4836-6408-6199v14/024036-0079
INDENTURE OF TRUST
by and between
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
Dated as of ___________ 1, 2022
$_______________________
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
(CHULA VISTA BAYFRONT CONVENTION CENTER)
SERIES 2022A (FEDERALLY TAXABLE)
$_______________________
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
(CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2022B (TAX-EXEMPT)
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.1 Definitions .................................................................................................................. 3 Section 1.2 Rules of Construction............................................................................................... 19 Section 1.3 Authorization and Purpose of Bonds ....................................................................... 19 Section 1.4 Equal Security .......................................................................................................... 20 Section 1.5 Special Obligations .................................................................................................. 20 Section 1.6 Validity of Bonds ..................................................................................................... 20
ARTICLE II
ISSUANCE OF BONDS
Section 2.1 Terms of Bonds ........................................................................................................ 21 Section 2.2 Redemption of Bonds............................................................................................... 22 Section 2.3 Form of Bonds ......................................................................................................... 25 Section 2.4 Execution of Bonds .................................................................................................. 25 Section 2.5 Transfer of Bonds..................................................................................................... 26 Section 2.6 Exchange of Bonds .................................................................................................. 26 Section 2.7 Temporary Bonds ..................................................................................................... 26 Section 2.8 Bond Register ........................................................................................................... 26 Section 2.9 Bonds Mutilated, Lost, Destroyed or Stolen ............................................................ 27 Section 2.10 Book-Entry System .................................................................................................. 27
ARTICLE III
DEPOSIT AND APPLICATION OF PROCEEDS
Section 3.1 Issuance of 2022 Bonds ........................................................................................... 29 Section 3.2 Application of Proceeds of Sale of 2022 Bonds and Other Funds ........................... 29 Section 3.3 Revenue Fund .......................................................................................................... 30 Section 3.4 Costs of Issuance Fund ............................................................................................ 30 Section 3.5 Establishment of Additional Funds and Accounts ................................................... 30 Section 3.6 Reserve Fund ........................................................................................................... 30 Section 3.7 Rebate Fund ............................................................................................................. 31 Section 3.8 Authority Surplus Fund ............................................................................................ 31 Section 3.9 Administrative Expense Fund .................................................................................. 31 Section 3.10 Construction Fund .................................................................................................... 31 Section 3.11 Insurance and Condemnation Fund .......................................................................... 33 Section 3.12 Redemption Fund ..................................................................................................... 33
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ARTICLE IV
PLEDGE OF REVENUES AND FUNDS; FLOW OF FUNDS
Section 4.1 Pledge of Revenues and Funds; Assignment of Rights ........................................... 33 Section 4.2 Receipt, Deposit and Application of Revenues; Revenue Fund .............................. 34 Section 4.3 Reserve Fund ........................................................................................................... 37 Section 4.4 Authority Surplus Fund ............................................................................................ 38 Section 4.5 Insurance and Condemnation Fund .......................................................................... 38 Section 4.6 Redemption Fund ..................................................................................................... 40 Section 4.7 Investments .............................................................................................................. 40 Section 4.8 Valuation of Permitted Investments ......................................................................... 41 Section 4.9 Purchase of Bonds .................................................................................................... 41
ARTICLE V
COVENANTS OF THE AUTHORITY
Section 5.1 Punctual Payment ..................................................................................................... 41 Section 5.2 Extension of Payment of Bonds ............................................................................... 41 Section 5.3 Against Encumbrances ............................................................................................. 41 Section 5.4 Power to Issue Bonds and Make Pledge and Assignment ....................................... 42 Section 5.5 Accounting Records and Financial Statements ........................................................ 42 Section 5.6 Conditions to Issuance of Additional Bonds and Other Obligations ....................... 42 Section 5.7 Tax Covenants ......................................................................................................... 43 Section 5.8 Rebate Fund ............................................................................................................. 44 Section 5.9 Local Obligations ..................................................................................................... 46 Section 5.10 Continuing Disclosure Certificates .......................................................................... 46 Section 5.11 Further Assurances ................................................................................................... 47 Section 5.12 Pledged Revenues .................................................................................................... 47
ARTICLE VI
THE TRUSTEE AND ADMINISTRATIVE AGENT
Section 6.1 Appointment of Trustee ........................................................................................... 47 Section 6.2 Acceptance of Trusts ................................................................................................ 48 Section 6.3 Funds and Accounts ................................................................................................. 51 Section 6.4 Fees, Charges and Expenses of Trustee ................................................................... 51 Section 6.5 Notice to Bond Owners of Default .......................................................................... 51 Section 6.6 Intervention by Trustee ............................................................................................ 51 Section 6.7 Removal of Trustee .................................................................................................. 51 Section 6.8 Resignation by Trustee............................................................................................. 51 Section 6.9 Appointment of Successor Trustee .......................................................................... 52 Section 6.10 Merger or Consolidation .......................................................................................... 52 Section 6.11 Concerning any Successor Trustee .......................................................................... 52 Section 6.12 Appointment of Co-Trustee ..................................................................................... 52
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Section 6.13 Indemnification; Limited Liability of Trustee ......................................................... 53 Section 6.14 The Administrative Agent ........................................................................................ 53
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE AND RELATED DOCUMENTS Section 7.1 Amendment Hereof .................................................................................................. 54 Section 7.2 Effect of Supplemental Indenture ............................................................................ 55 Section 7.3 Endorsement or Replacement of Bonds After Amendment ..................................... 55 Section 7.4 Amendment by Mutual Consent .............................................................................. 56
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section 8.1 Events of Default ..................................................................................................... 56 Section 8.2 Remedies; Rights of Bond Owners .......................................................................... 57 Section 8.3 Application of Revenues and Other Funds After Event of Default ......................... 57 Section 8.4 Power of Trustee to Control Proceedings ................................................................ 58 Section 8.5 Appointment of Receivers ....................................................................................... 59 Section 8.6 Non Waiver .............................................................................................................. 59 Section 8.7 Rights and Remedies of Bond Owners .................................................................... 59 Section 8.8 Termination of Proceedings ..................................................................................... 60
ARTICLE IX
MISCELLANEOUS
Section 9.1 Limited Liability of Authority ................................................................................. 60 Section 9.2 Benefits of Indenture Limited to Parties .................................................................. 60 Section 9.3 Discharge of Indenture ............................................................................................. 60 Section 9.4 Successor is Deemed Included in All References to Predecessor ............................ 61 Section 9.5 Content of Certificates ............................................................................................. 61 Section 9.6 Execution of Documents by Bond Owners .............................................................. 62 Section 9.7 Disqualified Bonds ................................................................................................... 62 Section 9.8 Waiver of Personal Liability .................................................................................... 63 Section 9.9 Entire Agreement; Partial Invalidity ........................................................................ 63 Section 9.10 Destruction of Cancelled Bonds .............................................................................. 63 Section 9.11 Notices ..................................................................................................................... 63 Section 9.12 Unclaimed Moneys .................................................................................................. 65 Section 9.13 Payment Due on Other than a Business Day ........................................................... 65 Section 9.14 Governing Law ........................................................................................................ 65
Signatures ................................................................................................................................ S-1
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Exhibit A Form of Bonds ....................................................................................................... A-1 Exhibit B Form of Requisition from Construction Fund ........................................................ B-1 Exhibit C Form of Investor Letter .......................................................................................... C-1 Exhibit D Schedule of Administrative Agent Fees ................................................................. D-1 Exhibit E Schedule for Deposits of Advances to Funds and Accounts.................................. E-1 Exhibit F Form of RIDA Requisition from Public Entity Contribution Subaccount ............. F-1
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST (this “Indenture”), dated as of ________ 1, 2022, by and between the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California and that certain Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019, b y and between the City of Chula Vista , a chartered city organized and existing under the laws of the State of California (the “City”) and the San Diego Unified Port District, a public corporation (the “ Port District”) (the “Authority”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America , as trustee (the “Trustee”);
RECITALS:
WHEREAS, the Authority is a joint exercise of powers authority duly organized and existing under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”), and is authorized pursuant to Article 4 of the Act to borrow money for the purp ose of financing the acquisition of bonds, notes and other obligations to provide financing and refinancing for capital improvements of member entities of the Authority and other local agencies; and WHEREAS, the Authority, the Port District and the City ha ve determined it to be beneficial, for the Authority to acquire a leasehold interest in certain real property (the “Site”) described in the Site Lease of even date herewith and being entered into concurrently with the execution of this Indenture (as it may be amended from time to time in accordance with the terms thereof and hereof, the “Site Lease”) by and between the Authority and the Port District upon which the Convention Center (as defined in the Site Lease) to be owned by the Authority will be constru cted and operated; and
WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns, “RIDA”) holds a leasehold interest in certain real property which is immediately adjacent to the Site described in and pursuant to a Lease, of even date herewith and being entered into concurrently with the execution of this Indenture (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and between the Por t District, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and WHEREAS, given the proximity of the proposed Hotel to the Site, the Authority, the Port District and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the Authority and operate the Convention Center; and WHEREAS, the Port District and the City have agreed to cause the Authority to pay for a portion of the costs of the Convention Center and for the costs of certain infrastructure benefiting the Hotel and Convention Center, and a portion of such costs will be financed by the Authority through the issuance of the Bonds (defined herein) and certain other funds to be deposited with the Trustee as described herein; and
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WHEREAS, concurrently with the execution of this Indenture, the Authority and the City have entered into that certain Facility Lease of even date herewith (as it may be amended , amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Facility Lease”) pursuant to which the Authority has sub leased the Site and leased the Convention Center (together, the “Facility”) to the City; and
WHEREAS, concurrently with the execution of this Indenture, the City and RIDA have entered into that certain Sublease Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in a ccordance with the terms thereof and hereof , and, together with any New Sublease (as defined therein), the “Sublease”), pursuant to which the City has sub-subleased the Site and subleased the Convention Center to RIDA; and
WHEREAS, concurrently with the execution of this Indenture, the City, the Port District, the Financing District (defined below), the Authority and RIDA have entered into that certain Project Implementation Agreement (Chula Vista Bayfront Resort Hotel and Convention Center) of even date herewith (as it may be amended , amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Project Implementation Agreement”) pursuant to which RIDA has agreed to construct the Convention Center and certain other public improvements described below; and
WHEREAS, the City caused the formation of the Bayfront Project Special Tax Finan cing District (the “ Financing District”) pursuant to Chapter 3.61 of the Chula Vista Municipal Code (“Chapter 3.61”); and
WHEREAS, the Financing District is authorized to levy Special Taxes (defined herein) on certain properties within its boundaries; and
WHEREAS, concurrently with the execution of this Indenture , the Authority and the Financing District have entered into that certain Loan Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof , the “Loan Agreement”) pursuant to which the Authority will loan certain of the proceeds of the Bonds to the Financing District for the construction of the Convention Center and certain public infrastructure benefiting the Chula Vista Bayfront, defined in the Project Implementation Agreement as the “Phase 1A Infrastru cture Improvements” and the Financing District will make Loan Payments (defined in the Loan Agreement) to the Authority in the amounts and at the times set forth in the Loan Agreement; and WHEREAS, concurrently with the execution of this Indenture, the Port District and the Authority have entered into that certain Supp ort Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with terms thereof and hereof , the “Support Agreement”), pursuant to which the Port District will make certain Port District Payments (as defined in the Support Agreement) to the Authority in the amounts and at the times set forth in the Support Agreement; and WHEREAS, to assist in the financing of the Convention Center and the Phase 1A Infrastructure Improvements (together and as further defined herein, the “Project”), the Authority has determined to issue (i) its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) (the “ 2022A Bonds”),
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in the initial aggregate principal amount of $_________ to finance a portion of the cost of constructing the Convention Center , and (ii) its Chula Vista Bayfront Facilities Financi ng Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements ) Series 2022B (Tax- Exempt) (the “2022B Bonds”; and, together with the 2022A Bonds, the “2022 Bonds”) in the initial aggregate principal amount of $_________ to finance a portion of the costs of the Phase 1A Infrastructure Improvements; and
WHEREAS, payment of the principal of, redemption premium, if any, and interest on the Bonds will be secured by a first lien on and pledge of the Revenues (as defined herein); and WHEREAS, the Bonds will be issued pursuant to and secured by this Indenture in the manner provided herein; and
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and to secure the payment of the principal of, redemption premium, if any, and interest thereon, the Authority has authorized the execution and delivery of this Indenture pursuant to Resolution No. 2021-001 adopted by the governing body of the Authority on June 28, 2021; and WHEREAS, the Authority hereby certifies that all acts and proceedings required by law necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the Trustee and duly issued, the valid, b inding and legal special and limited obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and deliv ery of this Indenture have been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of , redemption premium, if any, and the interest on all Bonds at any time issued and Outstanding (defined below) under this Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners (defined below) thereof, and for other valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the Authority and the Trustee do hereby covenant and agree, for the benefit of the respective Owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.1 Definitions. The terms defined in this Section shall for all purposes of this Indenture and of any Supplemental Indenture and of the Bonds and of any certificate, opinion, request or other documents herein mentione d have the meanings specified in this Section 1.1. Any capitalized term not defined herein shall have the meaning set forth in the Facility Lease. “Act” means Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the Government Code of the State, as it may hereafter be amended from time to time.
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“Additional Bonds” means additional bonds issued pursuant to Section 5.6 and secured on a parity with the Bonds.
“Additional Administrative Expenses ” means (i) any third party cos ts and expenses paid or incurred by the City in order to comply with its covenants and agreements in the Facility Lease which are not paid for by RIDA pursuant to the terms of the Sublease , other than (A) amounts payable by the City under Section 2.1(e) of the Facility Lease, and (B) amounts paid as Priority Administrative Expenses; (ii) any third party costs and expenses paid or incurred by the JEPA , the Port District or City in carrying out the duties of the JEPA under the Facility Lease and Sublease on behalf of the JEPA other than amounts paid as Priority Administrative Expenses ; (iii) any third party costs and expenses paid or incurred by the Port District in order to comply with its covenants and agreements in the Site Lease which are not paid for by RIDA, other than amounts payable by the Port District under the Site Lease arising from the Port District’s sole negligence, willful misconduct or breach of the Port District’s obligations thereunder, and amounts paid as Priority Administrative Expenses; and (iv) amounts payable to the Administrative Agent pursuant to the terms of the Bond Purchase Agreement other than Administrative Fees payable from the Fee Reserve Account. “Administrative Agent” means JPMorgan Chase Bank, N ational Association, in its capacity as administrative agent for the Owners of the 2022 Bonds in accordance with the Bond Purchase Agreement and any successor thereto appointed in accordance with Section 8.05 of the Bond Purchase Agreement.
“Administrative Expense Fund ” means the fund by that name established pursuant to Section 3.9 hereof.
“Advance” means an advance extended by a Purchaser under the terms of the Bond Purchase Agreement with respect to the purchase of 2022 A Bonds. “Advances” refers to all such advances made by the Purchasers.
“Annual Debt Service” means, for each Bond Year, the sum of (a) the interest payable on the Outstanding Bonds in such Bond Year, and (b) the principal amount of the Outstanding Bonds scheduled to be paid in such Bond Year, whether at maturity or from sinking fund payments. “Annual Recurring Fees” means (i) annual premiums payable by the Authority for any crime insurance and errors and omissions insurance, (ii) annual fees due to the California Debt and Investment Advisory Commission, (iii) fees and expenses incurred to comply with the terms of any Continuing Disclosure Certificate, and (iv) fees and expenses incurred to prepare the annual audit of the Authority.
“Arranger” means with respect to the 2022 Bonds, JPMorgan Chase Bank, National Association, in its capacity as arranger under the Bond Purchase Agreement. “Assigned Rights” means (a) with respect to the 2022 Bonds, so long as the 2022 Bonds are Outstanding, (i) all right, title and interest of the Authority in and to the Facility Lease, including, without limitation, all Lease Payments, Pre -Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance payable under the Facility Lease and the Authority’s right to enforce the obligations of the City with respect to the Lease Revenues (as defined in the Facility Lease), Lease Payments, Pre -Completion Lease Payments, Net Proceeds, and rental interruption and title insura nce under Article IX of the Facility Lease, (ii) all right, title and
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interest of the Authority in and to the Site Lease, including, without limitation, the Authority’s right to enforce the terms of the Site Lease to the extent necessary to ensure the coll ection of Lease Payments, Pre -Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance in accordance with the terms of the Facility Lease, (iii) all right, title and interest of the Authority in and to the P roject Implementation Agreement, including, without limitation, all Construction Late Charges and the Authority’s right to enforce the terms of the Project Implementation Agreement to the extent necessary to ensure (A) the collection of Construction Late Charges and (B) Completion of the RHCC Project; (iv) all right, title and interest of the Authority under the Loan Agreement, including, without limitation, all Scheduled Payments and other amounts payable by the District thereunder and the Authority’s righ t to enforce the obligations of the District thereunder; and (v) all right, title and interest of the Authority in and to the Support Agreement, including, without limitation, all Port District Payments thereunder and the Authority’s right to enforce the obligations of the Port District thereunder; provided, however, the 2022 Bonds Assigned Rights do not include (x) any of the obligations of the Authority under the Site Lease, the Facility Lease, the Project Implementation Agreement, the Loan Agreement or t he Support Agreement, (y) any Reserved Rights or (z) any right of the Authority to amend or waive, or agree to any amendment to or waiver of any provision of the Facility Lease, the Site Lease, the Project Implementation Agreement, the Loan Agreement or the Support Agreement, provided any such amendment or waiver would not reasonably be expected to have a Material Adverse Effect (as defined in the Bond Purchase Agreement); and (b) with respect to any Additional Bonds; (i) all right, title and interest of the Authority in and to the Lease Payments, Pre -Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance payable under the Facility Lease, (ii) the Authority’s right to enforce the obligations of the City with respect to the Lease Revenues (as defined in the Facility Lease) , Lease Payments, Pre -Completion Lease Payments, Net Proceeds, and rental interruption and title insurance under Article IX of the Facility Lease, (iii) the Authority’s right to enforce the t erms of the Site Lease to the extent necessary to ensure the collection of Lease Payments, Pre -Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance in accordance with the terms of the Facility Lease, (iv) all right, title and interest of the Authority in and to the Construction Late Charges and the Authority’s right to enforce the terms of the Project Implementation Agreement to the extent necessary to ensure the collection of Construction Late Charges; (v) the rights assigned to the Trustee in Section 3.6 of the Loan Agreement; and (vi) all right, title and interest of the Authority in and to the Port District Payments under the Support Agreement and the Authority’s right to enforce the obligations of the Port District with respect to the Port District Payments; provided, however, the Assigned Rights do not include any of the obligations of the A uthority under the Site Lease, the Facility Lease , the Project Implementation Agreement, the Loan Agreement or the Support Agreement, or any Reserved Rights. “Authority” means the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers agency existing pursuant to the laws of the State and that certain Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019, by and between the City and the Port District, as the same may be amended, amended and restated or otherwise supplemented from time to time.
“Authority Surplus Fund ” means the fund by that name established pursuan t to Section 3.8 hereof.
“Authority Existing Revenues Account” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2 hereof.
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“Authorized Denominations” means a principal amount of $100,000 or any integral multi ple of $5,000 in excess of $100,000.
“Authorized Officer” means the Executive Director of the Authority (or his or her designated representative) or Treasurer of the Authority (or his or her designated representative) or any other Person authorized by the Authority to perform an act or sign a document on behalf of the Authority for purposes of this Indenture.
“Available Sources of Funds ” has the meaning given such term in the Bond Purchase Agreement.
“Beneficial Owners ” means the actual purchasers of any Bonds whose ownership interests are recorded on the books of the DTC Participants.
“Bond Counsel” means any attorney at law or firm of attorneys selected by the Authority, of nationally recognized standing in matters pertaining to the exclusion from gross income for federal income tax purposes of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America. “Bond Law” means the Marks -Roos Local Bond Po oling Act of 1985, constituting Article 4 of the Act (commencing with Section 6584), as it may hereafter be amended from time to time. “Bond Purchase Agreement” means the Bond Purchase and Continuing Covenant Agreement dated _____, 2022, by and among the Authority, the Administrative Agent and each Purchaser party thereto, as originally executed or as it may from time to time be amended or supplemented in accordance with its terms.
“Bond Purchase Agreement Event of Default ” means an Event of Default as such term is defined in Section 7.01 of the Bond Purchase Agreement. “Bond Register ” means the registration books for the Bonds maintained by the Trustee in accordance with Section 2.8 hereof.
“Bond Year” means each twelve month period extending from June 2 in one calendar year to June 1 of the succeeding calendar year, except in the case of the initial Bond Year which shall be the period from the Closing Date of the Bonds to June 1, 2022, both dates inclusive. “Bonds” means, collectively, the 2022 Bonds and any Additional Bonds authorized by and at any time Outstanding pursuant to the Bond Law and this Indenture. “Business Day” means a day which is not a Saturday or Sunday or a day of the year on which the New York Stock Exchange , the Federal Reserv e System, or banks or trust companies in New York, New York , Wilmington, Delaware, Los Angeles, California, or where the Trust Office is located, are not required or authorized by law, regulation or executive order to remain closed. “Certificate of the Aut hority” means a certificate in writing signed by an Authorized Officer of the Authority.
“Certificate that the Project Is In Balance” means a certificate of the Administrative Agent to be delivered in accordance with Section 8.08 of the Bond Purchase Agreement.
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“Chapter 3.61 ” means Chapter 3.61 of the Chula Vista Municipal Code as amended from time to time.
“City” means the City of Chula Vista, a chartered city organized and existing under the laws of the State of California.
“Closing Date” means for each Series the date on which any Bonds of such Series are first executed and delivered to the Original Purchaser thereof. “Code” means the Internal Revenue Code of 1986, as amended, and the United States Treasury Regulations proposed or in effect with respect thereto. “Complete” has the meaning given such term in the Project Implementation Agreement. “Construction Fund ” means the fund by that name established pursuant to Section 3.10 hereof which shall include a 2022A Account and a 2022B Account therein. “Construction Late Charges ” means amounts paid by RIDA to the Trustee pursuant to Section 5.1.2 of the Project Implementation Agreement.
“Continuing Disclosure Certificate ” means, with respect a Series of Additional Bonds, any continuing disclosure undertaking executed in connection therewith, each as originally executed and as it may be amended from time to time in accordance with its respective terms. “Convention Center” has the meaning set forth in the foregoing Recitals. “Convention Center Costs ” means the Convention Center Contract Sum (as defined in the Project Implementation Agreement), and all interest to be paid to RIDA pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Project Implementation Agreement. “Costs of Issuance ” means the costs and expense s incurred in connection with the issuance and sale of the Bonds and the Local Obligations, including the acceptance and initial annual fees and expenses (including legal fees and expenses) of the Trustee, legal fees of the Authority, including Bond Counsel to the Authority and Disclosure Counsel (if one has been retained in connection with the issuance of Additional Bonds), legal fees of the Administrative Agent, costs of printing the Bonds and the preliminary and final Official Statements (if prepared in connection with the issuance of Additional Bonds), fees of financial consultants, rating fees, if any, payable as of the Closing Date, title insurance premiums, fees payable to the Arranger, the Administrative Agent and the Purchasers as of the Closing Dat e, fees of any underwriter for any Additional Bonds, and other fees and expenses related to the issuance and sale of the Bonds and the Local Obligations set forth in a Request of the Authority.
“Costs of Issuance Fund” means the fund by that name establish ed in Section 3.4 which shall include a 2022A Account and a 2022B Account therein.
