City from executing the same or from taking any
action pursuant to the provisions thereof.
Section 11.05 Supplemental Indentures to be Part of Indenture. Any supplemental indenture
executed in accordance with any of the provisions ofthis Article shall thereafter form a part ofthis Indenture;
and all the terms and conditions contained in any such supplemental indenture as to any provisions
authorized to be contained therein shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes,and the respective rights, duties and obligations under this Indenture of
the City,the Trustee and all Holders of Bonds then outstanding shall thereafter be determined,exercised and
enforced hereunder,subject in all respects to such modifications and amendments. If deemed necessary or
desirable by the Trustee, reference to any such supplemental indenture or any of such terms or conditions
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thereof may be set forth in reasonable and customary manner in the text of the Bonds or in a legend stamped
on the Bonds.
Section 11.06 Rights of Borrower Unaffected. Anything herein to the contrary notwithstanding,a
supplemental indenture under this Article XI which adversely affects the rights of the Borrower under the
Loan Agreement,the Mortgage,the Subordinate Mortgage or this Indenture,so long as the Loan Agreement
and the Mortgage are in effect,shall not become effective unless and until the Borrower shall have consented
to the execution and delivery of such supplemental indenture. The Trustee shall cause notice of the proposed
execution and delivery of any such supplemental indenture to the execution and delivery of which the
Borrower has not already consented, together with a copy of the proposed supplemental indenture, to be
mailed to the Borrower at least thirty(30)days prior to the proposed date of execution and delivery of any
such supplemental indenture.
Section 11.07 Additional Requirements for all Supplemental Indentures. Notwithstandinganyother
provisions hereof,(i)no Supplemental Indenture shall be executed until the Trustee has received an opinion
of Bond Counsel to the effect that such execution will not cause interest on any Tax-Exempt Bonds to be
included in gross income for federal income tax purposes, and (ii)promptly after execution, a copy of the
executed Supplemental Indenture shall be delivered to each other Holder who shall have requested of Trustee
to receive such copy.
[The balance of this page intentionally left blank.]
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ARTICLE XII
Amendments to the Loan
Agreement and Other Documents
Section 12.01 Amendments to the Loan Agreement and Other Documents Not Requiring Consent
of Bondholders. The City and the Trustee may,without the consent of or notice to the Bondholders,consent
to any amendment, change or modification of the Loan Agreement, the Mortgage or the Subordinate
Mortgage as may be required (i) by the provisions of the Loan Agreement, the Mortgage,the Subordinate
Mortgage or this Indenture,(ii)for the purpose of curing any ambiguity or formal defect or omission,or(iii)
in connection with any other change therein which,in the judgment of the Trustee, is not to the prejudice of
the Trustee (unless waived by the Trustee), the Holders of the Bonds or the holders or creditors of any
Subordinated Debt. In determining whether or not an amendment,change,or modification does or does not
require the consent of bondholders, the Trustee may conclusively rely on an Opinion of Counsel.
Section 12.02 Amendments to Loan Agreement and other Documents Requiring Consents. Except
for the amendments,changes or modifications as provided in Section 12.01,neither the City nor the Trustee
shall consent to any other amendment,change or modification of the Loan Agreement,the Mortgage or the
Subordinate Mortgage without the written approval or consent of a Majority of Holders given and procured
as provided in this Section;provided,however,that no such amendment,change or modification shall ever
affect the unconditional obligation of the Borrower to make Loan Repayments as they become due and
payable. If a Majority of Holders at the time of the execution of any such amendment, change or
modification shall have consented to and approved the execution thereof as herein provided, no Holder of
any Bond shall have any right to object to any of the terms and provisions contained therein, or in the
operation thereof,or in any manner to question the propriety of the execution thereof,or to enjoin or restrain
the Trustee, the City or the Borrower from executing the same or from taking any action pursuant to the
provisions thereof.
Section 12.03 No Amendment May Reduce Loan Repayments. Under no circumstances shall any
amendment to the Loan Agreement,the Mortgage or the Subordinate Mortgage,without the consent of the
Holders of all Bonds outstanding affected thereby: (i) reduce the aggregate amount of Loan Repayments
payable under the Loan Agreement, or allow any installment of Loan Repayments to be paid subsequent to
the time needed for the payment of principal of,premium, if any,and interest on the Bonds,(ii)modify any
of the provisions of the Loan Agreement to eliminate the requirement that the Trustee consent to every
amendment thereto;or(iii)release from the lien of the Mortgage or the Subordinate Mortgage or any of the
property secured thereby, or permit the creation of any lien ranking prior to or on a parity with the lien of
the Indenture on any part of the Trust Estate, except as expressly permitted by this Indenture, the Loan
Agreement,the Mortgage or the Subordinate Mortgage.
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Section 12.04 Rights of City. The City may, at the expense of the Borrower, request and receive
an opinion of such counsel as the City may select in connection with any matter relating to a proposed
amendment.
Section 12.05 Additional Requirements for all Amendments. Notwithstanding any other provisions
hereof, (i) no amendment to the Loan Agreement, the Mortgage, or the Subordinate Mortgage shall be
executed until the Trustee has received an opinion of Bond Counsel to the effect that such execution will not
cause interest on any Tax-Exempt Bonds to be included in gross income for federal income tax purposes,and
(ii)promptly after execution,a copy of the executed amendment shall be delivered to each other Holder who
shall have requested of the Trustee to receive such copy.
[The balance of this page intentionally left blank.]
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ARTICLE XIII
Miscellaneous
Section 13.01 Limitation of City Liability. No covenant,provision or agreement contained in this
Indenture or in the Mortgage,the Mortgage Assignment,the Loan Agreement or the Bonds,or in any other
agreement,certificate or document executed or delivered in connection with the issuance of the Bonds,and
no obligation herein or therein imposed upon the City(or any other party)or respecting any breach thereof
shall give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers,and
the Bonds shall be and constitute only a special and limited revenue obligation of the City, payable solely
from the revenues pledged to the payment thereof pursuant to this Indenture,and the Bonds do not now and
shall never constitute an indebtedness, a general or moral obligation or a loan of the credit of the City or a
lien,charge or encumbrance, legal or equitable,against the City's general credit or taxing powers or any of
the City's property.
Section 13.02 Immunity of Officers. No recourse for the payment of any part of the principal of or
interest on any Bond or for the satisfaction of any liability arising from,founded upon or existing by reason
of the issue, purchase or ownership of the Bonds shall be had against any officer, member or agent of the
City Council,the City or the State,as such,all such liability being hereby expressly released and waived as
a condition of and as a part of the consideration for the execution of this Indenture and the issuance of the
Bonds.
