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HomeMy WebLinkAbout11-8-01 12. BOND PURCHASE AGREEMENT B&F DRAFT: 1411/n07/01 BOND PURCHASE AGREEMENT AMONG CITY OF ORONO, MINNESOTA ORONO SENIOR HOUSING, LLC WEDUM FOUNDATION AND MILLER JOHNSON STEICHEN KINNARD, INC. Dated November 2001 This instrument was drafted by: Best& Flanagan LLP (DM) 4000 U.S. Bank Place 601 Second Avenue South Minneapolis, Minnesota 55402- 4331 (612) 339-7121 CITY OF ORONO, MINNESOTA SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SERIES 2001A and CITY OF ORONO, MINNESOTA TAXABLE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) TAXABLE SERIES 2001B and CITY OF ORONO, MINNESOTA SUBORDINATE-SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SUBORDINATE SERIES 2001C BOND PURCHASE AGREEMENT November , 2001 1 Orono Senior Housing LLC 3191 Shorewood Drive Arden Hills, Minnesota 55112 City of Orono, Minnesota 2750 Kelley Parkway Orono, Minnesota 55356 Wedum Foundation 3191 Shorewood Drive Arden Hills, Minnesota 55112 Ladies and Gentlemen: The undersigned, Miller Johnson Steichen Kinnard, Inc. (the "Underwriter"), hereby offers to enter into this Bond Purchase Agreement with the City of Orono, Minnesota(the "Issuer"), as approved and agreed to by Orono Senior Housing, LLC (the "Borrower"), a Minnesota limited liability company of which Wedum Foundation ("Wedum"), a Minnesota nonprofit corporation and a 501(c)(3) organization, is the sole member, for the purchase by the Underwriter of the Bonds described below. This offer is made subject to acceptance by the Issuer and agreement by the Borrower at or prior to 5:00 P.M. Central time on November , 2001, and upon such acceptance this Bond Purchase Agreement shall be in full force and effect in accordance with its terms and shall be binding upon the Issuer, the Borrower and the Underwriter. If not so accepted, this Bond Purchase Agreement will be subject to withdrawal by the Underwriter upon notice delivered by the Underwriter to the Issuer and the Borrower at any time prior to the acceptance hereof by the Issuer and the Borrower. 1. Purchase and Sale. Subject to the satisfaction by the Issuer and the Borrower of the terms and conditions set forth herein, subject also to the conditions precedent set forth herein, and in reliance upon the representations herein set forth or incorporated by reference,the Underwriter hereby agrees to purchase from the Issuer upon the terms and conditions set forth herein and the Issuer hereby agrees to sell to the Underwriter the Senior Housing Revenue Bonds (Orono Woods ApartmentsApartment Project) Series 2001A(the "2001A Bonds") of the Issuer in the aggregate original principal amount of$ , the Senior Housing Revenue Bonds (Orono Woods Apartment Project),TaxableSenior - • o.Woods Apartment Project) Series 2001B (the "2001B Bonds"and,together with the 2001A Bonds, the "Senior Bonds")of the Issuer in the aggregate original principal amount of$ , and the Senior Housing Revenue Bonds (Orono Woods Apartment Project) Subordinate Senior Housing Revenue • • :.. -• ' . - Series 2001 C (the "2001 C Bonds")of the Issuer in the aggregate original principal amount of$ (the 2001A Bonds, 2001B Bonds and 2001C Bonds are collectively referred to herein as the "Bonds") (the Bonds being more fully described in Schedule I hereto,the Indenture and the Official Statement hereinafter mentioned). The proceeds of the Bonds shall be loaned to the Borrower for the purpose of financing a portion of the costs of developing, acquiring, constructing and equipping a 62-unit senior housing facility located in the City of Orono, Minnesota and designed to provide housing for the elderly located in the City of Orono, Minnesota(the"Project"), funding a Debt Service Reserve Fund to secure the Senior Bonds, funding capitalized interest during the construction :- ':. . . - . - and lease-up of the Project, and paying certain costs of issuance of the Bonds. The expenses of selling the Bonds shall be paid as provided in Section 7 hereof. The Bonds shall be as described in the Official Statement hereinafter mentioned, and shall be issued pursuant to the resolution of the Issuer approving the Bonds adopted on October 23, 2001 (the "Resolution"), the Indenture hereinafter mentioned, the Loan Agreement hereinafter mentioned,this Bond Purchase Agreement and certain related instruments. The Bonds shall be issued pursuant to a certain Trust Indenture of Trust, dated as of November 1, 2001 (the "Indenture")1 between the Issuer and U.S. Bank Trust National Association, as trustee (the "Trustee"). In connection with the issuance of the Bonds, the Borrower will enter into a Loan Agreement)dated as of November 1, 20012001, with the Issuer(the"Loan Agreement"),pursuant to which the Issuer will loan the proceeds of the Bonds to the Borrower. Terms not defined herein shall have the meaning given thereto in the Indenture. The Senior Bonds will be secured by a Combination-Teaseheld Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents) dated as of November 1, 2001, between the Issuer and the Borrower(the "Mortgage"), and assigned by the Issuer without recourse to the Trustee (the"Mortgage Assignment"). The 2001C Bonds will be secured by a Subordinate Combination Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and parts, due as of November 1, 2001, between the Issuer and the Borrower(the "Subordinate Mortgage"), and assigned by the Issuer without recourse to the Trustee (the "Subordinate Mortgage Assignment"). Certain of the proceeds of the Bonds will be disbursed in accordance with a Disbursing Agreement dated as of November 1, 24042001, among the Trustee, the Borrower and the title company named therein (the "Disbursing Agreement"). It is understood and agreed that the Bonds and the interest thereon are special, limited obligations of the Issuer payable solely from revenues provided by the Borrower or amounts paid pursuant to the Loan Agreement, amounts realized upon foreclosure of the Mortgage or the Subordinate Mortgage and amounts held in various funds and accounts as provided in the Indenture. The andBonds shall never constitute a general indebtedness of the Issuer within the meaning of any state constitutional or statutory provision and do not give rise to a general or moral obligation of the Issuer, the State of Minnesota(the "State"), or any of its political subdivisions, and do not constitute a charge against the Issuer's property, general credit or taxing powers. 2. Official Statement. (a) The Borrower shall deliver or cause to be delivered to us, promptly upon the completion thereof, copies of the official statement of the Borrower relating to the Bonds in the form accepted by us (such official statement as adopted by the Borrower in accordance herewith being herein called the "Final Official Statement"), signed on behalf of the Borrower by its authorized representative. In connection with the offering and sale of the Bonds, the Borrower authorizes the use by the Underwriter of copies of the Final Official Statement with respect to the Bonds (such Final Official Statement together with any amendments or supplements from time to time that may be authorized for use with respect to the Bonds as herein provided being referred to as the "Official Statement"), together with copies of the Resolution, the Indenture, the Loan Agreement, the Mortgage, the Subordinate Mortgage, the Disbursing Agreement and the other documents described therein. The Borrower hereby ratifies and consents to the use by the Underwriter of the Official Statement in connection with the sale of the Bonds. (b) The Borrower, pursuant to Rule 15c2--12 of the Securities and Exchange Commission (the "Rule")under the Securities Exchange Act of 1934, as amended (the "R--rlel934 Act"), agrees to deliver to the Underwriter, at such addresses as the Underwriter shall specify, as many copies of the Final Official Statement as the Underwriter shall reasonably request as necessary to comply with paragraph(b)(4) of the Rule and with Rule G-32 and all other applicable rules of the Municipal Securities Rulemaking Board (the "MRSB"). The Borrower agrees to deliver such Final Official Statements within seven(7)business days after the execution hereof (c) The Underwriter shall give notice to the Issuer, the Borrower and any additional "issuer" on the date after which no participating underwriter, as such term is defined in the Rule, remains obligated to deliver Final Official Statements pursuant to paragraph(b)(4) of the Rule. (d) The Underwriter agrees that it shall send or cause to be sent no later than the next business day, by first class mail or other equally prompt means, to any potential customer, on request, one or more copies of the Official Statement, as most recently supplemented or amended(if any). (e) The Underwriter agrees from the time the Final Official Statement becomes available until the earlier of(i)ninety(90) days from the end of the underwriting period or(ii)the time when the Final Official Statement is available to any person from a nationally recognized municipal securities information repository,but in no case less than twenty-five (25) days following the end of the underwriting period,the Underwriter shall send or cause to be sent no later than the next business day, by first class mail or other equally prompt means to any potential customer, on request, at least one copy of the Final Official Statement. 