“County Funded Developer’s Phase 1A Subaccount ” means the account by that name established in Section 3.10.
“CV Bayfront Finance Authority Fund ” means the fund of that name established and maintained by the Authority pursuant to the Revenue Sharing Agreement.
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“Default Rate” means with respect to the 2022A Bonds and the 2022B Bonds, respectively, the sum of (i) the interest rate initially established for such Series of Bonds pursuant to Section 2.1 hereof, plus (ii) 3.0% per annum.
“Depository” means DTC or another recognized securities depository selected by the Authority which maintains a book-entry system for the Bonds. “Determination of Taxability” has the meaning set forth in the Bond Purchase Agreement. “Developer’s Phase 1A Contract Sum ” has the meaning set forth in the Project Implementation Agreement.
“DTC” means The Depository Trust Company, New York, New York, and its successors and assigns.
“DTC Participants ” me ans securities brokers and dealers, banks, trust companies, clearing corporations and other organizations maintaining accounts with DTC. “Existing Revenues” means all Pre -Completion Lease Payments, Real Estate Revenues and Loan Payments received on and prior to June 1, 2026.
“Event of Default” means any of the events described in Section 8.1 hereof. “Facility” means the Site and the Convention Center.
“Facility Lease” has the meaning set forth in the foregoing Recitals. “Federal Securities” means any of the following: (a) non-callable direct obligations of the United States of Americ a (“Treasuries”), (b ) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor and the underlying Treasuries are not available to any person claiming through the custodian or to whom th e custodian may be obligated, (c ) pre-refunded municipal obligations rated “AAA” and “Aaa” by S&P a nd Moody’s, respectively, and (d) securities eligible for “AAA” defeasance under then existing criteria of S&P. “Fee Reserve Account” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(a) hereof.
“Financing District” means the Bayfront Project Special Tax Financing District, established pursuant to Chapter 3.61.
“Fiscal Year” means any twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve month period selected and designated by the Authority as its official fiscal year period. “Ground Lease” has the meaning set forth in the foregoing Recitals. “Hotel” means the “Resort Hotel” as defined in the Project Implementation Agreement.
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“Indenture” means this Indenture of Trust, as originally executed or as it may from time to time be amended, amended and restated, supplemented or otherwise modified from time to time by any Supplemental Indenture pursuant to the provisions of Article VII hereof. “Independent Accountant” means any accountant or firm of such accountants appointed and paid by the Authority, and who, or each of whom:
(a) is in fact independent and not unde r the control of the Authority, the City or the Port District;
(b) does not have any substantial interest, direct or indirect, in the Authority, the City or the Port District; and
(c) is not an officer or employee of the Auth ority, the City or the Port District, but who may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the Port District.
“Independent Financial Consultant ” means any financial consultant or firm of such consultants appointed and paid by the Authority, and who, or each of whom:
(a) is in fact independent and not under the control of the Authority, the City or the Port District;
(b) does not have any substantial interest, direct or indirect, in the Au thority, the City or the Port District; and
(c) is not an officer or employee of the Authority , the City or the Port District, but who may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the Port District.
“Initial Advance ” means the initial Advance made by a Purchaser or Purchasers on the Closing Date with respect to the 2022A Bonds.
“Institutional Accredited Investor” means an institutional “Accredited Investor” as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended. “Insurance and Condemnation Fund ” means the fund by that name established pursuant to Section 3.11 hereof.
“Interest Account ” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(a) hereof.
“Interest Payment Date” means June 1 and December 1 in each year, beginning December 1, 2022 for the 2022 Bonds, and continuing thereafter so long as any Bonds remain Outstanding. “JPMorgan” means JPMorgan Chase Bank , National Association , in its capacity as a Purchaser.
“Lease Payments” means those payments made by the City to the Authority as annual rental for the use and possession of the Facility as set forth in Section 4.4 of the Facility Lease.
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“Loan Agreement” has the meaning set forth in the foregoing Recitals. “Loan Payments ” means those annual payments of principal and interest made by the Financing District to the Authority under the Loan Agreement. “Local Obligations ” means , collectively, the Facility Lease, the Loan Agreement, and the Support Agreement.
“Material Adverse Effect” means the occurrence of an event that has a material adverse effect on: (a) the legality, validity or enforceability of any Related Document, (b) the ability of the Authority to pay or perform or comply with any of its material obligations under any of the Related Documents to which it is a party or enforce its rights or remedies thereunder, (c) the RHCC Project, including, without limitation, the ability to Complete the RHCC Project solely from Available Sources of Funds and prior to the date which is 54 months following the Effective Date, (d) the ability of any Credit Party (as defined in the Bond Purchase Agreement) to enforce its rights and remedies under Bond Purchase Agreement or this Indenture, or the ability of the Trustee to enforce its rights and remedies under any Related Document or part thereof that has been assigned to it by the Authority pursuant to the terms of the Indenture.
“Maximum Annual Debt Service” means, as of the date of any calculation, the largest Annual Debt Service during the current or any future Bond Year. “Moody’s” means Moody’s Investors Service, Inc., its successors and assigns. “Net Proceeds” means any net proceeds of insurance or condemnat ion that are transferred to the Trustee pursuant to Section 5.3 or Section 6.1 of the Facility Lease. “Nominee” shall mean the nominee of the Depository, which may be the Depository, as determined from time to time pursuant to Section 2.10 hereof. “Original Purchaser” means, with respect to the 2022 Bonds, JP Morgan, and, with respect to a Series of Additional Bonds, the original purchaser thereof. “Outstanding” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 9.7 hereof) the principal amount of all Bonds theretofore executed and issued by the Authority and authenticated and delivered by the Trustee under this Indenture except:
(a) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation pursuant to Section 2.9 hereof;
(b) Bonds paid or deemed to have been paid w ithin the meaning of Section 9.3 hereof or Bonds called for redemption for which funds have been provided as described in Section 2.2(i) hereof; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been executed, issued and delivered pursuant to this Indenture or any Supplemental Indenture.
Subject to the foregoing, each 2022A Bond shall be considered to be Outstanding in a principal amount equal to the total amount of Advances made with respect thereto as set forth in the Schedule of Advances maintained by the Trustee.
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“Owner” or “Bond Owner”, when used with respect to any Bond, means the person in whose name the ownership of such Bond shall be registered on the Bond Register ; provided, however, notwithstanding any provision herein to the contrary, for purposes of granting any consent or taking any action hereunder on behalf of Owners, the Administrative Agent shall act on behalf of the Owners of all 2022 Bonds Outstanding hereunder as set forth in Section 6.14 hereof. “Parking Improvements ” has the meaning given such term in the Project Implementation Agreement.
“Permitted Investments” means any of the following that at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein (provided that the Trustee may rely upon investment direction of the Authority as a determination that such investment is a legal investment):
(1) Cash.
(2) United States Treasury bills, notes, bonds or certificates of indebtedness, for which the full faith and credit of the United States are pledged for the payment of principal and interest.
(3) Obligations, participations, or other instruments of, or issued by, a federal agency or a United States government-sponsored enterprise. (4) Eligible commercial paper shall be of “prime quality” and of the highest of ranking or of the highest letter and number rating as provided by a Rating Agency, ex cept that split r atings (i.e., A2/P1) shall not be allowed. The commercial paper shall not exceed 270 days’ maturity and the entity that issues the commercial paper shall meet all of the following conditions in either paragraph (a) or paragraph (b):
(a) Has total assets i n excess of five hundred million dollars ($500,000,000), is organized and operating within the United States as a general corporation, and has debt other than commercial paper, if any, that is rated “A” or higher by a Rating Agency.
(b) Is organized in th e United States as a special purpose corporation, trust, or limited liability company, has program -wide credit enhancements including, but not limited to overcollateralization, letters of credit or a surety bond, and has commercial paper that is rated “A -1” or higher, or the equivalent, by a Rating Agency.
(5) Negotiable certificates of deposit issued by a U.S. national or state-chartered bank, savings bank, saving and loan association, or credit union in the State or state or federal association (as defin ed by Section 5102 of the California Financial Code) or by a state - licensed branch of a foreign bank. Issuing banks must have a short -term rating of not less than A1/P1 and if a long -term rating has been assigned, a long-term rating o f not less than “A” from a Rating Agency.
(6) Investments in repurchase agreements which comply with the requirements of California Government Code Section 53601(j) pursuant to which the seller will repurchase
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the securities on or before a specified date and for a specified a mount and will deliver the underlying securities to the Trustee by book entry, physical delivery, or by third party custodial agreement. The terms of a repurchase agreement shall not exceed one year. The term “securities,” for the purpose of repurchase ag reements, means securities of the same issuer, description, issue date and maturity.
To participate in repurchase agreements, a master repurchase agreement must be completed and signed by all parties involved. Repurchase agreements are required to be collateralized by securities or cash authorized under California Government Code Section 53601(j)(2) as described below:
(a) To anticipate market changes and provide a level of security for all repurchase agreement transactions, the market value of securiti es that underlie a repurchase agreement shall be valued at 102% or greater of the funds borrowed against those securities and the value shall be adjusted no less frequently than weekly. Since the market value of the underlying securities is subject to dai ly market fluctuations, the investments in repurchase agreements shall be in compliance if the value of the underlying securities is brought back up to 102% no later than the next business day.
(b) Collateral will be limited to U.S. Treasury securities li sted in paragraph (2) above and U.S. Government Agency securities listed in paragraph (3) above. Collateral will be held by an independent third party with whom the Trustee has a current custodial agreement. A clearly marked evidence of ownership (safekeeping/custody receipt) must be supplied to the Trustee and retained. The Trustee retains the right to substitute or grant substitutions of collateral. (7) Bankers acceptances, also known as time drafts (bills of exchange) that are drawn on and accepted by a commercial bank. Purchases of bankers’ acceptances shall not exceed 180 days maturity. Issuing banks must be rated by each Rating Agency and have a short-term rating of at least A1/P1 and if a long -term rating has been assigned, a long-term rating of not less than “A” from a Rating Agency.
(8) Shares of beneficial interest issued by diversified management companies that are mutual funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1, et. seq.), which only invest in direct obligations in U.S. Treasury bills, notes and bonds, U.S. Government Agency securities and repurchase agreements with a weighted average maturity of 60 days or less. At a minimum, approved mutual funds shall have met either of the following criteria:
(a) Attained the highest ranking or the highest letter or numerical rating provided by each Rating Agency.
(b) Retained an investment advisor registered or exempt from registration with the Securities and Exchange Co mmission with not less than five years’ experience managing money market mutual funds with assets under management in excess of $500,000,000.
(9) Municipal debt instruments issued by a local or state agency, including:
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(a) Bonds payable solely out of reve nues from a revenue -producing property owned, controlled, or operated by the local agency or by a department, board, agency or authority of the local agency.
(b) Registered state warrants or treasury notes or bonds, including bonds payable solely out of th e revenues from a revenue -producing property owned, controlled or operated by the state or a department, board, agency or authority of the state.
(c) Bonds, notes, warrants or other evidences of indebtedness of any local agency within a state, including bonds payable solely out of revenues from a revenue- producing property owned, controlled or operated by the local agency, or by a department, board, agency, or authority of the local agency.
Issuing municipalities must have a short -term rating of not less than A1/P1 and if a long-term rating has been assigned, a long-term rating of not less t han an “A” from a Rating Agency.
(10) Medium-term notes cons isting of corporate and depository institution debt securities with a maximum remaining maturity of not more than 397 days for any short -term pools such as money market funds and five years for any longer -term pools such as an extended fund. Medium-terms notes must be issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Notes eligible for investment shall be rated not less than “A” or its equivalent from each Rating Agency. (11) Investment agreements: with a domestic or foreign bank or corporation the long-term debt of which, or, in the case of a guaranteed corporation the long -term debt, or, in the case of a monoline financi al guaranty insurance company, claims paying ability, of the guarantor is rated at least “AA -” by S&P and “Aa3” by Moody’s at the time that the investment agreement is entered into, provided that:
(a) If amounts in the Revenue Fund are invested, interest p ayments are to be made to the Trustee at times and in amounts as necessary to pay debt service on the Bonds;
(b) The invested funds are available for withdrawal without penalty or premium, at any time upon not more than seven (7) days’ prior notice; the Au thority and the Trustee hereby agree to give or cause to be given notice in accordance with the terms of the investment agreement so as to receive funds thereunder with no penalty or premium paid; (c) The provider shall send monthly reports to the Trustee and the Authority setting forth the balance the Authority or Trustee has invested with the provider and the amounts and dates of interest accrued and paid by the provider; (d) The investment agreement shall state that it is an unconditional and general obligation of the provider, and is not subordinated to any other obligation of, the provider thereof or, if the provider is a bank, the agreement or the opinion of counsel delivered pursuant to paragraph (f) below shall state that the obligation of the provid er to make payments thereunder ranks
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pari passu with the obligations of the provider to its other depositors and its other unsecured and unsubordinated creditors;
(e) The investment agreement (or guaranty, if applicable) may not be assigned or amended without the prior written consent of the Authority; (f) The Authority and the Trustee shall receive an opinion of domestic counsel to the provider that such investment agreement is legal, valid, binding and enforceable against the provider in accordance with its terms;
(g) The Authority and the Trustee shall receive an opinion of foreign counsel to the provider (if applicable) that (i) the investment agreement has been duly authorized, executed and delivered by the provider and constitutes the legal, valid and binding obligation of the provider, enforceable against the provider in accordance with its terms, (ii) the choice of law of the state set forth in the investment agreement is valid under that country’s laws and a court in such country would uphold such ch oice of law, and (iii) any judgment rendered by a court in the United States of America would be recognized and enforceable in such country; (h) The investment agreement shall provide that if during its term:
(i) the provider’s rating by either S&P or Mood y’s falls below “AA-” or “Aa3”, the provider shall, at its option, within ten (10) days of receipt of publication of such downgrade, either (a) provide a written guarantee acceptable to the Authority, (x) post Eligible Collateral (defined in subparagraph (i) below) with the Authority, the Trustee or a third party acting solely as agent therefore (the “Custodian”) free and clear of any third party liens or claims, or (b) assign the agreement to (1) any domestic bank, or domestic branch of a foreign bank, the long term debt of which is rated at least “A -” by S&P and ‘A3’ by Moody’s, including the Trustee and any of its affiliates; or (2) any broker-dealer with “retail customers” or a related affiliate thereof which broker -dealer has, or the parent company (which guarantees the provider) of which has, long -term debt rated at least “A-” by S&P and ‘A3’ by Moody’s, which broker -dealer falls under the jurisdiction of the Securities Investors Protection Corporation; or (3) any other entity rated at least “A -” by S&P and ‘A3’ by Moody’s acceptable to the Authority, or (z) repay the principal of and accrued but unpaid interest on the investment;
(ii) the provider’s rating by either S&P or Moody’s is withdrawn or suspended or falls below “A-” or “A3”, the provider must, at the direction of the Authority or the Trustee (who shall give such direction if so directed by the Authority), within ten (10) days of receipt of such direction, repay the principal of and accrued but unpaid interest on the investment, in either case with no penalty or premium to the Authority or Trustee. (i) In the event the provider is required to collateralize, permitted collateral shall include U.S. Treasury Obligations, or senior debt obligations of GNMA, FNMA or FHLMC (no collateralized mortgage obligations shall be permitted for these providers) and collateral levels must be 102% of the total principal when the collateral type is U.S. Treasury Obligations, 103% of the total principal when the collateral type is GNMA’s and 104% of the total principal when the collateral type is FNMA and FHLMC (“Eligible Collateral”). In addition, the collateral shall be marked to market on a daily basis and the provider or Custodian shall send monthly reports to the Trustee and the Authority setting forth the type o f collateral, the collateral percentage required for
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that collateral type, the market value of the collateral on the valuation date and the name of the Custodian holding the collateral;
(j) The investment agreement shall state and an opinion of counsel sha ll be rendered, in the event collateral is required to be pledged by the provider under the terms of the investment agreement, at the time such collateral is delivered, that the Custodian has a perfected first priority security interest in the collateral, any substituted collateral and all proceeds thereof; (k) The investment agreement must provide that if during its term: (i) the provider shall default in its payment obligations, the provider’s obligations under the investment agreement shall, at the direc tion of the Authority or the Trustee (who shall give such direction if so directed by the Authority), be accelerated and amounts invested and accrued but unpaid interest thereon shall be repaid to the Authority or Trustee, as appropriate, and (ii) the prov ider shall become insolvent, not pay its debts as they become due, be declared or petition to be declared bankrupt, etc. (“event of insolvency”), the provider’s obligations shall automatically be accelerated and amounts invested and accrued but unpaid inte rest thereon shall be repaid to the Authority or Trustee, as appropriate;
(12) The San Diego County Investment Pool; and
(13) The Local Agency Investment Fund of the State of California.
The value of the investments in (1) through (1 3) above, which shall be determined as of the end of each month, means that the value of any investments shall be calculated as follows:
(1) for the purpose of determining the amount in any fund, all Permitted Investments credited to such fund shall be valued at fair market va lue. The Trustee shall determine the fair market value based on accepted industry standards and fro m accepted industry providers;
(2) as to certificates of deposit and bankers acceptances; the face amount thereof, plus accrued interest;
(3) as to any investment not specified above: the value thereof established by prior written agreement between the Authority and the Trustee; and (4) as to any investment in (12) or (13), in the manner, if any, required by State law.
“Person” means natural persons, firms, corporations, partnerships, limited liability companies, associations, trusts, public bodies and other entities. “Phase 1A Infrastructure Improvements Costs” means (i) the Developer’s Phase 1A Contract Sum (as defined in the Project Implementation Agreemen t) and all interest to be paid to the Developer pursuant to Sections 9.1.3 and 9.1.4.3(b) of the Project Implementation Agreement, and (ii) the Remaining Phase 1A Infrastructure Improvements Costs (as defined in the Project Implementation Agreement).
“Phase 1A Infrastructure Improvements” has the meaning set forth in the foregoing Recitals.
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“Phase 1A Infrastructure Improvements Subaccount” means the account by that name when and if established pursuant to Sections 3.5 and 3.10 as an account in the Construction Fund. “Port District” means the San Diego Unified Port District, a public corporation. “Port District Payments” has the meaning set forth in the Support Agreement. “Principal Account ” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(a) hereof.
“Pre-Completion Lease Payments” means those payments made by the City to the Authority as set forth in Section 4.12 of the Facility Lease.
“Priority Administrative Expenses” means (i) the fees and expenses of the Trustee, including legal fees and expenses (including fees and expenses of outside counsel and the allocated costs of internal attorneys) and the out of pocket expenses incurred by the Trustee in carrying ou t its duties hereunder; (ii) the amounts paid or payable by the City or the Authority for the rental interruption insurance required by Section 5.2 of the Facility Lease ; (iii) the amount s paid or payable by the Authority to RIDA pursuant to Section 15.2.2.1 of the Project Implementation Agreement with respect to builder’s risk insurance ; (iv) amounts paid or payable to the United States pursuant to Sections 5.7 and 5.8 hereof; and (v) any Annual Recurring Fees. “Project” means, collectively, the portion of the Convention Center financed from the proceeds of the 2022A Bonds and the portion of the Phase 1A Infrastructure Improvements financed from the proceeds of the 2022B Bonds.
“Project Costs” means, collectively, the Convention Center Costs to be paid with amounts on deposit in the 2022A Account of the Construction Fund (and all subaccounts thereunder) in accordance with the Project Implementation Agreement and the costs of the Phase 1A Infrastructure Improvements Costs to be paid with amounts on deposit in the 2022B Account of the Construction Fund (and all subaccounts thereunder) in accordance with the Project Implementation Agreement. “Project Implementation Agreement” has the meaning set forth in the foregoing Recitals. “Proportionate Share” means, as of the date of calculation, the ratio derived by dividing the Outstanding principal amount of the Bonds of a Series by the principal amount of the Outstanding Bonds.
“Public Entity Contribution Subaccount ” means the account by that name established in Section 3.10.
“Purchaser” and “ Purchasers” means, individually or collectively, as applicable, any entity that has become a party to the Bond Purchase Agreement obligated to make Advances with respect to the 2022A Bonds and JPMorgan with respect to the 2022B Bonds. “Qualified Institutional Buyer ” means an entity which is a “qualified institutional buyer” as defined in Rule 144A of the Securities Act of 1933, as amended. “Rating Agency” means Moody’s and S&P, or both, as the context requires.
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“Real Estate Revenues” has the meaning set forth in the Support Agreement. “Rebate Fund” means the fund by that name established pursuant to Section 5.8 hereof. “Rebate Regulations ” means the Treasury Regulations issued under Section 148(f) of the Code.
“Record Date” means, with res pect to any Interest Payment Date, the fifteenth calendar day of the month preceding an Interest Payment Date, whether or not such day is a Business Day. “Redemption Fund ” means the fund by that name established pursuant to Section 3.12 hereof.
“Related Documents” has the meaning given such term in the Bond Purchase Agreement. “Representation Letter ” means the representation letter executed by the Authority and accepted by DTC.
“Request of the Authority ” means a written certificate or request executed by an Authorized Officer.
“Reserve Fund” means the fund by that name established and held by the Trustee pursuant to Section 3.6 hereof which shall include a 2022A Account and a 2022B Account therein . “Reserve Requirement ” means as of the date of calculation, (a) with respect to the 2022 Bonds, from and after May 1, 2025, an amount equal to six months of interest due on all Outstanding 2022 Bonds; and (b) with respect to any Additional Bonds an amount equal to the lowest of (i) 10% of the initial principal amou nt of each Series of Additional Bonds, (ii) Maximum Annual Debt Service on the Outstanding Additional Bonds, (iii) 125% of Average Annual Debt Service on the Outstanding Additional Bonds; or (iv) such lesser amount as is established on the Closing Date for each Series of Additional Bonds. As applied to individual accounts of the Reserve Fund, the Reserve Requirement shall initially be allocated as set forth in Section 4.3(a) hereof. “Reserved Rights” means any right of the Authority to indemnification, attorneys fees or other expenses which are payable to it under the terms of the Facility Lease, the Project Implementation Agreement, the Site Lease, the Loan Agreement, the Support Agreement and the Sublease.
“Responsible Officer” means any officer of the Trustee assigned to administer the Trustee’s duties under this Indenture.
“Revenue Fund” means the fund by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2 hereof.
“Revenue Sharing Agreement ” means that certain Fourth Amended and Restated Revenue Sharing Agreement dated as of _______________, 2022, by and between the City and the Port District recorded in the Office of the Port District Clerk as Document No. _________, as it may be amended from time to time in accordance with its terms.
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“Revenues” means: (a) all Lease Payments, Pre-Completion Lease Payments, Loan Payments, Port District Payments, Construction Late Charges and other amounts paid pursuant to the terms of the Local Obligations and the Project Implementation Agreement for deposit to the Revenue Fund, (b) Net Proceeds and RIDA Insurance and Condemnation Payments transferred from the Insurance and Condemnation Fund to the Revenue Fund and the Redemption Fund in accordance with Section 4.5 hereof; (c) all other moneys received by the Trustee from time to time for deposit to the Revenue Fund, Redemption Fund or Reserve Fund as set forth in a Request of the Authority ; and (d) investment income with respect to any moneys held by the Trustee in the Revenue Fund , Redemption Fund and Reserve Fund; provided, however, the foregoing does not include the Existing Revenues deposited to the Authority Existing Revenues Account in accordance with Section 4.2 hereof.
“RIDA” means RIDA Chula Vista, LLC, a Delaware limited liability comp any, and any successor thereto.