Section 13.03 No Benefits to Outside Parties. Nothing in this Indenture, express or implied, is
intended or shall be construed to confer upon or to give to any person or corporation, other than the
Borrower,the parties hereto and the Holders of the Bonds issued hereunder,any right,remedy or claim under
or by reason of this Indenture or covenant, condition or stipulation thereof; and the covenants, stipulations
and agreements in this Indenture contained are and shall be for sole and exclusive benefit of the Borrower,
the parties hereto,their successors and assigns, and the Holders of the Bonds.
Section 13.04 Separability of Indenture Provisions. In case any one or more of the provisions
contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture,but this Indenture shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein.
Section 13.05 Execution of Indenture in Counterparts. This Indenture may be simultaneously
executed in several counterparts, each of which, when so executed, shall be deemed to be an original, and
such counterparts shall together constitute one and the same instrument.
Section 13.06 Headings Not Controlling. The headings of the several Articles and Sections are
inserted for the convenience of reference only and shall not control or affect the meaning or construction of
any of the provisions.
Section 13.07 Notices, etc. to Trustee, City, Borrower,Etc. Any request, demand, authorization,
direction, notice,consent of Bondholders or other document provided or permitted by this Indenture shall
be sufficient for any purpose under this Indenture, the Loan Agreement,the Mortgage or the Subordinate
Mortgage,when hand delivered or mailed by either first class or registered mail, return receipt requested,
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postage prepaid (except as otherwise provided in this Indenture) (with a copy to the other parties) at the
following addresses(or such other address as may be provided by any party by notice)and shall be deemed
to be effective upon receipt:
To the City: -- City of Orono, Minnesota
2750 Kelley Parkway
Orono,MN 55356
Attention:
To the Trustee: -- U.S. Bank Trust National Association
180 East Fifth Street, 2nd Floor
St.Paul, MN 55101
Attention: Corporate Trust Department
To the Borrower: -- Orono SeniorHousing,LLC
c/o Wedum Foundation
3191 Shorewood Drive
Arden Hills, MN 55112
Attention:
To the Original Purchaser: -- Miler Johnson Steichen Kinnard, Inc.
5500 Wayzata Boulevard, Suite 1450
Minneapolis, MN 55416
Attention: Public Finance
To the Remarketing Agent: -- Miler Johnson Steichen Kinnard,Inc.
5500 Wayzata Boulevard, Suite 1450
Minneapolis, MN 55416
Attention: Public Finance
Section 13.09 Consent by a Majority of Holders. With respect to any provision requiring the
approval or consent from a Majority of Holders prior to the occurrence of any action or event or the existence
of any condition, such consent or approval shall be deemed to have been given if the Trustee shall cause
written notice describing the action, event or condition in reasonable detail shall have been given to all
Holders of outstanding Bonds and the Trustee shall have not received written objection to such action,event
or condition from a Majority of Holders within thirty days following the giving of such notice;provided this
provision shall not apply to Articles VII, XI or XII with respect to Events of Default, Supplemental
Indentures, or the amendment of certain documents, or any other provision which by its terms states this
Section shall not apply.
[The balance of this page is intentionally left blank.]
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IN WITNESS WHEREOF,the CITY OF ORONO by its City Council has caused this Indenture to
be signed in its name by its duly authorized officers to evidence its acceptance of the trust hereby created,
has caused this Indenture to be signed in its name by an authorized officer of the Trustee,all the day and year
first above written.
CITY OF ORONO
By
Mayor
By:
City Clerk
[Signature Page to Indenture of Trust]
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U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By
Its
[Signature page to Lndenture of Trust]
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APPENDIX A-1
FORM OF SERIES 2001A BONDS
UNITED STATES OF AMERICA
•STATE OF MINNESOTA
CITY OF ORONO,MINNESOTA
No.R-1 $
Senior Housing Revenue Bonds
(Orono Woods Apartment Project)
Series 2001 A
(Initially Book-Entry)
Interest Date of
Rate Maturity Original Issue CUSIP
November 1,20 November 1, 2001
Registered Owner:
Principal Amount:
The City of Orono, Minnesota, a municipal corporation and a political subdivision of the State of
Minnesota existing under the laws of the State of Minnesota and its charter(the"City"),for value received,
hereby promises to pay from the sources hereinafter described to the registered owner specified above or
registered assigns, the Principal Amount set forth above on the Maturity Date specified above, upon the
presentation and surrender hereof,and to pay to the registered owner hereof interest on such principal amount
from such sources at the interest rate specified above from the date of original issue specified above,or the
most recent interest payment date to which interest has been paid or duly provided for as specified below,
computed on the basis of a 360-day year of twelve 30-day months,on May 1 and November 1 of each year,
commencing May 1,2002,until said principal amount is paid. Principal and the redemption price is payable
in lawful money of the United States of America at the office of U.S. Bank Trust National Association,as
Trustee under the Indenture hereinafter described or of its successor(the "Trustee"). Interest shall be paid
on each May 1 and November 1 interest payment date by check or draft mailed to the person in whose name
this Bond is registered at the close of business on the fifteenth day of the preceding month (whether or not
a business day) at his address set forth on the registration records maintained by the Trustee.
Notwithstanding the foregoing,(i)any interest due on any Bond shall be paid by wire transfer to any Holder
of not less than$500,000 aggregate principal amount of such Bonds,upon such Holder provid ing satisfactory
instructions therefor to the Trustee, and(ii) the redemption price or any prepayment of any Bond (but not
payment upon final maturity)shal I be paid by wire transfer to any Holder of not less than$500,000 aggregate
principal amount of such Bonds,upon such Holder providing satisfactory instructions therefor to the Trustee
and delivery to the Trustee not less than five(5) Business Days prior to any date on which such a payment
is due,the Bond or Bonds with respect to which such payment is to be made. In the event of any default in
any interest payment, such defaulted interest will be payable to the person in whose name such Bond is
registered at the close of business on a special record date for the payment of such defaulted interest
established by notice mailed by or on behalf of the City to the registered owners of the Bonds not less than
fifteen(15)days preceding such special record date.
A-1
Prior to the Mandatory Tender Date, this Bond shall bear interest at the rate of interest set forth
above. On and after the Mandatory Tender Date,this Bond shall bear interest at the interest rate computed
in accordance with the Indenture and announced by the Remarketing Agent, effective on and after the
Mandatory Tender Date.
So long as this Bond is registered in the name of a nominee of The Depository Trust Company in
New York("DTC"), payments of, premium,if any,and interest on this Bond shall be made as provided in
the Letter of Representation,as defined in the Indenture,and surrender of this Bond shall not be required for
payment of the redemption price upon a partial redemption of th is Bond. Until termination ofthe book-entry
only system pursuant to the Indenture, Bonds may only be registered in the name of DTC or its nominee.