3. Representations. (a) To the best knowledge of the Issuer and in reliance upon the opinions referred to in Sections 5(d)(i) and 5(d)(ii)hereof, the Issuer represents to and agrees with the Underwriter as follows: (i) The statements and information contained in the Preliminary Official Statement(to the extent not modified in the Official Statement) and the Official Statement with respect to the Issuer under the captions "THE CITY"and "LITIGATION"(the latter only to the extent it relates to the Issuer) (together, the "Issuer Portion" of the Official Statement) in the Official Statement are, and as of the date of Closing such information in the Official Statement will be, true and correct in all material respects, and the Issuer Portion of the Official Statement does not and will not contain any untrue or misleading statement of a material fact relating to the Issuer or omit to state any material fact relating to the Issuer necessary to make the statements therein in the light of the circumstances under which they were made, not misleading. If, at any time prior to the earlier of(A) receipt of notice from the Underwriter pursuant to Section 2(c)hereof that Official Statements are no longer required to be delivered under the Rule or(B) ninety (90)days after the Closing, any event occurs with respect to the Issuer as a result of which the Issuer Portion of the Official Statement as then amended or supplemented might include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made,not misleading, the Issuer shall promptly notify the Underwriter, the Borrower and the ^cademyWedum in writing of such events. Any information supplied by the Issuer for inclusion in any amendments or supplements to the Preliminary Official Statement and the Official Statement will not contain any untrue or misleading statement of a material fact relating to the Issuer or omit to state any material fact relating to the Issuer necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) The Issuer is : . :..• . .. . - • _ . a home rule charter eit}municipal corporation and political subdivision of the State of Minnesota(the "State") created and existing under the Constitution and the laws of the State and the Issuer has full legal right,power and authority pursuant to the Constitution and laws of the State, including Minnesota Statutes, Chapter 469462C, as amended (the"Act"),to issue bonds for the purposes stated in the Indenture,to enter into this Bond Purchase Agreement,the Indenture,the Loan Agreement,the Mortgage,_ the Subordinate Mortgage and the Mortgage Assignment, and the Tax Regulatory to pledge the trust estate as defined in the Indenture and as described in the Official Statement, and to loan the proceeds of the Bonds to the Borrower to be applied to the purposes stated in the Indenture. (iii) The execution and delivery of this Bond Purchase Agreement does not, and the execution and delivery of the Bonds,the Loan Agreement,the Indenture,the Mortgage, the Subordinate Mortgage and the Mortgage Assignment, the Tax Regulatory Agreement and the adoption of the Resolution, and compliance with the provisions of each of them, under the circumstances contemplated thereby, will not, in any material respect, conflict with or constitute on the part of the Issuer a breach of or default under any other agreement or instrument to which the Issuer is a party or any existing law, administrative regulation, court order or consent decree to which the Issuer is subject. (iv) With respect to such matters that are preconditions to the issuance of the Bonds that are identified in the Indenture and the Loan Agreement,the Issuer has, and at the date of the Closing will have, in all respects complied with the Act. (v) All approvals, consents and orders of any governmental authority, board, agency,council, commission or other body in or of the Issuer or the State having jurisdiction which would constitute a condition precedent to the performance by the Issuer of its obligations hereunder and under the Indenture, the Loan Agreement, the Mortgage Assignment and the Tax Regulatory Agreement and the Bonds, have been obtained or, if not, will be obtained at the time of or prior to the Closing(provided no representation or warranty is expressed as to any action required under federal or state securities or Blue Sky laws in connection with the purchase of the Bonds by the Underwriter). (vi) The Bonds, when duly issued, authenticated and delivered in accordance with the Resolution and the Indenture and purchased by the Underwriter as provided herein,will be the validly issued and outstanding special limited obligations of the Issuer entitled to the benefits of the Indenture; provided, however, neither the Bonds nor any interest or premium thereon will ever constitute a debt of the Issuer, the State, or any political subdivision thereof or a loan of credit thereof within the meaning of any constitutional or statutory provision or limitation,nor constitute or give rise to a pecuniary liability of the Issuer. (vii) The Resolution and this Bond Purchase Agreement are, and the Indenture,the Loan Agreement, the Mortgage Assignment and the Tax Regulatory Agreement, when each of them has been executed and delivered by the Issuer, will, assuming due authorization, execution and delivery by the Borrower and the Trustee, each constitute a valid and binding obligation of the Issuer,provided that, however, the enforceability of such obligations may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally applicable, and that their enforcement may also be subject to the exercise of judicial discretion in appropriate cases and to general principles of equity. (viii) No litigation is pending or, to the actual knowledge of the Issuer, threatened(A) seeking to restrain or enjoin the issuance or delivery of any of the Bonds or the application of proceeds of the Bonds as provided in the Indenture and the Loan Agreement or the collection of revenues of the Issuer pledged under the Indenture, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds,the Indenture, the Loan Agreement,the Mortgage, the .. ' -• . . • - ••- - Subordinate Mortgage and the Mortgage Assignment,the Resolution or this Bond Purchase Agreement, or(C) in any way contesting the existence or powers of the Issuer. (ix) The Issuer Portion of the Preliminary Official Statement was, as of its date, and is, as of this date, "final"within the meaning of paragraph(b)(1) of the Rule. (b) The Borrower represents to and agrees with the Underwriter as follows: (i) The Borrower approves the distribution and use of the Official Statement. The statements and the information set forth in the Official Statement concerning the Borrower,the Sponsor, the Project(including sources and uses of funds),the Borrower's participation in the transactions contemplated by the Loan Agreement,this Bond Purchase Agreement,the Mortgage, the Subordinate Mortgage, the Continuing Disclosure Agreement, dated as of November 1, 2001 between the Borrower and the Trustee (the"Continuing Disclosure Agreement"), the Real Estate Purchase Contract dated as of , 2001 (the "Purchase Contract") between Union Land LLC (the "Seller") and the Borrower as purchaser,the Ground Lease dated as of November 1, 2001 (the "Ground Lease") between therOrono Housing Redevelopment Authority and the Borrower, the Property Management Agreement dated November 1, 2001 (the "Management Agreement")between Great Lakes Management Company and the Borrower, the Development Agreement dated as of November 1, 2001 (the "Development Agreement")between and the Borrower, and the Disbursing Agreement(collectively, the "Borrower Documents"), and the Bondholders' Risks are true and correct and all such statements and information set forth concerning the Borrower,the Sponsor, the Project(including sources and uses of funds but excluding information regarding the Seller),the Borrower's participation in the transactions contemplated by the Borrower Documents and the Bondholders' Risks in the Preliminary Official Statement and the Official Statement as of Closing will,to the best of the Borrower's knowledge based on reasonable diligence, be true and correct in all material respects and the Preliminary Official Statement,and the Official Statement does not and will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statement therein, in light of the circumstances under which it is made, not misleading. (ii) If, at any time prior to the earlier of(A) receipt of notice from the Underwriter pursuant to Paragraph 2(c) hereof that Official Statements are no longer required to be delivered under the Rule or(B) ninety(90) days after the Closing, any event occurs known to the Borrower(or which should have been known to the Borrower upon diligent inquiry) as a result of which the Official Statement as then amended or supplemented might include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Borrower shall promptly notify the Underwriter and the Issuer thereof in writing. Upon the request of the Underwriter, the Borrower shall prepare and deliver to the Underwriter and the Issuer at the expense of the Borrower as many copies of an amendment or supplement to the Final Official Statement which will correct any untrue statement or omission therein as the Underwriter and the Issuer may reasonably request. (iii) The Borrower is duly organized and existing as a limited liability company under the laws of the State of Minnesota(the "State") and the Borrower has full legal right, power and authority to enter into the Borrower Documents, and to carry out and consummate all transactions contemplated by such documents. (iv) The execution and delivery of this Bond Purchase Agreement does not, and the execution and delivery of the Borrower