“RIDA Insurance and Condemnation Payments” means amounts paid by RIDA to the Trustee for deposit to the Insurance and Condemnation Fund in accordance with Sections 5.1 and 5.2 of the Sublease.
“RHCC Project ” means, collecti vely the Hotel, the Convention Center, the Parking Improvements and the Phase 1A Infrastructure Improvements. “Schedule of Advances” means the schedule maintained by the Trustee as part of the Bond Register evidencing each Advance made and the principal amount of 2022A Bonds registered to each Owner of 2022A Bonds.
“Schedule for Deposits of Advances to Funds and Accounts ” means the schedule attached hereto as Exhibit E.
“Securities Depositories ” means The Depository Trust Company, 55 Water Street, 50th Floor, New York, NY 10041-0099 Attn. Call Notification Department, Fax (212) 855-7232; and, in accordance with then current guidelines of the securities and Exchange Commission, such other addresses and/or such other securities depositories as the Authority may designate in a Certificate of the Authority delivered to the Trustee.
“Series” means each series of Bonds issued hereunder.
“Site Lease” has the meaning set forth in the foregoing Recitals. “Special Taxes” means the special taxes pledged by the Financing District under the Loan Agreement to the repayment of the Loan Payments.
“S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, its successors and assigns.
“State” means the State of California.
“Sublease” has the meaning set forth in the foregoing Recitals.
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“Supplemental Indenture” means any indenture, agreement or other instrument hereafter duly executed by the Authority in accordance with the provisions of Article VII of this Indenture. “Support Agreement” has the meaning set forth in the foregoing Recitals. “Tax Certificate” means the certificate by that name to be executed by the Authority on the Closing Date with respect to the 2022B Bonds and any other Series of Tax -Exempt Bonds to establish certain facts and ex pectations and which contains certain covenants relevant to compliance with the Code.
“Tax-Exempt Bonds” means the 2022B Bonds and any other Series of Additional Bonds the interest on which is excluded from gross income for federal income tax purposes. “Trust Office” means the office of the Trustee at which at any particular time its corporate trust business with respect to this Indenture shall be administered, which office at the date hereof is located in Costa Mesa, California, or such other place as desi gnated by the Trustee, except that with respect to presentation of Bonds for payment or for registration of transfer and exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate trust agency business shall be conducted.
“Trustee” means Wilmington Trust, National Association , a national banking association duly organized and existing under the laws of the United States of America, with a corporate trust office in Costa Mesa , California, and its succes sors and assigns, and any other corporation or association which may at any time be substituted in its place as provided in Article VI hereof. “2022 Bonds” means, collectively, the 2022A Bonds and the 2022B Bonds. “2022A Bonds” means the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable). “2022A Bond Proceeds Subaccount ” means the account by that name established in Section 3.10.
“2022B Bond Proceeds Developer’s Phase 1A Subaccount” means the account by that name established in Section 3.10.
“2022B Bonds” means the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2022B (Tax-Exempt). “Yield” has the meaning given to such term in the Code.
Section 1.2 Rules of Construction . All references in this Indenture to “Articles,” “Sections,” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; and the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
Section 1.3 Authorization and Purpose of Bonds . The Authority has reviewed all proceedings which it has taken relative to the authorization of the Bonds and has found, as a result of such review, and hereby finds and determines, that all things, conditions and acts required by law to exist, happen an d/or be performed precedent to and in the issuance of the Bonds do exist, have
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happened and have been performed in due time, form and manner as required by law, and the Authority is now authorized under the Bond Law and each and every other requirement of law, to issue the Bonds in the manner and form provided in this Indenture. Accordingly, the Authority hereby authorizes the issuance of the 2022 Bonds pursuant to the Bond Law and this Indenture for the primary purpose of providing funds to finance the Project.
Section 1.4 Equal Security . In consideration of the acceptance of the Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a contract between the Authority and the Owners from time to time of the Bonds; and the covenants and a greements set forth herein to be performed by or on behalf of the Authority shall be for the equal and proportionate benefit, security and protection of all Owners of the Bonds as their respective interests appear without preference, priority or distinctio n as to security or otherwise of any of the Bonds over other Bonds or any of the Bonds over any other Bonds by reason of the number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause whatsoever, except as express ly provided therein or herein.
Section 1.5 Special Obligations. The Bonds shall be special, limited obligations of the Authority, payable from and secured as to the payment of the principal of, redemption premium, if any, and interest thereon, in accordance with thei r terms and the terms of this Indenture, solely from the Revenues. The Bonds shall not constitute a charge against the general credit of the Authority or its members. Under no circumstances shall the Authority be obligated to pay principal of, redemption premium, if any, or interest on the Bonds except from the Revenues. Neither the State nor any public agency (other than the Authority) nor any member of the Authority is obligated to pay the principal of, redemption premium, if any, or interest on the Bo nds. Neither the faith and credit nor the taxing power of the Stat e or any public agency thereof, including any member of the Authority, is pledged to the payment of the principal of, redemption premium, if any, or interest on the Bonds. Neither the payment of the principal of nor any part thereof, redemption premium, if any, nor interest on the Bonds constitutes a debt, liability or obligation of the State or any public agency , including the Authority or either member of the Authority within the meaning of any constitutional debt limit or provision.
No covenant or agreement contained in any Bond or this Indenture shall be deemed to be a covenant or agreement of the City or the Port District as members of the Authority, any of the directors of the Board of Directors of the Authority, or by any officer, member, agent, contractor or employee of the Authority, Port District, or City in his or her individual capacity and neither the City or the Port District as members of the Authority, nor any of the directors of the Board of Directors of the Authority, nor any officer or employee thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of such Bonds.
Section 1.6 Validity of Bonds . The validity of the authorization and issuance of the Bonds shall not be affected in any way by any proceedings taken by the Authority, the City, the Port District or the Financing District with respect to the application of the proceeds of the Bonds, and the recital contained in the Bonds that the same are issued pursuant to the Bond Law shall be conclusive evidence of their validity and of the regularity of their issuance.
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ARTICLE II
ISSUANCE OF BONDS
Section 2.1 Terms of Bonds.
(a) Terms of 2022 Bonds . The 2022A Bonds authorized to be issued by the Authority under and subject to the Bond Law and the terms of this Indenture shall be dated as of their Closing Date and be designated the “ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable),” and shall be issued in the maximum aggregate principal amount of _____________ Dollars ($________) with the principal amount due on the 2022A Bonds to be the total amount of Advances made to the Trustee as reflected in the Schedule of Advances maintained by the Trustee.
The 2022A Bonds shall be delivered on the Closing Date to each Purchaser making all or a part of the Initial Advance, concurrently upon receipt by the Trustee of the Initial Advance fo r the 2022A Bonds set forth in Section 3.2(a) hereof. The Trustee shall maintain the Schedule of Advances for each 2022A Bond through its record-keeping systems kept as a part of the Bond Register.
The 2022B Bonds authorized to be issued by the Authori ty under and subject to the Bond Law and the terms of this Indenture shall be dated as of their Closing Date and be designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements ) Series 2022B (Tax-Exempt),” and shall be issued on the Closing Date in the original aggregate principal amount of _______________ Dollars ($________) concurrently upon receipt by the Trustee of the purchase price for the 2022B Bonds set forth in Section 3.2(b) hereof.
The 2022 Bond s shall be issued in fully registered form without coupons in Authorized Denominations and without CUSIP numbers and shall be registered on the Closing Date in the name of each Purchaser making a part of the Initial Advance wi th respect to the 2022A Bonds and in the name of [JPMorgan] with respect to the 2022B Bonds and thereafter in the name of any Qualified Institutional Buyer , or following an Event of Default to an y Institutional Accredited Investor, to whom 2022 Bonds are t ransferred in accordance with Section 2.5 below. As a condition of issuance of the 2022 Bonds each Purchaser of the 2022A Bonds and the initial purchaser of the 2022 Bonds shall execute and deliver an Investor Letter in the form set forth in Exhibit C he reto. The 2022 Bonds shall not be held in book-entry form or be registered in the name of the Depository.
The 2022A Bonds shall mature on June 1, 2059 and shall bear interest (calculated on the basis of a 360 -day year and on the actual number of days elapsed) on each Advance from the date made to the maturity date or earlier redemption date of the 2022A Bonds at the rate of ___% per annum, unless a Bond Purchase Agreement Event of Default has occurred in which case at all times during the continuance o f such Bond Purchase Agreement Event of Default, the 2022A Bonds shall bear interest at the Default Rate.
The 2022B Bonds shall mature on June 1, 2059 and shall bear interest (calculated on the basis of a 360 -day year and on the actual number of days elapsed) from the Closing Date to the maturity date or earlier redemption date at the rate of ___% per annum unless a Bond Purchase Agreement Event of Default has occurred in which case at all times during the continuance of such Bond Purchase Agreement Event of Default, the 2022B Bonds shall bear interest at the Default Rate.
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(b) Accrual and Payment of Interest on Bonds. Each Bond shall bear interest from the Interest Payment Date next preceding the date of authentication thereof, unless (a) it is authenticated after a Record Date and on or before the following Interest Payment Date, in which event it shall bear interest from such Interest Payment Date; or (b) it is authenticated on or before the first Record Date, in which event it shall bear interest from the Closing Date; provided, however, that if, as of the date of authentication of any Bond, interest thereon is in default, such Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment t hereon, or from the Closing Date if no interest has been paid or made available for payment.
Interest on the Bonds shall be payable on each Interest Payment Date to the person whose name appears on the Bond Register as the Owner thereof as of the Record Da te immediately preceding each such Interest Paym ent Date; provided, however, interest on the 2022 Bonds shall be paid in immediately available funds made by wire transfer on each Interest Payment Date to the Administrative Agent who shall be responsible fo r disbursing the interest due to each Owner.
Payment by the Trustee to the Administrative Agent of the interest due on an Interest Payment Date shall be deemed a payment to each Owner of the 2022 Bonds and neither the Authority nor the Trustee shall have any liability to any Owner in the event that the Administrative Agent does not timely disburse interest payments to an Owner.
In the event any Additional Bonds are registered in the name of DTC or its Nominee, such interest shall be paid on each Interest Payment Date to DTC in accordance with its procedures. With respect to any Additional Bonds not registered in the name of the Depository or its Nominee, interest shall be paid by check of the Trustee mailed on such Interest Payment Date by first class mail, postage prepaid, to each Owner at the address of such Owner as it appears on the Bond Register , or by wire transfer to an account in the United States of America made on suc h Interest Payment Date upon written instructions of any Owner of $1,000,000 or more in aggregate principal amount of a Series of Additional Bonds provided to the Trustee in writing at least five (5) Business Days before the Record Date for such Interest Payment Date.
(c) Payment of Principal of Bonds. Principal of and redemption premium, if any, on any Bond shall be paid upon presentation and surrender thereof, at maturity or the prior redemption thereof, at the Trust Office of the Trustee. The principal of and interest and redemption premium, if any, on the Bonds shall be payable in lawful money of the United States of America. (d) Payment on 2022 Bonds Adjusted to Business Day of Payment . Anything in this Indenture to the contrary notwithstanding, including Section 9.13, if the date on which the principal of or interest on or redemption price of the 2022 Bonds is payable is not a Business Day, then the date of such payment shall be the next succeeding day which is a Business Day. Payment on such subsequent Bu siness Day shall have the same force and effect as if made on the nominal date of payment but interest shall accrue until the date of such payment.
Section 2.2 Redemption of Bonds.
(a) Optional Redemption of 2022A Bonds at Par . The 2022A Bonds may be redeemed at the opti on of the Authority, from any source of available funds, prior to maturity on any date on or after June 1, 2026, as a whole, at a redemption price equal to the principal amount of the 2022A Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium.
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(b) Optional Redemption of 2022B Bonds at Par . The 2022B Bonds may be redeemed at the option of the Authority, from any source of available funds, prior to maturity on any date on or after June 1, 2026, as a whole, at a redemption price equal to the principal amount of the 2022B Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium.
(c) Mandatory Redemption of 2022A Bonds and 2022B Bonds on June 1, 2027.
Unless waived by th e Administrative Agent in its sole and absolute discretion by a written notice delivered to the Authority and the Trustee, the 2022A Bonds and the 2022B Bonds shall be subject to mandatory redemption, in whole, on June 1, 2027 at a redemption price equal t o the principal amount of the 2022A Bonds and 2022B Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium.
(d) Extraordinary Redemption of 2022A Bonds and Additional Bonds . The 2022A Bonds and any Additional Bonds issued to refund the 2022A Bonds shall be subject to redemption, in whole or in part, on any date, from and to the extent Net Proceeds and/or RIDA Insurance and Condemnation Payments are deposited by the Trustee in the Redemption Fund pursuant to Section 4.5 hereof, together with any amount transferred to the Redemption Fund from the Reserve Fund pursuant to Section 4.3( c) hereof, at a redemption price equal to the principal amount of the 2022A Bonds or Additional Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium.
(e) Extraordinary Optional Redemption of 2022B Bonds and Additional Bonds .
In the event that the 2022A Bonds or any Additional Bonds issued to refund the 2022A Bonds are redeemed, in whole, pursuant to Section 2.2( d) above, then the 2022B Bonds or any Additional Bonds issued to refund the 2022B Bonds may be redeemed, in whole, at the option of the Authority, from any source of available funds, prior to maturity on any date, at a red emption price equal to the principal amount of the 2022B Bonds or any Additional Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium.
The Authority shall be required to give the Trustee written notice o f its intention to redeem Bonds under Section 2.2(a) and (b) and the date selected for redemption at least ten (10) days (or such later date as shall be acceptable to the Trustee, in the so le determination of the Trustee) prior to the date on which a notic e of redemption must be given to the Administrative Agent or the Owners, as applicable, with respect to such redemption . The foregoing notice is for the convenience of the Trustee and the time for the notice may be shortened or waived by the Trustee in its sole discretion without the consent the Owners.
Additional redemption provisions (if any) for any Series of Additional Bonds shall be set forth and provided for in the Supplemental Indenture entered into in connection with the issuance of such Series of Additional Bonds.
(f) Notice of Redemption . When Bonds are due for redemption under this Section 2.2 or under the provisions of a Supplemental Indentu re, the Trustee shall give notice of redemption to the Administrative Agent for the 2022 Bonds and to the Owners for any Additional Bonds, in the name of the Authority, in the case of the 2022 Bonds at least 15 but no more than 30 days prior to the redemption date (which time period may be waived by the Administrative Agent), and in the case of Additional Bonds at least 30 but no more than 45 days prior to the redemption date. Except for redemption notices for the mandatory redemption under Section 2.2(c) above
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(unless waived by the Administrative Agent) and any mandatory sinking fund redemption of Additional Bonds which shall be sent by the Trustee to comply with the preceding sentence, the Trustee shall give a redemption notice for any other redemption of Bonds only upon receipt of, and in accordance with the terms of a Request of the Authority. With respect to any notice of optional redemption of the Bonds, such notice may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption , of moneys sufficient to pay the principal of, redemption premium if any, and interest on the Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so r eceived and such other conditions shall not have been satisfied , said notice shall be of no force and effect and the Trustee shall not be required to redeem such Bonds. If any condition stated in the redemption notice for an optional redemption shall not have been satisfied on or prior to the redemption date:
(i) the redemption notice shall be of no force and effect, (ii) the Authority shall not be required to redeem such Bonds, (iii) the redemption shall not be made, and (iv) the Trustee shall within a reasonable time thereafter give notice to the persons in the manner in which the conditional redemption notice was given that such condition or conditions were not met and that the redemption was canceled.
Such notice of redemption shall (i) specify the CUS IP numbers (if any have been assigned ), the bond numbers and the maturity date or dates of the Bonds selected for redemption, except that where all of the Bonds are subject to redemption, or all the Bonds of one maturity, are to be redeemed, the bond numbe rs of such issue need not be specified; (ii) state the date fixed for redemption and surrender of the Bonds to be redeemed; (iii) state the redemption price; (iv) state the place or places where the Bonds are to be redeemed; (v) in the case of Bonds to be redeemed only in part, state the portion of such Bond which is to be redeemed; (vi) state the date of issue of the Bonds as originally issued; (vii) state the rate of interest borne by each Bond being redeemed; and (viii) state any other descriptive inform ation needed to identify accurately the Bonds being redeemed as shall be specified by the Trustee. Such notice shall further state that on the date fixed for redemption, there shall become due and payable on each Bond or portion thereof called for redemption, the principal thereof, together with any redemption premium, and interest accrued to the redemption date, and that from and after such date, interest thereon shall cease to accrue and be payable.
Such notice shall be given (i) with respect to the 20 22 Bonds to the Administrative Agent only (and not to the registered Owners) by overnight delivery or in such other manner as the Administrative Agent shall have directed the Trustee in writing, (ii) with respect to any Additional Bonds registered in the name of the Nominee, in such manner as complies with the requirements o f DTC, or any successor thereto; and (ii i) with respect to any Additional Bonds not held in book-entry form, the Trustee shall mail a copy of such notice, by f irst class mail, postage prepaid, to the respective Owners thereof at their addresses appearing on the Bond Register. So long as notice has been provided as set forth in this Section 2.2( f), the actual receipt by the Owner of any Bond of notice of such redemption shall not be a condition precedent to redemption, and neither the failure to receive nor any defect in such notice shall affect the validity of the proceedings for the redemption of such Bonds, or the cessation of interest on the redemption date. A certificate by the Trustee that notice of such redemption has been given as herein provided shall be conclusive as against all parties and the Owner shall not be entitled to show that he or she failed to receive notice of such redemption.
Upon the payme nt of the redemption price of any Additional Bonds being redeemed, each check or other transfer of funds issued for such purpose shall to the extent practicable bear the
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CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the pro ceeds of such check or other transfer.
(g) Selection of Bonds for Redemption.
Any redemption of less than all of the 2022A Bonds pursuant to Section 2.2( d) will be effected by the Trustee among Owners on a pro-rata basis, subject to minimum Authorized Denominations.
Additional Bonds will be selected for redemption in accordance with the provisions of the Supplemental Indenture pursuant to which such Additional Bonds were issued. (h) Partial Redemption of Bonds . In the event only a portion of any Bond is called f or redemption, then upon surrender of such Bond the Authority shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of the same maturity date, of Authorized Denominations in aggregate principal amount equal to the unredeemed portion of the Bond to be redeemed. (i) Effect of Redemption. From and after the date fixed for redemption, if funds available for the payment of the principal of and interest (and redemption premium, if any) on the Bonds so called for redemption shall have been duly provided, such Bonds so called shall cease to be entitled to any benefit under this Indenture other than the right to receive payment of the redemption price, and no interest shall accrue thereon from and after the redemption date specified in such notice. All Bonds redeemed pursuant to this Section 2.2 or a Supplemental Indenture shall be cancelled and destroyed.
Section 2.3 Form of Bonds . The 2022 Bonds, the form of Trustee’s certificate of authentication, and the form of assignment to appear thereon, shall be substantially in the form s set forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture.
Section 2.4 Execution of Bonds. All the Bonds shall, from time to time, be executed on behalf of the Authority by, or bear the manual or facsimile signature of, an Authorized Officer of the Authority and be attested by the manual or facsimile signature of a second Authorized Officer or the Secretary of the Authority . If any of the officers who shall have signed any of the Bonds or whose facsimile signature shall be upon the Bonds sha ll cease to be an Authorized Officer or the Secretary of the Authority before the Bond so signed and sealed shall have been actually authenticated by the Trustee or delivered, such Bonds nevertheless may be authenticated, issued and delivered with the same force and effect as though the person or persons who signed or sealed such Bonds or whose facsimile signature shall be upon the Bonds had not ceased to be an Authorized Officer or the Secretary of the Authority; and any such Bond may be signed and sealed on behalf of the Authority by those persons who, at the actual date of the execution of such Bonds, shall be Authorized Officers or the Secretary of the Authority, although at the date of such Bond any such person shall not have been such officer of the Authority.
Only such of the Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibit A or as to Additional Bonds in the form set forth in a Supplemental Indenture, manually executed by the Trustee, shall be v alid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Trustee shall be conclusive evidence that
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the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
Section 2.5 Transfer of Bonds . Subject to the provisions of Section 2.1 limiting the transfer of 2022 Bonds to Qualified Institutional Buyers and following an Event of Default hereunder to Institutional Accredited Investors and Section 2.10 in the case of any Additional Bonds held in book-entry form , any Bond may , in accordance with its terms, be transferred, upon the Bond Register, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer in a form approved by the Trustee, duly executed , and in the case of the transfer of a 2022 Bond accompanied by delivery of an executed Investor Letter by the transferee in the form set forth in Exhibit C hereto. Whenever any Bond shall be surrendered for transfer in accordance with the foregoing, the Authority shall execute and the Trustee shall thereupon authenticate and deliver to the transferee a new Bond or Bonds in an Authorized Denomination and of like Series, tenor, maturity and aggregate principal amount. No Bonds selected for redemption shall be subject to transfer pursuant to this Section nor shall any Bond be subject to transfer during the fifteen days prio r to the selection of Bonds for redemption.
The cost of printing any Bonds and any reasonable fees and expenses incurred by the Trustee in connection with any transfer shall be paid by the Authority as Priority Administrative Expenses .
However, the Owners of the Bonds shall be required to pay any tax or other governmental charge required to be paid for any exchange or registration of transfer and the Owners of the Bonds shall be required to pay the reasonable fees and expenses of the Trustee and Authority in connection with the replacement of any mutilated, lost or stolen Bonds.
Section 2.6 Exchange of Bonds. Subject to the provisions of Sections 2.1 and 2.5 related to Qualified Institutional Buyers and Institutional Accredited Investors , and Section 2.10 in the case of any Bonds held in book -entry form, Bonds may be exchanged at the Trust Office of the Trustee for Bonds of the same Series, tenor and maturity and of other Authorized Denominations. No Bonds selected for redemption shall be subject to exchange pursuant to this Section, nor shall any Bond be subject to exchange during the fifteen days prior to the selection of Bonds for redemption. The cost of printing Bonds and any reasonable fees and expenses incurred by the Trustee in connection with any transfer or exchange shall be paid by the Authority as Priority Administrative Expenses.
Section 2.7 Temporary Bonds. The Bonds may be issued initially in temporary form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the Authority and may contain such reference to any of the provisions of this Indenture as may be appropriate.
Every temporary Bond shall be executed by the Authority and be registered and authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If the Authority issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and thereupon the temporary Bonds may be surrendered for cancellation, in exchange therefor at the Trust Office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of Authorized Denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Indenture as definitive Bonds authenticated and delivered hereunder.
Section 2.8 Bond Register. The Trustee will keep or cause to be kept at its Trust Office sufficient records for the registration and transfer of the Bonds, which shall be the Bond Register and
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shall at all times during regular business hours be open to inspection by the Authority upon reasonable notice; and, upon presentation for such purpose, the Trust ee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said records, Bonds as hereinbefore provided. The Trustee shall maintain the Schedule of Advances as part of the Bond Register.
Section 2.9 Bonds Mutilated, Lost, Destroyed or Stolen . If any Bond shall become mutilated, the Authority, at the expense of the Owner of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and Authorized Denomination in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and destroyed in accordance with the retention policy of the Trustee then in effect. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to it and indemnity satisfactory to i t shall be given, at the expense of the Bond Owner, the Authority shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bon d shall have matured or shall have been called for redemption, instead of issuing a substitute Bond the Trustee may pay the same without surrender thereof upon receipt of indemnity satisfactory to the Trustee). The Trustee may require payment of a reasonable fee for each new Bond issued under this Section and of the expenses which may be incurred by the Authority and the Trustee. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitu te an original contractual obligation on the part of the Authority whether or not the Bond alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds secured by this Indenture.