It is hereby certified and recited: That the issuance of the Bonds and the Project(as defined below)
will promote the public welfare and carry out the purposes of the Minnesota Statutes Chapter 462C (the
"Act");that all acts,conditions and things required to be clone precedent to and in the issuance of this Bond
and the series of which it is a part have been properly done, have happened and have been performed in
regular and due time, form and manner as required by law; and that this Bond and the series of which it is
a part does not constitute a debt of the City within the meaning of any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose until it shall have been
authenticated by the execution of the certificate hereon endorsed by the Trustee under the Indenture.
This Bond is issued by the City to finance the development,acquisition,construction and equipping
of a multifamily rental housing development for elderly persons pursuant to the Act. This Bond is not a
general or moral obligation of the City,and neither the taxing power nor the full faith and credit of the City
is pledged to the payment of the Bonds or the interest thereon.All Bonds are special limited obligations of
the City. Principal of, premium, if any, and interest on all Bonds are payable solely out of the revenues
derived from the Loan Agreement or other amounts derived from the Trust Estate, including amounts
received under the Mortgage and from Net Proceeds (all as such capitalized terms are defined in the
Indenture). Neither the Bonds nor any of the agreements or obligations of the City relating thereto shall be
construed to constitute an indebtedness of the State, the County of Hennepin (the "County") or the City
within the meaning of any constitutional,home rule charter or statutory provisions whatsoever,nor coil stitute
or give rise to a general or moral obligation,a pecuniary liability or be a charge against the general credit or
taxing powers of the State, County or City.
This Bond is one of a duly authorized series of special, limited obligation Bonds in an authorized
aggregate principal amount of$ in integral multiples of$5,000 thereof,and numbered from R-1
upwards, and of like tenor and effect except as to serial number, denomination, interest rate, maturity and
right of prior redemption,all of which have been authorized by law to be issued and have been issued or are
to be issued for the purpose of funding a loan from the City to the Orono Senior Housing,LLC,a Minnesota
limited liability company(the"Borrower"),to finance development,acquisition,construction and equipping
of a single building containing initially approximately 62 independent senior rental units in the City of Orono
(the "Project"),all pursuant to a Loan Agreement,dated as of November 1, 2001 (the "Loan Agreement"),
between the City and the Borrower, a Resolution of the City Council of the City duly adopted October
22, 2001 (the "Bond Resolution"), and an hndenture of Trust, dated as of November 1, 2001 (the
"Indenture"), duly executed and delivered by the City to the Trustee.
A-2
The Bonds of this series are equally and ratably secured by the Loan Agreement,the Indenture and
a Combination Mortgage,Security Agreement,Fixture Financing Statement and Assignment of Leases and
Rents,dated as of November 1,2001,executed by the Borrower to the Trustee(the"Mortgage"). Reference
is hereby made to all such documents and any supplements thereto for a description and limitation of the
property,revenues and funds pledged and appropriated to the payment of the Bonds,the nature and extent
of the security thereby created, the rights of the owners of the Bonds, the conditions of the issuance of
Additional Bonds (as defined in the Indenture), the rights, duties and immunities of the Trustee, and the
rights, immunities and obligations of the City thereunder. Certified copies of the Bond Resolution and
executed counterparts of the Indenture, the Loan Agreement, and the Mortgage are on file at the office of
the Trustee.
As defined and set forth in the Indenture,the Indenture also provides for the issuance of a series of
City of Orono, Minnesota Senior Housing Revenue Bonds (Onono Woods Apartment Project), Taxable
Series 2001B Bonds(the "Series 2001B Bonds")and a series of City of Orono, Minnesota Senior I-lousing
Revenue Bonds (Onono Woods Apartment Project), Subordinate Series 200IC Bonds (the "Subordinate
Bonds"). The Bonds and the Series 2001B Bonds are referred to as the "Senior Bonds", and the Senior
Bonds are equally and ratably secured by the Loan Agreement, the Indenture and the Mortgage. The
Subordinate Bonds are issued on a separate, subordinate basis under the Indenture and are not secured by
the Mortgage, all as described in the Loan Agreement and the Indenture.
Subject to the provisions of(b)and(c)below,the I lolder hereof shall be required to tender this Bond
to the Trustee on or before 12:00 noon,Minneapolis time on the Business Day prior to the Mandatory Tender
Date, for purchase on the Mandatory Tender Date at a purchase price equal to the principal amount hereof
plus accrued interest thereon, all as more fully provided herein and in the Indenture.
(A) Notice of a Mandatory Tender Date(a"Mandatory Tender Notice")shall be given
by the Trustee,by certified mail, return receipt requested,to the Holder of this Bond at its address
appearing on the registration books for the Bonds maintained by the Trustee,not less than thirty days
prior to the Mandatory Tender Date. Such Mandatory Tender Notice shall specify the Mandatory
Tender Date and state (I) that all Bonds shall be purchased on the Mandatory Tender Date at a
purchase price equal to the principal amount thereof plus accrued interest thereon, and(ii)that all
Bonds must be tendered for purchase at or before 12:00 noon,Minneapolis time on the Business Day
prior to the Mandatory Tender Date,together with an appropriate instrument of transfer executed
in blank and any such Bond which is not tendered but for which there has been irrevocably deposited
in the Bond Purchase Fund(as such term is defined in the Indenture) with the Trustee an amount
sufficient to pay the purchase price thereof(an "Untendered Bond")shall not be entitled to receive
interest on such Bond on and after the Mandatory Tender Date.
(B) This Bond shall be tendered to the Trustee for purchase at or before 12:00 noon,
Minneapolis time on the Business Day prior to the Mandatory Tender Date,by delivering this Bond
to the Trustee together with an appropriate instrument of transfer duly executed in blank,and on the
Mandatory Tender Date, the Trustee shall purchase this Bond or cause this Bond to be purchased
at a purchase price equal to the principal amount hereof plus accrued interest thereon.
(C) If this Bond is not tendered on or before the Mandatory Tender Date, then the
Holder hereof shall not be entitled to receive interest on this Bond fir any period beginning on or
after the Mandatory Tender Date,and upon surrender of this Bond to the Trustee,the Holder of this
A-3
Bond shall be paid only an amount equal to the purchase price of this Bond due on the Mandatory
Tender Date and interest through the Mandatory Tender Date.