Documents and compliance with the provisions of each of them, under the circumstances contemplated thereby, will not, in any material respect, conflict with or constitute on the part of the Borrower a breach of or default under any other agreement or instrument to which the Borrower is a party or to the Borrower's knowledge, any existing law, administrative regulation, court order or consent decree to which the Borrower is subject. (v) All approvals, consents and orders of any governmental authority, board, agency, council, commission or other body in or of any state and the federal government having jurisdiction which would constitute a condition precedent to the performance by the Borrower of its obligations hereunder and under the other Borrower Documents, have been obtained or, if not, will be obtained at the time of or prior to the Closing (provided no representation or warranty is expressed as to any action required under federal or state securities or Blue Sky laws in connection with the purchase and sale of the Bonds by the Underwriter). (vi) This Bond Purchase Agreement does, and the other Borrower Documents, when each of them has been executed and delivered by the Borrower, will, assuming due authorization, execution and delivery by the other parties thereto, each, constitute a valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to any applicable bankruptcy, insolvency or other laws affecting creditors' rights or remedies heretofore or hereafter enacted. (vii) To the knowledge of the Borrower, noNo litigation is pending or threatened (A) seeking to restrain or enjoin the issuance or delivery of the Bonds or the application of proceeds of the Bonds as provided in the Indenture and the Loan Agreement or the collection of revenues pledged under the Indenture, (B) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, or any other Borrower Documents, or(C) in any way affecting, in a material adverse manner, the property of the Borrower or contesting the existence or powers of the Borrower. (viii) The Preliminary Official Statement was, as of its date, and is, as of this date, "final"within the meaning of(b)(1) of the Rule. (ix) The Borrower has not been, within the last five years, in default as to principal or interest with respect to any obligation issued by or guaranteed by the Borrower or with respect to which the Borrower is an obligor. (x) Wedum is duly organized and existing as a nonprofit corporation under the laws of the State and is qualified to do business in the State. (xi) Wedum is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended(the "Code"), is exempt from federal income taxes under Section 501(a) of the Code, except for unrelated business income subject to taxation under Section 511 of the Code, and is a"private foundation" as defined in Section 509(a) of the Code. (xii) Wedum is the sole member of the Borrower, and no other party has any rights, interests or claims in or to Wedum's membership interest in the Borrower. (c) The Underwriter represents and agrees as follows: (i) The Underwriter is a member of the National Association of Securities Dealers, is a registered broker/dealer in each state in which it proposes selling the Bonds, has full power and authority to enter into this Bond Purchase Agreement, and will comply with all federal and applicable state securities laws in each state in which it proposes selling the Bonds. (d) Wedum represents and agrees as follows: (i) Wedum is duly organized and existing as a nonprofit corporation under the laws of the State and is qualified to do business in the State. (ii) Wedum is an organization described in Section 501(c)(3) of the Code, is exempt from federal income taxes under Section 501(a) of the Code, except for unrelated business income subject to taxation under Section 511 of the Code, and is a"private foundation" as defined in Section 509(a) of the Code. (iii) Wedum is the sole member of the Borrower and will remain the Borrower's sole member so long as the Bonds are outstanding. No, and no other party has any rights, interests or claims in or to Wedum's membership interest in the Borrower. 4. Closing. At 10:00 A.M., Central time, on November_, 2001 or such later date as we mutually agree upon (the "Closing"), the Issuer will deliver or cause to be delivered to us, at the offices of the Underwriter or at such other place as we may mutually agree upon,the Bonds in definitive fully registered form, duly executed and authenticated. In addition, the other documents hereinafter mentioned will be delivered at the offices of Faegre & Benson LLP and the Underwriter will accept such delivery and pay the purchase price thereof in federal funds payable to the order of the Issuer or the order of such person as the Issuer shall direct and such funds shall be available to the Issuer on the date of Closing. The Bonds will be delivered as fully registered bonds in such authorized denominations and registered in the name of Cede & Co. and in such amounts as the Underwriter may have requested not less than five (5) business days (or other as mutually agreed to)prior to the Closing. The Issuer will deposit with the Trustee, as agent to theThe Depository Trust Company(or such other acceptable depository institution), any or all of the Bonds,. The Bonds will be made available for checking and authentication not less than 48 hours prior to the Closing, at such place as the Issuer and the Underwriter shall agree. It is anticipated that CUSIP identification numbers will be printed on the Bonds, but neither the failure to print such numbers on any Bond nor any error in the printing of such numbers shall constitute cause for a failure or refusal by the Underwriter to accept delivery of and pay for any Bonds. The Underwriter and the Issuer will cooperate to obtain the CUSIP numbers. 5. Conditions Precedent. The Underwriter has entered into this Bond Purchase Agreement: in reliance upon (i) the representations, warranties and agreements of the Issuer contained herein and in the Indenture, the Loan Agreement and the Resolution; (ii) the representations, warranties and agreements of the Borrower contained herein and in the other Borrower Documents; (iii)the representations, warranties and agreements regarding Wedum contained herein and (iv)the performance by the Issuer and the Borrower of their obligations hereunder, if any, and under the above-mentioned documents, both as of the date hereof and as of the date of the Closing. The Underwriter's obligation under this Bond Purchase Agreement is and shall be subject to the following further conditions: (a) The representations and warranties of the Issuer and the Borrower contained herein shall be true, complete and correct on the date of acceptance hereof and on and as of the date of the Closing with the same effect as if made on the date of the Closing. (b) At the time of the Closing, the Official Statement, the Resolution, the Act, the Indenture, the Loan Agreement, the Purchase Contract,the Mortgage, the Subordinate Mortgage, the Mortgage Assignment, the Ground Lease and the Management Agreement shall be in full force and effect, shall each be in form and substance acceptable to the Underwriter in all respects, and shall not have been amended, modified or supplemented except as may have been agreed to in writing by us; and you shall have duly adopted and there shall be in full force and effect such ordinances and resolutions, and entered into such agreements, as, in the opinion of Faegre & Benson LLP (herein"Bond Counsel"), and in the opinion of Best& Flanagan LLP, counsel to the Underwriter, shall be necessary in connection with the transactions contemplated hereby or the documentation of security for the Bonds. (c) The Underwriter may terminate this Bond Purchase Agreement by notification in writing or by telegram to the Issuer and the Borrower if at any time subsequent to the date hereof and at or prior to the Closing: (A) legislation shall be enacted by, or favorably reported out of committee to, either House of the Congress of the United States of America, or a decision by a court of the United States of America shall be rendered, or a regulation or ruling shall be issued or proposed by or on behalf of the Treasury Department, the Internal Revenue Service, or any other agency of the Federal government having jurisdiction, or a release or official statement shall be issued by the Treasury Department,the Internal Revenue Service of the United States, or any other agency of the Federal government having jurisdiction, with respect to Federal taxation upon interest received on obligations of the character of the Bonds, which, in the reasonable judgment of the Underwriter, materially adversely affects the market for the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the Bonds; or(B) a stop order, ruling, regulation, proposed regulation or statement by or on behalf of the Securities and Exchange Commission shall be issued or made to the effect that the issuance, offering, sale or distribution of obligations of the character of the Bonds is in violation of any provisions of the Securities Act of 1933, as amended (the "1933 Act"), or of the Trust Indenture Act of 1939, as amended (the "1939 Act"); or(C)the Congress of the United States of America shall enact a law, or a bill shall be favorably reported out of committee of either House, or a decision by a court of the United States of America shall be rendered, or a ruling, regulation, proposed regulation or statement by or on behalf of the Securities and Exchange Commission or any other agency of the Federal