Section 2.10 Book-Entry System.
(a) Any Bonds, other than the 2022 Bonds , at the election of the Authority may be initially issued in the form of a separate single certificated fully registered Bond for each maturity date of each Series of the Bonds. Upon initial issuance, the ownership of each Bond made subject to this Section 2.10 shall be registered in the Bond Register in the name of Cede & Co., as Nominee of DTC. Except as provided in Section 2.10(d) hereof, all Outsta nding Bonds shall be registered in the Bond Register in the name of Cede & Co., as Nominee of DTC. (b) With respect to Bonds registered in the Bond Register in the name of Cede & Co., as Nominee of DTC, the Authority and the Trustee shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than an Owner, as shown in the Bond Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than an Owner, as shown i n the Bond Register, of any amount with respect to principal of, redemption premium, if any, or interest on the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered in the Bond Register as the holder and absolute owner of such Bond for the purpose of payment of principal, redemption premium, if any, and interest on such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering tra nsfers with respect to such Bond, and for all other purposes whatsoever. The Trustee shall pay all principal of, redemption premium, if any, and interest on the Bonds only to or upon the order of the respective
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Owners, as shown in the Bond Register, as pr ovided in Section 2.8 hereof, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the Authority’s obligations with respect to payment of principal of, redemption premium, if any, and interest on the Bonds to the extent of the sum or sums so paid.
No person other than an Owner, as shown in the Bond Register, shall receive a certificated Bond evidencing the obligation of the Authority to make payments of principal, redemption premium, if any, and interest pursuant to this Indenture. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new Nominee in place of Cede & Co., and subject to the provisions herein with respec t to record dates, the word “Cede & Co.” in this Indenture shall refer to such new Nominee of DTC.
(c) The delivery of the Representation Letter shall not in any way limit the provisions of Section 2.10(b) hereof or in any other way impose upon the Authority o r the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Owners, as shown on the Bond Register. The Trustee shall take all action necessary for all representations in the Representation Letter with respe ct to the Trustee to be complied with at all times.
(d) (i) DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving written notice to the Authority and the Trustee and discharging its responsibilities with respect thereto under applicable law. (ii) The Authority, in its sole discretion and without the consent of any other person, may terminate the services of DTC with respect to the Bonds if the Authority determines that:
(A) DTC is unable to discharge its respons ibilities with respect to the Bonds, or
(B) a continuation of the requirement that all Outstanding Bonds be registered in the Bond Register in the name of Cede & Co., or any other Nominee of DTC, is not in the best interest of the Beneficial Owners of such Bonds. (iii) Upon the termination of the services of DTC with respect to the Bonds pursuant to subsection 2.10(d)(ii)(B) hereof, or upon the discontinuance or termination of the services of DTC with respect to the Bonds pursuant to subsection 2.10(d)(i) or subsection 2.10(d)(ii)(A) hereof after which no substitute securities depository willing to undertake the functions of DTC hereunder can be found which, in the opinion of the Authority, is willing and able to undertake such functions upon reasonable and customary terms, the Authority is obligated to deliver Bond certificates, as described in this Indenture and the Bonds 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 whatev er name or names DTC shall designate to the Trustee in writing, in accordance with the provisions of this Indenture.
(e) Notwithstanding any other provisions of this Indenture to the contrary, as long as any Bond is registered in the name of Cede & Co., as Nominee of DTC, all payments with respect to principal or, redemption premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Representation Letter.
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ARTICLE III
DEPOSIT AND APPLICATION OF PROCEEDS
Section 3.1 Issuance of 2022 Bonds. Upon the execution and delivery to the Trustee of the 2022A Bonds and the 2022B Bonds in the initial aggregate principal amount s set forth in Section 2.1 hereof the Trustee shall establish the funds and accounts set forth in this Article III and apply the proceeds received from the issuance of the 2022 Bonds and other amounts contributed by the Authority, the City and the Port as set forth in this Article III.
Section 3.2 Application of Proceeds of Sale of 2022 Bonds and Other Funds. (a) Upon the receipt by the Trustee of the Initial Advance for the 2022A Bonds in the amount of $_________ the Trustee shall apply the funds received as follows:
(i) $_________ shall be deposited in the 2022A Account of the Costs of Issuance Fund for the payment of Costs of Issuance of the 2022 Bond s in accordance with Section 3.4 below.
(ii) $_________ shall be deposited in the 2022A Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 below. (iii) $_________ shall be deposited in the Fee Reserve Account of the Revenue Fund established pursuant to Section 3.3 below. (iv) $_________ shall be deposited in the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund for the payment of Convention Center Costs in accordance with Section 3.10 below.
Upon receipt of each Advance subsequent to the Initial Advance, the Trustee shall deposit the amount of such Advance to the Fee Reserve Account, the 2022A C apitalized Interest Subaccount of the Interest Account of the Revenue Fund and the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund and with respect to the Advance on May 1, 2025 to the 2022A Account of the Reserve Fund and the 2022B Account of the Reserve Fund in an amount equal to the Reserve Requirement, all in accordance with the Schedule for Deposit of Advances to Funds and Accounts attached as Exhibit E hereto , unless otherwise instructed in a Request of the Authority which may be given by the Authority as a result of one or more Advances not being made in accordance with such schedule.
(b) Upon the receipt by the Trustee of payment for the issuance and delivery of the 2022B Bonds in the amount of $_________ the Trustee shall apply the funds received as follows:
(i) $_________ shall be deposited in the 2022B Account of the Costs of Issuance Fund for the payment of Costs of Issuance of the 2022B Bonds in accordance with Section 3.4 below.
(ii) $_________ shall be deposited in the 2022B Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 below.
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(iii) $_________ shall be deposited in the 2022B Bond Proceeds Developer’s Phase 1A Subaccount of the 2022B Account of the Construction Fund for the payment of the Developer’s Phase 1A Contract Sum in accordance with Section 3.10 below. (c) The Trustee shall deposit to the Public Entity Contribution Subaccount in the 2022A Account of the Construction Fund on the Cl osing Date $___________ received from the City and $__________ received from the Port District for the payment of Convention Center Costs in accordance with Section 3.10 below.
(d) The Trustee shall deposit to the 2022A Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 below on the Closing Date $__________ received by the Trustee from the Authority.
The application of proceeds from the sale of a Series of Additional Bonds shall be set forth in the Supplemental Indenture providing for the issuance of such Series of Additional Bonds.
Section 3.3 Revenue Fund. The Trustee shall establish and maintain a separate fund to be known as the “Revenue Fund” and the following separate accounts therein: Interest Account , Principal Account, the Fee Reserve Account and the Authority Existing Revenues Account . In the Interest Account, the Trustee shall also establish the 2022A Capitalized Interest Subaccount and the 2022B Capitalized Interest Account . The Trustee shall depo sit all Revenues received after the Closing Date to the Revenue Fund and shall apply amounts in the Revenue Fund as described in Section 4.2 below. The Revenue Fund shall be administered as provided in Section 4.2 hereof.
Section 3.4 Costs of Issuance Fund . The Trustee shall establish and maintain a fund known as the “Costs of Issuance Fund” and within the Costs of Issuance Fund a “2022A Account” and a “ 2022B Account” into which shall be deposited the applicable amounts set forth in Sections 3.2(a) and 3.2(b) above. The moneys in the Costs of Issuance Fund shall be used to pay Costs of Issuance from time to time upon receipt by the Trustee of a Request of the Authority. Each such Request of the Authority shall state the account from which such disbursemen t is to be made, each payee and the amount to be disbursed to each payee. Each such Request of the Authority shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. On the date which is one hundred twenty (120) days following the Closing Date, or upon the earlier receipt by the Trustee of a Request of the Authority stating that all Costs of Issuance have been paid, the Trustee shall transfer all remaining amounts in t he Costs of Issuance Fund to the Revenue Fund. Upon such transfer, the Costs of Issuance Fund shall be closed.
The Authority may at any time file a Request of the Authority requesting that the Trustee retain a specified amount in the Costs of Issuance Fu nd and transfer to the Revenue Fund all remaining amounts, and upon receipt of such request by the Trustee, the Trustee shall comply with such request.
Section 3.5 Establishment of Additional Funds and Accounts . The Trustee shall establish and maintain such additiona l funds and accounts as are set forth in a Request of the Authority.
Section 3.6 Reserve Fund. The Trustee shall establish and maintain a separate fund to be known as the “Reserve Fund” and a “2022A Account” and a “2022B Account” therein into which shall be deposited an amount equal to the Reserve Requirement on May 1, 2025 in accordance with Section 3.2(a) above and in connection with the issuance of Additional Bonds such additional
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amounts as are set forth in a Request of the Authority . The Reserve Fund shall be ad ministered as provided in Section 4.3 hereof.
Section 3.7 Rebate Fund . The Trustee shall establish and maintain a separate fund, when needed, to be known as the “Rebate Fund” and a separate Rebate Account for each Series of Tax-Exempt Bonds. The Rebate Fund shall be administered as described in Section 5.8 hereof.
Section 3.8 Authority Surplus Fund . The Trustee shall establis h and maintain a separate fund to be known as the “Authority Surplus Fund” which shall be administered as described in Section 4.4 hereof.
Section 3.9 Administrative Expense Fund. The Trustee shall establish and maintain a separate fund to be held by the Trustee and known as the “Administrative Expense Fund” into which shall be deposited the (1) amounts to be transferred to the Administrative Expense Fund from the Revenue Fund as set forth in Section 4.2 and (2) any amounts transferred to the Trustee by the City, the Port District or the Financing District for the purpose of paying Priority Administrative Expenses or Additional Administrative Expenses which an Authori zed Officer directs to be deposited in the Administrative Expense Fund. Any amounts transferred to the Administrative Expense Fund pursuant to subsection 4.2(a) and (d) hereof shall no longer constitute Revenues and amounts in the Administrative Expense Fund are not pledged to repay the Bonds. The moneys in the Administrative Expense Fund shall be used as set forth in a Request of the Authority first to pay Priority Administrative Expenses and, second, to pay Additional Administrative Expenses . Each such Request of the Authority shall contain the name and address of the payee(s) and if payment is to be made by wire transfer, wiring instructions. The priority of disbursement of proceeds of the Additional Administrative Expenses hereunder shall be subject to the Revenue Sharing Agreement or a separate agreement to be entered into between the City and the Port District, a copy of which shall be provided to the Trustee. Any Request of the Authority directing the Trustee to transfer any balance in the Adminis trative Expense Fund to pay Additional Administrative Expenses shall be in conformance with the Revenue Sharing Agreement or such other agreement, as applicable , and shall so state. On or after June 1 of each year and prior to June 15 of each year, the Au thority may submit a Request of the Authority directing the Trustee to transfer any balance in the Administrative Expense Fund to the Surplus Fund.
Section 3.10 Construction Fund. The Trustee shall establish and maintain a fund known as the “Construction Fund” and a “2022A Account” and a “ 2022B Account” therein. The Trustee shall establish and maintain subaccounts known as the 2022A Bond Proceeds Subaccount and the Public Entity Contribution Subaccount in the 2022A Account of the Construction Fund. The Trustee shall establish and maintain subaccounts known as the 2022B Bond Proceeds Developer’s Phase 1A Subaccount, and the County Funded Developer’s Phase 1A Subaccount in the 2022B Account of the Construction Fund. On the Closing Date, t he Trustee shall deposit the amount set forth in Section
3.2(a)(iv) above into the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund and the amount set forth in Section 3.2( c) above into the Public Entity Contribution Subaccount of the 2022A Account of the C onstruction Fund and thereafter shall make additional deposits into the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund from each Advance in the amount set forth in the Schedule for Deposit of Advances to Funds and Accounts attached as Exhibit E hereto, or in such other amount as is set forth in a Request of the Authority delivered as a result of one or more Advances not being made in accordance with such schedule. On the Closing Date, the Trustee shall deposit the amount set forth in
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Section 3.2(b) (iii) above into the 2022B Bond Proceeds Developer’s Phase 1A Subaccount of the 2022B Account of the Construction Fund.
The Trustee shall deposit and transfer amounts into the Public Entity Contribution Subaccount of the 2022A Accoun t of the Construction Fund and shall deposit and transfer amounts into the County Funded Developer’s Phase 1A Subaccount of the 2022B Account of the Construction Fund as directed from time to time in one or more Requests of the Authority, which Requests of the Authority shall include a certification that the deposits or transfers are in accordance with the terms of Article IX of the Project Implementation Agreement. In addition to disbursements made pursuant to a Request of the Authority, amounts in the Public Entity Contribution Subaccount of the 2022A Account of the Construction Fund shall be used only to pay Convention Center Costs and shall be disbursed on the tenth Business Day following receipt by the Trustee of a RIDA Requisition from Public Entity Contribution Subaccount in the form set forth in Exhibit F hereto unless the Trustee has received a Request of the Authority prior to such tenth Business Day instructing the Trustee not to disburse the amounts in the RIDA Requisition from Public Entity C ontribution Subaccount. If the Trustee has not received such a Request of the Authority prior to the seventh Business Day after receiving a requisition from RIDA, it shall send a notice to the Authority stating the date on which the requisition from RIDA will be paid unless the Authority provides a Request of the Authority instructing the Trustee not to make such payment by the end of the Business Day prior to such payment date.
At the Request of the Authority made pursuant to Section 3.5 above , the Trust ee shall establish and maintain subaccounts known as the “ Phase 1A Infrastructure Improvements Subaccount” within the 2022B Account of the Construction Fund and shall deposit amounts into such subaccounts from time to time in accordance with a Request of the Authority.
The moneys in the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund shall be used to pay Convention Center Costs upon receipt by the Trustee of a Request of the Authority, which the Authority shall submit from time to time solely for the purposes and subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of Authority shall contain a statement to this effect . The moneys in the Public Entity Contribution Subaccount of the 2022A Account of the Construction Fund shall be used to pay Convention Center Costs upon receipt by the Trustee of a Request of the Authority, which the Authority shall submit from time to time solely for the purposes and subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of Authority shall contain a statement to this effect and shall not be required to be accompanied by an In Balance Certificate from the Administrative Ag ent. The moneys in each subaccount of the 2022B Account of the Construction Fund shall be used to pay the Phase 1A Infrastructure Improvements Costs from time to time upon receipt by the Trustee of a Request of the Authority, which the Authority shall sub mit from time to time solely for the purposes and subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of Authority shall contain a statement to this effect . Each such Request of the Authori ty for disbursement from the Construction Fund shall state the account or subaccount from which such disbursement is to be made, each payee and the amount to be disbursed to each payee and shall be in substantially the form set forth in Exhibit B to this I ndenture. Each such Request of the Authority shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts.
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Upon receipt by the Trustee of a Request of the Authority stati ng that all Project Costs have been paid and the Convention Center and all Phase 1A Infrastructure Improvements have been completed in accordance with the terms of the Project Implementation Agreement , the Trustee shall transfer all remaining amounts in the 2022A Bond Proceeds Subaccount and the Public Entity Contribution Subaccount of the 2022A Account of the Construction Fund and the 2022B Bond Proceeds Developer’s Phase 1A Subaccount of the 2022B Account of the Construction Fund to the Revenue Fund and shall transfer all remaining amounts in, the County Funded Developer’s Phase 1A Subaccount and the Phase 1A Infrastructure Improvements Subaccount of the Construction Fund (if such subaccount has been established pursuant to Section 3.5) to the Authority . Alternatively, the Authority may file a Request of the Authority requesting that the Trustee retain a specified amount in the Construction Fund or any account therein and transfer to the Revenue Fund all remaining amounts, and upon receipt of such request by the Trustee, the Trustee shall comply with such request.
Section 3.11 Insurance and Condemnation Fund . The Trustee shall establish and maintain a separate fund to be known as the “Insurance and Condemnation Fund” which shall be administered as described in Section 4.5 hereof.
Section 3.12 Redemption Fund. The Trustee shall establish and maintain a separate fund to be known as the “Redemption Fund” which shall be administered as described in Section 4.6 hereof.
ARTICLE IV
PLEDGE OF REVENUES AND FUNDS; FLOW OF FUNDS
Section 4.1 Pledge of Revenues and Funds ; Assignment of Rights . Subject to the provisions of Sections 6.4 and 9.3 hereof, the Bonds shall be secured by a first lien on and pledge (which shall be effected in the manner and to the ex tent hereinafter provided) of all of the Revenues and amounts on deposit in the Revenue Fund (other than amounts on deposit in the Authority Existing Revenues Account therein) , the Redemption Fund and the Reserve Fund . The Bonds shall be equally secured by a pledge, charge and lien upon the Revenues and amounts in the Revenue Fund (other than amounts on deposit in the Authority Existing Revenues Account therein), the Redemption Fund and the Reserve Fund without priority for any Bond over any other Bond; a nd the payment of the interest on and principal of the Bonds and any redemption premium due upon the redemption of any Bonds shall be and are secured by an exclusive pledge, charge and lien upon the Revenues and amounts in the Revenue Fund (other than amounts on deposit in the Authority Existing Revenues Account therein) , the Redemption Fund and the Reserve Fund . So long as any of the Bonds are Outstanding, the Revenues shall not be used for any purpose except as is expressly permitted by this Indenture.
The Authority hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Owners from time to time of the Bonds, respectively, all of the Revenues , all amounts on deposit in the Revenue Fund (other than amounts on deposit the Authority Existing Revenues Account therein) , the Redemption Fund and the Reserve Fund , and all of the Assigned Rights, subject to the terms of this Indenture. The Trustee shall be entitled to and shall collect and receive all of the Reve nues, and any Revenues collected or received by the Authority shall be deemed to be held, collected or received, by the Authority as the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. The Trustee also shall be entitled to, and subject to the provisions of this Indenture the Trustee shall , take all steps, actions and proceedings reasonably
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necessary in its judgment to enforce all of the obligations of the City, the Port District and the Financing District , as applicable, under the Local Obligations which are a part of the Assigned Rights; provided, however, so long as the 2022 Bonds are Outstanding, the Assigned Rights shall only be exercised by the Administrative Agent , or by the Trustee at the direction of the Administrative Agent, in accordance with Section __ of the Bond Purchase Agreement.
Upon the deposit with the Trustee of moneys sufficient to pay all principal of, redemption premium, if any, and interest on the Bonds, and upon satisfaction of all claims against the Authority hereunder with respect to the Bonds, including all fees, charges and expenses of the Trustee which are properly payable hereunder, or upon the making of adequate provisions for the payment of such amounts as permitted hereby, all moneys remaining in all funds and accounts pertaining to the Bonds, (except any amounts on deposit in the Rebate Fund and except moneys necessary to pay principal of, redemption premium, if any, and interest on the Bonds, which moneys shall be held by the Trustee pursuant to Section 9.3), shall no longer be considered Revenues and are not pledged to repay the Bonds. Such remaining amounts shall be transferred to the Authority for application by the Authority in accordance with the terms of the Revenue Sharing Agreement and all right title and interest of the Trustee in the Local Obligations shall cease and be vested in the Authority. In the event that the Authority receives any amounts pursuant to the Local Obligations (other than Net Proceeds and RIDA Insurance and Conde mnation Payments, which are to be held pursuant to the terms of the Sublease and administered pursuant to the terms of the Sublease, Facility Lease and the Project Implementation Agreement) after the Bonds have been paid or defeased, then any such amounts shall be applied by the Authority in accordance with the terms of the Revenue Sharing Agreement.
Section 4.2 Receipt, Deposit and Application of Revenues; Revenue Fund . Certain proceeds of the 2022 Bonds paid to the Trustee on the Closing Date and pursuant to each subsequent Advance shall be deposited into accounts and subaccounts of the Revenue Fund in accordance with Section 3.2 above. On the Closing Date and on and prior to June 1, 2026, all Existing Revenues received by the Trustee shall be promptly deposited by the Trustee upon receipt thereof to the Authority Existing Revenues Account and after such date shall be deposited to the Revenue Fund .
Except for Existing Revenues deposited to the Authority Existing Revenues Fund in accordance with the previous sentence, all Revenues shall be promptly deposited by the Trustee upon receipt thereof in the Revenue Fund. Amounts shall be transferred from any account or subaccount of the Revenue Fund from time to time to other funds and accounts as set forth in this Section 4.2. (a) On any date that it receives a Request of the Authority to transfer amounts from the Revenue Fund to the Administrative Expense Fund to pay Priority Administrative Expenses, the Trustee shall transfer the amount requested to the Administrative Expense Fund. (b) On each Interest Payment Date, the Trustee shall transfer from the Revenue Fund (other than from amounts on deposit in the Authority Existing Revenues Account) , and deposit into the following respective funds and accounts, the following amounts in the following order of priority. The require d deposit to each such account (including the making up of any deficiencies in any such account resulting from lack of Revenues sufficient to make any earlier required d eposit) shall be satisfied before any transfer is made to any account subsequent in priority:
(i) Interest Account. On each Interest Payment Date, the Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the
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Interest Account to equal the amount of interest becoming due and payable on such Interest Payment Date on all Outstanding Bonds on such date and any amounts due pursuant to Section 2.10 of the Bond Purchase Agreement as a result of a Determination of Taxability as set forth in a Request of the Authority delivered to the Trustee prior to an Interest Payment Date ; provided, however, no deposit shall be required to the extent that funds are on deposit in the 2022A Capitalized Interest Subaccount of the Interest Account and the 2022B Capitalized Interest Subaccount of the Interest Account to pay the foregoing amounts due on such Interest Payment Date. In addition to the deposits made to the 2022A Capitalized Interest Subaccount of the Interest Account and to the 2022B Capitalized Interest Subaccount of the Interest Account pursuant to Section 3.2 above , the Trustee shall also deposit in the Interest Account all amounts to be transferred to the Interest Account pursuant to Section 4.2( g) below. Amounts in the 2022A Capitalized Interest Subaccount of the Interest Account shall be applied only to pay interest on the 2022A Bonds and amounts in the 2022B Capitalized Interest Subaccount of the Interest Account shall be applied only to pay interest on the 2022B Bonds and any amounts due pursuant to Section 2.10 of the Bond Purchase Agreement as a result of a Determination of Taxability as set forth in a Request of the Authority delivered to the Trustee prior to an Interest Payment Date and amounts deposited in such Subaccounts shall be disbursed prior to other Revenues deposited to the Interest Account.
All moneys in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying interest on the Bonds as it shall become due and payable (including accrued interest on any Bonds redeemed prior to maturity) and to pay any amounts due pursuant to Section
2.10 of the Bond Purchase Agreement as a result of a Determination of Taxability as set forth in a Request of the Authority delivered to the Trustee prior to an Interest Payment Date. In the event that the amounts on deposit in the Interest Account on any Interest Payment Date, after any transfers from the Reserve Fund pursuant to Section 4.3 hereof, are insufficient fo r any reason to pay the aggregate amount of interest then coming due and payable on the Outstanding Bonds and any amounts due pursuant to Section 2.10 of the Bond Purchase Agreement as a result of a Determination of Taxability as set forth in a Request of the Authority delivered to the Trustee prior to an Interest Payment Date , the Trustee shall apply such amounts to the payment of interest on each of the Outstanding Bonds on a pro rata basis.