The Bonds shall be subject to redemption prior to maturity only as follows:
(a) Optional Redemption. The Scrics 2001 Bonds maturing on or after November 1,
2007 are subject to optional redemption in advance of their stated maturities, in whole or in part on
any date and in part on any Business Day on or atter November 1,2006,and if in part in accordance
with Section 3.07 of the Indenture, in Authorized Denominations and stated maturities, at the
direction of the Borrower,at a redemption price equal to the principal amount to be redeemed,plus
accrued interest, plus a premium, expressed as a percentage of the principal amount redeemed, as
follows:
Redemption Date Price
November 1, 2006 through October 31, 2007 102%
November 1, 2007 through October 31, 2008 101%
November 1, 2008 and thereafter 100%
The Bonds shall be redeemed the following order or priority: (i)first, the Senior Bonds; and (ii)
second,the Subordinate Bonds.
(b) Extraordinary Redemption. The Bonds are subject to extraordinary redemption on
any Interest Payment Date as a whole but not in part,at a redemption price equal to par,plus accrued
interest to the redemption date,upon the happening of certain events of damage to or destruction or
condemnation of the Project or change of law rendering the Loan Agreement unenforceable or
impossible of performance, all as more fully provided in Section 4.06 of the Loan Agreement;
provided,however,that any Net Proceeds received from casualty insurance or condemnation awards
used to redeem the Bonds shall be applied in the following order: (i) first, to redeem the Senior
Bonds; (ii) second, to redeem the Subordinate Bonds.
(c) Mandatory and Scheduled Sinking Fund Redemption. The Bonds are subject to
mandatory sinking fund redemption with respect to the maturities through operation of a sinking
fund as provided for in the Indenture. Series 2001 Bonds maturing on November 1, 2036 shall be
redeemed without further direction from the Borrower on November 1 of the years indicated in the
Indenture in the principal amounts at a redemption price equal to the principal amount thereof plus
accrued interest to the redemption date. After the Mandatory Tender Date, the Bonds shall be
subject to mandatory sinking fund redemption in accordance with a schedule to be established by
the Remarketing Agent such that the scheduled annual debt service on the Bonds will be
approximately level,taking into account the interest rate to go into effect on the Mandatory Tender
Date.
(d) Redemption upon a Determination of Taxability. The Bonds are also
subject to mandatory redemption upon the occurrence of a Determination of Taxability
(as defined in the Indenture). In such event, each of the outstanding Bonds shall be
subject to mandatory redemption and shall be redeemed on the first Business Day on
which proper notice thereof can be given, and the Borrower shall cause notice thereof to
be given to the Holders of the Bonds, as more fully provided in Section 4.07 of the Loan
A-4
Agreement,at a redemption price equal to par,plus accrued interest,and in the event that
the Determination of Taxability is found to he the caused by an action voluntarily taken
or not taken by the Borrower, at par, plus accrued interest and a premium equal to five
percent(3%)of the principal amount of each Bond redeemed. If the Bonds are redeemed
due to a Determination of Taxability, Bonds shall be redeemed in the following order:
(i) first, the Senior Bonds; and (ii) second. the Subordinate Bonds.
Notice of any such redemption shall be given to the registered owner of each such Bond
by first class mail,addressed to him at his registered address,not earlier than sixty days nor later
than thirty days prior to the date fixed for redemption and shall be published as may be required
by law. In addition, at the request of the Authorized Borrower Representative, notice for any
redemption not occurring as a result of sinking fund redemption or as a mandatory requirement
of the terms of the Bonds, shall include a statement that the redemption so noticed is conditioned
on sufficient funds being held by the Trustee in the Bond Fund or Optional Redemption Fund
on or before noon, Minneapolis time, on the applicable redemption date to pay the full
redemption price, and if at such time the amount so held is not sufficient to pay all amounts
required to effect the noticed redemption in full, the redemption shall be cancelled, with all
Bonds tendered for such redemption being returned to the Holders thereof, and no Event of
Default or liability on the part of the Borrower shall arise as a result of such cancellation. The
Borrower shall pay all extraordinary fees and expenses incurred in connection with a rescinded
call.Upon the happening of the above conditions, Bonds thus called shall not bear interest after
the call date and,except for the purpose of payment. from the funds so deposited, shall no longer
be protected by the Indenture.
This Bond is transferable,as provided in the Indenture,only upon the registration records
kept at the office of the Trustee bythe registered owner hereof in person or b his duly
g
Y
authorized attorney, upon surrender of this Bond for transfer at the office of the Trustee, duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the registered owner hereof or his duly authorized attorney, and,upon
payment of any tax, fee or other governmental charge required to be paid with respect to such
transfer, one or more fully registered Bonds of this series of the same principal amount and
interest rate will be issued to the designated transferee or transferees.
The Bonds of this series are issuable only as fully registered bonds without coupons in
denominations of any integral multiple of$5,000 not exceeding the principal amount maturing
in any year. As provided in the Indenture and subject to certain limitations therein set forth,the
Bonds of this series are exchangeable for a like aggregate principal amount of Bonds of this
series of a different authorized denomination, as requested by the registered owner or his duly
authorized attorney upon surrender thereof to the Trustee.
In case an event of default as defined in the Indenture or Loan Agreement occurs,the principal of
this Bond and all other Bonds outstanding may be declared or may become due and payable prior to the
stated maturity hereof in the manner and with the effect and subject to the conditions provided in the
A-5
Indenture,but no owner of any Bond shall have any right to enforce the provisions of the Indenture,the Loan
Agreement, or the Mortgage,except as provided in the Indenture.
With the consent of the City and Trustee and to the extent permitted by and as provided
in the Indenture, the terms and provisions of the Indenture, the Loan Agreement, and the
Mortgage, or of any instrument supplemental thereto, may be modified or altered by the assent
or authority of a Majority of Holders.
IN WITNESS WHEREOF, the City of Orono, Minnesota has caused this Bond to be
executed in its name by the facsimile signatures of its duly authorized officers, all as of the Date
of Original Issue specified above.
CITY OF ORONO, MINNESOTA
Mayor
City Clerk
* * * * * ** * * * * * * * * *
This is one of the Bonds described in the within mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
By
Authorized Signature
Date:
A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(Please Print or Typewrite Name and Address of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Please insert Social Security Number Notice: The signature to this assignment must
or other identifying number of correspond with the name as it appears on the
Assignee face of this Bond in every particular, without
alteration or any change whatever.