government having jurisdiction of the subject matter shall be made, to the effect that securities of the Issuer or of any similar public body are not exempt from the registration, qualification or other requirements of the 1933 Act or the 1939 Act; or(D)the United States of America shall have become engaged in hostilities which have resulted in a declaration of war or a national emergency; or (E) there shall have occurred a general suspension of trading on the New York Stock Exchange; or (F) a general banking moratorium shall have been declared by the United States of America, State of New York or State of Minnesota authorities; or(G) an event shall occur which in the reasonable judgment of the Underwriter(1) makes untrue or incorrect in any material respect, as of the time of such event, any statement or information contained in the Official Statement or which is not reflected in the Official Statement but should be reflected therein in order to make the statements and information contained therein not misleading in any material respect and/or(2)materially adversely affects the market for the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the Bonds; or(H)all documentation in connection with the issuance of the Bonds shall not be satisfactory in form and substance to the Underwriter or its counsel; or(I) economic,market or other conditions shall occur or exist which, in the judgment of the Underwriter, render the Bonds incapable of being sold on terms acceptable to the Underwriter; or(J)the results of any due diligence efforts by the Underwriter with respect to the proposed issuance of the Bonds shall not, in the sole discretion of the Underwriter, be satisfactory to the Underwriter; or(K)any suit,proceeding, litigation or other action shall be commenced, or, if commenced prior to the date hereof, shall be continuing or have been adjudicated, which, in any event, in the reasonable judgment of the Underwriter, may affect the marketing, sale or delivery of the Bonds; or(L)the Underwriter, the Borrower and the Issuer shall not have reached agreement as to the terms of any of the agreements referred to in this Bond Purchase Agreement. (d) At or prior to the Closing,the Underwriter shall have received the following documents (in each case with such changes as the Underwriter shall approve): (i) The unqualified approving opinion of Bond Counsel, dated the date of the Closing, in form acceptable in all respects to the Underwriter(together with a letter of Bond Counsel, addressed to the Underwriter,the Issuer and the Borrower, to the effect that the Underwriter, the Issuer and the Borrower may rely on such opinion), in substantially the form attached hereto as Exhibit A-1, and a supplementary opinion of Bond Counsel dated the date of the Closing, addressed to the Underwriter, the Issuer,the Borrower and Underwriter's counsel, in substantially the form attached hereto as Exhibit A-2, (ii) The opinion of Christoffel &Elliott, P.A., Counsel to the Borrower and Wedum, dated the date of Closing and addressed to the Issuer, Bond Counsel, the Underwriter and the Underwriter's counsel, in substantially the form attached hereto as Exhibit B; (iii) The opinion of Best&Flanagan LLP, Counsel to the Underwriter, dated the date of the Closing and addressed to the Underwriter and the Issuer, in substantially the form attached hereto as Exhibit C; (iv) A certificate of the Issuer, signed by thheeran official of the Issuer, dated the date of the Closing,to the effect that(A)the representations of the Issuer contained herein and in the Resolution,the Indenture,the Loan Agreement and the Mortgage Assignment are true and correct in all material respects as of the date of the Closing; and(B)no litigation is pending or threatened,to the actual knowledge of the Issuer, against the Issuer(1) seeking to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of revenues or other security pledged under the Indenture or the Resolution, (2) in any way contesting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution,the Indenture,the Loan Agreement, the Mortgage, the Subordinate Mortgage, the Mortgage Assignment,the Development Agreement, the Ground Lease, or this Bond Purchase Agreement, or(3) in any way contesting the existence or powers of the Issuer; (v) A certificate of the Borrower, signed by the Chief Manager of the Borrower, dated the date of the Closing, including, where necessary, a certificate of Wedum, signed by an authorized officer of Wedum, dated the date of the Closing,to the effect that(A)the representations, warranties and agreements of the Borrower and Wedum contained herein and in the Borrower Documents are true and correct in all material respects as of the date of the Closing; (B)to the knowledge of the Borrower, no litigation is pending or threatened, (1) seeking to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of revenues or other security pledged under the Indenture, (2) in any way contesting or affecting any authority for the issuance of the Bonds or the validity of the Bonds, the Resolution, the Indenture or any of the Borrower Documents, or(3) in any way contesting the existence or powers of the Borrower; (C)no event affecting the Borrower or Wedum has occurred since the date of the Official Statement which should be disclosed in the Official Statement, for the purpose for which it is to be used or which should be disclosed therein in order to make the statements and information therein not misleading in any material respect; (D)the information in the Official Statement concerning the Borrower, Wedum,the Project(including sources and uses of funds),the Borrower's participation in the transactions contemplated by the Borrower Documents and Bondholders' Risks is true, accurate and complete in all material respects; (E) all resolutions and other actions required to be approved or taken by or on behalf of the Borrower authorizing and approving the transactions described or contemplated in this Bond Purchase Agreement or in the Official Statement,the execution of or approving of the respective forms of, as the case may be,this Bond Purchase Agreement,the Indenture,the Borrower Documents and the Bonds have been duly approved by the Borrower, are in full force and effect and have not been modified, amended or repealed; (F)the Borrower is a limited liability company organized and validly existing under the laws of the State with full power and authority to own its properties and conduct its business; (G)the Borrower has all necessary licenses, approvals, accreditations and permits presently required under federal, state and local laws to own and operate its facilities; (H) Wedum is a nonprofit corporation organized and validly existing under the laws of the State with full power and authority to own its properties and conduct its business; and(I)there are no adverse IRS determinations and no proceedings are pending or,to the knowledge of such officer,threatened in any way contesting or affecting Wedum's status as an organization described in Section 501(c)(3) of the Code or which would subject any income of Wedum to federal income taxation; (vi) Certified copies of the Borrower's resolutions or comparable actions of its Board of Governors authorizing the execution and delivery of the Borrower Documents and approving the Bonds and the Official Statement; (vii) Certified copies of Wedum's resolutions or comparable actions of its Board of Directors approving the actions of Wedum and the Borrower and the transaction contemplated herein; (viii) A title insurance policy, or commitment therefor, from the Title Company in form satisfactory to the Underwriter and Bond Counsel; (ix) The appraisal report in respect of the Project dated as of , 2001, prepared by • (x) A written"phase I environmental survey" of a qualified independent consultant, addressed to the Underwriter and in form and substance satisfactory to the Underwriter; (xi) The market feasibility study in respect of the Project dated , 2001, prepared by Maxfield Research, Inc., Minneapolis, Minnesota; (xii) An execution copy or other copy, certified to our satisfaction as true and correct, of each of the following items: the Mortgage, the Subordinate Mortgage, the Mortgage Assignment,the Purchase Agreement, the Loan Agreement, the Indenture, the Development Agreement, the Management Agreement, the Continuing Disclosure Agreement, the Disbursing Agreement, the Ground Lease, the Resolution, the policy of title insurance referred to in clause (viii) of this paragraph, the Borrower's articles of organization, operating agreement and certificate of good standing in Minnesota, Wedum's articles of incorporation, bylaws, 501(c)(3) determination letter, and certificates of good standing in Minnesota; (xiii) Such additional legal opinions, certificates, proceedings, agreements, instruments and other documents as counsel for the Underwriter, or Bond Counsel, may reasonably request to evidence compliance with any legal requirements, to provide such additional assurances as the Underwriter may request, the truth and accuracy, as of the time of Closing, of any representations given and the due performance or satisfaction at or prior to such time of all agreements then to be performed and all conditions then to be satisfied as conditions precedent to the issuance of the Bonds; and (xiv) The budget for the Project. If the Issuer or the Borrower shall be unable for any reason to satisfy the conditions of the Underwriter's obligation contained in this Bond Purchase Agreement or if the Underwriter's obligation shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate and neither the Underwriter, the Issuer, nor the Borrower shall have any further obligations or liability hereunder, except that the respective obligations of the Issuer, the Borrower and the Underwriter set forth in Section 7 hereof, shall continue in full force and effect. 