(ii) Principal Account . On each date on which principal of the Bonds shall be payable at maturity or by mandatory sinking fund redemption , the Trustee shall deposit in the Principal Account an amount required to cause the aggregate amount on deposit in the Principal Account to equal the principal amount of the Bonds coming due and payable on such date at maturity or by mandatory sinking fund redemption. All moneys in the Principal Account shall be used and withdrawn by the Trustee solely for the purpose of paying the principal of the Bonds at the maturity thereof or upon mandatory sinking fund redemption. In the event that the amounts on deposit in the Principal Account on any Interest Payment Date, after any transfers from the Reserve Fund pursuant to Section 4.3 hereof, are insufficient for any reason to pay the aggregat e amount of principal then coming due and payable on the Outstanding Bonds, the Trustee shall apply such amounts to the payment of principal on each of the Outstanding Bonds then due on a pro rata basis. (iii) Reserve Fund. On each Interest Payment Date on whic h the balance in the Reserve Fund is less than the Reserve Requirement, after making deposits required under (i) and (ii) above, the Trustee shall transfer from the Revenue Fund (other than from amounts on deposit in the Authority Existing Revenues Account ) an amount sufficient to increase the balance in the Reserve Fund to the Reserve Requirement by depositing the amount necessary to increase the amount therein to an amount equal to the Reserve Requirement, provided the value of the moneys
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deposited therei n, as invested, shall be valued at their cost on such transfer date for purposes of making such determination.
(iv) Redemption Fund. After making deposits required under (i), (ii) and (iii) above for an Interest Payment Date, the Authority may direct the Trust ee in a Request of the Authority to transfer any remaining amounts on deposit in the Revenue Fund to the Redemption Fund to be applied to effect an optional redemption of Bonds, in whole or in part , if permitted pursuant to the terms hereof or of any Suppl emental Indenture; provided, however, that no amount shall be deposited to effect a partial optional redemption of Bonds unless the Trustee has first received a certificate of an Independent Accountant certifying that following such optional redemption of the Bonds, the Revenues to be received on the Local Obligations , together with any amounts that will remain in the Revenue Fund following such optional redemption, will be sufficient to make timely payment of the principal of and interest on the Bonds that will remain Outstanding following such optional redemption, assuming for such purposes that timely payments will continue to be paid on all Local Obligations not then in default. The Trustee shall also deposit to the Redemption Fund any amounts to be transferred to the Redemption Fund in accordance with Section
4.5 and any amount to be transferred to the Redemption Fund from the Authority Existing Revenues Account as set forth in a Request of the Authority to effect the mandatory redemption of 2022 Bonds pursuant to Section 2.2(c) herein.
(c) If on any Interest Payment Date the amount on deposit in the Revenue Fund (other than from amounts on deposit in the Authority Existing Revenues Account) is inadequate to make the transfers described in subsection (b)(i), (ii), or (iii) above as a result of a payment default on any of the Local Obligations, the Trust ee shall immediately notify the City, the Port District or the Financing District, as applicable, of the amount needed to make the required deposits under subsection (b) above. In the event that following such notice the Trustee receives any amounts with respect to a Local Obligation to cure such shortfall, the Truste e shall deposit such amounts into the appropriate account of the Revenue Fund in accordance with this Section 4.2 for application in accordance with subsections (b) or (g) below. (d) On each Interest Payment Date after making the transfers required under subsections (a) and (b) above, upon receipt of a Request of the Authority to do so, the Trustee shall transfer from the Revenue Fund (excluding amounts on deposit in any Account or Subaccount therein other than the Authority Existing Revenues Account ) to the Ad ministrative Expense Fund for deposit therein the amounts specified in such Request of the Authority for the payment of Additional Administrative Expenses.
(e) On June 15 of each year after the Convention Center Delivery Date, after making the deposits requi red under subsections (a), (b), (c) and (d) above, upon receipt of a Request of the Authority to do so, the Trustee shall transfer from the Revenue Fund to the Authority Surplus Fund for deposit therein all amounts remaining in the Revenue Fund other than amounts in the Interest Account , the Fee Reserve Account and the Authority Existing Revenues Account.
(f) Fee Reserve Account. The Trustee shall pay to the Administrative Agent by wire transfer in immediately available funds the Commitment Fee due under Secti on 2.12(a) of the Bond Purchase Agreement on the first Business Day of each March, June, September and December, provided that it has received a written certificate from the Administrative Agent not later than the Business Day prior to each of the foregoin g dates stating the amount to be paid. In
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addition, the Trustee shall pay to the Administrative Agent by wire transfer in immediately available funds the Administrative Agent Fees on the dates and in the amounts set forth in Exhibit D hereto.
(g) Authority Ex isting Revenues Account . The Trustee shall deposit to the Authority Existing Revenues Account all Existing Revenues received by the Trustee by the Authority on and prior to June 1, 2026, including those Existing Revenues received by the Trustee from the Authority for deposit into the Authority Existing Revenues Account on the Closing Date .
Amounts in the Authority Existing Revenues Account are not pledged to repay the Bonds.
Pursuant to a Request of the Authority , amounts in the Authority Existing Revenues Account may be transferred to any fund or account established herein or be disbursed to the Authority, the City or the Port to pay any cost incurred by the Authority, the City or the Port with respect to the RHCC Project; provided, however, such Reques t of the Authority is subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of the Authority shall contain a statement to the effect that it is in compliance with Article IX of the Project Implementation Agreement. Unless otherwise directed in a Request of the Authority, amounts remaining in the Authority Existing Revenues Account on any optional redemption date for the 2022 Bonds pursuant to Sections 2.2(a) and (b) and upon the mandatory rede mption of the 2022 Bonds pursuant to Section 2.2(c) shall be transferred to the Redemption Fund and be applied to pay the principal of and interest due on the 2022 Bonds.
Section 4.3 Reserve Fund.
(a) From the Advance made on May 1, 2025 , deposits shall be made to the 2022A Account of the Reserve Fund and in the 2022B Account of the Reserve Fund in the respective amounts set forth in the Schedule of Advances , which amount equals the Reserve Requirement for the 2022 Bonds. Upon the issuance of Additional Bonds, the amou nts in the 2022A Account and the 2022B Account shall be adjusted to the Proportionate Share of the Reserve Requirement for each account. In the event of any partial redemption or partial defeasance of the Bonds, the amount of the Reserve Requirement and t he required portion of the Reserve Requirement for each Account of the Reserve Fund shall be recalculated and in the event that the Reserve Requirement is reduced, the Trustee shall, upon receipt of a Request of the Authority, transfer any amounts in the R eserve Fund in excess of the amount of the reduced Reserve Requirement for application in accordance with Section 4.3(c) below. (b) Moneys in the Reserve Fund shall be used solely for the purposes set forth in this Section 4.3. Amounts in the Reserve Fund shall be applied to pay the principal of and interest on the Bonds when the moneys in the Interest Account and the Principal Account of the Revenue Fund are insufficient to make such payments when due . Amounts shall be withdrawn from each Account in the Reserve Fund based on its Proportionate Share. Upon the transfer by the Trustee to the Reserve Fund of Revenues pursuant to Section 4.2(b)(iii) above to replenish the Reserve Fund to the Reserve Requirement, Revenues shall be deposited to each Account of t he Reserve Fund based on its Proportionate Share until the amount in the Reserve Fund equals the Reserve Requirement.
(c) Moneys in the Reserve Fund may be applied: (i) in connection with an optional, mandatory or extraordinary redemption of Bonds pursuant to Section 2.2 or a defeasance pursuant to Section 9.3, or (ii) when the balance therein equals the principal and interest due on the Bonds to and including maturity or a redemption date selected by the Authority to pay the principal
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and interest on the Bonds as it comes due. In connection with an optional, mandatory or extraordinary redemption of Bonds pursuant to Section 2.2 or a defeasance pursuant to Section 9.3, the Trustee shall transfer from the Reserve Fund to the Redemption Fund , or the fund establis hed pursuant to Section 9.3 to defease Bonds , as applicable, amounts in the Reserve Fund provided, however, that in the case of a partial redemption or defeasance , the balance remaining in the Reserve Fund following such partial redemption or defeasance sh all equal the Reserve Requirement upon such partial redemption or defeasance. (d) On each Interest Payment Date , any amount in an account of the Reserve Fund which is in excess of the Proportionate Share for such account shall be transferred to the Revenue Fund.
(e) When amounts in the Reserve Fund are sufficient to repay the remaining principal and interest due on the Bonds, such amounts will be transferred to the Interest Account and Principal Account of the Revenue Fund and shall be applied to pay the principal of and interest on the Bonds.
Section 4.4 Authority Surplus Fund. Any amounts transferred to the Authority Surplus Fund pursuant to subsection 4.2(e) hereof shall no longer constitute Revenues and amounts in the Authority Surplus Fund are not pledged to repay the Bon ds. Amounts in the Authority Surplus Fund shall, as set forth in a Request of the Authority, be applied first to pay any true-up payment to be paid to RIDA pursuant to Section 5.1.3 of the Project Implementation Agreement and any amount owing to RIDA purs uant to Section 9.2 of the Project Implementation Agreement . After the amounts due and owing to RIDA pursuant to Section 5.1.3 and 9.2 of the Project Implementation Agreement have been paid, as directed in a Request of the Authority , amounts in the Authority Surplus Fund may be transferred to any Fund or Account herein or be transferred to the Authority for deposit in the CV Bayfront Finance Authority Fund for application in accordance with the Revenue Sharing Agreement.
Section 4.5 Insurance an d Condemnation Fund . The Trustee shall deposit all Net Proceeds (other than any Net Proceeds of any temporary condemnation which shall be deposited directly into the Revenue Fund) and any RIDA Insurance and Condemnation Payments in the Insurance and Conde mnation Fund as provided in Section 6.1(a) and (d) of the Facility Lease and such amounts shall be applied as set forth in the Facility Lease, the Sublease and in this Section 4.5.
Pending such application, such Net Proceeds and RIDA Insurance and Condemnation Payments may be invested by the Trustee , as directed in a Request of the Authority, in Permitted Investments that mature not later than such times moneys are expected to be needed to pay the costs of repair or replacement of the Facility or to redeem 2022A Bonds and Additional Bonds that have refunded all or a portion of the 2022A Bonds.
(a) Casualty Insurance . Any Net Proceeds and RIDA Insurance and Condemnation Payments received in connection with any damage to or destruction of the Facility shall be applied as set forth in this Section 4.5(a). If such amounts are to be applied to the repair or replacement of the Facility as provided in Section 6.1(b) of the Facility Lease, then upon receipt of a Request of the Authority, such amounts shall be transfe rred by the Trustee to the 2022A Account of the Construction Fund to be disbursed pursuant to a Request of the Authority which the Authority shall deliver only in accordance with Article IX of the Project Implementation Agreement. Any amounts remaining in the Insurance and Condemnation Fund following the repair or replacement of the Facility shall be disbursed to RIDA for application in accordance with
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Section 6.1(b)(ii) of the Facility Lease . If such amounts are to be applied to redeem the 2022A Bonds or Additional Bonds that have refunded all or a portion of the 2022A Bonds in accordance with Section 6.1(c) of the Facility Lease , then upon receipt of a Request of the Authority, such amounts shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2022A Bonds or Additional Bonds that have refunded all or a portion of the 2022A Bonds as set forth in Section 2.2( d) herein or in any Supplemental Indenture for such Additional Bonds. If any amounts remain i n the Insurance and Condemnation Fund after all such 2022A Bonds and Additional Bonds, if any, have been paid in full, or provision made for payment satisfactory to the Trustee, the Trustee shall pay any remaining moneys in the Insurance and Condemnation Fund to RIDA for application in accordance with Section 6.1(c) of the Facility Lease.
(b) Title Insurance. The Net Proceeds of any policy of title insurance received by the Trustee with respect to the Facility shall be applied and disbursed by the Trustee upon the Request of the Authority as follows:
(i) If the City has determined and notified the Authority that the title defect giving rise to such Net P roceeds has not substantially interfered with the City’s use a nd occupancy of the Facility and will not result in an abatement of Lease Payments payable by the City under the Facility Lease (such determination to be certified by the City in writing), the Authority shall provide the Trustee with written notice of such fact and such Net P roceeds shall be remitted to the Authority and used for any lawful purpose; or
(ii) If the City has determined and notified the Authority that the title defect giving rise to such proceeds has substantially interfered with the City’s use and occupancy of the Facility and will result in an abatement of Lease Payments payable by the City under the Facility Lease, (such determination to be certified by the City in writing), the Authority shall provide the Trustee with written notice of such fact and the Trustee shall immediately deposit such proceeds in the Redemption Fund and such proceeds shall be applied to the extraordinary redemption the 2022A Bonds and Additional Bonds that have refunded all or a portion of the 2022A Bonds as set forth in Section 2.2(d) herein.
(c) Condemnation Proceeds. The Net Proceeds of any condemnation and RIDA Insurance and Condemnation Payments received in connection with any condemnation of the Facility shall be applied as set forth in this Section 4.5(c). (i) If all or a portion of such amounts are to be applied to the repair or replacement of the Facility as provided in Section 6.1(d)(iii) of the Facility Lease, then upon receipt of a Request of the Authority, the amount specified in such Request of the Authority shall be transferred by the Trustee to the 2022A Account of the Construction Fund to be disbursed pursuant to a Request of the Authority which the Authority shall deliver only in accordance with Article IX of the Project Implementation Agreement, and, thereafter, upon receipt of a further Request of the Authority, the remaining balance, if any, shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2022A Bonds and Additional Bonds that have refunded all or a portion of the 2022A Bonds as set forth in Section 2.2(d) herein or in any Supplemental Indenture for such Additional Bonds; or
(ii) If such amounts are to be applied to redeem the 2022A Bonds and Additional Bonds that have refunded all or a portion of the 2022A Bonds in accordance with Section
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6.1(d)(ii) of the Facility Lease, then upon receipt of a Request of the Authority, such amounts shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2022A Bonds and Additional Bonds that have refunded all or a portion of the 2022A Bonds as set forth in Section 2.2(d) herein or in any Supplemental Indenture for such Additional Bonds. If any amounts remain in the Insurance and Condemnation Fund after all such 2022A Bonds and Additional Bonds, if any, have been paid in full, or provision made for payment satisfactory to the Trustee, the Authority shall submit a Request of the Authority directing the Trustee to pay and the Trustee shall pay any remaining moneys in the Insurance and Condemnation Fund to RIDA and the Port District for application in accordance with Section 5.1(g) of the Sublease.
Section 4.6 Redemption Fund. The Trustee shall deposit to the Redemption Fund all amounts to be transferred to the Redemption Fund as set forth in Section 4.2( b)(iv), Section 4.2(g), Section 4.3 and Section 4.5 together with proceeds of Additional Bonds and other amounts to be deposited therein as set forth in a Request of the Authority. Moneys in the Redemption Fund shall be used solely for the purpose of redeeming Bonds in accordance with Section 2.2 and any Supplemental Indenture for any Additional Bonds.
Section 4.7 Investments. All moneys in any of the funds or accounts established with the Truste e pursuant to this Indenture shall be invested by the Trustee solely in Permitted Investments, as directed pursuant to the Request of the Authority filed with the Trustee at least two (2) Business Days in advance of the making of such investments. The Tru stee shall be entitled to conclusively rely on any such Request of the Authority and shall be fully protected in relying thereon. In the absence of any such Request of the Authority the Trustee shall hold such moneys uninvested and shall provide notice to the Authority monthly of the amount held uninvested .
Permitted Investments purchased as an investment of moneys in any fund or account established pursuant to this Indenture shall be deemed to be part of such fund or account.
All interest or gain derived from the Permitted Investments of amounts in any of the funds or accounts established hereunder shall be deposited in the fund or account from which such Permitted Investment was made; provided, however, that all interest or gain derived from the Permitted Investment of amounts in the accounts of the Reserve Fund shall, to the extent the balance in any account thereof exceeds, on each Interest Payment Date , its Proportionate Share of the Reserve Requirement as set forth in Section 4.3(a) hereof, shall be withdrawn by the Trustee and be deposited into the Revenue Fund.
For purposes of acquiring any Permitted Investments hereunder, the Trustee may commingle moneys held by it in any of the funds and accounts held by it hereunder; provided, that the Trustee maintains an independent accounting of each fund or account at all times. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its af filiates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account. The Trustee and its affiliates may act as advisor, sponsor, principal or agent in the acquisition or disposition of any Permitted Investment and may impose its customary charges therefor. The Trustee and its affiliates may make any and all Permitted Investments herein through its own investment department. The Trustee shall incur no liability for losses arising from any Permitted Investments made pursuant to this Section 4.7. The parties hereto acknowledge that the Trustee is not providing investment supervision, recommendations, or advice.
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The Authority acknowledges that to the extent regulations of the Comptroller of the Currency of the United States or other applicable regulatory entity grant the Authority the right to receive brokerage confirmations of security transactions effected by the Trustee as they occur, the Authority specifically waives receipt of su ch confirmations to the extent permitted by law. The Authority further understands that trade confirmations for securities transactions effected by the Trustee will be available upon request and at no additional cost and other trade confirmations may be ob tained from the applicable broker. The Trustee will furnish the Authority monthly cash transaction statements which include detail for all investment transactions made by the Trustee hereunder or brokers selected by the Authority and the value of the Perm itted Investments held at the end of such month with such value to be computed in the manner set forth in the definition of Permitted Investments .
Upon the Authority’s election, such statements will be delivered via the Trustee’s online service and upon electing such service, paper statements will be provided only upon request.
Section 4.8 Valuation of Permitted Investments. For the purpose of determining the amount in any fund or account, the value of Permitted Investments credited to such fund or account shall be valued in the manner set forth in the definition of Permitted Investments; provided that with respect to the valuation of the Reserve Fund, Permitted Investments shall be valued at the original cost thereof (excluding any brokerage commissions and excluding any accrued interest).
Section 4.9 Purchase of Bonds . The Authority may use amounts in the Authority Surplus Fund or other lawfully available funds of the Authority to purchase Bonds on the open market. The Authority shall notify the Trustee as to the principal amount, maturity date and Series of any Bonds purchased and the Trustee shall cancel such Bonds.
ARTICLE V
COVENANTS OF THE AUTHORITY
Section 5.1 Punctual Payment. The Authority shall punctually pay or cause to be paid the principal and interest and redemption premium (if any) to become due in respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Indenture, according to the true intent and meaning thereof, but only out of Revenues, and other amounts pledged for such payment as provided in Section 4.1 of this Indenture.
Section 5.2 Extension of Payment of Bonds . The Authority shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits o f this Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall have been so extended.
Nothing in this Section shall be deemed to limit the right of the Authority to issue Additional Bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds.
Section 5.3 Against Encumbrances . Except as permitted by Section 5.12 below, t he Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues, and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture. Subject to this
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limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Bond Law, and reserves the right to issue other obligat ions for such purposes , subject in all cases to the restrictions set forth in Section 26.15 of the Project Implementation Agreement.
Section 5.4 Power to Issue Bonds and Make Pledge and Assignment. The Authority is duly authorized pursuant to law to issue the Bonds a nd to enter into this Indenture and to pledge and assign the Revenues and the Assigned Rights as provided in Section 4.1 hereof and other assets purported to be pledged and assigned, respectively, under this Indenture. The Bonds and the provisions of this Indenture are and will be the legal, valid and binding special and limited obligations of the Authority in accordance with their terms. The Authority and the Trustee shall at all times, subject to the provisions of Article VI hereof and to the extent per mitted by law, defend, preserve and protect the pledge and assignment of the Revenues, the Assigned Rights and other amounts and assets made hereunder and all the rights of the Bond Owners under this Indenture against all claims and demands of all persons whomsoever.
Section 5.5 Accounting Records and Financial Statements . The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate trust industry standards in which complete and accurate entries sh all be made of transactions made by it relating to the proceeds of Bonds, the Revenues, the Local Obligations and all funds and accounts established pursuant to this Indenture. Such books of record and account shall be available for inspection by the Auth ority, the City, RIDA and the Port District upon reasonable prior notice during regular business hours and under reasonable circumstances, in each case as agreed to by the Trustee.
Not later than 45 days following each Interest Payment Date, the Trustee shall prepare and file with the Authority a report in the Trustee’s standard statement format setting forth: (i) amounts withdrawn from and deposited into each fund and account maintained by the Trustee under this Indenture; (ii) the balance on deposit in each fund and account as of the date for which such report is prepared; and (iii) a brief description of all obligations held as investments in each fund and account.
Copies of such reports may be mailed to any Owner upon the Owner’s written request to t he Trustee at the expense of such Owner at a cost not to exceed the Trustee’s actual costs of duplication and mailing.
Section 5.6 Conditions to Issuance of Additional Bonds and Other Obligations.
Except as set forth in this Section 5.6, the Authority covenants that no additional bonds, notes or other indebtedness shall be issued or incurred which are payable out of Revenues in whole or in part.
The Authority may issue Additional Bonds in such principal amount as shall be determined by the Authority, pursuant to a Sup plemental Indenture adopted or entered into by the Authority but only for the purpose of refunding all of the 2022 Bonds Outstanding , or all or a portion of any other Series of Bonds Outstanding. Such Additional Bonds may be issued subject to the followin g conditions precedent:
(a) The Authority shall be in compliance with all covenants set forth in this Indenture and all Supplemental Indentures;
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(b) The proceeds of such Additional Bonds shall be applied to accomplish a refunding of all of the 2022 Bonds Outstandi ng or all or a portion of any other Series of Bonds Outstanding.
(c) The Supplemental Indenture providing for the issuance of such Additional Bonds shall provide that interest thereon shall be payable on ly on June 1 and December 1 , and principal thereof shall be payable on June 1 in any year in which principal is payable. (d) Prior to the delivery of any Additional Bonds, a written certificate must be provided to the Authority and the Trustee by an Independent Financial Consultant which certifies that following the issuance of such Additional Bonds, the principal and interest generated from the Local Obligations , assuming all payments due thereunder are paid as scheduled, is adequate to make the timely payment of principal and interest due on all Bonds that will be Outstanding following the issuance of such Additional Bonds.
(e) The Supplemental Indenture providing for the issuance of such Additional Bonds may provide for the establishment of separate funds and accounts. (f) No Event of Default (or any event which, once all notice or grace periods have passed, would constitute an Event of Default ) shall have occurred and be continuing with respect to the Bonds or any of the Local Obligations unless such Event of Default shall be cured upon the issuance of the Additional Bonds.
(g) The Authority shall deliver to the Trustee a written Certificate of the Authority certifying that the conditions precedent to the issuance of such Additional Bonds set forth in subsections (a), (b), (c), (d) , (e) and (f) of this Section 5.6 above have b een satisfied and that, upon the issuance of such Additional Bonds an amount equal to the Reserve Requirement, as adjusted (if necessary) to reflect the issuance of such Additional Bonds , will be on deposit in the Reserve Fund.
Notwithstanding satisfaction of the other conditions to the issuance of Additional Bonds set forth in this Section 5.6, no such issuance may occur if the Reserve Fund is not fully funded at the Reserve Requirement at the time of issuance of such Additional Bonds.
Section 5.7 Tax Covenants . Notwithstanding any other provision of this Indenture, absent an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected, the Au thority covenants to comply with all applicable requirements of the Code necessary to preserve such exclusion from gross income and specifically covenants, without limiting the generality of the foregoing, as follows:
(a) Private Activity. The Authority will not take or omit to take any action or make any use of the proceeds of the Tax-Exempt Bonds or of any other moneys or property which would cause the Tax-Exempt Bonds to be “private activity bonds” within the meaning of Section 141 of the Code.