Ml:796874.01
•
A-7
--7
APPENDIX A-2
FORM OF TAXABLE SERIES 2001B BONDS
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF ORONO, MINNESOTA
No. R-1 $
Senior Housing Revenue Bonds
(Orono Woods Apartment Project)
Taxable Series 2001B
(Initially Book-Entry)
Interest Date of
Rate Maturity Original Issue CUSIP
November 1, 20 November 1, 2001
Registered Owner:
Principal Amount:
The City of Orono, Minnesota, a municipal corporation and a political subdivision of the State of
Minnesota existing under the laws of the State of Minnesota and its charter(the "City"),for value received,
hereby promises to pay from the sources hereinafter described to the registered owner specified above or
registered assigns, the Principal Amount set forth above on the Maturity Date specified above, upon the
presentation and surrender hereof,and to pay to the registered owner hereof interest on such principal amount
from such sources at the interest rate specified above from the date of original issue specified above,or the
most recent interest payment date to which interest has been paid or duly provided for as specified below,
computed on the basis of a 360-day year of twelve 30-day months,on May 1 and November 1 of each year,
commencing May 1,2002,until said principal amount is paid. Principal and the redemption price is payable
in lawful money of the United States of America at the office of U.S. Bank Trust National Association,as
Trustee under the Indenture hereinafter described or of its successor(the "Trustee"). Interest shall be paid
on each May 1 and November 1 interest payment date by check or draft mailed to the person in whose name
this Bond is registered at the close of business on the fifteenth day of the preceding month(whether or not
a business day) at his address set forth on the registration records maintained by the Trustee.
Notwithstanding the foregoing,(i)any interest due on any Bond shall be paid by wire transfer to any Holder
of not less than$500,000 aggregate principal amount of such Bonds,upon such Holder providing satisfactory
instructions therefor to the Trustee, and(ii)the redemption price or any prepayment of any Bond (but not
payment upon final maturity)shall be paid by wire transfer to any Holder of not less than$500,000 aggregate
principal amount of such Bonds,upon such Holder providing satisfactory instructions therefor to the Trustee
and delivery to the Trustee not less than five(5)Business Days prior to any date on which such a payment
is due,the Bond or Bonds with respect to which such payment is to be made. In the event of any default in
any interest payment, such defaulted interest will be payable to the person in whose name such Bond is
registered at the close of business on a special record date for the payment of such defaulted interest
established by notice mailed by or on behalf of the City to the registered owners of the Bonds not less than
fifteen(15)days preceding such special record date.
A-1
So long as this Bond is registered in the name of a nominee of The Depository Trust Company in
New York("DTC"), payments of, premium, if any,and interest on this Bond shall be made as provided in
the Letter of Representation,as defined in the Indenture,and surrender of th is Bond shall not be required for
payment of the redemption price upon a partial redemption of this Bond. Until termination of the book-entry
only system pursuant to the Indenture, Bonds may only be registered in the name of DTC or its nominee.
It is hereby certified and recited: That the issuance of the Bonds and the Project(as defined below)
will promote the public welfare and carry out the purposes of the Minnesota Statutes Chapter 462C (the
"Act");that all acts,conditions and things required to be done precedent to and in the issuance of this Bond
and the series of which it is a part have been properly done, have happened and have been performed in
regular and due time, form and manner as required by law; and that this Bond and the series of which it is
a part does not constitute a debt of the City within the meaning of any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose until it shall have been
authenticated by the execution of the certificate hereon endorsed by the Trustee under the Indenture.
This Bond is issued by the City to finance the development,acquisition,construction and equipping
of a multifamily rental housing development for elderly persons pursuant to the Act. This Bond is not a
general or moral obligation of the City,and neither the taxing power nor the full faith and credit of the City
is pledged to the payment of the Bonds or the interest thereon.All Bonds are special limited obligations of
the City. Principal of, premium, if any, and interest on all Bonds are payable solely out of the revenues
derived from the Loan Agreement or other amounts derived from the Trust Estate, including amounts
received under the Mortgage and from Net Proceeds (all as such capitalized terms are defined in the
Indenture). Neither the Bonds nor any of the agreements or obligations of the City relating thereto shall be
construed to constitute an indebtedness of the State, the County of Hennepin (the "County") or the City
within the meaning of any constitutiona I,home rule charter or statutory provisions whatsoever,nor coy i stitute
or give rise to a general or moral obligation,a pecuniary liability or be a charge against the general credit or
taxing powers of the State, County or City.
This Bond is one of a duly authorized series of special, limited obligation Bonds in an authorized
aggregate principal amount of$ in integral multiples of$5,000 thereof,and numbered f .11R-1
upwards, and of like tenor and effect except as to serial number, denomination, interest rate, maturity and
right of prior redemption,all of which have been authorized by law to be issued and have been issued or are
to be issued for the purpose of funding a loan from the City to the Orono Senior Housing, LLC,a M i=.inesota
limited liability company(the"Borrower"),to finance development,acquisition,construction and eqt ipping
of a single building containing initially approximately 62 independent senior rental units in the City oc Orono
(the "Project"),all pursuant to a Loan Agreement,dated as of November 1, 2001 (the "Loan Agree;;!ent"),
between the City and the Borrower, a Resolution of the City Council of the City duly adopted October
• 22, 2001 (the "Bond Resolution"), and an Indenture of Trust, dated as of November 1, 2001 (the
"Indenture"), duly executed and delivered by the City to the Trustee.
The Bonds of this series are equally and ratably secured by the Loan Agreement,the Indene! re and
a Combination Mortgage, Security Agreement,Fixture Financing Statement and Assignment of Le,: .,s and
Rents,dated as of November 1,2001,executed by the Borrower to the Trustee(the"Mortgage"). R c rence
is hereby made to all such documents and any supplements thereto for a description and limitatioti of the
property,revenues and funds pledged and appropriated to the payment of the Bonds, the nature at .'::tent
of the security thereby created, the rights of the owners of the Bonds, the conditions of the issi ce of
A-2
Additional Bonds (as defined in the Indenture), the rights, duties and immunities of the Trustee, and the
rights, immunities and obligations of the City thereunder. Certified copies of the Bond Resolution and
executed counterparts of the Indenture, the Loan Agreement, and the Mortgage are on file at the ! :ce of
the Trustee.
As defined and set forth in the Indenture,the Indenture also provides for the issuance of a series of
City of Orono,Minnesota Senior Housing Revenue Bonds(Onono Woods Apartment Project),Series 2001A
Bonds(the"Series 2001 A Bonds")and a series of City of Orono,Minnesota Senior Housing Revenue Bonds
(Onono Woods Apartment Project),Subordinate Series 2001C Bonds(the"Su bord i nate Bonds"). The Bonds
and the Series 2001A Bonds are referred to as the "Senior Bonds", and the Senior Bonds are equally and
ratably secured by the Loan Agreement,the Indenture and the Mortgage. The Subordinate Bonds are issued
on a separate, subordinate basis under the Indenture and are not secured by the Mortgage, all as described
in the Loan Agreement and the Indenture.