6. Amendments to Official Statement. After the date of the Official Statement and so long as the Underwriter, or dealers, if any, participating in the original distribution of the Bonds, are offering Bonds which constitute the whole or a part of their unsold participations, the Borrower will (a) not adopt any amendment of or supplement to the Official Statement without the prior written consent of the Underwriter, and (b) during such period or for forty-five (45) days from the date of the Closing, whichever is earlier, if any event relating to or affecting the Official Statement shall occur as a result of which, in the reasonable judgment of the Underwriter, it is necessary to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, forthwith prepare and furnish to the Underwriter, at the expense of the Borrower, a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to counsel for the Underwriter)which will amend or supplement the Official Statement so that it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser, not misleading. For the purposes of, and during the period of time provided by this Section, the Borrower will furnish, or cause to be furnished, such information with respect to itself as the Underwriter may from time to time reasonably request. 7. Payment of Expenses. (a) Upon and subject to the issuance, sale and delivery of the Bonds by the Issuer, the Borrower agrees to pay either directly or, to the extent permitted under federal tax law as determined by Bond Counsel, from the proceeds of the Bonds, all expenses and costs to effect the authorization, preparation, issuance, delivery and sale of the Bonds, including, without limitation, (i)the Underwriter fee (including underwriting discount) of $ , (ii)rating agency fees and expenses, if any, (iii) the fees and disbursements of Bond Counsel, the fees and disbursements of Borrower's counsel, the fees and disbursements of the Issuer, Issuer's Counsel and the Trustee, (iv)the fees and disbursements of Underwriter's counsel, (v) the fees and expenses of Underwriter's counsel, if any, in connection with qualification of the Bonds for sale under any Blue Sky or other securities laws and regulations of various jurisdictions and preparation of any Blue Sky survey, (vi) the fees and expenses of certified public accountants, (vii)the expenses and costs for the printing and distribution of the Bonds, the Preliminary Official Statement and the Official Statement, (viii)the expenses and costs for photocopying the Preliminary Official Statement, the Official Statement, the Resolution, the Indenture and the Borrower Documents and all other agreements and documents contemplated hereby, and (ix) the various other expenses and costs of Closing. (b) If the Bonds are not issued and delivered by the Issuer to the Underwriter, as a result of the failure by the Borrower to perform any of its obligations under this Bond Purchase Agreement(other than a failure of the Underwriter to comply with its obligation set forth in Section 1 hereof, if such obligation is not otherwise excused or terminated as provided herein) or as a result of the Borrower failing to reach agreement with the Underwriter as to the terms and conditions of the transactions and documents contemplated hereby, the Borrower agrees that they shall pay all expenses set forth in this Section 7 including all reasonable fees and expenses of Best& Flanagan LLP, counsel to the Underwriter. 8. Rule 15c2-12 and Related Matters. The Underwriter and the Borrower agree to cooperate reasonably cooperate with each other in order to carry out and comply with certain requirements of the Rule. The Issuer shall have no obligation of any kind under the Rule. The Underwriter has obtained and reviewed the Official Statement and, on the basis of such review,the Underwriter states that it has no reason to believe that the key representations contained therein are not truthful and complete (and in reaching such conclusion the Underwriter has relied upon (a)the accuracy and completeness of the financial information of the Borrower included in the Official Statement; (b) the accuracy and completeness of the discussion under the heading"TAX EXEMPTION" in the Official Statement; and (c) the accuracy of all the other information furnished by the Borrower). 9. Indemnification. The Borrower agrees to indemnify and hold harmless the Issuer and the Underwriter and each person, if any, who controls (as such term is defined in Section 15 of the 1933 Act)the Issuer or the Underwriter against any and all losses, claims, damages and liability(a) arising out of any statement or information in the Official Statement under the headings "INTRODUCTORY STATEMENT." "BONDHOLDERS' RISKS," "THE BORROWER AND THE SPONSOR," "ESTIMATED SOURCES AND USES OF FUNDS," "L,ITIGATION," and in Appendix B-that is untrue in any material respect or the omission therefrom of any statement which should be contained therein as of the date of the delivery of the Bonds for the purpose for which a Official Statement is to be used or which is necessary to make the statements and information therein not misleading in any material respect; and (b)to the extent of the aggregate amount paid in settlement of any litigation commenced or threatened arising from a claim based upon any such untrue statement or omission if such settlement is effected with the written consent of the Borrower. In case any claim shall be made or action brought against the Underwriter or the Issuer or any controlling person(as aforesaid) based upon the Official Statement, in respect of which indemnity may be sought against the Issuer or the Borrower, the person or persons seeking indemnity shall promptly notify the Borrower in writing setting forth the particulars of such claim or action and the Borrower shall assume the defense thereof including the retention of counsel and the payment of all expenses. The person or persons seeking indemnity or any such controlling person shall have the right to retain separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such person seeking such indemnity unless (i) the retention of such counsel has been specifically authorized by the Borrower or(ii) in the reasonable judgment of the person seeking such indemnity, such separate counsel is advisable by reason of any actual or potential conflict of interest or by reason of separate defenses. To the same extent as the foregoing indemnity from the Borrower to the Issuer and the Underwriter, the Underwriter agrees to indemnify and hold harmless the Issuer, and each person, if any, who controls (as such term is defined in Section 15 of the 1933 Act) the Issuer, but only with reference to (a)the price and yield of the Bonds stated on the cover of the Official Statement, (b) the optional redemption dates and prices for the Bonds, (c) the last paragraph of the cover of the Official Statement, (d)the information under the heading " •- UNDERWRITING" in the Official Statement, which information has been furnished by the Underwriter specifically for use in preparation thereof- 1(e) allegations or determinations that the Underwriter itself has violated the agreement set forth in Section 3(d) hereof or the Securities1933 Act of 1933, as amended, the Securities Exchangel934 Act of 1934,. as amended, or any applicable state blue sky law in the offer or sale of the Bonds, and (f) all other information furnished in writing specifically for use therein by the Underwriter. In case any such claim shall be presented in writing or any action shall be brought against the Issuer with respect thereto, indemnity may be sought from the Underwriter on account of its agreement contained in this Section, the Underwriter shall have the rights and duties given to the Borrower in the above paragraph and the Issuer shall have the rights and duties given by the above paragraph to the persons therein referred to as controlling persons. The indemnities contained herein shall survive the Closing under the Bond Purchase Agreement and any investigation made by or on behalf of the Underwriter or any person who controls any of such parties of any matters described in or related to the transactions contemplated hereby and by the Official Statement, the Resolution, the Indenture and any Borrower Documents. The Borrower shall not be liable to indemnify any person in any settlement of any action effected without sentsufficient notice. The Borrower shall not be liable for any judgment if, as a result of the failure of the indemnified person to give notice of the commencement of a suit in respect of which indemnity shall be sought, the Borrower is not provided sufficient notice to defend such suit. Notwithstanding the provision of this Section 9 or of any other provisions of this Bond Purchase Agreement to the contrary, in the sole and exclusive discretion of the Issuer or any such controlling person of the Issuer, it is deemed desirable or necessary that the Issuer or such controlling person retain separate legal counsel in connection with any such matter, the fees and expenses of such separate legal counsel shall be included within the costs indemnified pursuant to this Section 9, and no prior approval to such separate representation and no consent by the Borrower to settlement or other disposition of such matter shall be required. 10. Covenants and Indemnifications for the Benefit of the Issuer. (a) The Issuer hereby states, and the Underwriter and the Borrower hereby acknowledge and agree, that the Issuer has not been requested to participate in the preparation of or to review the Official Statement and the Issuer has not done so and will not do so and that the Issuer has made no independent investigation of the facts and statements provided therein, and the Issuer assumes (and the Underwriter and the Borrower covenant and agree that the Issuer shall have) no liability with respect thereto, including without limitation matters relating to the accuracy, fairness, completeness, or sufficiency of the Official Statement. b) The Underwriter covenants that it will indemnify and hold harmless the Issuer and each person, if any, that controls, as such term is defined in Section 15 of the Securities1933 Act of 1933.. as amended, and Section 20 of the Securities Exchangel934 Act of 193'1, as amended, the Issuer against any and all judgments, losses, claims, damages, and/or liabilities arising or purportedly arising (i) out of any information contained in the Official Statement that has been supplied by the Underwriter that is alleged to be untrue, incomplete or incorrect in any material respect; or(ii) out of any failure or alleged failure on the part of the Underwriter to comply with its covenants provided in the following subsection(c) of this Section 10. If any such claim shall be made or action brought against the Issuer or any such controlling person, the Issuer shall promptly notify the Underwriter in writing, setting forth the particulars of such claim or action, and the Underwriter shall assume the defense thereof, including the retention of legal counsel and the payment of all expenses, liabilities, and other costs of the Issuer incident thereto or arising therefrom. If, in the sole and absolute discretion of the Issuer or any such controlling person, it is deemed desirable or necessary that the Issuer or such controlling person retain separate legal counsel in connection with any such matter, the fees and expenses of such separate legal counsel shall be included within the costs indemnified pursuant to this subsection(c), and no prior approval to such separate representation and no consent by the Underwriter to settlement or other disposition of such matter shall be required. (c) The Underwriter hereby covenants to and for the sole benefit of the Issuer that, in connection with the Underwriter's use or distribution of the Official Statement and its other activities related to the sale, other marketing or remarketing of the Bonds, the Underwriter has complied and shall comply with all applicable requirements of federal and state securities, Blue Sky, broker-dealer, antifraud, or other applicable laws, including all regulations thereunder. (d) The Borrower and the Underwriter hereby consent and agree that the Issuer's execution and delivery of this Bond Purchase Agreement, and any action taken by the Issuer hereunder and any failure or alleged failure on the part of the Issuer to abide by such terms hereof as may be applicable to the Issuer, shall not give rise to any pecuniary liability of the Issuer. (e) The issuance of the Bonds by the Issuer shall be subject to the condition that the Issuer, in its sole and absolute discretion, shall have executed and delivered the Loan Agreement and the Indenture, and nothing in this Bond Purchase Agreement shall impose or imply an obligation on the Issuer to do so. (f) The Underwriter and the Borrower acknowledge and agree that under Rule 15c2-12(b)(5) the Issuer is not an"obligated person" with respect to the Bonds, that neither the Underwriter nor the Borrower has requested the Issuer to participate in the preparation or delivery of the Continuing Disclosure Agreement respecting the Bonds, and that the Issuer shall have no responsibility or liability, and is hereby held harmless and indemnified therefrom by the Underwriter and the Borrower, from any continuing disclosure respecting the Bonds or from any insufficiency of or default under the Continuing Disclosure Agreement. (g) All indemnification of the Issuer and other agreements respecting payment of costs of the Issuer provided in this Bond Purchase Agreement shall not be subject to limitation and shall survive expiration or termination of this Bond Purchase Agreement, notwithstanding any provision herein to the contrary. 11. Notices. Any notice or other communication to be given to the Issuer or the Borrower under this Bond Purchase Agreement may be given by delivering the same in writing to the addresses set forth above, and any such notice or other communication to be given to the Underwriter may be given by delivering the same in writing to the Underwriter c/o Manager, Public Finance Department. 12. Benefit. This Bond Purchase Agreement is made solely for the benefit of the Issuer, the Borrowers and the Underwriter(including its successors or assigns), and no other person, partnership, association or corporation shall acquire or have any right hereunder or by virtue hereof. 13. Approval. The approval of the Underwriter when required hereunder or the determination of its satisfaction as to any document referred to herein shall be in writing signed by the undersigned and delivered to you. 14. Governing Law; Counterparts; Consent to Jurisdiction. This Bond Purchase Agreement shall be governed by the laws of the State and may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. The following two paragraphs concerning arbitration shall not apply to the Issuer. Any dispute or claim arising from or relating to this Bond Purchase Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules as then in force, except as modified by the specific provisions of this Bond Purchase Agreement. The law applicable to the validity of this arbitration provision, the conduct of the arbitration, including any resort to a court for provisional remedies, the enforcement of any award and any other question of arbitration law or procedure shall be the Uniform Arbitration Act, Minnesota Chapter 572. The parties agree that the Minnesota State courts and the federal courts located in the State shall have exclusive jurisdiction over an action brought to enforce the rights and obligations arising from this provision to arbitrate, and each of the parties hereto irrevocably submits to the jurisdiction of said courts. Notwithstanding the foregoing, however, application may be made by either party to any court of competent jurisdiction wherever situated for enforcement of any judgment and the entry of whatever orders are necessary for such enforcement. Process in any action arising out of or relating to this Bond Purchase Agreement may be served on either party to this Bond Purchase Agreement anywhere in the world by delivery in person against receipt or by registered or certified mail, return receipt requested. The arbitration shall be conducted before a tribunal composed of one neutral arbitrator chosen by mutual agreement of the parties or, if no such mutual selection is made, in accordance with the procedures of the Commercial Arbitration Rules. The arbitrator shall be an attorney admitted to the Bar of the State who shall have practiced for at least fifteen (15) years, and shall have significant expertise in the areas of public and housing finance. The arbitrator shall determine the rights and obligations of the parties according to the substantive laws of the State, excluding conflicts of laws principles. The arbitration award shall be based on and accompanied by a written opinion containing findings of fact and conclusions of law. The place of arbitration shall be in NUinesetathe State unless otherwise agreed by the parties or unless the arbitrator designates some other location. MILLER JOHNSON STEICHEN KINNARD,INC., as Underwriter herein specified By: Its: Signature page for the Bond Purchase Agreement among the City of Orono, Minnesota, Orono Senior Housing, LLC, Wedum Foundation and Miller Johnson Steichen Kinnard, Inc. Approved and Agreed to: THE CITY OF ORONO, MINNESOTA LLC By: Its Mayor By: Its City Clerk Signature page for the Bond Purchase Agreement among the City of Orono, Minnesota, Orono Senior Housing, LLC, Wedum Foundation and Miller Johnson Steichen Kinnard, Inc. Approved and Agreed to: ORONO WOODS- • : , .SENIO R HOUSING, LLC By: Its: Signature page for the Bond Purchase Agreement among the City of Orono, Minnesota, Orono Senior Housing, LLC, Wedum Foundation and Miller Johnson Steichen Kinnard, Inc. WEDUM FOUNDATION By: Its: Signature page for the Bond Purchase Agreement among the City of Orono, Minnesota, Orono Senior Housing, LLC, Wedum Foundation and Miller Johnson Steichen Kinnard, Inc. SCHEDULE I CITY OF ORONO, MINNESOTA SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SERIES 2001A CITY OF ORONO, MINNESOTA TAXA-SENIOR HOUSING REVENUE BONDS (ORONO WOODSPAR MENTSAPARTMENT PROJECT) TAXABLE SERIES 2001B CITY OF ORONO, MINNESOTA ` ' • SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SUBORDINATE SERIES 2001C Dated: November , 2001 [TO BE UPDATED] EXHIBIT A-1 TO THE BOND PURCHASE AGREEMENT Form of Bond Counsel Opinion [Form to be provided by Bond Counsel] EXHIBIT A-2 TO THE BOND PURCHASE AGREEMENT Form of Supplemental Opinion of Bond Counsel [To be provided by Bond Counsel) November . 2001 Miller Johnson Steichen Kinnard, Inc. Best&Flanagan LLP 5500 Wayzata Boulevard 1000 U.S. Bank Place Suite 1150 601 Second Avenue South Minneapolis, Minnesota 55116 Minneapolis, Minnesota 55102 Orono Senior Housing, LLC City of Orono, Minnesota 3191 Shorewood Drive 2750 Kelley Parkway Arden Hills, Minnesota 55112 Orono. Minnesota 55356 Re: $ CITY OF ORONO,MINNESOTA SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTS PROJECT), SERIES 2001A; $ CITY OF ORONO, MINNESOTA TAXABLE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTS PROJECT) SERIES 2001B; and $ CITY OF ORONO, MINNESOTA SUBORDINATE SENIOR HOUSING REVENUE.BONDS (ORONO WOODS APARTMENTS PROJECT) SERIES 2001C We have also examined a copy of the Official Statement dated November ,2001 - .• - - I - . .. •ger •`•: - .. . • • • " .. - • . •- - - . • - • _. - - . .. - - -. - . .. - • • ..-• .b •t•:;••: - -. . •, - .-, a - - t. . - - - - , 1. The offer and sale of the Bonds and the underlying securities, if any, are is not required to be qualified under the Trust Indenture Act of 1939, as amended. 2. The description of the Bonds.the Indenture,the Loan Agreement and the STATEMENT," THE SERIES 2001 BONDS," "SECURITY FOR THE SERIES 2001 BONDS." and "TAX EXEMPTION"in the Official Statement and in Appendix A to the • .. - - - - - - - . - . - • You may rely on our approving legal opinion referenced above as if it were addressed to you. Very truly yours, EXHIBIT B TO THE BOND PURCHASE AGREEMENT [TO BE PROVIDED BY COUNSEL TO THE BORROWER AND WEDUM] Miller Johnson Steichen Kinnard, Inc. 5500 Wayzata Boulevard Suite 1450 Minneapolis, Minnesota 55416 Best& Flanagan LLP /1000 U.S. Bank Place 601 Second Avenite225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402 aegre & Benson LLP 2200 NerwestWells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 City of Orono, Minnesota 2750 Kelley Parkway Orono, Minnesota 55356 Re: $ CITY OF ORONO, MINNESOTA SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT), SERIES 2001A; $ CITY OF ORONO, MINNESOTA TAXABLE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) TAXABLE SERIES 2001B; and $ CITY OF ORONO, MINNESOTA SUBORDINATE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SUBORDINATE SERIES 2001C Ladies and Gentlemen: We have acted as counsel to Orono Senior Housing, LLC, a Minnesota limited liability company(the"Borrower"), the sole member of which is Wedum Foundation, A Minnesota nonprofit corporation ("Wedum"), and as counsel to Wedum, in connection with the issuance of$ City of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods ApartmentsApartment Project), Series 2001A; $ City of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment Project), Taxable . _ - e . . • .. - - Series 2001B; and $ City of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods Apartment Project), Subordinate Senior Housing Revenue Bonds (Orono Woods Apartments Project), Series 2001C (collectively the "Bonds"). This opinion is being delivered to you pursuant to Section 5(d)(ii) of the Bond Purchase Agreement, dated November , 2001 (the "Bond Purchase Agreement"), betweenby and among Miller Johnson Steichen Kinnard, Inc. (the "Underwriter"), the Borrower, Wedum and the City of Orono, Minnesota(the "Issuer"). All terms used with initial capital letters but not defined herein have the meanings assigned to them in the Bond Purchase Agreement. We have examined the following documents: (1)the Bond Purchase Agreement; (2)the Trust Indenture of Trust, dated as of November 1, 2001 (the "Indenture"), between the Issuer and U.S. Bank Trust National Association, as Trustee (the "Trustee"); (3)the Loan Agreement, dated as of November 1, 2001 (the "Loan Agreement"), between the Issuer and the Borrower; (4) the Combination Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents,dated as of November 1, 2041-2001, between the Issuer and the Borrower and assigned by the Issuer to the Trustee (the "Mortgage"); (5)the Subordinate Combination Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents, dated as of November 1, 2001, between the Issuer and the Borrower and assigned by the Issuer to the Trustee (the "Subordinate Mortgage"); (6)the Development Agreement, dated as of November 1, 2001, between the Borrower and (the "Development Agreement"); (7)the Real Estate Purchase Contract,dated as of November 1, 2001 , 2001, (the "Purchase Contract")between Union Land LLC (the "Seller") and the Borrower as purchaser; (68)the Property Management Agreement,dated as of November 1, 2001 (the "Management Agreement"),between Great Lakes Management Company and the Borrower; (79) the Disbursing Agreement,dated as of November 1, 2001 (the "Disbursing Agreement"), between the Borrower and the Trustee and the title company named therein; (810) the Ground Lease,dated as of November 1, 2001 (the "Ground Lease"),between the Issuer and the Borrower; and (9l 1) certificates and affidavits of representatives of the Issuer, the Borrower, Wedum and other public officials. We have also reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. For purposes of this opinion, "Documents" means the documents listed in(1)through(810) above. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Borrower or Wedum,that such parties had the requisite power and authority(corporate or otherwise)to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action(corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon the representations made in the Bond Purchase Agreement and the Loan Agreement and upon certificates of officers of the Borrower, Wedum, the Issuer and of other public officials (including, without limitation, those certificates delivered to others at the Closing). Our opinions expressed below as to certain factual matters are qualified as being limited "to our knowledge" or by other words to the same or similar effect. Such words, as used herein, mean the information known to the attorneys who have represented the Borrower and Wedum in connection with the transactions contemplated by the Bond Purchase Agreement and the Loan Agreement. In rendering such opinions, we have conducted no review of documents in our files relating to any other matters in which this Firm has represented the Borrower and Wedum. Based on the foregoing, we are of the opinion that: 1. The Borrower, of which Wedum is the sole member, is validly existing as a limited liability company under the laws of the State of Minnesota(the "State") and is qualified to do business in liesethe State. 2. Wedum is validly existing as a nonprofit corporation under the laws of the State of inne`ota and is qualified to do business in Minnesetathe State. 3. Wedum is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and is exempt from federal income taxation under Section 501(a) of the Code. To the best of our knowledge, after reasonable investigation consisting of interviews with officers of Wedum most likely to have relevant information, Wedum has not declared and has not been determined to have any"unrelated business taxable income" as defined in Section 512 of the Code arising out of the ownership, use or operation of the property to be financed or refinanced with the Bonds and Wedum has no "unrelated business taxable income" from any source which could have a material adverse effect on its status as an organization described in Section 501(c)(3) of the Code or its exemption from federal income taxation under Section 501(a) of the Code or which, if such income were subject to federal income taxation, would have a material adverse effect on the combined condition, financial or otherwise, of Wedum. 4. The proposed use of the Project by the Borrower will not constitute an "unrelated trade or business"or"private business use" within the meaning of Sections 145(a)(2) and 141(b) of the Code. Wedum is the sole member and owner of the Borrower. The Borrower is not classified as a corporation under Section 301.7701-2 of the Treasury Regulations, and has not elected to be taxed as a corporation under Section 301.7701-3 of the Treasury Regulations. Therefore, under Section 7701 of the Code, the Borrower is disregarded as an entity separate from Wedum. The Borrower will be the exclusive owner of the Project for state law purposes and pursuant to Treasury Regulations under Section 7701 the Project will be treated as being owned by Wedum for all federal income tax purposes including for purposes of Section 145 of the Code. Neither the execution of the Documents by the Borrower and Wedum nor the ownership and operation of the Project as contemplated in the Documents will jeopardize Wedum's status as an organization described in Section 501(c)(3) of the Code. 5. The Borrower hasand Wedum have full power and authority to execute, deliver and perform i-tstheir respective obligations under each of the Documents to which iteach is a party and to own itstheir property and conduct itstheir businessbusinesses as presently conducted and as described in the Official Statement. 6. Each of the Documents to which each of the Borrower or Wedum is a party has been duly authorized by all requisite corporate action of the Borrower and Wedum and has been executed and delivered by the Borrower. 7. Each of the Documents to which each of the Borrower or Wedum is a party constitutes the valid and binding obligation of the Borrower and Wedum enforceable in accordance with its terms. 8. The execution and delivery of the Documents will not violate or conflict with the Articles of Organization or Operating Agreement of the Borrower or the Articles of Incorporation or Bylaws of Wedum or any organizational document or proceeding organizing or establishing the Borrower or Wedum or any agreement or instrument known to us to which the Borrower or Wedum is a party or by which the Borrower or Wedum is bound. 9. The execution and delivery of the Documents and the sale and issuance of the Bonds will not, to our knowledge, violate any rule or regulation applicable to the Borrower or Wedum, of any governmental authority or regulatory body of the United States or the State of Minnesota, or any judgment, order or decree known to us and applicable to the Borrower or Wedum of any court, governmental authority or arbitrator (except for federal and state securities laws and antitrust laws, as to which we express no opinion). 10. To our knowledge, no consent, approval, authorization or order of, and no notice to or filing with, any governmental agency or body or any court is required to be obtained or made by the Borrower for the sale and issuance of the Bonds pursuant to the Bond Purchase Agreement, except such as have been obtained or made and such as may be required under state securities or blue sky laws. 11. We know of no pending or overtly threatened lawsuits or claims against the Borrower or Wedum with respect to the issuance and sale of the Bonds pursuant to the Bond Purchase Agreement or which would adversely affect(i) the validity of or security for the Bonds, the Indenture or any of the Documents or(ii) the ability of the Borrower and Wedum to own and operate the Project. 12. We have not verified the information contained in the Official Statement, dated November_, 2001, relating to the Bonds (including any preliminary Official Statement,the "Official Statement"), or in the Appendices thereto, and we do not assume any responsibility for the accuracy, completeness or fairness of any statements contained in the Official Statement or the Appendices thereto and we make no representation that we have independently verified the accuracy, completeness or fairness of such statements. Based upon our experience as counsel to the Borrower and Wedum and participation in the preparation of the Official Statement, however, nothing has come to our attention that would cause us to believe that the descriptions of the Management Agreement and the information contained in the Official Statement under the captions "THE BORROWER AND THE SPONSOR," "ESTIMATED SOURCES AND USES OF FUNDS," "INTRODUCTORY STATEMENT," "BONDHOLDER'S RISKS," "FINANCIAL STATEMENTS," "CONTINUING DISCLOSURE" and"LITIGATION (as it relates to the Borrower and Wedum)" and in Appendix B (except with respect to the financial statements and other financial and statistical data included therein, as to which we make no comment) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. 13. The distribution of the Official Statement has been duly approved by the Borrower and the Borrower has duly executed and delivered the Official Statement. Such approval, execution and delivery were duly authorized. The opinions set forth above are subject to the following qualifications and exceptions: (a) Our opinions in paragraph 7 above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar law of general application affecting creditors' or secured creditors' rights, or the enforcement of creditors' or secured creditors' rights against public corporations or instrumentalities thereof. (b) Our opinions in paragraph 7 above are subject to the effect of general principles of equity, including (without limitation) concepts of materiality, reasonableness, good faith and fair dealing, and other similar doctrines affecting the enforceability of agreements generally(regardless of whether considered in a proceeding in equity or at law). (c) Our opinions in paragraph 7 above are subject to possible judicial action giving effect to governmental actions or foreign laws affecting creditors' rights. (d) Our opinions in paragraph 7 above, insofar as they relate to indemnification provisions, are subject to the effect of federal and state securities laws and public policy relating thereto. Our opinions expressed above are limited to the law of the Statc:JState of Minnesota and Arkansas and the federal laws of the United States of America. We hereby consent to the reference to this letter on the cover of, and under "LEGAL MATTERS" and"ENFORCABILITY OF OBLIGATIONS" in, the Official Statement. The foregoing opinions are being furnished to you solely for your benefit and may not be relied upon by, nor may copies be delivered to, any other person without our prior written consent. Dated: November , 2001. Very truly yours, EXHI BIT C TO THE BOND PURCHASE AGREEMENT [TO BE PROVIDED BY COUNSEL TO THE UNDERWRITER] November , 2001 Miller Johnson Steichen Kinnard, Inc. City of Orono, Minnesota 5500 Wayzata Boulevard 2750 Kelley Parkway Suite 1450 Orono, Minnesota 55356 Minneapolis, Minnesota 55416 Re: $ CITY OF ORONO, MINNESOTA SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT), SERIES 2001A; $ CITY OF ORONO, MINNESOTA TAXABLE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APARTMENTSAPARTMENT PROJECT) SERIES 2001B; and $ CITY OF ORONO, MINNESOTA SUBORDINATE SENIOR HOUSING REVENUE BONDS (ORONO WOODS APAR'TMENI'SAPARTMENT PROJECT) SERIES 2001C Ladies and Gentlemen: We have acted as counsel to Miller Johnson Steichen Kinnard, Inc. (the "Underwriter") in connection with that certain Official Statement, dated November_, 2001 (the "Official Statement"), and that certain Bond Purchase Agreement,dated November , 2001 (the "Bond Purchase Agreement"),relating to the issuance and sale by the City of Orono, Minnesota(the "Issuer") of its $ City of Orono, Minnesota Senior Housing Revenue Bonds (Orono Woods ApartmentsApartment Project), Series 2001A; $ City of Orono, Minnesota Taxable Senior Housing Revenue Bonds (Orono Woods ApartmentsApartment Project), Series 2001B; and $ City of Orono, Minnesota Subordinate Senior Housing Revenue Bonds (Orono Woods ApartmentsApartment Project), Series 2001C (collectively the "Bonds"), and the purchase thereof by the Underwriter pursuant to the Bond Purchase Agreement. Capitalized terms defined in the Bond Purchase Agreement, and not otherwise defined herein, are used in this opinion with the meanings assigned to them in the Bond Purchase Agreement. We have examined executed counterparts of the Bond Purchase Agreement, the Indenture, the Loan Agreement, the Continuing Disclosure Agreement, the Mortgage, the Subordinate Mortgage, the Mortgage Assignment, the Management Agreement,the Disbursing Agreement, and the Resolution adopted by the Issuer on October 23, 2001 authorizing, among other things, the issuance and sale of the Bonds. We have also examined the originals, or copies, certified or otherwise identified to our satisfaction, of such other documents, certificates of public officials and other persons, and other materials as we have deemed necessary or advisable for purposes of this opinion, including documents relating to the authorization, execution and delivery of the Bond Purchase Agreement and the other above-mentioned documents. As to various matters of fact material to such opinion, we have, when such facts were not independently established, relied to the extent we deem such reliance proper on certificates of the Issuer, the Borrower, Wedum and public officials. We have assumed that all signatures on executed documents are genuine, that all certified copies conform to the originals, and that all certificates containing relevant facts are correct. We do not express any opinion herein concerning any law other than the laws of the State of Minnesota and the federal laws of the United States of America. We have participated in conferences at which the Official Statement was discussed. We have generally reviewed and discussed with the Underwriter, Bond Counsel, the Borrower and Wedum(or their respective counsel) the information and statements contained in the Official Statement, but we have not independently investigated or verified the accuracy or completeness of the statements and information contained in the Official Statement. As to the matters discussed in the Official Statement under the captions "INTRODUCTORY STATEMENT" " THE SERIES 2001 BONDS," "SECURITY FOR THE SERIES 2001 BONDS," "TAX EXE. 4PTIONMATTERS," and Appendix A - "DEFINITIONS OF CERTAIN TERMS AND SUMMARIES OF PRINCIPAL DOCUMENTS" (except as to that portion of Appendix A relating to the Continuing Disclosure Agreement), we have relied on an opinion, dated the date hereof, of Faegre & Benson LLP, Minneapolis, Minnesota, Bond Counsel, and the certificates referred to above as to the accuracy of the statements contained therein. As to matters discussed in the Official Statement under the captions "THE BORROWER AND THE SPONSOR," "INTRODUCTORY STATEMENT," "BONDHOLDER'S RISKS," "FINANCIAL STATEMENTS,""CONTINUING DISCLOSURE," "ESTIMATED SOURCES AND USES OF FUNDS," "LITIGATION" and in Appendix B we have relied on an opinion, dated the date hereof, of Christoffel & Elliott, P.A., St. Paul, Minnesota, counsel to the Borrower and Wedum and the certificates referred to above as to the accuracy of the statements contained therein. Based on the foregoing, nothing has come to our attention which would lead us to believe that the Official Statement(except with respect to any financial or statistical data or forecasts, and information about DTC contained in or omitted from the Official Statement on which we express no opinion) contains any untrue statement of material fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. This opinion is furnished solely for the benefit of the Underwriter and the Issuer and it may not be relied upon, used, circulated, quoted or otherwise referred to by any other person without our prior written consent. Very truly yours, 015477/202793/168432_12