(b) Arbitrage. The Authority will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take or omit to take any action which
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would cause the Tax-Exempt Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code.
(c) Federal Guarantee. The Authority will make no use of the proceeds of the Bonds or take or omit to take any action that would cause the Tax-Exempt Bonds to be “federally guaranteed” within the meaning of Section 149(b) of the Code. (d) Information Reporting . The Authority will take or cause to be taken all necessary action to comply with the informational reporting requirement of Section 149(e) of the Code with respect to the Tax-Exempt Bonds.
(e) Miscellaneous. The Authority will take no action inconsistent with its expectations stated in any Tax Certificate executed with respect to the Tax-Exempt Bonds and will comply with the covenants and requirements stated therein and incorporated by reference herein.
This Section and the covenants set forth herein shall not be applicable to, and nothing contained herein shall be deemed to prevent the Authority from issuing Bonds which are not Tax - Exempt Bonds.
Section 5.8 Rebate Fund.
(a) Establishment. The Trustee shall establish a Rebate Fund, when needed, and shall ma intain a separate account therein for each Series of Tax-Exempt Bonds designated the “____ Bonds Rebate Account.” Absent an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected, the Authority shall cause to be deposited in each account of the Rebate Fund such amounts as are required to be deposited therein pursuant to this Section and each Tax Certificate.
All money at any time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the United States Treasury. All amounts on deposit in the Rebate Fund shall be governed by this Section 5.8 and each Tax Certificate unl ess and to the extent that the Authority delivers to the Trustee an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected if such requirements are not satisfied. Notwithstanding any other provision of this Indenture, the Trustee shall be deemed conclusively to have complied with this Section 5.8 and the Tax Certificate if it follows the directions set forth in any Request of the Authority or Certificat e of the Authority and shall be fully protected in so doing. The Trustee shall have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the Authority with the terms of this Section 5.8 or any Tax Certificate.
(b) Rebate Account. The following requirements shall be satisfied with respect to each Rebate Account:
(i) Computation. Within 55 days of the end of the fifth Bond Year for each Series of Tax-Exempt Bonds and every fifth Bond Year thereafter, the Authority sha ll calculate or cause to be calculated the amount of rebatable arbitrage, in accordance with Section 148(f)(2) of the Code and Section 1.148-3 of the Rebate Regulations (taking into account any applicable exceptions with respect to the computation of the r ebatable arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary investments exceptions of Section 148(f)(4)(B) and (C) of the Code), for this purpose treating the last day of the applicable Bond Year as a computation date,
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within the meaning of Section 1.148-1(b) of the Rebate Regulations (the “Rebatable Arbitrage”).
The Authority shall obtain expert advice as to the amount of the Rebatable Arbitrage to comply with this Section 5.8.
(ii) Transfer. Within 55 days of the end of each app licable Bond Year, upon receipt of the Request of the Authority, an amount shall be deposited to the applicable Rebate Account by the Trustee from any Revenues specified by the Authority in the Request of the Authority, if and to the extent required so tha t the balance in the applicable Rebate Account shall equal the amount of Rebatable Arbitrage so calculated in accordance with (i) of this Subsection (b).
In the event that immediately following the transfer required by the previous sentence, the amount then on deposit to the credit of a Rebate Account exceeds the amount required to be on deposit therein, upon receipt of a Request of the Authority, the Trustee shall withdraw the excess from the applicable Rebate Account and then credit the excess to the Revenue Fund. (iii) Payment to the Treasury . The Trustee shall pay, as directed by Request of the Authority, to the United States Treasury, out of amounts in the applicable Rebate Account:
(A) Not later than 60 days after the end of (A) the fifth Bond Year for a Serie s of Tax-Exempt Bonds, and (B) each applicable fifth Bond Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage as set forth in a Certificate of the Authority delivered to the Trustee calculated as of the end of such Bond Year; and (B) Not later than 60 days after the payment of all the Tax- Exempt Bonds of a Series, an amount equal to 100% of the Rebatable Arbitrage as set forth in a Certificate of the Authority delivered to the Trustee calculated as of the end of such applicable Bond Year, and any income attributable to the Rebatable Arbitrage, as set forth in a Certificate of the Authority delivered to the Trustee computed in accordance with Section 148(f) of the Code.
In the event that, prior to the time of any payment required to be mad e from a Rebate Account, the amount in such Rebate Account is not sufficient to make such payment when such payment is due, the Authority shall calculate or cause to be calculated the amount of such deficiency and deposit with the Trustee an amount receive d from any legally available source equal to such deficiency prior to the time such payment is due. Each payment required to be made pursuant to this Subsection (b) shall be made to the Internal Revenue Service Center, Ogden, Utah 84207 on or before the date on which such payment is due, and shall be accompanied by Internal Revenue Service Form 8038 T (which form shall be completed and provided by the Authority to the Trustee), or shall be made in such other manner as provided under the Code, in each case as specified in a Request of the Authority delivered to the Trustee.
(c) Disposition of Unexpended Funds . Any funds remaining in a Rebate Account for a Series after redemption and payment of the Tax-Exempt Bonds of such Series and the payments of all amounts described in Subsection (b)(iii) or provision made therefor satisfactory to the Trustee, including accrued interest and payment of all applicable fees to the Trustee, may, upon Request of the Authority , be withdrawn by the Trustee and remitted to the Autho rity for application in accordance with the Revenue Sharing Agreement. (d) Survival of Defeasance . Notwithstanding anything in this Section to the contrary, the obligation to comply with the requirements of this Section with respect to a Series of
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Tax-Exempt Bonds shall survive the defeasance of such Series until all obligations under this Section have been satisfied as to such Series as set forth in an opinion of Bond Counsel. (e) Trustee. The Trustee shall have no responsibility to monitor or calculate any amounts payable to the U.S. Treasury pursuant to this Section and shall be deemed conclusively to have complied with its obligations hereunder if it follows the written instructions of the Authority given pursuant to this Section.
Section 5.9 Local Obligations . Subject t o the provisions of this Indenture (including Article VI), the Authority and the Trustee shall use reasonable efforts to collect all amounts due pursuant to the Local Obligations and shall enforce, and take all steps, actions and proceedings which the Aut hority and Trustee determine to be reasonably necessary for the enforcement of all of the rights of the Authority thereunder and for the enforcement of all of the obligations and covenants of the City, the Financing District and the Port District thereunder.
The Authority, the Trustee and an entity that is a party to a Local Obligation may at any time consent to, amend or modify such Local Obligation pursuant to the terms thereof, (a) with the prior consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, or (b) without the consent of any of the Owners, if such amendment or modification is for any one or more of the following purposes:
(a) to add to the covenants and agreements con tained in such Local Obligati on, other covenants and agreements thereafter to be observed, or to limit or surrender any rights or power therein reserved to or conferred upon the parties to such Local Obligation; or (b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision con tained in such Local Obligation, or in any other respect whatsoever as the parties thereto may deem necessary or desirable, provided under any circumstances that such modifications or amendmen ts shall not materially adversely affect the interests of the Owners of the Bonds; or
(c) to amend any provision thereof to the extent necessary , in the opinion of Bond Counsel filed with the Trustee, to maintain the exclusion from gross income for federal income tax purposes of the interest on any Series of Tax-Exempt Bonds.
The Trustee may request and thereafter shall be furnished, at the expense of the Authority, an opinion of Bond Counsel that any amendment to the Local Obligations complies with the provisions of this Section 5.9 and the Trustee may conclusively rely upon such opinion and shall be fully protected in relying thereon.
Notwithstanding the foregoing, so long as the 2022 Bonds are Outstanding, the a pproval of any amendments to the Local Obligations shall be subject to the provisions in Section 7.5 herein.
Section 5.10 Continuing Disclosure Certificate s. The Authority hereby covenants and agrees that it will comply with and carry out all of its obligations unde r the Continuing Disclosure Certificate to be executed and delivered by the Authority in connection with the issuance of any Additional Bonds. Notwithstanding any other provision of this Indenture, failure of the Authority to comply with any Continuing Di sclosure Certificate shall not be considered an Event of Default; however, any Owner or Beneficial Owner of a Series may take such actions as may be necessary and
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appropriate, including seeking mandate or specific performance by court order, to cause the Authority to comply with its obligations under the Continuing Disclosure Certificate for such Series.
For purposes of this Section, “Beneficial Owner” means any person which has or shares the power, directly or indirectly, to make investment decisions conc erning ownership of any Bonds (including persons holding Bonds through nominees, depositories and other intermediaries).
Section 5.11 Further Assurances. The Authority will adopt, make, execute and deliver any and all such further resolutions, instruments and assuran ces as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture, and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits provided in this Indenture.
Section 5.12 Pledged Revenues. The Authority represents it has not heretofore made a pledge of, granted a lien on or security interest in, or made an assignment or sale of the Revenues that ranks on a parity with or prior to the pledge granted under this Indenture. The Autho rity shall not hereafter make any pledge or assignment of, or grant a lien on or security interest in the Revenues which is senior to or on a parity with the pledge of Revenues established under this Indenture and, so long as any 2022 Bonds are Outstanding or the commitment of the Purchasers to make Advances under the Bond Purchase Agreement remain s in effect, the Authority shall not make any pledge or assignment of, or grant a lien on or security interest in the Revenues other than such pledge of and lien on the Revenues provided by this Indenture to secure the payment of the principal of, redemption premium, if any, and interest on the 2022 Bonds . Subject to Section 26.15 of the Project Implementation Agreement, so long as no 2022 Bonds remain Outstanding and the commitment of the Purchasers to make Advances under the Bond Purchase Agreement is no longer in effect, the Authority may grant a subordinate pledge or assignment of Revenues with the written consent of the City and the Port District.
ARTICLE VI
THE TRUSTEE AND ADMINISTRATIVE AGENT
Section 6.1 Appointment of Trustee . Wilmington Trust, National Association , wit h a corporate trust office presently located in Costa Mesa , California, a national banking association organized and existing under and by virtue of the laws of the United States of America, is hereby appointed Trustee by the Authority for the purpose of r eceiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and apply the same as provided in this Indenture. The Authority agrees that it will maintain a Trustee which is a trust company, association or bank of good standing located in or incorporated under the laws of the State, duly authorized to exercise trust powers, with a combined capital and surplus of at least Seventy -Five Million Dollars ($75,000,000), and subject to supervision or examination by federal or state authority, so long as any Bonds are Outstanding. If such bank, association or trust company serving as the Trustee publishes a report of condition at least annually pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this Section 6.1, the combined capital and surplus shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
The Trustee is hereby authorized to pay the princi pal of on the Bonds when duly presented for payment at maturity, or on redemption prior to maturity, to make regularly scheduled interest payments in the manner set forth herein, and to cancel any Bond upon payment thereof.
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Section 6.2 Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions:
(a) The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. These duties shall be deemed purely ministerial in nature, and the Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In case an Event of Default hereunder has occurred (which has not been cured or waived), the Trustee may exercise such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill and diligence in thei r exercise, as a prudent Person would exercise or use under the circumstances in the conduct of that Person’s own affairs. (b) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, but shall be responsible for the negligent or willful acts of any of its agents, attorneys or receivers appointed by it. The Trustee may consult with and act upon the advice of counsel (which may be counsel to the Authority) concerning all matters of trust and its duty hereunder and may conclusively rely upon and shall be wholly protected in reliance upon the advice or opinion of such counsel in respect of any action taken or omitted by it in accordance therewith. (c) The Trustee shall not be responsible for any recital herein, or in the Tax Certificate or the Bonds, or for any of the supplements thereto or instruments of further assurance, or for the validity, effectiveness or the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby and the Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, conditions or agreements on the part of the Authority hereunder or under the Tax Certificate. The Trustee sha ll have no responsibility, opinion, or liability with respect to any information, statement, or recital in any offering memorandum, official statement, or other disclosure material prepared or distributed with respect to the issuance of the Bonds.
(d) Except as provided in Section 3.2 hereof, the Trustee shall not be accountable for the use of any proceeds of sale of the Bonds delivered hereunder. The Trustee may become the Owner of Bonds secured hereby with the same rights which it would have if not the Trust ee; may acquire and dispose of other bonds or evidences of indebtedness of the Authority with the same rights it would have if it were not the Trustee; and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of Bonds, whether or not such committee shall represent the Owners of the majority in aggregate principal amount of the Bonds then Outstanding. (e) The Trustee shall be e ntitled to request and receive written instructions from the Authority and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Trustee in accordance with the written direction thereof. The Trustee shall be protected and shall incur no liability in acting, or refraining from acting, without negligence or willful misconduct, in reliance upon any notice, direction, request, consent, opinion, certificate, order, resolution, r eport, affidavit, letter, telegram, facsimile, bond, debenture, note, other evidence of indebtedness (including any Bond or Additional Bond) or other paper or document believed by it to be genuine and correct and to have been signed, sent or presented by the proper person or persons, not only as to due execution, validity and effectiveness,
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but also as to the truth and accuracy of any in formation contained therein . Any action taken or omitted to be taken by the Trustee without negligence or willful misconduct pursuant to this Indenture upon the request, direction, authority or consent of any Person who at the time of making such request or direction or giving such authority or consent is the Owner of any Bond, shall be conclusive and binding upon all future Owners of the same Bond and upon Bonds issued in exchange therefor or in place thereof. The Trustee shall not be bound to recognize any Person as an Owner of any Bond or to take any action at such Person’s request unless the ownership of such Bond by such Person shall be reflected on the Bond Register. (f) As to the existence or non -existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a Certificate of the Authority and/or opinion of counsel as sufficient evidence of the facts therein contained and prior to the occurrence of an Event of Default hereunder of which the Trustee has been given notice or is deemed to have notice, as provided in Section 6.2(h) hereof, shall also be at liberty to accept a Certificate of the Authority and/or opinion of counsel to the effect that any particular dealing, transactio n or action is necessary or expedient, and shall be fully protected in relying thereon, but may at its discretion secure such further evidence deemed by it to be necessary or advisable, but shall in no case be bound to secure the same. (g) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and notwithstanding any other provision of this Indenture, the Trustee shall not be answerable for other than its negligence or willful misconduct or that of its officers, directors, agents or employees . The immunities and exceptions from liability of the Trustee shall extend to its officers, directors, employees and agents. (h) The Trustee shall not be required to take notice or be deemed to have notice of any Event of Default hereunder except where a Responsible Officer has actual knowledge of such Event of Default and except for the failure by the Authority to make any of the payments to the Trustee required to be made by the Authority pursuant hereto, including paymen ts on the Local Obligations, or failure by the Authority to file with the Trustee any document required by this Indenture to be so filed subsequent to the issuance of the Bonds, unless a Responsible Officer shall be specifically notified in writing of such default by the Authority or by the Owners of a majority in aggregate principal amount of the Outstanding Bonds and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered to a Responsible Officer at the Trust Office of the Trustee, and in the absence of such notice so delivered the Trustee may conclusively assume there is no Event of Default hereunder except as aforesaid. Delivery of a notice to the officer at the address for the Trustee set forth in Section 9.11 hereof, as updated by the Trustee from time to time, shall be deemed notice to a Responsible Officer.
(i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, accountants and rep resentatives, shall have the right fully to inspect all books, papers and records of the Authority pertaining to the Bonds, and to make copies of any of such books, papers and records such as may be desired provided that they are not privileged by statute, law, or contract, protected by confidentiality by statute, law, or contract, or otherwise protected from disclosure by statute or by law, including without limitation, the California Public Records Act. The Trustee shall not be required to give any bond o r surety in respect of the execution of the said trusts and powers or otherwise in respect of the performance of its duties hereunder.
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(j) Notwithstanding anything elsewhere in this Indenture with respect to the execution of any Bonds, the withdrawal of any ca sh, the release of any property, or any action whatsoever within the purview of this Indenture, the Trustee shall have the right, but shall not be required, to demand any showings, certificates, opinions, appraisals or other information, or corporate actio n or evidence thereof, as may be deemed desirable by the Trustee in its sole discretion for the purpose of establishing the right of the Authority to the execution of any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (k) Before taking any action referred to in Sections 6.5, 8.2, or elsewhere in this Article, the Trustee may require that an indemnity bond or other form of security or indemnification satisfactory to it in its sole and exclusive discretion be furnished for th e reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from the negligence or willful misconduct of the Trustee or its officers, directors, agents or employees in connection with any such action. (l) All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds.
(m) Whether or not e xpressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Article VI.
(n) The Trustee shall not be considered in breach of o r in default in its obligations hereunder or progress in respect thereto in the event of delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence or willful misconduct , including, but n ot limited to, Acts of God or of the public enemy or terrorists, acts of a government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion, mob violence, riot, inability to procure or general sabotage or rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market, loss or malfunctions of utilities, computer (hardware or software) or communications service, accidents, labor disputes, the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility , litigation or arbitration involving a party or others relating to zoning or other governmental action or inaction pertaining to the Project, malicious mischief, co ndemnation, and unusually severe weather or delays of supplies or subcontractors due to such causes or any similar event and/or occurrences beyond the control of the Trustee.
(o) The Trustee agrees to accept and act upon facsimile or electronic transmission of written instructions and/or directions pursuant to this Indenture ; provided, however, that: (a) such originally executed instructions and/or directions shall be signed by a person as may be designated and authorized to sign for the party signing such ins tructions and/or directions, and (b) the Trustee shall have received a current incumbency certificate containing the specimen signature of such designated person. Any such instructions, directions and other communications furnished by electronic transmiss ion shall be in the form of attachments in PDF format and confirmed in accordance with Section 9.11.
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(p) The Trustee shall not be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct or that of i ts officers, directors, agents or employees.
Section 6.3 Funds and Accounts. Any fund or account required by this Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purpose of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account. All such records with respect to all such funds and accounts held by the Trustee sh all be at all times maintained in accordance with corporate trust industry practices; in each case with due regard for the protection of the security of the Bonds and the rights of every Owner thereof.
Section 6.4 Fees, Charges and Expenses of Trustee . The Trustee sh all be entitled to payment and reimbursement by the Authority for reasonable fees for its services rendered hereunder and all advances (including any interest on advances), counsel fees and expenses (including fees and expenses of outside counsel and the a llocated costs of internal attorneys) and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services. Upon the occurrence of an Event of Default hereunder, but only upon an Event of Default with respect to the Bonds, the Trustee shall have a first lien with right of payment prior to payment of any Bond upon the amounts held in the funds and accounts hereunder for the foregoing fees, charges and expenses incurred by it respectively. The Trustee’s right to pay ment of its fees and expenses shall survive the discharge and payment or defeasance of the Bonds and termination of this Indenture, and the resignation or removal of the Trustee.
Section 6.5 Notice to Bond Owners of Default. If an Event of Default hereunder occurs with respect to any Bonds of which the Trustee has been given, or is deemed to have notice, as provided in Section 6.2(h) hereof, then the Trustee shall promptly give written notice thereof to the Owner of each such Bond unless such Event of Default shall ha ve been cured before the giving of such notice.
Section 6.6 Intervention by Trustee. In any judicial proceeding to which the Authority is a party which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of Owners of any of the Bonds, the Trustee may intervene on behalf of such Bond Owners, and subject to Section 6.2(h) hereof, shall do so if requested in writing by the Owners of at least a majority in aggregate principal amount of such Bonds then Outstanding.
Section 6.7 Removal of Trustee . The Owners of a majority in aggregate principal amount of the Outstanding Bonds may and the Authority may, so long as no Event of Default then exists, upon thirty (30) calendar days’ prior written notice to the Trustee, remove the Trustee initially appointed, and any successor thereto, by an instrument or concurrent instruments in writing delivered to the Trustee. Upon any such removal, the Authority shall appoint a successor or successors thereto; provided that any such successor shall be a bank, associ ation or trust company meeting the requirements set forth in Section 6.1 hereof.
Section 6.8 Resignation by Trustee. The Trustee and any successor Trustee may at any time resign and be discharged from its duties and obligations hereunder by giving prior written notice of its intention to resign as Trustee hereunder, such notice to be given to the Authority by registered or certified mai l and by electronic transmission . Upon receiving such notice of resignation, the Authority shall promptly appoint a successor Trustee. Any resignation or removal of the Trustee and
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appointment of a successor Trustee shall become effective only upon acceptance of appointment by the successor Trustee. Upon such acceptance, the Authority shall cause notice thereof to be sent to the Bond Owners at their respective addresses set forth on the Bond Register.
Section 6.9 Appointment of Successor Trustee . In the event of the removal or resignation of the Trustee pursuant to Sections 6.7 or 6.8, respectively, the Authority shall promptl y appoint a successor Trustee in accordance with the provisions of this Section 6.9 and Section 26.16 of the Project Implementation Agreement. In the event the Authority shall for any reason whatsoever fail to appoint a successor Trustee within thirty (30 ) calendar days following the delivery to the Trustee of the instrument described in Section 6.7 or within thirty (30) calendar days following the receipt of notice by the Authority pursuant to Section 6.8, the Trustee may , at the expense of the Authority, petition any court of competent jurisdiction for the appointment of a successor Trustee meeting the requirements of Section 6.1 hereof. Any such successor Trustee appointed by such court shall become the successor Trustee hereunder notwithstanding any ac tion by the Authority purporting to appoint a successor Trustee following the expiration of such thirty (30) calendar day period.
Section 6.10 Merger or Consolidation . Any company into which the Trustee may be merged or converted or with which it may be consolidated o r any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided that such company shall meet the r equirements set forth in Section 6.1 hereof, shall be the successor to the Trustee and vested with all of the title to the trust estate and all of the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any paper or further act, anything herein to the contrary notwithstanding. The Trustee may assign its rights, duties and obligations hereunder in whole or in part, to an affiliate or subsidiary thereof, provided such affiliate or subsidiary shall meet the requirements set forth in Section 6.1 hereof.
Section 6.11 Concerning any Successor Trustee . Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Authority an instrument in w riting accepting such appointment hereunder and to the predecessor Trustee an instrument indemnifying the predecessor Trustee for any costs or claims arising during the time the successor Trustee serves as Trustee hereunder and thereupon such successor, wi thout any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessors; but such predecessor shall, nevertheless, on the Request of the Authority, or of the Trustee’s successor, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should any instrument in writing from the Authority be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be v ested in the predecessor Trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority.
Section 6.12 Appointment of Co -Trustee. It is the purpose of this Indenture that there shall be no violation of any l aw of any jurisdiction (including particularly the law of the State) denying or restricting the right of banking corporations or associations to transact business as a trustee in such jurisdiction. It is recognized that in the case of litigation under thi s Indenture, and in particular in case of the enforcement of the rights of the Trustee on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the
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powers, rights or remedies he rein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional Person as a separate co-trustee. The following provisions of this Section 6.12 are adopted to these ends.
In the event that the Trustee or the Authority appoints an additional Person as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of act ion, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent n ecessary to enable such separate or co -trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co -trustee shall run to and be enforceable by either of the Trustee or sepa rate or co-Trustee.
Should any instrument in writing from the Authority be required by the separate trustee or co-trustee so appointed by the Trustee or the Authority for more fully and certainly vesting in and confirming to it such properties, rights, pow ers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority.
In case any separate trustee or co -trustee, or a successor to either, shall become incapable of actin g, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee.