The Bonds shall be subject to redemption prior to maturity only as follows:
(a) Optional Redemption. The Series 2001 Bonds maturing on or after November 1,
2007 are subject to optional redemption in advance of their stated maturities, in whole or in part on
any date and in part on any Business Day on or after November 1,2006,and if in part in accordance
with Section 3.07 of the Indenture, in Authorized Denominations and stated maturities, at the
direction of the Borrower,at a redemption price equal to the principal amount to be redeemed, plus
accrued interest, plus a premium, expressed as a percentage of the principal amount redec ,‘d, as
follows:
Redemption Date Price
November 1, 2006 through October 31, 2007 102%
November 1, 2007 through October 31, 2008 101%
November 1, 2008 and thereafter 100%
The Bonds shall be redeemed the following order or priority: (i) first, the Senior Bonds; and (ii)
second,the Subordinate Bonds.
(b) Extraordinary Redemption. The Bonds are subject to extraordinary redemption on
any Interest Payment Date as a whole but not in part,at a redemption price equal to par,plus accrued
interest to the redemption date,upon the happening of certain events of damage to or destruction or
condemnation of the Project or change of law rendering the Loan Agreement unenforceable or
impossible of performance, all as more fully provided in Section 4.06 of the Loan Agreement;
provided,however,that any Net Proceeds received from casualty insurance or condemnation awards
used to redeem the Bonds shall be applied in the following order: (i) first, to redeem the Senior
Bonds; (ii) second, to redeem the Subordinate Bonds.
(c) Mandatory and Scheduled Sinking Fund Redemption. The Bonds are subject to
mandatory sinking fund redemption with respect to the maturities through operation of a sinking
fund as provided for in the Indenture. Series 2001 Bonds shall be redeemed without furtherd i rection
from the Borrower on November 1 of the years indicated in the Indenture in the principal amounts
at a redemption price equal to the principal amount thereof plus accrued interest to the red ;;tion
date.
A-3
(d) Redemption upon a Determination of Taxability. The Bonds are also
subject to mandatory redemption upon the occurrence of a Determination of Taxability
(as defined in the Indenture). In such event, each of the outstanding Bonds shall be
subject to mandatory redemption and shall be redeemed on the first Business Day on
which proper notice thereof can be given, and the Borrower shall cause notice thereof to
be given to the Holders of the Bonds, as more fully provided in Section 4.07 of the Loan
Agreement,at a redemption price equal to par,plus accrued interest,and in the event that
the Determination of Taxability is found to be the caused by an action voluntarily taken
or not taken by the Borrower, at par, plus accrued interest and a premium equal to five
percent (3%) of the principal amount of each Bond redeemed. If the are redeemed due
to a Determination of Taxability, Bonds shall be redeemed in the following order: (i)
first, the Senior Bonds; and (ii) second, the Subordinate Bonds.
(e)
Notice of any such redemption shall be given to the registered owner of each such Bond
by first class mail,addressed to him at his registered address,not earlier than sixty days nor later
than thirty days prior to the date fixed for redemption and shall be published as may be re e n_iired
by law. In addition, at the request of the Authorized Borrower Representative, notice ! r any
redemption not occurring as a result of sinking fund redemption or as a mandatory requi:,ement
of the terms of the Bonds, shall include a statement that the redemption so noticed is cone caned
on sufficient funds being held by the Trustee in the Bond Fund or Optional Redemption Fund
on or before noon, Minneapolis time, on the applicable redemption date to pay the full
redemption price, and if at such time the amount so held is not sufficient to pay all amounts
required to effect the noticed redemption in full, the redemption shall be cancelled, with all
Bonds tendered for such redemption being returned to the Holders thereof, and no Event of
Default or liability on the part of the Borrower shall arise as a result of such cancellation. The
Borrower shall pay all extraordinary fees and expenses incurred in connection with a re "tided
call. Upon the happening of the above conditions,Bonds thus called shall not bear intercafter
the call date and,except for the purpose ofpayment, from the funds so deposited,shall no ,ager
be protected by the Indenture.
This Bond is transferable,as provided in the Indenture,only upon the registration records
kept at the office of the Trustee by the registered owner hereof in person or by his duly
authorized attorney, upon surrender of this Bond for transfer at the office of the Trustee. duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory n the
Trustee duly executed by the registered owner hereof or his duly authorized attorney, ant upon
payment of any tax, fee or other governmental charge required to be paid with respect ; such
transfer, one or more fully registered Bonds of this series of the same principal amot, t and
interest rate will be issued to the designated transferee or transferees.
A-4
•
The Bonds of this series are issuable only as fully registered bonds without coupons in
denominations of any integral multiple of$5,000 not exceeding the principal amount m: firing
in any year. As provided in the Indenture and subject to certain limitations therein set for,h,the
Bonds of this series are exchangeable for a like aggregate principal amount of Bonds r this
series of a different authorized denomination, as requested by the registered owner or his duly
authorized attorney upon surrender thereof to the Trustee.
In case an event of default as defined in the Indenture or Loan Agreement occurs,the principal of
this Bond and all other Bonds outstanding may be declared or may become due and payable prior to the
stated maturity hereof in the manner and with the effect and subject to the conditions provided in the
Indenture,but no owner of any Bond shall have any right to enforce the provisions of the Indenture,die Loan
Agreement, or the Mortgage, except as provided in the Indenture.
With the consent of the City and Trustee and to the extent permitted by and as provided
in the Indenture, the terms and provisions of the Indenture, the Loan Agreement, the
Mortgage, or of any instrument supplemental thereto, may be modified or altered by the assent
or authority of a Majority of Holders.
IN WITNESS WHEREOF, the City of Orono, Minnesota has caused this Bond to be
executed in its name by the facsimile signatures of its duly authorized officers, all as of tl_ Date
of Original Issue specified above.
CITY OF ORONO, MINNESOTA
Mayor
City Clerk
* * * * * ** * * * * * * * * *
This is one of the Bonds described in the within mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
By
Authorized Signature
Date:
A-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(Please Print or Typewrite Name and Address of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and a; ,oints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Please insert Social Security Number Notice: The signature to this assignment must
or other identifying number of correspond with the name as it appears on the
Assignee face of this Bond in every particular, without
alteration or any change whatever.
A-6
APPENDIX A-3
FORM OF SUBORDINATE SERIES 2001C BONDS
UNITED STATES OF AMERICA
STATE OF MINNESOTA
CITY OF ORONO,MINNESOTA
No. R-1 $
Senior Housing Revenue Bonds
(Orono Woods Apartment Project)
Subordinate Series 2001C
(Initially Book-Entry)
Interest Date of
Rate Maturity Original Issue CUSIP
November 1,20 November 1, 2001
Registered Owner:
Principal Amount:
The City of Orono, Minnesota, a municipal corporation and a political subdivision of the State of
Minnesota existing under the laws of the State of Minnesota and its charter(the"City"),for value received,
hereby promises to pay from the sources hereinafter described to the registered owner specified above or
registered assigns, the Principal Amount set forth above on the Maturity Date specified above, upon the
presentation and surrender hereof,and to pay to the registered owner hereof interest on such principal amount
from such sources at the interest rate specified above from the date of original issue specified above,or the
most recent interest payment date to which interest has been paid or duly provided for as specified below,
computed on the basis of a 360-day year of twelve 30-day months,on May 1 and November 1 of each year,
commencing May 1,2002,until said principal amount is paid. Principal and the redemption price is payable
in lawful money of the United States of America at the office of U.S. Bank Trust National Association,as
Trustee under the Indenture hereinafter described or of its successor(the "Trustee"). Interest shall be paid
on each May 1 and November 1 interest payment date by check or draft mailed to the person in whose name
this Bond is registered at the close of business on the fifteenth day of the preceding month(whether or not
a business day) at his address set forth on the registration records maintained by the Trustee.
Notwithstanding the foregoing,(i)any interest due on any Bond shall be paid by wire transfer to any Holder
of not less than$500,000 aggregate principal amount of such Bonds,upon such Holder providing satisfactory
instructions therefor to the Trustee, and (ii)the redemption price or any prepayment of any Bond (but not
payment upon final maturity)shall be paid by wire transfer to any Holder of not less than$500,000 aggregate
principal amount of such Bonds,upon such Holder providing satisfactory instructions therefor to the Trustee
and delivery to the Trustee not less than five(5)Business Days prior to any date on which such a payment
is due,the Bond or Bonds with respect to which such payment is to be made. In the event of any default in
any interest payment, such defaulted interest will be payable to the person in whose name such Bond is
registered at the close of business on a special record date for the payment of such defaulted interest
established by notice mailed by or on behalf of the City to the registered owners of the Bonds not less than
fifteen(15)days preceding such special record date.
A-1
So long as this Bond is registered in the name of a nominee of The Depository Trust Company in
New York("DTC"), payments of,premium, if any, and interest on this Bond shall be made as provided in
the Letter of Representation,as defined in the Indenture,and surrender of this Bond shall not be required for
payment of the redemption price upon a partial redemption of this Bond. Until termination of the book-entry
only system pursuant to the Indenture,Bonds may only be registered in the name of DTC or its nominee.
It is hereby certified and recited:That the issuance of the Bonds and the Project(as defined below)
will promote the public welfare and carry out the purposes of the Minnesota Statutes Chapter 462C (the
"Act");that all acts,conditions and things required to be done precedent to and in the issuance of this Bond
and the series of which it is a part have been properly done, have happened and have been performed in
regular and due time, form and manner as required by law; and that this Bond and the series of which it is
a part does not constitute a debt of the City within the meaning of any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose until it shall II::\',.! been
authenticated by the execution of the certificate hereon endorsed by the Trustee under the Inden
This Bond is issued by the City to finance the development,acquisition,construction and equipping
of a multifamily rental housing development for elderly persons pursuant to the Act. This Bond is not a
general or moral obligation of the City,and neither the taxing power nor the full faith and credit of!Ile City
is pledged to the payment of the Bonds or the interest thereon.All Bonds are special limited oblig,i;ions of
the City. Principal of, premium, if any, and interest on all Bonds are payable solely out of the rrNenues
derived from the Loan Agreement or other amounts derived from the Trust Estate, including amounts
received under the Mortgage and from Net Proceeds (all as such capitalized terms are defined in the
Indenture). Neither the Bonds nor any of the agreements or obligations of the City relating thereto shall be
construed to constitute an indebtedness of the State, the County of Hennepin (the "County") or '` e City
within the meaning of any constitutional,home rule charter or statutory provisions whatsoever,nor ;titute
or give rise to a general or moral obligation,a pecuniary liability or be a charge against the genera i -edit or
taxing powers of the State, County or City.
This Bond is one of a duly authorized series of special, limited obligation Bonds in an an!!sorized
aggregate principal amount of$ in integral multiples of$5,000 thereof,and numbered . 'orR-1
upwards, and of like tenor and effect except as to serial number,denomination, interest rate, maturity and
right of prior redemption,all of which have been authorized by law to be issued and have been issued or are
to be issued for the purpose of funding a loan from the City to the Orono Senior 1-housing, I.LC,a ini esota
• limited liability company(the"Borrower"),to finance development,acqu isition,construction and egir ipping
of a single building containing initially approximately 62 independent senior rental units in the C itv othe C ity of Orono
(the "Project"),all pursuant to a Loan Agreement, dated as of November 1, 2001 (the "Loan Agrees tent"),
between the City and the Borrower, a Resolution of the City Council of the City duly adopted O_2.tober
22, 2001 (the "Bond Resolution"), and an Lndenture of Trust, dated as of November 1, 200 1 (the
"Indenture"), duly executed and delivered by the City to the Trustee.
The Bonds of this series are equally and ratably secured by the Loan Agreement,the Incicai!;;re and
a Subordinate Combination Mortgage, Security Agreement, Fixture Financing Statement and Amment
of Leases and Rents, dated as of November 1, 2001, executed by the Borrower to the Tr;ssut.e (the
"Mortgage"). Reference is hereby made to all such documents and any supplements thereto for a des l:ptian
and limitation of the property, revenues and funds pledged and appropriated to the payment of the : gond&,
the nature and extent of the security thereby created, the rights of the owners of the Bonds,the ions
A-2
of the issuance of Additional Bonds (as defined in the Indenture),the rights, duties and immunity of the
Trustee, and the rights, immunities and obligations of the City thereunder. Certified copies of -ond
Resolution and executed counterparts of the Indenture, the Loan Agreement, and the Mortgage ar: an file
at the office of the Trustee.
As defined and set forth in the Indenture,the Indenture also provides for the issuance of a series of
City of Orono,Minnesota Sen for Housing Revenue Bonds(Onono Woods Apartment Project),Series 2001A
Bonds(the"Series 2001A Bonds")and a series of City of Orono,Minnesota Senior Housing Revenue Bonds
(Onono Woods Apartment Project),Taxable Series 2001B Bonds(the"Series 200113 Bonds",and togther
with the Series 2001A Bonds, the "Senior Bonds"). The Senior Bonds are equally and ratably secured by
the Loan Agreement, the Indenture and a Combination Mortgage, Security Agreement, Fixture Financing
Statement and Assignment of Leases and Rents, dated as of November 1, 2001, executed by the F Trower
to the Trustee(the "Senior Mortgage"). The Bonds are subordinated to the Senior Bonds in terms ights
of payment and security, all as described in the Loan Agreement and the Indenture.