Section 6.13 Indemnification; Limited Liability of Trustee . The Authority further covenants and agrees to indemnify and save the Trustee and its officers, officials, directors, agents and employees, harmless from and against any damages, loss, costs, claims, expense (including legal fees and expenses), and liabilities which it may incur arising out of or in the exercise and performance of its powers and duties hereunder, including the costs and expenses of defending against any claim of liability, but excluding any and all losses, expenses and liabilities which are due to the negligence or willful misconduct of the Trustee, its officers, directors, agents or employees. In no event shall the Trustee be responsible or liable for any consequential, punitive, indirect, incidental or special damages or loss of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action . No provision in this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability hereunder unless security or indemnity satisfactory to it in its sole and exclusive discretion against such liability or risk is provided to it. The Trustee shall not be liable for any action taken or omitted to be taken by it in accordance with this Indenture and at the direction of a majority (or any lesser amount that may direct the Trustee in accordance with the provisions of this Indenture) of the Owners of the principal amount of Bonds Outstanding relating to the time, method and place of conducting any proceeding or remedy available to the Trustee under this Indenture. The Trustee shall not be liable for any errors of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent or engaged in willful misconduct in ascertaining the pertinent facts. The rights of the Trustee and the obligations of the Authority under this Section 6.13 shall survive termination of this Indenture, discharge of the Bonds and resignation or removal of the Trustee.
Section 6.14 The Administrative Agent . The Administrative Agent (i) shall have such rights as are set forth in t his Indenture with respect to the Administrative Agent and shall be a third party beneficiary of such provisions , and (ii) shall be the sole representative of the Owners of the
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2022 Bonds to give any consents, authorizations or approvals hereunder, exercis e any rights or direct remedies hereunder or take any other action as may be taken by the Owners of the 2022 Bonds under this Indenture and the individual Owners of the 2022 Bonds shall not have the right hereunder to provide any direction to the Trustee w hich shall be provided only by the Administrative Agent . The Administrative Agent shall be deemed to be acting on behalf of the Owners of the 2022 Bonds and in each case in exercising such rights the Administrative Agent shall do so on behalf of the Owner s of the 2022 Bonds and not in its individual capacity. All such actions taken by the Administrative Agent shall be binding on each Owner of the 2022 Bonds without any further action on the part of, and notwithstanding any objection by, any Owner of the 2022 Bonds . Where any provision of this Indenture requires action by a majority in aggregate principal amount of the 2022 Bonds, action by the Administrative Agent shall constitute action by such majority. At any time during which there is no Administrative Agent appointed and acting, references herein to the Administrative Agent shall mean the Owners of a majority of the aggregate principa l amount of 2022 Bonds Outstanding.
Notwithstanding any provision in this Indenture to the contrary, so long as there is an Administrative Agent appointed and acting, all notices hereunder required to be provided to Owners of the 2022 Bonds shall be provi ded only to the Administrative Agent and not to the registered Owners of the 2022 Bonds.
The appointment of the Administrative Agent and the provisions of this Section 6.14 shall in no way impact or diminish the Trustee’s rights under this Indenture. O n the date on which the 2022 Bonds are no longer Outstanding hereunder and all amounts due and owing under the Bond Purchase Agreement have been paid in full, as evidenced by a written certificate of the Administrative Agent delivered to the Trustee and t he Authority, then all references in this Indenture to the Administrative Agent shall no longer be applicable or in effect.
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE AND RELATED
DOCUMENTS
Section 7.1 Amendment Hereof . This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may be modified or amended at any time by a Supplemental Indenture which shall become binding when the consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding are file d with the Trustee. No such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal, interest or redemption premium, if any, at th e time and place and at the rate and in the currency provided therein of any Bond without the express written consent of the Owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification , or p ermit the creation of any lien on the Revenues or other assets pledged under this Indenture prior to or on a parity with the lien created by this Indenture, or deprive the Owners of the lien created by this Indenture on such Revenues (except as expressly provided in this Indenture), without the express written consent of the Owners of all Bonds then Outstanding , or (c) without written consent of the Trustee, modify any of the rights or obligations of the Trustee.
From and after the date that the 2022 Bonds are no longer Outstanding, this Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may also be modified or amended at any time by a Supplemental Indenture which shall become binding upon adoption,
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without consent of any Bond Owners, to the extent permitted by law but only for any one or more of the following purposes:
(a) to add to the covenants and agreements of the Authority contained in this Indenture, other covenants and agreements thereafter to be observed, or to limi t or surrender any rights or powers herein reserved to or conferred upon the Authority so long as such addition, limitation or surrender of such rights or powers shall not materially adversely affect the Owners of the Bonds; or
(b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in this Indenture, or in any other respect whatsoever as the Authority may deem necessary or desirable, provided under any circumstances that s uch modifications or amendments shall not materially adversely affect the interests of the Owners of the Bonds; or
(c) to amend any provision hereof relating to the Code as may be necessary or appropriate to assure compliance with the Code and the exclusion fr om gross income of interest on the Tax-Exempt Bonds, including, but not limited to, amending the procedures set forth in Section 5.8 hereof with respect to the calculation of rebatable arbitrage; or (d) to amend or clarify any provision hereof to provide for t he issuance of any Additional Bonds on a parity with any Outstanding Bonds for all purposes of this Indenture, including, but not limited to, for the purpose of exercising all rights and remedies hereunder; or (e) solely on or after the RHCC Project is Complet e and all costs related thereto have been paid to RIDA pursuant to the provisions of Section 4.4 hereof, to amend the provisions of Section 4.4 hereof.
The Trustee may request and thereafter shall be furnished, at the expense of the Authority, an opinion of Bond Counsel that any such Supplemental Indenture entered into by the Authority and the Trustee complies with the provisions of this Article VII and the Trustee may conclusively rely upon such opinion and shall be fully protected in relying thereon.
Section 7.2 Effect of Supplemental Indenture . From and after the time any Supplemental Indenture becomes effective pursuant to this Article VII, this Indenture shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations of the parties hereto or thereto and all Owners of Outstanding Bonds, as the case may be, shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of th is Indenture for any and all purposes.
Section 7.3 Endorsement or Replacement of Bonds After Amendment . After the effective date of any action taken as hereinabove provided, the Authority may determine that any affected Bonds shall bear a notation, by endorsement in form approved by the Authority, as to such action, and in that case upon demand of the Own er of any Bond Outstanding at such effective date and presentation of its Bond for that purpose at the Trust Office of the Trustee, a suitable notation as to such action shall be made on such Bond. If the Authority shall so determine, new Bonds so modified as, in the opinion of the Authority, shall be necessary to conform to such Bond Owners’ action shall be prepared and executed, and in that case upon demand of the Owner of any Bond
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Outstanding at such effective date such new Bonds shall be exchanged at t he Trust Office of the Trustee, without cost to each Bond Owner, for Bonds then Outstanding, upon surrender of such Outstanding Bonds.
Section 7.4 Amendment by Mutual Consent . The provisions of this Article VII shall not prevent any Bond Owner from accepting any amen dment as to the particular Bond held by such Owner, provided that due notation thereof is made on such Bond.
Section 7.5. Amendment of the Loan Agreement, the Site Lease, the Facility Lease, the Support Agreement and the Project Implementation Agreement . So long as the 2022 Bonds are Outstanding, the Authority shall not amend or waive, or agree to the amendment or waiver of any provision of the Loan Agreement, the Site Lease, the Facility Lease, the Support Agreement or the Project Implementation Agreement without the prior written consent of the Administrative Agent, except for any such amendment or waiver that is not expected to have a Material Adverse Effect.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section 8.1 Events of Default . The following events shall be Events of Default hereunder.
(a) Default in the due and punctual payment of the principal of any Bond when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption, by declaration or otherwise. (b) Default in the due and punctual payment of an y installment of interest on any Bond when and as such interest installment shall become due and payable. (c) Default by the Authority in the observance of any of the other covenants, agreements or conditions on its part in this Indenture or in the Bonds conta ined, if such default shall have continued for a period of thirty (30) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Authority by the Trustee, or to the Authority and the Trus tee by the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, provided that such default (other than a default arising from nonpayment of the Trustee’s fees and expenses, which must be cured within such 3 0 day period) shall not constitute an Event of Default hereunder if the Authority shall commence to cure such default within said thirty (30) day period and thereafter diligently and in good faith shall cure such default within a reasonable period of time of not to exceed ninety days (90 days), or such longer period as is consented to by a majority of the Owners of the Bonds; (d) The filing by the Authority of a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any o ther applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Authority, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the
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relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Authority or of the whole or any substantial part of its property; or (e) The Trustee shall receive written notice from the Administrative Agent that a Bond Purchase Event of Default has occurred and is continuing.
Section 8.2 Remedies; Rights of Bond Owners . Upon the occurrence of an Event of Default, the Trustee may, but so long as the 2022 Bonds are Outstanding only with the prior written consent of the Administrative Agent, pursue any available remedy at law or in equity to enforce the payment of the principal of, redemption premium, if any, and interest on the Outstanding Bonds, and to enforce any rights of the Trustee under or with respect to this Indenture and the Assigned Rights .
Subject to Section 8.3, in the event of an Event of Default arising out of a nonpayment of Trustee’s fees and expenses, the Trustee may sue the Authority to seek recovery of its fees and expenses, provided, however, that such recovery may be made only from the funds of the Authority and not from Revenues.
If an Event of Default shall have occurred and be continuing and if requested to do so by the Administrative Agent with respect to the 2022 Bonds and otherwise by the Owners of a majority in aggregate principal amount of Outstanding Bonds, and, in each case, if indemnified as provided in Section 6.2(k), the Trustee shall be obligated to exercise such one or more of the rights and powers conferred by this Article VIII and, as applicable, under the Local Obligations, as the Administrative Agent or the Owners of a majority in aggregate principal amount of Outstanding Bonds, as applicable, may direct.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the Administrative Agent or the Bond Owners) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to an y other remedy given to the Trustee or to the Bond Owners hereunder or now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be co nstrued to be a waiver of any such Event of Default or acquiescence therein; such right or power may be exercised from time to time as often as may be deemed expedient.
In no event shall the principal of the Bonds be accelerated.
Section 8.3 Application of Revenues and Other Funds After Event of Default. (a) Except with respect to the 2022 Bonds which shall be governed by Section
8.3(b) below, following an Event of Default, a ll amounts received by the Trustee with respect to the Bonds pursuant to any right given or actio n taken by the Trustee under the provisions of this Indenture relating to the Bonds shall be applied by the Trustee in the following order upon presentation of the several Bonds, and the stamping thereon of the amount of the payment if only partially paid, or upon the surrender thereof if fully paid:
First, to the payment of the costs and expenses of the Trustee in declaring such Event of Default and in carrying out the provisions of this Article VIII, including reasonable compensation to its agents, attorn eys and counsel (including outside counsel and the allocated costs of internal
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attorneys), and to the payment of all other reasonable fees and expenses of the Trustee remaining unpaid; and
Second, to the payment of the whole amount of interest on and principal of the Bonds then due and unpaid, with interest on overdue installments of principal and interest to the extent permitted by law at the net effective rate of interest then borne by the Outstanding Bonds; provided, however, that in the event such amounts shall be insufficient to pay in full the full amount of such interest and principal, then such amounts shall be applied in the following order of priority and on a pro rata basis within each of (i), (ii) and (iii) below:
(i) first to the payment of all installments of interest on the Bonds then due and unpaid,
(ii) second, to the payment of all installments of principal of the Bonds then due and unpaid, and
(iii) third, to the payment of interest on overdue installments of principal and interest on Bonds.
(b) With respect to the 2022 Bonds, following an Event of Default, all amounts received by the Trustee with respect to the 2022 Bonds pursuant to any right given or action taken by the Trustee under the provisions of this Indenture relating to the 2022 Bonds shall be applied by the Trustee as follows:
First, to the payment of the costs and expenses of the Trustee in declaring such Event of Default and in carrying out the provisions of this Article VIII, including reasonable compensation to its agents, attorneys and counsel (including outside counsel and the allocated costs of internal attorneys), and to the payment of all other reasonable fees and expenses of the Trustee remaining unpaid; and
Second, be paid to the Administrative Agent for application in accordance w ith Section 7.03 of the Bond Purchase Agreement, provided that the Trustee and the Authority shall have received a certificate of the Administrative Agent which provides an accounting for how the amounts to be paid are being applied under Section 7.03 of the Bond Purchase Agreement.
Section 8.4 Power of Trustee to Control Proceedings . In the event that the Trustee, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether u pon its own discretion or upon the request of the Administrative Agent or the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, as applicable, it may, in the exercise of its discretion for the best interests of the Owners of the Bonds, provide for the discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Trustee shall not, unless there no longer continues an Event of Default, discontinue, withdraw, compromise or settl e, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the Administrative Agent or the Owners of a majority in aggregate principal amount of the Outstanding Bonds , as a pplicable, opposing such discontinuance, withdrawal, compromise, settlement or other such litigation and provided further that the Trustee shall have the right to decline to comply with such written request unless indemnification satisfactory to it has bee n provided. Any suit, action or proceeding which the Administrative Agent or any Owner of Bonds shall have the
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right to bring to enforce any right or remedy hereunder may be brought by the Trustee for the equal benefit and protection of all Owners of Bond s similarly situated and the Trustee is hereby appointed (and the successive respective Owners of the Bonds issued hereunder, by taking and holding the same, shall be conclusively deemed so to have appointed it) the true and lawful attorney in fact of the respective Owners of the Bonds for the purposes of bringing any such suit, action or proceeding and to do and perform any and all acts and things for and on behalf of the respective Owners of the Bonds as a class or classes, as may be necessary or advisabl e in the opinion of the Trustee as such attorney in fact.
Section 8.5 Appointment of Receivers . Upon the occurrence of an Event of Default hereunder, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bond Owners under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the Revenues and other amounts pledged hereunder, pending such proceedings, with such powers as the court making such appointment shall confer.
Section 8.6 Non Waiver. Nothing in this Article VIII or in any other provision of this Indenture, or in the Bonds, shall affect or impair the obligation of the Authority, which is absolute and unconditional, to pay the interest on and p rincipal of the Bonds to the respective Owners of the Bonds at the respective dates of maturity, as herein provided, out of the Revenues and other moneys herein pledged for such payment.
A waiver of any default or breach of duty or contract by the Trustee or any Bond Owners shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission of the Trustee or any Owner of any of the Bonds to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy conferred upon the Trustee or Bond Owners by the Bond Law or by this Article VIII may be enforced and exercised from time to time and as often as shall be deemed expedient by the Trustee or the Bond Owners, as the case may be.
Section 8.7 Rights and Remedies of Bond Owners . No Owner of any Bond issued hereunder shall have the right to i nstitute any suit, action or proceeding at law or in equity, for any remedy under or upon this Indenture, unless (a) such Owner shall have previously given to the Trustee written notice of the occurrence of an Event of Default; (b) the Administrative Agent or the Owners of a majority in aggregate principal amount of all the Bonds then Outstanding , as applicable, shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said Owners shall have tendered to the Trustee indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Trustee shall have refused or omitted to comply with such request for a period of sixty (60) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are he reby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to enforce any right under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of
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this Indenture shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners of the Outstanding Bonds.
The right of any Owner of any Bond to receive payment of the principal of and interest and redemption premium (if any) on such Bond as herein provided or to institute suit for the enforcement of any such pay ment, shall not be impaired or affected without the written consent of such Owner, notwithstanding the foregoing provisions of this Section or any other provision of this Indenture.
Section 8.8 Termination of Proceedings . In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case, the Authority, the Tru stee and the Bond Owners shall be restored to their former positions and rights hereunder, respectively, with regard to the property subject to this Indenture, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Limited Liability of Authority . Notwithstanding anything in this Indenture contained, the Authority shall not be required to advance any moneys derived from any source of income other than the Revenues or for the payment of the principal of, redemption premium (if any) or interest on the Bonds, or for the performance of any covenants herein contained. The Authority may, however, advance funds from any source of income other than the Revenues for any such purpose, provided that such funds are derived from a source legally available for such purpose and may be used by the Authority for such purpose without incurring indebtedness.
The Bonds are revenue bonds, payable exclusively from the Revenues and other funds pledged in Section 4.1 of this Indenture. The general fund of the Authority or those of its members is not liable, and the credit of the Authority is not pledged, for the payment of the principal of, redemption premium, if any, and interest on the Bonds. The Owners of the Bonds shall never have the right to compel the forfeiture of any property of the Authority or any property of any member of the Authority. The principal of, redemption premium, if any, and interest on the Bonds shall not be a legal or equitable pledge, c harge, lien or encumbrance upon any property of the Authority or upon any of its income, receipts or revenues except the Revenues and other funds pledged to the payment thereof as provided in this Indenture.
Section 9.2 Benefits of Indenture Limited to Parties . Nothi ng in this Indenture, expressed or implied, is intended to give to any person other than the Authority, the Trustee and the Owners of the Bonds, any right, remedy or claim under or by reason of this Indenture. Any covenants, stipulations, promises or agre ements in this Indenture made by and on behalf of the Authority shall be for the sole and exclusive benefit of the Trustee and the Owners of Bonds.
Section 9.3 Discharge of Indenture. The Authority may pay and discharge any or all of the Outstanding Bonds in any one or more of the following ways:
(a) by well and truly paying or caus ing to be paid the principal of, redemption premium, if any, and interest on such Bonds, as and when the same become due and payable;
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(b) by irrevocably depositing with the Trustee, in trust, at o r before maturity, money which, together with the available amounts then on deposit in the funds and accounts established with the Trustee pursuant to this Indenture and available for such purpose, is fully sufficient to pay all principal, redemption premium, if any, and interest due on such Bonds; or (c) by irrevocably depositing with the Trustee or any other fiduciary, in trust, Federal Securities in such amount as verified by an Inde pendent Accountant in a report filed with the Authority and the Trustee that will, together with the interest to accrue thereon and available moneys then on deposit in the funds and accounts established with the Trustee pursuant to th is Indenture and available for such purpose, be fully sufficient to pay and discharge all principa l, redemption premium, if any, and interest on such Bonds at or before their respective maturity dates.
Any Outstanding Bond or Bonds shall be deemed to have been paid and discharged under (c) above if (i) in the case of Bonds to be redeemed prior to the m aturity thereof, notice of such redemption shall have been provided pursuant to Section 2.2(f) hereof, or provision satisfactory to the Trustee shall have been made for the provision of such notice, (ii) the Authority shall have delivered an escrow agreement with respect to the deposits under (c) above; (iii) an opinion of Bond Counsel shall be delivered to the Trustee to the effect that the requirements of this Indenture have been satisfied with respect to the discharge of such Bond or Bonds; and (iv) the Trustee shall have delivered a certificate of discharge with respect to such Bond or Bonds. Upon a discharge of one or more Bonds as described above, and notwithstanding that any of such Bonds shall not have been surrendered for payment, the pledge of the Revenues, and other funds provided for in this Indenture with respect to such Bonds, as applicable, and all other pecuniary obligations of the Authority under this Indenture with respect to such Bonds, shall cease and terminate, except only the obligation of the Authority to comply with the covenants contained in Sections 5.7 and 6.13 hereof, to pay or cause to be paid to the Owners of such Bonds not so surrendered and paid all sums due thereon from amounts set aside for such purpose, to pay all expenses a nd costs of the Trustee and to comply with the covenants contained in Section 5.7 hereof. Any funds thereafter held by the Trustee, which are not required for said purposes, shall be paid over to the Authority (other than Net Proceeds and any RIDA Insurance and Condemnation Payments which shall be transferred as set forth in a Request of the Authority for application pursuant to the terms of the Sublease).
Section 9.4 Successor is Deemed Included in All References to Predecessor .
Whenever in this Indenture or any Sup plemental Indenture either the Authority is named or referred to, such reference shall be deemed to include the successor to all of the powers, duties , obligations, and functions, with respect to the management, administration and control of the affairs of the Authority, that are presently vested in the Authority (but not the member of the Authority that is serving in the capacity as the “leasing manager” of the Authority with regard to the management, administration and control of the affairs of the Author ity as it relates to the Facility Lease and Sublease), and all the covenants, agreements and provisions contained in this Indenture by or on behalf of the Authority shall bind and inure to the benefit of its successors whether so expressed or not.
Section 9.5 Content of Certificates. Every certificate by or on behalf of the Authority with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person or persons making or giving such certificate have read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
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certificate are based; (c) a statement that, in the opinion of the signers, they have made or caused to be made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of the signers, such condition or covenant has been complied with.
Any such certificate made or given by an officer of the Authority may be based, insofar as it relates to legal matters, upon a certificate or opinion of or r epresentations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Any such certificate or opinion or representation made or given by counsel may be based, insofar as it relates to factual matters, on information with respect to which is in the possession of the Authority, or upon the certificate or opinion of or representations by an officer or officers of the Authority, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his certificate, opinion or representation may be based, as aforesaid, are erroneous, or in the exercise of reasonable care should have known that the same were erroneous.
Section 9.6 Execution of Documents by Bond Owners . Any request, consent or other instrument required by this Indenture to be signed and executed by Bo nd Owners may be signed individually or jointly by Bond Owners and may be signed or executed by such Bond Owners in person or by agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a wri ting appointing any such agent, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee and of the Authority if made in the manner provided in this Section 9.6.
The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgements of deeds, certifying that the person signing such request, consent or other instrument or writing acknowledged to him the execution thereof.
The ownership of Bonds shall be conclusively proved by the Bond Register. Any request, consent or vote of the O wner of any Bond shall bind every future Owner of the same Bond and the Owner of any Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Authority in pursuance of such request, conse nt or vote. In lieu of obtaining any demand, request, direction, consent or waiver in writing, the Trustee may call and hold a meeting of the Bond Owners upon such notice and in accordance with such rules and obligation as the Trustee considers fair and reasonable for the purpose of obtaining any such action.
Section 9.7 Disqualified Bonds . In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned or held by or for the account of the Authority, the City, the Financing District or the Port District (but excluding Bonds held in any employees’ or retirement fund) shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, provided, however, that for the purpose of dete rmining 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 or held shall be disregarded. Upon request, the Authority shall specify to the Trustee those Bonds disqualified pursuant to this Section 9.7 and the Trustee may conclusively rely upon such certificate.
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Section 9.8 Waiver of Personal Liability. No member of the Authority, or officer, agent employee, or member of the governing body of the Authority, Port District, or City shall be individually or personally liable for the payment of the interest on or principal of the Bonds; but nothing herein contained shall relieve any such member of the Authority, or officer, agent, employee, or member of the governing body of the Authority, City, or Port District from the performance of any official duty provided by law.
Section 9.9 Entire Agreement; Partial Invalidity . This Indenture and the exhibits hereto set forth the entire agreement and understanding of the parties with respect to the matters set forth herein and supersedes all prior agreements and understandings, oral or written . If any one or more of the covenants or agreements, or portions thereof, provided in this Indenture on the part of the Authority (or of th e Trustee) to be performed should be contrary to law, then such covenant or covenants, such agreement or agreements, or such portions thereof, shall be null and void and shall be deemed separable from the remaining covenants and agreements or portions ther eof and shall in no way affect the validity of this Indenture or of the Bonds; but the Bond Owners shall retain all rights and benefits accorded to them under the Bond Law or any other applicable provisions of law.
The Authority hereby declares that it would have entered into this Indenture and each and every other section, paragraph, subdivision, sentence, clause and phrase hereof and would have authorized the issuance of the Bonds pursuant hereto irrespective of the fact that any or more covenants, agreements, sections, paragraphs, subdivisions, sentences, clauses or phrases of this Indenture or the application thereof to any person or circumstance may be held to be unconstitutional, unenforceable or invalid.