The Bonds shall be subject to redemption prior to maturity only as follows:
(a) Optional Redemption. The Series 2001 Bonds maturing on or after Noven Fier 1,
2007 are subject to optional redemption in advance of their stated maturities, in whole or :': rt on
any date and in part on any Business Day on or after November I,2006,and if in part in a .Ince
with Section 3.07 of the Indenture, in Authorized Denominations and stated maturii; = t the
direction of the Borrower,at a redemption price equal to the principal amount to be redec plus
accrued interest, plus a premium, expressed as a percentage of the principal amount red -:i, as
follows:
Redemption Date Price
November 1, 2006 through October 31,2007 I 02%
November 1, 2007 through October 31,2008 101%
November 1, 2008 and thereafter 100%
The Bonds shall be redeemed the following order or priority: (i)first, the Senior Bonds; as (ii)
second,the Bonds.
(b) Extraordinary Redemption. The Bonds are subject to extraordinary reden it on
any Interest Payment Date as a whole but not in part,at a redemption price equal to par,plus, • .rued
interest to the redemption date,upon the happening of certain events of damage to or destr► c:ion or
condemnation of the Project or change of law rendering the Loan Agreement unenforceable or
impossible of performance, all as more fully provided in Section 4.06 of the Loan Agreement;
provided,however,that any Net Proceeds received from casualty insurance or condemnation awards
used to redeem the Bonds shall be applied in the following order: (i) first, to redeem the 'enior
Bonds; (ii) second,to redeem the Bonds.
(c) Mandatory and Scheduled Sinking Fund Redemption. The Bonds are s►e' ct to
mandatory sinking fund redemption with respect to the maturities through operation of a King
fund as provided for in the Indenture. Series 2001 Bonds shall be redeemed without furthertion
from the Borrower on November 1 of the years indicated in the Indenture in the principal u►nts
at a redemption price equal to the principal amount thereof plus accrued interest to the redo,‘Iption
date.
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(d) Redemption L on aDetermination of Taxability. The Bonds are also
subject to mandatory redemption upon the occurrence of a Determination of TaN ability
(as defined in the Indenture). In such event, each of the outstanding Bonds • 11 be
subject to mandatory redemption and shall be redeemed on the first Business Day on
which proper notice thereof can be given,and the Borrower shall cause notice thereof to
be given to the Holders of the Bonds, as more fully provided in Section 4.07 of the Loan
Agreement,at a redemption price equal to par,plus accrued interest, and in the event that
the Determination of Taxability is found to be the caused by an action voluntarily taken
or not taken by the Borrower, at par, plus accrued interest and a premium equal to five
percent(3%) of the principal amount of each Bond redeemed. If the Series 200 I Bonds
are redeemed due to a Determination of Taxability, Bonds shall be redeenle n the
following order: (i) first, the Senior Bonds; and (ii) second, the Bonds.
(e) Special Redemption of Bonds.On each Novell-, r December 1,be ming
November December 1, 20 , the Bonds are subject to redemption at a reel:. ption
price of 100% of the outstanding principal amount thereof to be redeemed plus ;rued
interest to the redemption date. Bonds shall be redeemed with moneys transfer from
the Surplus Fund to the Optional Redemption Account, as provided in the Indent and
available for such purpose.
Notice of any such redemption shall be given to the registered owner of each st 3ond
by first class mail, addressed to him at his registered address,not earlier than sixty days !: -later
than thirty days prior to the date fixed for redemption and shall be published as may be fired
by law. In addition, at the request of the Authorized Borrower Representative, notice any
redemption not occurring as a result of sinking fund redemption or as a mandatory red: !stent
of the terms of the Bonds, shall include a statement that the redemption so noticed is co ped
on sufficient funds being held by the Trustee in the Bond Fund or Optional Redempi! 'and
on or before noon, Minneapolis time, on the applicable redemption date to pay full
redemption price, and if at such time the amount so held is not sufficient to pay all aunts
required to effect the noticed redemption in full, the redemption shall be cancelled, h all
Bonds tendered for such redemption being returned to the Holders thereof, and no ;It of
Default or liability on the part of the Borrower shall arise as a result of such cancellat;. The
Borrower shall pay all extraordinary fees and expenses incurred in connection with a re. 'acted
call.Upon the happening of the above conditions,Bonds thus called shall not bear int: :!'ler
the call date and,except for the purpose of payment,from the funds so deposited, shall ger
be protected by the Indenture.
This Bond is transferable,as provided in the Indenture,only upon the registratic •ords
kept at the office of the Trustee by the registered owner hereof in person or by 'uly
authorized attorney, upon surrender of this Bond for transfer at the office of the Tri my
endorsed by, or accompanied by a written instrument of transfer in forth satisfact the
Trustee duly executed by the registered owner hereof or his duly authorized attorney, )on
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payment of any tax, fee or other governmental charge required to be paid with respec! such
transfer, one or more fully registered Bonds of this series of the same principal an, and
interest rate will be issued to the designated transferee or transferees.
The Bonds of this series are issuable only as fully registered bonds without cc is in
denominations of any integral multiple of$5,000 not exceeding the principal amount ring
in any year. As provided in the Indenture and subject to certain limitations therein set the
Bonds of this series are exchangeable for a like aggregate principal amount of Bon.. this
series of a different authorized denomination, as requested by the registered owner o, duly
authorized attorney upon surrender thereof to the Trustee.
In case an event of default as defined in the Indenture or Loan Agreement occurs,the p; ,al of
this Bond and all other Bonds outstanding may be declared or may become due and payable i o the
stated maturity hereof in the manner and with the effect and subject to the conditions provin n the
Indenture,but no owner of any Bond shall have any right to enforce the provisions of the Indenture. i_oan
Agreement,or the Mortgage, except as provided in the Indenture.
With the consent of the City and Trustee and to the extent permitted by and as •ided
in the Indenture, the terms and provisions of the Indenture, the Loan Agreement. 1,` the
Mortgage, or of any instrument supplemental thereto, may be modified or altered by tsent
or authority of a Majority of Holders.
IN WITNESS WHEREOF, the City of Orono, Minnesota has caused this B, to be
executed in its name by the facsimile signatures of its duly authorized officers, all as o,' Date
of Original Issue specified above.
CITY OF ORONO, MINNESOTA
Mayor
City Clerk
-r. * =r• * * ** * * * * * * * * *
This is one of the Bonds described in the within mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSO, [ION
By
Authorized Signature
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
(Please Print or Typewrite Name and Address of Transferee)
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
Please insert Social Security Number Notice: The signature to this assignment must
or other identifying number of correspond with the name as it appears on the
Assignee face of this Bond in every particular, without
alteration or any change whatever.
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EXHIBIT A
M I:7%874.02 796874.03
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