Section 9.10 Destruction of Cancelled Bonds . Whenever in this Indenture provision is made for the surrender to the Authority or the Trustee of any Bonds which have been paid or cancelled pursuant to the provisions of this Indenture, the Trustee shall destroy such Bonds in accordance with the retention policy of the Trustee then in effect.
Section 9.11 Notices. Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be deemed given when delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, or sent by electronic transmission, addressed as follows:
To the Authority: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
And
Executive Director
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
With copies to: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: Finance Director
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City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Attorney
Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
To the Trustee: Wilmington Trust, National Association
650 Town Center Drive, Suite 800,
Costa Mesa, California 92626
Attention: Corporate Trust Services
Fax No.: (714) 384-4151
To the City: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
With copy to: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Attorney
To the Port District: Executive Director
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
With a copy to: Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, California 92112-0488
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To the Financing District: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
With a copy to: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: Finance Director
To the Administrative Agent: JPMorgan Chase Bank, National Association ______________________
______________________
Attention:
The Authority, the Trustee , the City, the Port District , the Financing District and the Administrative Agent may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Any such notice, certificates or other communications furnished by electronic transmission shall be in the form of attachments in PDF format but shall not be deemed given until delivered as provided in the first sentence of this Section 9.11.
Section 9.12 Unclaimed Moneys . Anything in this Indenture to the contrary notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any of the Bonds which remain unclaimed for one (1) year after the date w hen such Bonds have become due and payable, either at their stated maturity dates or by call for earlier redemption, if such moneys were held by the Trustee at such date, or for one (1) year after the date of deposit of such moneys if deposited with the Trustee after said date when such Bonds become due and payable, shall be repaid by the Trustee to the Authority, as its absolute property and free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Bond Owners shall look only to the Authority for the payment of such Bonds; provided, however, that before being required to make such payment to the Authority, the Trustee shall, at the expense of Authority, cause to be mailed to the Owners of all such Bonds, at the ir respective addresses appearing on the Bond Register, a notice that said moneys remain unclaimed and that, after a date in said notice, which date shall not be less than thirty (30) days after the date of mailing such notice, the balance of such moneys t hen unclaimed will be returned to the Authority.
Section 9.13 Payment Due on Other than a Business Day . If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Indenture, is not a Business Day, such payment, with no interest accruing for the period after such nominal date, may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Indenture.
Section 9.14 Governing Law . This Indenture shall be construed and governed in accordance with the laws of the State, without regard to its conflicts of laws principles.
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IN WITNESS WHEREOF, the Authority has caused this Indenture to be executed by its duly authorized representative, and the Trustee has caused this Indenture to be executed by one of its authorized officers, all as of the day and year first above written.
CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY,
By:
Executive Director
APPROVED AS TO FORM AND LEGALITY:
Co- Counsel, Thomas A. Russell, General
Counsel of the San Diego Unified Port District
__________________________________
Co-Counsel, Glen Googins, City Attorney
of the City of Chula Vista
WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Officer
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EXHIBIT A
FORM OF 2022 SERIES A BOND
R-__ $__________
ONLY QUALIFIED INSTITUTIONAL BUYERS AND INSTITUTIONAL
ACCREDITED INVESTORS TO THE EXTENT PERMITTEED UNDER THE
INDENTURE WHO HAVE EXECUTED AND DELIVERED AN INVESTOR
LETTER TO THE TRUSTEE MAY PURCHASE OR HOLD ANY INTEREST IN THIS BOND .
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
(CHULA VISTA BAYFRONT CONVENTION CENTER)
SERIES 2022A
(FEDERALLY TAXABLE)
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP NUMBER:
____% __________, 20__ ______ __, 2022 _________
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: AND NO/100 DOLLARS
The CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay (but only out of the Revenues and other funds hereinafter referred to), in lawful money of the United States of America, to the Registered Owner identified above or registered assigns (the “Registered Owner”), on the Maturity Da te identified above (subject to any right of prior redemption hereinafter mentioned), the portion of the Principal Amount identified above as shall have been funded by an Advance (the “Outstanding Principal Amount”) as evidenced in the Schedule of Advances maintained by Wilmington Trust, National Association or any successor thereto (the “Trustee”) under the Indenture of Trust dated as of ________ 1, 2022 (the “Indenture”), by and between the Authority and the Trustee; and to pay interest on the Outstanding Principal Amount at the Interest Rate identified above or at the Default Rate if in effect under the Indenture in like money on June 1 and December 1 in each year, commencing __________, 202_ and (each, an “Interest Payment Date”) until the Maturity Date stated above or date of redemption of this 2022A Bond. This 2022A Bond shall bear interest from the Interest Payment Date next preceding its date of authentication, unless this 2022A Bond is authenticated after the fifteenth calendar day of the month preceding the month in which such Interest Payment Date occurs (the “Record Date”) and on or before the following Interest Payment Date , in which event it shall bear interest from such
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following Interest Payment Date, or unless this 2022A Bond is authenticated on or prior to __________ 15, 202 _, in which event it shall bear interest from the Dated Date identified above; provided, however, that if, at the time of authentication of this 2022A Bond, interest is in default on this 2022A Bond, this 2022A Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been pai d or made available for payment. The Principal Amount hereof is payable upon presentation and surrender hereof at the Trust Office of the Trustee. Interest hereon is payable in the manner set forth in the Indenture on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the registration books of the Trustee as of the Record Date preceding such Interest Payment Date.
This 2022A Bond is one of a duly authorized issue of bonds of the Authority designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) (the “2022A Bonds”), limited in principal amount to __________________________________ Dollars ($____________), secured under the Indenture on a parity with the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022B (Tax-Exempt) (the “ 2022B Bonds” and, together with the 2022A Bonds, the “Bonds”) outstanding thereunder.
Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of th e owners of the Bonds, of the nature and extent of the Revenues, of the rights, duties and immunities of the Trustee and of the rights and obligations of the Authority thereunder; and all of the terms of the Indenture are hereby incorporated herein and constitute a contract between the Authority and the Registered Owner hereof, and to all of the provisions of which Indenture the Registered Owner hereof, by acceptance hereof, assents and agrees. Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
This 2022A Bond is a limited obligation of the Authority, payable solely from the Revenues and funds pledged under the Indenture. This 2022A Bond is not a debt of the City of Chula Vista (the “City”), the San Diego Unified Port District (the “ Port District”) or the State of California (the “State”) or any of its political subdivisions (except the Authority and only to the extent set forth in the Indenture), and none of the City, the Port District, the State or any of its politica l subdivisions is liable hereon. The Authority has no taxing power.
The Bonds are authorized to be issued pursuant to the provisions of the Marks -Roos Local Bond Pooling Act of 1985, as amended, constituting Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”).
The Bonds are limited obligations of the Authority and, as and to the extent set forth in the Indenture, are payable solely from and secured by a first lien on and pledge of the Revenues and certain other funds held by the Trustee as provided in the Indenture. The Revenues and such other funds constitute a trust fund for the security and payment of the principal of and interest on the Bonds, except to the extent otherwise provided in the Indenture. The full faith and credit of the Authority is not pledged to the payment of the principal of , redemption premium, if any, or interest on the Bonds.
The Bonds are not secured by a legal or equitable pledge of, or char ge, lien or encumbrance upon, any of the property of the Authority or any of its income or receipts, except the Revenues and funds pledged under the Indenture as provided in the Indenture.
The 2022A Bonds have been issued to provide funds to finance a portion of the costs of the Convention Center.
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The 2022A Bonds are subject to redemption as set forth in the Indenture.
Notice of redemption with respect to the 2022A Bonds to be redeemed shall be given to the registered owners thereof not less than 5 nor more than 15 days prior to the redemption date (unless waived by the Administrative Agent) in the manner set forth in the Indenture. Neither a failure of the Registered Owner hereof to receive such notice nor any defect therein will affect the validi ty of the proceedings for redemption. All 2022A Bonds or portions thereof so called for redemption will cease to accrue interest on the specified redemption date, provided that funds for the redemption are on deposit with the Trustee on the redemption date. Thereafter, the registered owners of such 2022A Bonds shall have no rights except to receive payment of the redemption price upon the surrender of the 2022A Bonds.
With respect to any notice of optional redemption of the 2022A Bonds, the notice of redemption may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption , of moneys sufficient to pay the principal of, redemption premium if any, and interest on the 2022A Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so received or such other conditions shall not have been satisfied, the notice of redemption shall be of no force and effect and the Trustee shall not be required to redeem such 2022A Bonds.
The 2022A Bonds are issuable as fully registered bonds, without coupons, in Authorized Denominations. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, fully registered 2022A Bonds may be exchanged at the Trust Office of the Trustee for a like aggregate principal amount and maturity of fully registered 2022A Bonds of other Authorized Denominations.
This 2022A Bond is transferable by the Registered Owner hereof, in person or by its attorney duly authorized in writing, at the Trust Office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this 2022A Bond. Upon such transfer a new fully registered 2022A Bond or 2022A Bonds, in Authorized Denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor. The Trustee shall not be required to register the transfer or exchange of any 2022A Bond (i) during the 15 days prior to selection of 2022A Bonds for redemption, or (ii) selected for redemption.
The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary.
The Indenture and the rights and obligations of the Authority and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time, and in cert ain cases without notice to or the consent of the registered owners, in the manner, to the extent, and upon the terms provided in the Indenture; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal of, redemption premium, if any and interest at the time and place and at the rate and in the currency as provided in any Bond without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture.
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It is hereby certified by the Authority that all things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this 2022A Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and by the Act, and that the amount of this 2022A Bond, together with all other indebtedness of the Authority , does not exceed any limit prescribed by the Constitution or statutes of the State of California or by the Act.
This 2022A Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY has caused this 2022A Bond to be executed in its name and on its behalf by the facsimile signature of its Chair and attested by the facsimile signature of its Secretary, all as of the date set forth above.
CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY
By:
Chair
Attest:
Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the 2022A Bonds described in the within-mentioned Indenture.
Date: ___________ WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Signatory
[FORM OF LEGAL OPINION]
The attached is a true copy of the opinion rendered by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, in connection with the issuance of, and dated as of the date of the original delivery of, the 2022A Bonds. A signed copy is on file in my office.
Secretary of the Board of Directors of Chula
Vista Bayfront Facilities Financing Authority
[FORM OF ASSIGNMENT]
For value received the undersigned do(es) hereby sell, assign and transfer unto
whose tax identification number is ,
the within mentioned registered 2022A Bond and hereby irrevocably c onstitute(s) and appoint(s)
attorney to transfer the same on the books of the Trustee with full power of substitution in the premises.
Dated: _______________
Signature guaranteed:
NOTE: Signature guarantee shall be made by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.
NOTE: The signatures(s) on this Assignment
must correspond with the name(s) as written on
the face of the within 2022A Bond in every
particular without alteration or enlargement or
any change whatsoever
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FORM OF 2022 SERIES B BOND
R-__ $__________
ONLY QUALIFIED INSTITUTIONAL BUYERS AND INSTITUTIONAL
ACCREDITED INVESTORS TO THE EXTENT PERMITTEED UNDER THE
INDENTURE WHO HAVE EXECUTED AND DELIVERED AN INVESTOR
LETTER TO THE TRUSTEE MAY PURCHASE OR HOLD ANY INTEREST IN THIS BOND .
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
(CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2022B
(TAX-EXEMPT)
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP NUMBER:
____% __________, 20__ ______ __, 2022 _________
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: AND NO/100 DOLLARS
The CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay (but only out of the Revenues and other funds hereinafter referred to) to the Registered Owner identified above or registered assigns (the “Registered Owner”), on the Maturity Date identified above (subject to any right of prior redemption hereinafter mentioned), the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at the Interest Rate identified above or at the Default Rate if in effect under the Indenture (defin ed below), in like money , on June 1 and December 1 in each year, commencing __________, 202_ (each, an “Interest Payment Date”) until the Maturity Date stated above or date of redemption of this 2022B Bond. This 2022B Bond shall bear interest from the Interest Payment Date next preceding its date of authentication, unless this 2022A Bond is authenticated after the fifteenth calendar day of the month preceding the month in which such Interest Payment Date occurs (the “Record Date”) and on or before the foll owing Interest Payment Date, in which event it shall bear interest from such following Interest Payment Date, or unless this 2022B Bond is authenticated on or prior to __________ 15, 202_, in which event it shall bear interest from the Dated Date identified above; provided, however, that if, at the time of authentication of this 2022B Bond, interest is in default on this 2022B Bond, this 2022B Bond shall bear interest from the
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Interest Payment Date to which interest hereon has previously been paid or made a vailable for payment. The Principal Amount hereof is payable upon presentation and surrender hereof at the Trust Office of Wilmington Trust, National Association (the “Trustee”). Interest hereon is payable in the manner set forth in the Indenture (as her einafter defined) on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the registration books of the Trustee as of the Record Date preceding such Interest Payment Date.
This 2022B Bond is one of a duly authorized issue of bonds of the Authority designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements ) Series 2022B (Tax-Exempt) (the “ 2022B Bonds”), limited in principal amount to __________________________________ Dollars ($____________), secured under an Indenture of Trust dated as of ___________1, 2022 (the “Indenture”), by and between the Authority and the Trustee on a parity with the Chula Vista Bayfront Facili ties Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Taxable) (the “ 2022A Bonds”; and, together with the 2022B Bonds, the “Bonds”) outstanding thereunder.
Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Revenues, of the rights, duties and immunities of the Trustee and of the rights and obligations of the Authority thereunder; and al l of the terms of the Indenture are hereby incorporated herein and constitute a contract between the Authority and the Registered Owner hereof, and to all of the provisions of which Indenture the Registered Owner hereof, by acceptance hereof, assents and agrees. Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
This 2022B Bond is a special, limited obligation of the Authority, payable solely from the Revenues and funds pledged under the Indenture. This 2022B Bond is not a debt of the City of Chula Vista (the “City”), the San Diego Unified Port District (the “ Port District ”) or the State of California (the “State”) or any of its political subdivisions (except the Authority and only to the extent set forth in the Indent ure), and none of the City, the Port District , the State or any of its political subdivisions is liable hereon. The Authority has no taxing power.
The Bonds are authorized to be issued pursuant to the provisions of the Marks -Roos Local Bond Pooling Act of 1985, as amended, constituting Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”).
The Bonds are special, limited obligations of the Authority and, as and to the ex tent set forth in the Indenture, are payable solely from and secured by a first lien on and pledge of the Revenues and certain other funds held by the Trustee as provided in the Indenture. The Revenues and such other funds constitute a trust fund for the security and payment of the principal of and interest on the Bonds, except to the extent otherwise provided in the Indenture. The full faith and credit of the Authority is not pledged to the payment of the principal of , redemption premium, if any, or interest on the Bonds. The Bonds are not secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the Authority or any of its income or receipts, except the Revenues and funds pledged under the Indenture as provided in the Indenture.
The 2022B Bonds have been issued to provide funds to finance a portion of the costs of the Phase 1A Infrastructure Improvements.
The 2022B Bonds are subject to redemption as set forth in the Indenture.
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Notice of redemption with respect to the 2022B Bonds to be redeemed shall be given to the registered owners thereof not less than 25 nor more than 15 days prior to the redemption date (unless waived by the Administrative Agent) in the manner set forth in the Indenture. Neither a failure of the Registered Owner hereof to receive such notice nor any defect therein will affect the validity of the proceedings for redemption. All 2022B Bonds or portions thereof so called for redemption will cease to accrue int erest on the specified redemption date, provided that funds for the redemption are on deposit with the Trustee on the redemption date. Thereafter, the registered owners of such 2022B Bonds shall have no rights except to receive payment of the redemption p rice upon the surrender of the 2022B Bonds.
With respect to any notice of optional redemption of the 2022B Bonds, the notice of redemption may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed fo r such redemption, of moneys sufficient to pay the principal of, redemption premium if any, and interest on the 2022B Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so received or such other con ditions shall not have been satisfied, the notice of redemption shall be of no force and effect and the Trustee shall not be required to redeem such 2022B Bonds.
The 2022B Bonds are issuable as fully registered bonds, without coupons, in Authorized Denominations. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, fully registered bonds may be exchanged at the Trust Office of the Trustee for a like aggregate principal amount and maturity of fully registered 2022B Bonds of other Authorized Denominations.
This 2022B Bond is transferable by the Registered Owner hereof, in person or by its attorney duly authorized in writing, at the Trust Office of the Trustee, but only in the manner, subject to the limitations and upo n payment of the charges provided in the Indenture, and upon surrender and cancellation of this 2022B Bond. Upon such transfer a new fully registered 2022B Bond or 2022B Bonds, of Authorized Denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor. The Trustee shall not be required to register the transfer or exchange of any 2022B Bond (i) during the 15 days prior to selection of 2022B Bonds for redemptio n, or (ii) selected for redemption.
The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary.
The Indenture and the rights and obligations of the Authority and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time, and in certain cases without notice to or the consent of the registered owners, in the manner, to the extent, and upon the terms provided in the Indenture; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bonds or otherwise alter or impair the obligation of the Authority to pay the prin cipal of, redemption premium, if any, and interest at the time and place and at the rate and in the currency as provided in any Bond without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture.
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It is hereby certified by the Authority that all things, condit ions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this 2022B Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and by the Act, and that the amount of this 2022B Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed by the Constitution or statutes of the State of California or by the Act.
This 2022B Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, the CHULA VISTA BAYFRONT FACILITIES FINAN CING AUTHORITY has caused this 2022B Bond to be executed in its name and on its behalf by the facsimile signature of its Chair and attested by the facsimile signature of its Secretary, all as of the date set forth above.
CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY
By:
Chair
Attest:
Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the 2022B Bonds described in the within-mentioned Indenture.
Date: ___________ WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee
By:
Authorized Signatory
[FORM OF LEGAL OPINION]
The attached is a true copy of the opinion rendered by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, in connection with the issuance of, and dated as of the date of the original delivery of, the 2022B Bonds. A signed copy is on file in my office.
Secretary of the Board of Directors of Chula
Vista Bayfront Facilities Financing Authority
[FORM OF ASSIGNMENT]
For value received the undersigned do(es) hereby sell, assign and transfer unto
whose tax identification number is ,
the within mentioned registered 2022B Bond and hereby irrevocably constitute(s) and appoint(s)
attorney to transfer the same on the books of the Trustee with full power of substitution in the premises.
Dated: _______________
Signature guaranteed:
NOTE: Signature guarantee shall be made by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.
NOTE: The sig natures(s) on this Assignment
must correspond with the name(s) as written on
the face of the within 2022B Bond in every
particular without alteration or enlargement or
any change whatsoever
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EXHIBIT B
FORM OF REQUISITION FROM CONSTRUCTION FUND
To: Wilmington Trust, National Association, as Trustee
From: Chula Vista Bayfront Facilities Financing Authority Date:
Re: Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) and Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2022B (Tax-Exempt) Requisition No. ___
The undersigned, an Authorized Officer (as such term is defined in the hereinafter defined Indenture) of the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), hereby requests payment, from the account or subaccount of the Construction Fund (as defined in the Indenture) specified below, the amount of $___________ [by wire/check/ACH (circle one)] for the payment of [Convention Center Costs][Phase 1A Infrastructure Improvement Cos ts] (as defined in the Indenture) pursuant to that certain Project Implementation Agreement, dated as of ________ 1, 202[_] (the “Project Implementation Agreement”) , by and among the Authority, RIDA Chula Vista, LLC (“RIDA”), the San Diego Unified Port District, the City of Chula Vista and the Bayfront Project Special Tax Financing District.
Capitalized terms will herein have the meanings assigned to such terms in the Indenture of Trust, dated as of ________ 1, 202[_] (the “Indenture”), among the Chula Vista Bayfront Facilities Financing Authority and Wilmington Trust, National Association, as trustee (“Trustee”).
The Trustee is directed to disburse the foregoing amount from the following account or subaccount of the Construction Fund (select one):
2022A Bond Proceeds Subaccount of the 2022A Account
Public Entity Contribution Subaccount of the 2022A Account 2022B Bond Proceeds Developer’s Phase 1A Subaccount of the 2022B Account County Funded Developer’s Phase 1A Subaccount of the 2022B Account Phase 1A Infrastructure Improvements Subaccount of the 2022B Account Authority Existing Revenues Account
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If the payment is by wire or ACH, please fill in the following information:
Name, Address and Phone Number of Bank:
ABA#:
Account No.:
The undersigned hereby certifies as follows:
1. I have reviewed the [Developer’s Phase 1A/Convention Center] Payment Request (as defined in the Project Implementation Agreement) (“Payment Request”) dated [___________] for the Project Cost(s) being requested herein.
2. The amount requisitioned hereby is for one or more Project Cost s incurred in connection with the Project, is made for purposes and in accordance with the terms and restrictions set forth in Article IX of the Project Implementation Agreement, and is properly chargeable to [the Subaccount(s) of the 2022A Account of the Construction Fund listed above ][the Subaccount (s) of the 2022B Account of the Construction Fund listed above] and has not been the subject of any previous requisition. The name and address of the person or persons to whom said amounts are to be disbursed and the amounts to be disbursed are as follows:
3. [$________] of the amount requisitioned hereby is be ing paid to RIDA under protest pursuant to the terms of the Project Implementation Agreement.]
4. [With respect to the amount requisitioned hereby from the 2022A Bond Proceeds Subaccount of the 2022A Account, the Administrative Agent has delivered to the Authority a Certificate that the Project is In-Balance with respect to such disbursement or, under the terms of the Bond Purchase Agreement, the Administrative Agent has been deemed to have delivered such Certificate.]
5. The information contained herein is true and correct as of the date of this Requisition.
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Authorized Officer
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EXHIBIT C
FORM OF INVESTOR LETTER
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EXHIBIT D
SCHEDULE OF ADMINISTRATIVE AGENT FEES
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EXHIBIT E
SCHEDULE FOR DEPOSITS OF ADVANCES TO FUNDS AND ACCOUNTS
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EXHIBIT F
FORM OF RIDA REQUISITION FROM PUBLIC ENTITY CONTRIBUTION
SUBACCOUNT
To: Wilmington Trust, National Association, as Trustee
From: RIDA Chula Vista, LLC
Date:
Re: Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) and Chula Vista Bayfront Facilities Financi ng Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2022B (Tax-Exempt) Requisition No. ___
The undersigned, an authorized officer RIDA Chula Vista, LLC (“RIDA”) hereby requests payment from the Public Entity Contribution Subaccount of the Construction Fund (as such term is defined in the hereinafter defined Indenture) in the amount of $___________ [by wire/ACH (circle one)] for the payment of Convention Center Costs (as defined in the Indenture) pursuant to that certain Project Implementation Agreement, dated as of ________ 1, 202 2 (the “Project Implementation Agreement”), by and among the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), RIDA, the San Diego Unified Port Distr ict, the City of Chula Vista and the Bayfront Project Special Tax Financing District.
The undersigned certifies that it has satisfied the provisions of the Project Implementation Agreement to submit this Requisition No. ___ to the Trustee and has concur rently with the delivery of this Requisition No. ___ to the Trustee delivered a copy to the Authority.
Capitalized terms will herein have the meanings assigned to such terms in the Indenture of Trust, dated as of ________ 1, 2022 (the “Indenture”), among the Authority and Wilmington Trust, National Association, as trustee (“Trustee”).
Unless you are notified by the Authority prior to the tenth Business Day from the date of this requisition not to make the disbursement requested above, on the tenth Business Day you shall disburse the amount requested above to the account set forth below:
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If the payment is by wire or ACH, please fill in the following information:
Name, Address and Phone Number of Bank:
ABA#:
Account No.:
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number: 1039979
By: