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I
NDENTURE OF TRUST
Dated as of April 1, 2022
between
CITY OF SAN JOSE FINANCING AUTHORITY
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
Authorizing the Issuance of
$[PAR]
City of San José Financing Authority
Taxable Lease Revenue Bonds, Series 2022A
(Convention Center Refunding Project)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -i-
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions ......................................................................................................... 5 SECTION 1.02. Authorization ..................................................................................................... 5 SECTION 1.03. Interpretation ..................................................................................................... 6
ARTICLE II
THE 2022A BONDS
SECTION 2.01. Authorization of 2022A Bonds ........................................................................... 6 SECTION 2.02. Terms of the 2022A Bonds................................................................................ 6 SECTION 2.03. Transfer and Exchange of Bonds ...................................................................... 8 SECTION 2.04. Book-Entry System ........................................................................................... 8 SECTION 2.05. Registration Books .......................................................................................... 10 SECTION 2.06. Form and Execution of 2022A Bonds .............................................................. 10 SECTION 2.07. Bonds Mutilated, Lost, Destroyed or Stolen .................................................... 11 SECTION 2.08. Additional Bonds ............................................................................................. 11 SECTION 2.09. Proceedings for the Issuance of Additional Bonds .......................................... 12 SECTION 2.10. Applicability to Additional Bonds...................................................................... 13
ARTICLE III
ISSUANCE OF 2022A BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance of the 2022A Bonds ......................................................................... 13 SECTION 3.02. Application of Proceeds of Sale of 2022A Bonds; Transfer of Prior Funds .............................................................................................................. 13 SECTION 3.03. Establishment and Application of Costs of Issuance Fund .............................. 14 SECTION 3.04. Validity of 2022A Bonds .................................................................................. 14
ARTICLE IV
REDEMPTION OF 2022A BONDS
SECTION 4.01. Terms of Redemption ...................................................................................... 14 SECTION 4.02. Selection of Bonds for Redemption ................................................................. 16 SECTION 4.03. Notice of Redemption; Rescission ................................................................... 16 SECTION 4.04. Partial Redemption of Bonds ........................................................................... 17 SECTION 4.05. Effect of Redemption ....................................................................................... 17
ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF
PRINCIPAL AND INTEREST
SECTION 5.01. Security for the Bonds; Bond Fund .................................................................. 18 SECTION 5.02. Allocation of Revenues ................................................................................... 18 SECTION 5.03. Application of Interest Account ........................................................................ 19 SECTION 5.04. Application of Principal Account ...................................................................... 19 SECTION 5.05. Application of Redemption Fund ..................................................................... 19 SECTION 5.06. Insurance and Condemnation Fund ................................................................ 19 SECTION 5.07. Investments .................................................................................................... 21 SECTION 5.08. Valuation and Disposition of Investments ........................................................ 22
ARTICLE VI
COVENANTS OF THE AUTHORITY
SECTION 6.01. Punctual Payment ........................................................................................... 23 SECTION 6.02. Extension of Payment of Bonds ...................................................................... 23 SECTION 6.03. Against Encumbrances ................................................................................... 23 SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment .............................. 23 SECTION 6.05. Accounting Records ........................................................................................ 23 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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SECTION 6.06. Limitation on Additional Obligations ................................................................ 24 SECTION 6.07. Reserved ........................................................................................................ 24 SECTION 6.08. Enforcement of Lease ..................................................................................... 24 SECTION 6.09. Waiver of Laws ............................................................................................... 24 SECTION 6.10. Further Assurances ......................................................................................... 24
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01. Events of Default ............................................................................................. 24 SECTION 7.02. Remedies Upon Event of Default .................................................................... 25 SECTION 7.03. Application of Revenues and Other Funds After Default ................................. 25 SECTION 7.04. Trustee to Represent Bond Owners ................................................................ 26 SECTION 7.05. Limitation on Bond Owners' Right to Sue ........................................................ 26 SECTION 7.06. Absolute Obligation of Authority ...................................................................... 27 SECTION 7.07. Termination of Proceedings ............................................................................ 27 SECTION 7.08. Remedies Not Exclusive ................................................................................. 27 SECTION 7.09. No Waiver of Default ....................................................................................... 27 SECTION 7.10. Notice to Bond Owners of Default ................................................................... 28
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Appointment of Trustee ................................................................................... 28 SECTION 8.02. Acceptance of Trusts; Removal and Resignation of Trustee ........................... 28 SECTION 8.03. Merger or Consolidation .................................................................................. 30 SECTION 8.04. Liability of Trustee ........................................................................................... 30 SECTION 8.05. Right to Rely on Documents ............................................................................ 34 SECTION 8.06. Preservation and Inspection of Documents ..................................................... 34 SECTION 8.07. Compensation and Indemnification ................................................................. 34
ARTICLE IX
MODIFICATION OR AMENDMENT HEREOF
SECTION 9.01. Amendments Permitted ................................................................................... 35 SECTION 9.02. Effect of Supplemental Indenture .................................................................... 36 SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds ........................................ 37 SECTION 9.04. Amendment of Particular Bonds ...................................................................... 37
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Indenture .................................................................................... 37 SECTION 10.02. Discharge of Liability on Bonds ....................................................................... 38 SECTION 10.03. Deposit of Money or Securities with Trustee ................................................... 38 SECTION 10.04. Unclaimed Funds ............................................................................................ 39
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Authority Limited to Revenues ........................................................ 39 SECTION 11.02. Limitation of Rights to Parties and Bond Owners ............................................ 39 SECTION 11.03. Funds and Accounts ....................................................................................... 40 SECTION 11.04. Waiver of Notice; Requirement of Mailed Notice ............................................. 40 SECTION 11.05. Destruction of Bonds ....................................................................................... 40 SECTION 11.06. Severability of Invalid Provisions ..................................................................... 40 SECTION 11.07. Notices ............................................................................................................ 40 SECTION 11.08. Evidence of Rights of Bond Owners ................................................................ 41 SECTION 11.09. Disqualified Bonds .......................................................................................... 41 SECTION 11.10. Money Held for Particular Bonds ..................................................................... 42 SECTION 11.11. Waiver of Personal Liability ............................................................................. 42 DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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SECTION 11.12. Successor Is Deemed Included in All References to Predecessor .................. 42 SECTION 11.13. Execution in Several Counterparts .................................................................. 42 SECTION 11.14. Payment on Non-Business Day ...................................................................... 42 SECTION 11.15. Governing Law ................................................................................................ 42 SECTION 11.16. Entire Agreement ............................................................................................ 42
APPENDIX A DEFINITIONS
APPENDIX B FORM OF 2022A BONDS
APPENDIX C FORM OF COSTS OF ISSUANCE FUND REQUISITION
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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INDENTURE OF TRUST
This INDENTURE OF TRUST (this “Indenture”), dated for convenience as of April 1, 2022, is between the CITY OF SAN JOSE FINANCING AUTHORITY, a joint exercise of powers authority duly organized and existing under the laws of the State of California (the “ Authority”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, with a corporate trust office in Costa Mesa, California, being qualified to accept and administer the trusts hereby created (the “Trustee”).
B A C K G R O U N D :
1. The Authority is a joint exercise of powers authority duly organized and existing under and pursuant to that certain Joint Exercise of Powers Agreement, dated December 8, 1992, by and between the City of San José (the “ City”) and the Redevelopment Agency of the City of San José (the “ Former Agency”), and under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”), and is authorized pursuant to Article 4 of the Act (the “Bond Law”) to borrow money for the purpose, among other things, of financing and refinancing public capital improvements for the City and the Former Agency and the Authority has heretofore determined to adopt and implement a program under which the Authority will provide financing for certain public capital improvements for the City.
2. The Former Agency, as of February 1, 2012, has been dissolved and the City has become the successor agency of the Former Agency pursuant to Part 1.85 of Division 24 of the California Health and Safety Code and per California Health and Safety Code Section 34178(b)(3), the joint exercise of powers agreement establishing the Authority remains in effect.
3. On August 26, 2008, the City Council of the City (the “ City Council”) adopted Chapter 14.32 of the San José Municipal Code, entitled “Convention Center Facilities District Financing Procedures” (the “Chapter”), which Chapter incorporates by reference the Mello-Roos Community Facilities Act of 1982, as amended, Chapter 2.5 of Part 1 of Division 2 of Title 5 (commencing with Section 53311) of the California Government Code (the “Mello-Roos Act”).
4. Beginning in September 2008, the City Council undertook to form its “Convention Center Facilities District No. 2008-1, City of San José, County of Santa Clara, State of California” (the “Convention Center Facilities District”) pursuant to the Chapter for the purpose of financing the acquisition, reconstruction, rehabilitation, replacement or upgrade of the San José Convention Center (the “Facilities”), which convention center is now known as the San José McEnery Convention Center (the “Convention Center”).
5. On March 10, 2009, the City Council duly adopted Resolution No. 74826 (the “Resolution of Formation ”), establishing the Convention Center Facilities District and authorizing the levy of a special tax by the City Council, as the legislative body of the Convention Center Facilities District, within the Convention Center Facilities District (as more fully defined herein, the “ Special Tax”) in accordance with the rate and method of apportionment of the Special Tax and providing for the levy of the Special Tax in an DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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amount sufficient to, among other things, finance the Facilities, incidental expenses, the making of lease payments for facilities, and the payment of interest on and principal of Debt (as defined in the Chapter) issued to finance the acquisition and construction of the Facilities.
6. Also on March 10, 2009, the City Council duly adopted Resolution No. 74827 (the “Resolution Deeming it Necessary to Incur Indebtedness ”), authorizing the City Council to issue, over the life of the Convention Center Facilities District, bonds in the principal amount of not to exceed $750,000,000, and stating that the authorization to finance the acquisition and construction of the Facilities includes, among other things, the issuance of Debt.
7. Under the Chapter the term “Debt” has the meaning given to such term in the Mello-Roos Act, and Section 53317(d) of the Mello-Roos Act defines such term to include, among other things, any binding obligation to pay or repay a sum of money, including obligations in the form of bonds, certificates of participation and long-term leases.
8. The City is authorized under Section 14.32.300 of the Chapter and Section 53313.5(g) of the Mello-Roos Act to use Special Taxes to make lease payments under leases.
9. Also on March 10, 2009, the City Council adopted Resolution No. 74828 in which it appointed the City Clerk to be the official to conduct the election within the Convention Center Facilities District pursuant to Section 533327(b) of the Mello-Roos Act, prescribed the form of the ballot, set June 9, 2009 as election day, and provided for the election procedures.
10. At the election, the qualified electors of the Convention Center Facilities District duly authorized the Special Tax and the issuance of bonds in accordance with the Resolution of Formation and the Resolution Deeming it Necessary to Incur Indebtedness by a 78% vote.
11. On March 30, 2010, the Santa Clara County Superior Court entered its Validation Default Judgment in case number 1-09-CV-148458 (the “ Validation Default Judgment”) in which it ruled, among other things, that the Convention Center Facilities District was lawfully formed, that the landowner election was properly conducted, the Special Tax and the bonds and other related contracts authorized or contemplated by the City were properly authorized, and all persons are permanently enjoined from bringing any action to challenge any aspect of the Convention Center Facilities District.
12. The Validation Default Judgment was appealed, and on September 23, 2010, Court of Appeal for the Sixth Appellate District dismissed the appeal.
13. As of November 23, 2010, the Validation Default Judgment is final for all purposes.
14. The City previously issued its City of San José Special Hotel Tax Revenue Bonds, Series 2011 (Convention Center Expansion and Renovation Project) in the original aggregate principal amount of $107,425,000 (the “ 2011 CCFD Bonds”) for the purpose of financing a portion of the cost of the first phase of the expansion of and renovations to DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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the Convention Center (the “Convention Center Expansion and Renovation Project”), which bonds are secured by a pledge of Special Taxes.
15. The Authority previously issued its City of San José Financing Authority Lease Revenue Bonds, Series 2011A (Convention Center Expansion and Renovation Project) in the original aggregate principal amount of $30,985,000 (the “ 2011A Lease Revenue Bonds”), for the purpose of financing a portion of the cost of the Convention Center Expansion and Renovation Project, which bonds are secured, in part, by a pledge of Special Taxes on a basis subordinate to the pledge thereof to the 2011 CCFD Bonds.
16. As a result of the issuance of the 2011 CCFD Bonds and the 2011A Lease Revenue Bonds, $611,590,000 principal amount of Debt remains authorized to be issued or incurred by the City under the Resolution Deeming it Necessary to Incur Indebtedness prior to the issuance of the 2022A Bonds (as defined below).
17. In 2013, the Authority issued its Tax-Exempt Lease Revenue Commercial Paper Notes in the aggregate principal amount of $10,000,000, to assist the City with financing a portion of the Convention Center Expansion and Renovation Project, which notes are no longer outstanding.
18. In 2017, the Authority issued its Taxable Lease Revenue Commercial Paper Notes in the aggregate principal amount of $15,000,000 (collectively, together with all Taxable Lease Revenue Commercial Paper Notes subsequently issued by the Authority to refinance such notes, the “ Exhibit Hall Commercial Paper Notes ”) to assist the City with financing, on an interim basis, certain public capital improvements of the City, consisting of lighting and ceiling upgrades to the exhibit hall of the Convention Center and certain related costs (the “Exhibit Hall Project”).
19. The Exhibit Hall Commercial Paper Notes are outstanding in the aggregate principal amount of $8,432,437.
20. In 2018, the Authority issued its Taxable Lease Revenue Commercial Paper Notes in the aggregate principal amount of $42,400,000 (collectively, together with all Taxable Lease Revenue Commercial Paper Notes subsequently issued by the Authority to refinance such notes, the “ South Hall Commercial Paper Notes ”) to assist the City with financing, on an interim basis, the purchase of certain real property in the City commonly known as the San José Convention Center South Hall and payment of certain related costs (the “South Hall Acquisition Project”).
21. The South Hall Commercial Paper Notes are outstanding in the aggregate principal amount of $42,400,000.
22. The Exhibit Hall Project and the South Hall Acquisition Project constitute Facilities.
23. The outstanding 2011 CCFD Bonds are subject to optional redemption in full on any date at a redemption price equal to the principal amount of 2011 CCFD Bonds to be redeemed plus accrued but unpaid interest to the redemption date, without premium, and the City wishes to refund the outstanding 2011 CCFD Bonds.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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24. The outstanding 2011A Lease Revenue Bonds are subject to optional redemption on any date at a redemption price equal to the principal amount of 2011A Lease Revenues Bonds to be redeemed plus accrued but unpaid interest to the redemption date, without premium, and the City and the Authority wish to refund the outstanding 2011A Lease Revenue Bonds.
25. The City and the Authority wish to also refund the outstanding Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes.
26. To refund the outstanding 2011 CCFD Bonds, 2011A Lease Revenue Bonds, Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes, the City has proposed to lease to the Authority certain real property and improvements, initially consisting of the Convention Center (but excluding the South Hall Acquisition Project), as more particularly described in Appendix A attached to the Lease (collectively, the “Leased Property”), under a Site Lease, dated as of the date hereof, by and between the City and the Authority (the “ Site Lease”) in consideration of the payment by the Authority of an upfront rental payment (the “Site Lease Payment”) which is sufficient to provide funds for the refunding of the outstanding 2011 CCFD Bonds, 2011A Lease Revenue Bonds, Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes.
27. The Authority wishes to issue its City of San José Financing Authority Taxable Lease Revenue Bonds, Series 2022A (Convention Center Refunding Project) in the aggregate principal amount of $[PAR].00 (the “ 2022A Bonds”) under this Indenture for the purpose of providing the funds to enable the Authority to pay the Site Lease Payment to the City in accordance with the Site Lease.
28. In order to provide revenues that are sufficient to enable the Authority to pay debt service on the 2022A Bonds, the Authority has leased the Leased Property back to the City under a Lease Agreement dated the date hereof (the “ Lease”), under which the City has agreed to pay semiannual Lease Payments as the rental for the Leased Property thereunder.
29. The Lease Payments made by the City under the Lease have been assigned by the Authority to the Trustee for the security of the 2022A Bonds under an Assignment Agreement dated as of the date hereof, between the Authority as assignor and the Trustee as assignee.
30. The City Council is the legislative body of the Convention Center Facilities District.
31. Under Chapter 5.5 (commencing with Section 5450) of Division 6 of Title 1 of the California Government Code, a pledge of collateral by any public body to secure, directly or indirectly, the payment of the principal or redemption price of, or interest on, any bonds shall be valid and binding in accordance with the terms of the pledge document from the time the pledge is made for the benefit of the pledgees and successors thereto.
32. In order to further secure the 2022A Bonds, the City, for and on behalf of the Convention Center Facilities District, and the Authority have entered into a Pledge Agreement dated as of April 1, 2022 (as more fully hereinafter defined, the “ Pledge Agreement”), pursuant to which the City, for and on behalf of the Convention Center Facilities District, has agreed to, among other things, levy and collect Special Taxes to DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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make Lease Payments required to be paid by the City to the Authority under the Lease, as permitted under to Section 14.32.300 of the Chapter and Section 53313.5(g) of the Mello-Roos Act, and has pledged a lien and security interest in the Special Taxes that are collected by the City to the payment of such Lease Payments under Section 5451 of the California Government Code to the extent provided in the Pledge Agreement for the purpose of satisfying the City’s obligation to make Lease Payments under the Lease.
33. On the Closing Date of the 2022A Bonds, $_____ principal amount of Debt will remain authorized to be issued or incurred by the City, for and on behalf of the Convention Center Facilities District, under the Resolution Deeming it Necessary to Incur Indebtedness, as a result of the issuance of the 2022A Bonds.
34. 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 thereof, premium (if any) and interest thereon, the Authority has authorized the execution and delivery of this Indenture.
35. The Authority has found and determined, and hereby affirms, that all acts and proceedings required by law necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal special obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Indenture have been in all respects duly authorized.
A G R E E M E N T :
In order to secure the payment of the principal of and the interest and redemption premium (if any) on all the Outstanding Bonds 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 promises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners thereof, and for other valuable considerations, the receipt of which is hereby acknowledged, the Authority and the Trustee do hereby covenant and agree with one another, for the benefit of the respective Owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms defined in Appendix A attached to this Indenture have the respective meanings specified in that Appendix when used in this Indenture.
SECTION 1.02. Authorization. Each of the parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Indenture, and has DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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taken all actions necessary to authorize the execution hereof by the officers and persons signing it.
SECTION 1.03. Interpretation.
(a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.
(c) All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
ARTICLE II
THE 2022A BONDS
SECTION 2.01. Authorization of 2022A Bonds . The Authority has reviewed all proceedings heretofore taken 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 or be performed precedent to and in connection with the issuance of the 2022A Bonds do exist, have happened and have been performed in due time, form and manner as required by law, and the Authority is now duly empowered, under each and every requirement of law, to issue the 2022A Bonds in the manner and form provided in this Indenture.
The Authority hereby authorizes the issuance of 2022A Bonds in the aggregate principal amount of $[PAR].00 under the Bond Law for the purposes of providing funds to pay the Site Lease Payment to the City and thereby provide funds to (i) refund the outstanding 2011 CCFD Bonds, 2011A Lease Revenue Bonds, Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes, and (ii) pay Costs of Issuance. The 2022A Bonds are authorized and issued under, and are subject to the terms of, this Indenture and the Bond Law. The 2022A Bonds are designated the “City of San José Financing Authority Taxable Lease Revenue Bonds, Series 2022A (Convention Center Refunding Project).”
SECTION 2.02. Terms of the 2022A Bonds.
(a) Payment Provisions. The 2022A Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no 2022A Bond has more than one maturity date. The 2022A Bonds shall mature on May 1 in each of the years and in the amounts, and bear interest (calculated on the basis of a 360-day year of twelve 30-day months) at the rates, as follows:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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Maturity Date
(May 1)
Principal
Amount
Interest
Rate
I
nterest on the 2022A Bonds is payable from the Interest Payment Date next preceding the date of authentication thereof unless:
(a) a 2022A Bond is authenticated on or before an Interest Payment Date and after the close of business on the preceding Record Date, in which event it will bear interest from such Interest Payment Date, (b) a 2022A Bond is authenticated on or before the first Record Date, in which event interest thereon will be payable from the Closing Date, or
(c) interest on any 2022A Bond is in default as of the date of authentication thereof, in which event interest thereon will be payable from the date to which interest has been paid in full, payable on each Interest Payment Date.
Interest is payable on each Interest Payment Date to the persons in whose names the ownership of the 2022A Bonds is registered on the Registration Books at the close of business on the immediately preceding Record Date, except as provided below.
Interest on any 2022A Bond which is not punctually paid or duly provided for on any Interest Payment Date is payable to the person in whose name the ownership of such 2022A Bond is registered on the Registration Books at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee, notice of which is given to such Owner by first-class mail not less than 10 days prior to such special record date.
The Trustee will pay interest on the 2022A Bonds by check of the Trustee mailed by first class mail, postage prepaid, on each Interest Payment Date to the Owners of the 2022A Bonds at their respective addresses shown on the Registration Books as of the close of business on the preceding Record Date. At the written request of the Owner of 2022A Bonds in an aggregate principal amount of at least $1,000,000, which written request is on file with the Trustee as of any Record Date, the Trustee will pay interest on such 2022A Bonds on each succeeding Interest Payment Date by wire transfer in immediately available funds to such account of a financial institution within the United DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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States of America as specified in such written request, which written request will remain in effect until rescinded in writing by the Owner.
The Trustee will pay principal and premium, if any, of the 2022A Bonds in lawful money of the United States of America by check of the Trustee or by wire upon presentation and surrender of such 2022A Bonds at the Office of the Trustee. So long as the owner of the 2022A Bonds are registered to Cede & Co., payment of principal and redemption price shall be made without presentment.
SECTION 2.03. Transfer and Exchange of Bonds.
(a) Transfer. Any Bond may, in accordance with its terms, be transferred, upon the Registration Books, by the person in whose name it is registered, in person or by a duly authorized attorney of such person, upon surrender of such Bond to the Trustee at its Office for cancellation, accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed. The Trustee shall require the Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. Whenever any Bond or Bonds shall be surrendered for transfer, the Authority shall execute and the Trustee shall authenticate and deliver to the transferee a new Bond or Bonds of like series, interest rate, maturity and aggregate principal amount. The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any transfer of Bonds. (b) Exchange. The Bonds may be exchanged at the Office of the Trustee for a like aggregate principal amount of Bonds of other authorized denominations and of the same series, interest rate and maturity. The Trustee shall require the Owner requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange. The Authority shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any exchange of Bonds.
(c) Limitations. The Trustee may refuse to transfer or exchange, under the provisions of this Section 2.03, any Bonds selected by the Trustee for redemption under Article IV, or any Bonds during the period established by the Trustee for the selection of Bonds for redemption.
SECTION 2.04. Book-Entry System.
(a) Original Delivery. The Bonds will be initially delivered in the form of a separate single fully registered bond (which may be typewritten) for each maturity of the Bonds. Upon initial delivery, the Trustee shall register the ownership of each Bond on the Registration Books in the name of the Nominee. Except as provided in subsection (c), the ownership of all of the Outstanding Bonds shall be registered in the name of the Nominee on the Registration Books.
With respect to Bonds the ownership of which shall be registered in the name of the Nominee, the Authority and the Trustee has no responsibility or obligation to any Depository System Participant or to any person on behalf of which the Nominee holds an interest in the Bonds. Without limiting the generality of the immediately preceding sentence, the Authority and the Trustee has no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee or any Depository System DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any notice with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository of the beneficial interests in the Bonds to be redeemed if the Authority elects to redeem the Bonds in part, (iv) the payment to any Depository System Participant or any other person, other than a Bond Owner as shown in the Registration Books, of any amount with respect to principal, premium, if any, or interest on the Bonds or (v) any consent given or other action taken by the Depository as Owner of the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered as the absolute owner of such Bond for the purpose of payment of principal of and 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 transfers of ownership of such Bond, and for all other purposes whatsoever. The Trustee shall pay the principal of and the interest and premium, if any, on the Bonds only to the respective Owners or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge all obligations with respect to payment of principal of and interest and premium, if any, on the Bonds to the extent of the sum or sums so paid. No person other than a Bond Owner shall receive a Bond evidencing the obligation of the Authority to make payments of principal, interest and premium, if any, under this Indenture. Upon delivery by the Depository to the Authority of written notice to the effect that the Depository has determined to substitute a new Nominee in its place, and subject to the provisions herein with respect to Record Dates, such new nominee shall become the Nominee hereunder for all purposes; and upon receipt of such a notice the Authority shall promptly deliver a copy of the same to the Trustee.
(b) Representation Letter. In order to qualify the Bonds for the Depository’s book-entry system, the Authority shall execute and deliver to such Depository a letter in which the Authority will agree to the Depository’s operational arrangements. To the extent required to do so by the Depository, the Trustee shall also execute such representation letter and agree to the Depository’s operational arrangements. The execution and delivery of such letter shall not in any way limit the provisions of subsection (a) above or in any other way impose upon the Authority or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Bond Owners. In addition to the execution and delivery of such letter, the Authority may take any other actions, not inconsistent with this Indenture, to qualify the Bonds for the Depository’s book-entry program.
(c) Transfers Outside Book-Entry System. If either (i) the Depository determines not to continue to act as Depository for the Bonds, or (ii) the Authority determines to terminate the Depository as such, then the Authority shall thereupon discontinue the book- entry system with such Depository. In such event, the Depository shall cooperate with the Authority and the Trustee in the issuance of replacement Bonds by providing the Trustee with a list showing the interests of the Depository System Participants in the Bonds, and by surrendering the Bonds, registered in the name of the Nominee, to the Trustee on or before the date such replacement Bonds are to be issued. The Depository, by accepting delivery of the Bonds, agrees to be bound by the provisions of this subsection (c). If, prior to the termination of the Depository acting as such, the Authority fails to identify another Securities Depository to replace the Depository, then the Bonds shall no longer be required to be registered in the Registration Books in the name of the Nominee, and, upon transfer or exchange, shall be registered in whatever name or names the Owners DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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transferring or exchanging Bonds shall designate, in accordance with the provisions hereof.
If the Authority determines that it is in the best interests of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the Authority may notify the Depository System Participants of the availability of such certificated Bonds through the Depository. In such event, the Trustee will issue, transfer and exchange Bonds as required by the Depository and others in appropriate amounts; and whenever the Depository requests, the Trustee and the Authority shall cooperate with the Depository in taking appropriate action (y) to make available one or more separate certificates evidencing the Bonds to any Depository System Participant having Bonds credited to its account with the Depository, or (z) to arrange for another Securities Depository to maintain custody of a single certificate evidencing such Bonds, all at the Authority’s expense. (d) Payments to the Nominee. Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of and interest and premium, if any, on such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the letter described in subsection (b) of this Section or as otherwise instructed by the Depository.
SECTION 2.05. Registration Books. The Trustee will keep or cause to be kept, at the Office of the Trustee, sufficient records for the registration and transfer of ownership of the Bonds, which shall upon reasonable notice as agreed to by the Trustee, be open to inspection during regular business hours by the Authority; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such records, the ownership of the Bonds as hereinbefore provided.
SECTION 2.06. Form and Execution of 2022A Bonds . The 2022A Bonds, the form of Trustee’s certificate of authentication, and the form of assignment to appear thereon, are set forth in Appendix B attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture.
The Treasurer of the Authority shall execute, and the Secretary of the Authority shall attest each 2022A Bond. Either or both of such signatures may be made manually or may be affixed by facsimile thereof. If any officer whose signature appears on any 2022A Bond ceases to be such officer before the Closing Date, such signature will nevertheless be as effective as if the officer had remained in office until the Closing Date.
Any 2022A Bond may be signed and attested on behalf of the Authority by such persons as at the actual date of the execution of such 2022A Bond are the proper officers of the Authority, duly authorized to execute debt instruments on behalf of the Authority, although on the date of such 2022A Bond any such person was not an officer of the Authority.
Only those 2022A Bonds bearing a certificate of authentication in the form set forth in Appendix B, manually executed and dated by the Trustee, are valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Trustee is conclusive evidence that such 2022A Bonds have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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SECTION 2.07. Bonds Mutilated, Lost, Destroyed or Stolen . If any Bond is mutilated, the Authority, at the expense of the Owner of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. The Trustee shall cancel every mutilated Bond surrendered to it and deliver such mutilated Bond to, or upon the order of, the Authority.
If any Bond is lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence is satisfactory and if indemnity satisfactory to the Trustee and the Authority is given, the Authority, at the expense of the Owner, 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.
The Trustee may require payment of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses which may be incurred by the Trustee in connection therewith. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen will constitute an original additional contractual obligation on the part of the Authority whether or not the Bond so 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 issued under this Indenture.
Notwithstanding any other provision of this Section 2.07, in lieu of delivering a new Bond for which principal has become due for a Bond which has been mutilated, lost, destroyed or stolen, the Trustee may make payment of such Bond in accordance with its terms upon receipt of indemnity satisfactory to the Trustee.
SECTION 2.08. Additional Bonds. In addition to the 2022A Bonds authorized to be issued pursuant to Section 2.01 of this Indenture, the Authority may, by Supplemental Indenture, establish one or more other issues of Additional Bonds on a parity with the 2022A Bonds, and may issue and deliver such Additional Bonds in such principal amount as shall be determined by the Authority, but only upon compliance by the Authority with the provisions of this Section 2.08 and Section 2.09, and subject to the following specific conditions which are hereby made conditions precedent to the issuance of such Additional Bonds:
(a) Such Additional Bonds shall have been authorized to finance Facilities pursuant to and in accordance with the terms of the Chapter, or to refund bonds previously issued to finance such capital improvements, and the issuance thereof shall have been determined and declared by the Authority, in a Supplemental Indenture, to be necessary for that purpose. (b) The Authority and the City shall be in compliance with all covenants and undertakings set forth in this Indenture, the Lease, the Site Lease and the Pledge Agreement (including Section 2.6 of the Pledge Agreement). (c) The aggregate principal amount of Bonds issued and at any time Outstanding hereunder shall not exceed the debt authorization of the Convention Center Facilities District or any limit imposed by law, by this Indenture or by any Supplemental Indenture.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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(d) The Supplemental Indenture authorizing issuance of such Additional Bonds shall establish such accounts and subaccounts within the various funds and accounts established hereby or the Authority shall deem necessary or advisable. (e) Such Additional Bonds shall be equally and ratably secured by the Revenues with all other Bonds herein authorized.
(f) The Authority shall have entered into an amendment to the Lease, in and by which the City obligates itself in the manner provided in the Lease to make Lease Payments for the lease of the Leased Property at the times and in the amounts sufficient to provide for the payment of the principal of and interest on such Additional Bonds as such principal and interest become due and to make all other payments in the manner provided in the Lease, and the City shall certify in writing, that such Lease Payments, as amended, in any Rental Period shall not exceed the fair rental value of the Leased Property shall have been satisfied by the City in connection with the City so obligating itself. (g) If necessary to ensure that the Lease Payments payable after the issuance of Additional Bonds does not exceed the fair rental value of the Leased Property in any Rental Period, the Authority and the City shall have amended the Lease pursuant to Section 3.4 thereof to add additional property to the Leased Property.
SECTION 2.09. Proceedings for the Issuance of Additional Bonds. Whenever the Authority shall have determined to issue Additional Bonds pursuant to Section 2.08, the Authority shall enter into a Supplemental Indenture determining that the issuance of such Additional Bonds is necessary for the purposes specified in Section 2.08, specifying the principal amount of such Additional Bonds and prescribing the terms and conditions of such Additional Bonds and the funds to be established for the security and payment thereof, including, at the option of the Authority and the City, any reserve funds or accounts for such Additional Bonds (and such other series of Additional Bonds identified by the Authority and the City) so that the amount therein shall equal the amount specified in a Supplemental Indenture. For the avoidance of doubt, any series of Additional Bonds issued in the future, at the option of the Authority and the City may, but are not required to, be secured by a reserve fund or account established therefore in the Supplemental Indenture for such bonds. Before such Additional Bonds shall be issued and delivered, the Authority shall file the following documents with the Trustee:
(a) An executed copy of the Supplemental Indenture authorizing such Additional Bonds, together with a certified copy of the resolutions of the Authority and the City authorizing the issuance of such Additional Bonds and the execution of such Supplemental Indenture.
(b) An Opinion of bond counsel stating: (i) that the execution and delivery of the Additional Bonds have been sufficiently and duly authorized by the Authority; (ii) that the issuance of the Additional Bonds is authorized by the Bond Law and this Indenture; (iii) that the Additional Bonds when duly executed and delivered, will be valid and binding obligations of the Authority, payable from Revenues in accordance with the terms of this Indenture and the Supplemental Indenture authorizing the issuance of such Additional Bonds; (iv) that upon the delivery of the Additional Bonds the aggregate principal amount of Bonds then Outstanding DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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will not exceed the amount at the time permitted by law or the then limits of indebtedness of the Authority, if any; (v) if the Additional Bonds are to be tax- exempt, that the interest on the Additional Bonds will be excluded from the gross income of the Owners thereof for federal income tax purposes; and (vi) that the issuance of such Additional Bonds will not, of itself, cause interest on any Outstanding Bonds the interest of which is intended to be exempt from federal income taxation to become includable in gross income for federal income tax purposes.
(c) A Written Certificate of the Authority certifying that the requirements set forth in Section 2.08 have been either met or provided for, together with a copy of the amendment to the Lease required by Section 2.08, together with a certified copy of the resolutions of the Authority and the City authorizing the execution of such amendment to the Lease.
(d) A copy of a letter sent by the City to each rating agency then rating the Bonds to notify each rating agency of the issuance of such Additional Bonds.
SECTION 2.10. Applicability to Additional Bonds. Unless otherwise specified in the Supplemental Indenture pursuant to which an issue of Additional Bonds are issued, the provisions of Sections 2.03 through 2.05 and 2.07 shall apply to such issue of Additional Bonds.
ARTICLE III
ISSUANCE OF 2022A BONDS; APPLICATION OF
PROCEEDS
SECTION 3.01. Issuance of the 2022A Bonds. At any time after the execution of this Indenture, the Authority may execute and the Trustee shall authenticate and, upon the Written Request of the Authority, deliver the 2022A Bonds to the Original Purchasers.
SECTION 3.02. Application of Proceeds of Sale of 2022A Bonds; Transfer of Prior Funds. On the Closing Date, the Original Purchasers will pay a purchase price for the 2022A Bonds in the amount of $[Purchase Price], which is equal to the original principal amount of the 2022A Bonds ($[PAR].00), plus original issue premium of $______, less an underwriter’s discount of $______. On the Closing Date, a portion of such purchase price of the 2022A Bonds (i) in the amount of $______,will be wired directly by the Original Purchasers to the 2011 CCFD Bonds Trustee for deposit in the Escrow Fund established under the Refunding Instructions (2011 CCFD Bonds), (ii) in the amount of $______,will be wired directly by the Original Purchasers to the 2011A Lease Revenue Bonds Trustee for deposit in the Escrow Fund established under the Refunding Instructions (2011A Lease Revenue Bonds), and (ii) in the amount of $______ will be wired directly by the Original Purchasers to the Commercial Paper Notes Trustee for deposit in accordance with the Refunding Instructions (Exhibit Hall and South Hall Commercial Paper Notes). On the Closing Date, the Trustee shall deposit the remainder of such purchase price in the amount $______ into the Costs of Issuance Fund.
The deposit by the Trustee into the Costs of Issuance Fund together with the funds to be wired directly by the Original Purchasers to the 2011 CCFD Bonds Trustee, DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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the 2011A Lease Revenue Bonds Trustee and the Commercial Paper Notes Trustee as described above represent the full amount of the Site Lease Payment under Section 3 of the Site Lease.
SECTION 3.03. Establishment and Application of Costs of Issuance Fund . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “Costs of Issuance Fund” into which the Trustee shall deposit a portion of the proceeds of sale of the 2022A Bonds under Section 3.02. The Trustee shall disburse amounts in the Costs of Issuance Fund from time to time to pay the Costs of Issuance upon submission of a Written Requisition of the Authority substantially in the form attached hereto as Appendix C stating the person to whom payment is to be made, the amount to be paid, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. Each such Written Requisition 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. The Trustee may conclusively rely on such Written Requisitions and shall be fully protected in relying thereon. On July 1, 2022, or upon the earlier Written Request of the Authority, the Trustee shall transfer all amounts remaining in the Costs of Issuance Fund to the Interest Account and shall thereupon close the Costs of Issuance Fund.
SECTION 3.04. Validity of 2022A Bonds. The recital contained in the 2022A Bonds that the same are issued under the Constitution and laws of the State of California shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.
ARTICLE IV
REDEMPTION OF 2022A BONDS
SECTION 4.01. Terms of Redemption.
(a) Par Call Redemption. The 2022A Bonds maturing on or after May 1, 20__, are subject to redemption at the option of the Authority, as a whole or in part at the election of the Authority, on May 1, 20__, and on any date thereafter, at a redemption price equal to 100% of the principal amount of 2022A Bonds to be redeemed, together with accrued interest thereon to the date fixed for redemption, without premium.
The Authority must give the Trustee at least 10 days’ written notice of its intention to redeem 2022A Bonds under this subsection (a), and the manner of selecting such 2022A Bonds for redemption from among the maturities thereof, in sufficient time for the Trustee to give notice of such redemption in accordance with Section 4.03.
(b) Make-Whole Call Redemption. The 2022A Bonds may be redeemed in whole or in part at the election of the Authority on any date before May 1, 20__, from any moneys that may be provided for such purpose, at a redemption price for such 2022A Bonds to be redeemed (the “ Make-Whole Redemption Price of 2022A Bonds ”) determined by the Designated Investment Banker equal to the greater of (i) 100% of the principal amount of such 2022A Bonds to be redeemed, or (ii) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on each of such 2022A Bonds to be redeemed, not including any portion of those payments of interest
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document. -
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accrued and unpaid as of the date on which the 2022A Bonds are to be redeemed, discounted to the date on which such 2022A Bonds are to be redeemed on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the applicable Treasury Rate plus __ basis points, plus accrued and unpaid interest on the 2022A Bonds to be redeemed on the redemption date.
The Authority may conclusively rely on the determination of any Make-Whole Redemption Price of 2022A Bonds by the Designated Investment Banker pursuant to the provisions described under this subsection (a) and will not be liable for such reliance.
The Authority must give the Trustee at least 10 days’ written notice of its intention to redeem 2022A Bonds under this subsection (b), and the manner of selecting such 2022A Bonds for redemption from among the maturities thereof, in sufficient time for the Trustee to give notice of such redemption in accordance with Section 4.03. (c) Special Mandatory Redemption From Insurance or Condemnation Proceeds.
The 2022A Bonds are subject to redemption as a whole, or in part on a pro rata basis among maturities, on any date, from any Net Proceeds required to be used for such purpose as provided in Section 5.07, at a redemption price equal to 100% of the principal amount thereof plus interest accrued thereon to the date fixed for redemption, without premium.
(d) Mandatory Sinking Fund Redemption. The 2022A Term Bonds are subject to mandatory sinking fund redemption in part prior to their stated maturity date, on each May 1 in accordance with the tables set forth below, respectively, at a redemption price equal to 100% of the principal amount thereof called for redemption, plus accrued interest to the redemption date, without premium provided, however, that if some but not all of the 2022A Term Bonds have been redeemed under subsections (a) or (b) of this Section, the total amount of all future sinking fund payments shall be reduced by the aggregate principal amount of the 2022A Term Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata basis in integral multiples of $5,000 (as set forth in a schedule provided by the Authority to the Trustee):
2022A Term Bonds Maturing May 1, 20__
Redemption Date
(May 1)
Principal Amount of 2022A Bonds
to be Redeemed
(
maturity)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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2022A Term Bonds Maturing May 1, 20__
Redemption Date
(May 1)
Principal Amount of 2022A Bonds
to be Redeemed
(maturity)
SECTION 4.02. Selection of 2022A Bonds for Redemption . If less than all of the 2022A Bonds are to be redeemed, the particular maturities of 2022A Bonds to be redeemed at the option of the Authority will be determined by the Authority in its sole discretion.
If the 2022A Bonds are registered in book-entry only form and so long as DTC or a successor securities depository is the sole registered owner of such 2022A Bonds, if less than all of the 2022A Bonds of a maturity are called for prior redemption, the particular 2022A Bonds or portions thereof to be redeemed shall be allocated on a pro rata pass- through distribution of principal basis in accordance with DTC procedures, provided that, so long as the 2022A Bonds are held in book-entry form, the selection for redemption of such 2022A Bonds shall be made in accordance with the operational arrangements of DTC then in effect, and, if the DTC operational arrangements do not allow for redemption on a pro rata pass-through distribution of principal basis, the 2022A Bonds will be selected for redemption, in accordance with DTC procedures, by lot.
In connection with any repayment of principal, including payments of scheduled mandatory sinking fund payments, the Trustee will direct DTC to make a pass-through distribution of principal to the holders of the 2022A Bonds.
For purposes of calculation of the “pro rata pass-through distribution of principal,” “pro rata” means, for any amount of principal to be paid, the application of a fraction to each denomination of the respective 2022A Bonds where (a) the numerator of which is equal to the amount due to the respective bondholders on a payment date, and (b) the denominator of which is equal to the total original par amount of the respective 2022A Bonds.
If the 2022A Bonds are no longer registered in book-entry-only form, each owner will receive an amount of 2022A Bonds equal to the original face amount then beneficially held by that owner, registered in such investor’s name. Thereafter, any redemption of less than all of the 2022A Bonds of any maturity will continue to be paid to the registered owners of such 2022A Bonds on a pro-rata basis, based on the portion of the original face amount of any such 2022A Bonds to be redeemed.
SECTION 4.03. Notice of Redemption; Rescission. The Trustee shall mail notice of redemption of the Bonds by first class mail, postage prepaid, not less than 20 nor more than 60 days before any redemption date, to the respective Owners of any Bonds designated for redemption at their addresses appearing on the Registration Books and to one or more Securities Depositories and to the Municipal Securities Rulemaking Board.
Each notice of redemption shall state the date of the notice, the redemption date, the place
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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or places of redemption, whether less than all of the Bonds (or all Bonds of a single maturity) are to be redeemed, the CUSIP numbers and (in the event that not all Bonds within a maturity are called for redemption) Bond numbers of the Bonds to be redeemed and the maturity or maturities of the Bonds to be redeemed, and in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that on the redemption date there will become due and payable on each of said Bonds the redemption price thereof, and that from and after such redemption date interest thereon shall cease to accrue, and shall require that such Bonds be then surrendered to the Trustee. Neither the failure to receive any notice nor any defect therein shall affect the sufficiency of the proceedings for such redemption or the cessation of accrual of interest from and after the redemption date. Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Authority, for and on behalf of the Authority.
Redemption notices may be conditional. The Authority has the right to rescind any notice of the redemption of Bonds under Section 4.01(a) by written notice to the Trustee on or prior to the dated fixed for redemption. Any notice of redemption shall be cancelled and annulled if for any reason funds will not be or are not available on the date fixed for redemption for the payment in full of the Bonds then called for redemption, and such cancellation shall not constitute an Event of Default. The Authority and the Trustee have no liability to the Bond Owners or any other party related to or arising from such rescission of redemption. The Trustee shall mail notice of such rescission of redemption in the same manner as the original notice of redemption was sent under this Section. In the event Term Bonds are redeemed in part, the Authority shall deliver a revised sinking fund schedule to the Trustee.
SECTION 4.04. Partial Redemption of Bonds . Upon surrender of any Bonds redeemed in part only, 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 authorized denominations equal in aggregate principal amount to the unredeemed portion of the Bonds surrendered.
SECTION 4.05. Effect of Redemption. Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price of, together with interest accrued to the date fixed for redemption on, including any applicable premium, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the redemption date designated in such notice, the Bonds (or portions thereof) so called for redemption shall become due and payable, interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Indenture, and the Owners of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof.
All Bonds redeemed under the provisions of this Article shall be canceled by the Trustee upon surrender thereof and destroyed in accordance with the retention policy of the Trustee then in effect.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF
PRINCIPAL AND INTEREST
SECTION 5.01. Security for the Bonds; Bond Fund.
(a) Pledge of Revenues and Other Amounts. Subject only to the provisions of this Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and all amounts (including proceeds of the sale of the Bonds) held in any fund or account established under this Indenture other than the Costs of Issuance Fund are hereby pledged to secure the payment of the principal of and interest and premium (if any) on the Bonds in accordance with their terms and the provisions of this Indenture. Said pledge constitutes a lien on and security interest in the Revenues and such amounts and shall attach, be perfected and be valid and binding from and after the Closing Date, without the need for any physical delivery thereof or further act.
(b) Assignment to Trustee. Under the Assignment Agreement, the Authority has transferred to the Trustee all of the rights of the Authority in the Lease (other than the rights of the Authority under Sections 4.5, 5.11, 7.3 and 8.4 thereof and its rights to give approvals and consents thereunder). The Authority hereby further assigns to the Trustee, for the benefit of the Owners of all Bonds which are issued and Outstanding under this Indenture, all Special Tax Revenues. The Trustee is entitled to collect and receive all of the Revenues, and any Revenues collected or received by the Authority shall be deemed to be held, and to have been collected or received, by the Authority as the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. If the Authority receives any Special Taxes pursuant to the Pledge Agreement or Lease Payments pursuant to the Lease, it shall hold the same in trust as agent of the Trustee and shall immediately transfer such Special Taxes or Lease Payments to the Trustee. The Trustee is also entitled to and may, subject to the provisions of Article VIII, take all steps, actions and proceedings which the Trustee determines to be reasonably necessary in its judgment to enforce, either jointly with the Authority or separately, all of the rights of the Authority and all of the obligations of the City under the Lease.
(c) Deposit of Revenues in Bond Fund. All Revenues shall be promptly deposited by the Trustee upon receipt thereof in a special fund designated as the “Bond Fund” which the Trustee shall establish, maintain and hold in trust; except that all moneys received by the Trustee and required hereunder or under the Lease to be deposited in the Redemption Fund or the Insurance and Condemnation Fund shall be promptly deposited in such funds. All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Indenture. Any surplus remaining in the Bond Fund, after payment in full of (i) the principal of and interest on the Bonds or provision therefore under Article X, and (ii) any applicable fees and expenses to the Trustee, shall be withdrawn by the Trustee and remitted to the City at the written Request of the City.
SECTION 5.02. Allocation of Revenues. On or before each Interest Payment Date, the Trustee shall transfer from the Bond Fund and deposit into the following respective
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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accounts and subaccounts (each of which the Trustee shall establish and maintain within the Bond Fund), the following amounts in the following order of priority:
(a) Deposit to Interest Account. The Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to be at least equal to the amount of interest becoming due and payable on such Interest Payment Date on all Bonds then Outstanding.
(b) Deposit to Principal Account. 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 Interest Payment Date, including principal of any 2022A Term Bonds payable as a result of mandatory sinking fund redemption under Section 4.01(d) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture.
SECTION 5.03. Application of Interest Account. All amounts in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying interest on the Bonds as it comes due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity).
SECTION 5.04. Application of Principal Account . All amounts in the Principal Account shall be used and withdrawn by the Trustee solely to pay the principal amount of the Bonds at their respective maturity dates, including principal of any 2022A Term Bonds payable as a result of mandatory sinking fund redemption under Section 4.01(d) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture.
SECTION 5.05. Application of Redemption Fund . The Trustee shall establish and maintain the Redemption Fund, into which the Trustee shall deposit a portion of the Revenues received, in accordance with a Written Request of the Authority, amounts in which shall be used and withdrawn by the Trustee solely for the purpose of paying the principal and premium (if any) of the Bonds to be redeemed under Section 4.01, other than the principal of any 2022A Term Bonds payable as a result of mandatory sinking fund redemption under Section 4.01(d) and any other Term Bonds payable as a result of mandatory sinking fund redemption under a Supplemental Indenture; provided, however, that at any time prior to the selection of Bonds for redemption, the Trustee may apply such amounts to the purchase of Bonds at public or private sale, when and at such prices (including brokerage and other charges, but excluding accrued interest, which is payable from the Interest Account) as shall be directed under a Written Request of the Authority, except that the purchase price (exclusive of accrued interest) may not exceed the redemption price then applicable to the Bonds. The Trustee shall be entitled to conclusively rely on any Written Request of the Authority received under this Section 5.05, and shall be fully protected in relying thereon.
SECTION 5.06. Insurance and Condemnation Fund.
(a) Establishment of Fund. Upon the receipt of proceeds of insurance or eminent domain with respect to the Leased Property, the Trustee shall establish and
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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maintain an Insurance and Condemnation Fund, to be held and applied as hereinafter set forth in this Section 5.06.
(b) Application of Insurance Proceeds. Any Net Proceeds of insurance against accident to or destruction of the Leased Property collected by the City or the Authority in the event of any such accident or destruction shall be paid to the Trustee under Section
6.1 of the Lease and deposited by the Trustee promptly upon receipt thereof in the Insurance and Condemnation Fund. If the City fails to determine and notify the Trustee in writing of its determination, within 180 days following the date of such deposit, to replace, repair, restore, modify or improve the Leased Property which has been damaged or destroyed, then such Net Proceeds shall be promptly transferred by the Trustee to the Redemption Fund and applied to the redemption of Bonds under Section 4.01(c).
Notwithstanding the foregoing sentence, however, if the Leased Property is damaged or destroyed in full, the Net Proceeds of such insurance shall be used by the City to rebuild or replace the Leased Property (as provided in Section 3.2 of the Lease) if such proceeds are not sufficient to redeem Outstanding Bonds equal in aggregate principal amount to the unpaid Lease Payments allocable to the Leased Property. All proceeds deposited in the Insurance and Condemnation Fund and not so transferred to the Redemption Fund shall be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Leased Property by the City, upon receipt of a Written Request of the City which: (i) states with respect to each payment to be made (A) the requisition number, (B) the name and address of the person to whom payment is due, (C) the amount to be paid and (D) that each obligation mentioned therein has been properly incurred, is a proper charge against the Insurance and Condemnation Fund and has not been the basis of any previous withdrawal; and (ii) specifies in reasonable detail the nature of the obligation. Any balance of the proceeds remaining after such work has been completed as certified by the City under a Written Certificate to the Trustee shall be paid to the City. The Trustee shall be entitled to conclusively rely on any Written Request or Written Certificate received under this subsection (b) of this Section
5.06 and in each case, shall be fully protected in relying thereon.
(c) Application of Eminent Domain Proceeds. If all or any part of the Leased Property is taken by eminent domain proceedings (or sold to a government threatening to exercise the power of eminent domain) the Authority shall deposit or cause to be deposited with the Trustee the Net Proceeds therefrom, which the Trustee shall deposit in the Insurance and Condemnation Fund and which shall be applied and disbursed by the Trustee as follows:
(i) If the City has not given written notice to the Trustee, within 180 days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for the replacement of the Leased Property or such portion thereof, the Trustee shall transfer such Net Proceeds to the Redemption Fund to be applied towards the redemption of the Bonds under Section
4.01(c).
(ii) If the City has given written notice to the Trustee, within 180 days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for replacement of the Leased Property or such portion thereof, the Trustee shall pay to the City, or to its order, from said proceeds such
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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amounts as the City may expend for such replacement, upon the filing of Written Requisitions of the City as agent for the Authority. In each case, the Trustee may conclusively rely upon any notice received under this subsection (c)(ii) of this Section and is protected in relying thereon.
(d) Reliance on Independent Advice. In making any such determination whether to repair, replace or rehabilitate the Leased Property under this Section 5.06, the City may obtain, but is not required to obtain, at its expense, the report of an independent engineer or other independent professional consultant, a copy of which must be filed with the Trustee. The Trustee shall have no duty to review or examine such report. Any such determination by the City is final.
(e) Excess Net Proceeds. In the event there are Net Proceeds remaining after the replacement, repair, rehabilitation, restoration or improvement, if any, to or of the Leased Property, and if the City delivers to the Trustee a Written Certificate of the City to the effect that after such replacement, repair, rehabilitation, restoration or improvement, if any, the fair rental value is at least equal to the Lease Payments in any Rental Period, such remaining Net Proceeds shall be paid to the City to be used for any lawful purpose.
If the City cannot deliver the Written Certificate of the City described in the preceding sentence, the Trustee shall transfer such Net Proceeds to the Redemption Fund to be applied towards the redemption of the Bonds under Section 4.01(c).
SECTION 5.07. Investments. All moneys in any of the funds or accounts established with the Trustee under this Indenture shall be invested by the Trustee solely in Permitted Investments. Such investments shall be directed by the Authority in a Written Request of the Authority filed with the Trustee at least 2 Business Days in advance of the making of such investments. In the absence of any such directions from the Authority, the Trustee shall invest any such moneys in Permitted Investments which constitute money market funds; provided, however, that any such investment shall be made by the Trustee only if, prior to the date on which such investment is to be made, the Trustee shall have received a Written Request of the Authority specifying a specific money market fund and, if no such Written Request of the Authority is so received, the Trustee shall hold such moneys uninvested. Permitted Investments purchased as an investment of moneys in any fund shall be deemed to be part of such fund or account. To the extent Permitted Investments are registrable, such Permitted Investments must be registered in the name of the Trustee.
All interest or gain derived from the investment of amounts in any of the funds or accounts established hereunder shall be deposited in the Bond Fund. For purposes of acquiring any investments hereunder, the Trustee may commingle funds held by it hereunder. The Trustee or any of its affiliates may act as principal or agent in the acquisition or disposition of any investment and may impose its customary charges therefor. The Trustee shall incur no liability for losses arising from any investments made under this Section 5.07.
Subject to applicable law, the Trustee may make any investments hereunder through its own bond or investment department or trust investment department, or those of its parent or any affiliate. The Trustee or any of its affiliates may act as sponsor, advisor or manager to the investment provider in connection with any investments made by the Trustee hereunder. 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
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or is dealing as a principal for its own account. The Trustee may, from time to time, provide the City and the Authority with a list of investments that are available on the Trustee’s investment platform, but the Trustee will not give investment advice to the City or the Authority, and the City or the Authority may direct the Trustee to purchase investments that are not included on the list provided by the Trustee. The Trustee shall be entitled to rely conclusively on the Authority’s investment direction as to the suitability and legality of the directed investments.
The Trustee shall furnish the Authority monthly cash transaction statements which include detail for all investment transactions effected by the Trustee or brokers selected by the Authority. Upon the Authority’s election, such statements will be delivered via the Trustee’s Online Trust and Custody service and upon electing such service, paper statements will be provided only upon request. The Authority waives the right to receive brokerage confirmations of security transactions effected by the Trustee as they occur, 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 obtained from the applicable broker.
SECTION 5.08. Valuation and Disposition of Investments.
(a) For the purpose of determining the amount in any fund or account hereunder, all investments of amounts deposited in any fund or account created by or under this Indenture shall be valued by the Trustee at least annually on or before July 15. The Trustee shall have no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of the investments, written instructions, or any other documents in connection therewith, and will not be regarded as making nor be required to make, any representations thereto. The Trustee may sell, but not to itself, or present for redemption any Permitted Investment so purchased by the Trustee whenever it is necessary in order to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund to which such Permitted Investment is credited, and the Trustee shall not be liable or responsible for any loss resulting from any such Permitted Investment.
(b) To the extent of any valuations made by the Trustee hereunder, the Trustee may utilize and rely upon computerized or generally recognized securities pricing services that may be available to it, including those available through its regular accounting system (including brokers and dealers).
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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ARTICLE VI
COVENANTS OF THE AUTHORITY
SECTION 6.01. Punctual Payment. The Authority shall punctually pay or cause to be paid the principal of and interest and premium (if any) on 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 the Revenues and other amounts pledged for such payment as provided in this Indenture.
SECTION 6.02. 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 of 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 have not been so extended. Nothing in this Section 6.02 limits the right of the Authority to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance does not constitute an extension of maturity of the Bonds.
SECTION 6.03. Against Encumbrances. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture and as permitted under Section 6.06. Subject to this limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, and reserves the right to issue other obligations for such purposes.
SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment . The Authority is duly authorized under law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues and other amounts purported to be pledged and assigned, respectively, under this Indenture and under the Assignment Agreement in the manner and to the extent provided in this Indenture and the Assignment Agreement. The Bonds and the provisions of this Indenture are and will be the legal, valid and binding special obligations of the Authority in accordance with their terms, and the Authority and the Trustee shall at all times, subject to the provisions of Article VIII and to the extent permitted by law, defend, preserve and protect said pledge and assignment of Revenues and other assets and all the rights of the Bond Owners under this Indenture against all claims and demands of all persons whomsoever.
SECTION 6.05. Accounting Records. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate industry standards, in which complete and accurate entries shall be made of all transactions made by it relating to the proceeds of Bonds and all funds and accounts established under this Indenture. The Trustee shall make such books of record and account available for inspection by the Authority and the City, during business hours, upon reasonable notice, and under reasonable circumstances.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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SECTION 6.06. Limitation on Additional Obligations. The Authority covenants that no additional bonds, notes or other indebtedness shall be issued or incurred which are payable out of the Revenues in whole or in part, other than the 2022A Bonds and the Additional Bonds. Notwithstanding any contrary provision in this Indenture, the City, on behalf of the Convention Center Facilities District, may issue or incur additional obligations or securities payable in whole or in part from Special Taxes as permitted under the Pledge Agreement.
SECTION 6.07. Reserved.
SECTION 6.08. Enforcement of Lease . The Trustee shall promptly collect all amounts (to the extent any such amounts are available for collection) due from the City under the Lease. Subject to the provisions of Article VII, the Trustee may enforce, and take all steps, actions and proceedings which are determined to be reasonably necessary for the enforcement of all of its rights thereunder as assignee of the Authority and for the enforcement of all of the obligations of the City under the Lease.
SECTION 6.09. Waiver of Laws. The Authority shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Authority to the extent permitted by law.
SECTION 6.10. Further Assurances. The Authority will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture and for the better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided in this Indenture.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01. Events of Default. The following events constitute Events of Default hereunder:
(a) Failure to pay any installment of the principal of any Bonds when due, whether at maturity as therein expressed, by proceedings for redemption, by acceleration, or otherwise.
(b) Failure to pay any installment of interest on the Bonds when due.
(c) Failure by the Authority to observe and perform any of the other covenants, agreements or conditions on its part contained in this Indenture or in the Bonds, if such failure has continued for a period of 30 days after written notice thereof, specifying such failure and requiring the same to be remedied, has been given to the Authority by the Trustee; provided, however, if in the reasonable opinion of the Authority the failure stated in the notice can be corrected, but not
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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within such 30-day period, such failure shall not constitute an Event of Default if the Authority institutes corrective action within such 30- day period and thereafter diligently and in good faith cures the failure in a reasonable period of time, which period shall end 180 days after the delivery of such default notice.
(d) The commencement by the Authority of a voluntary case under Title 11 of the United States Code or any substitute or successor statute.
(e) The occurrence and continuation of an event of default under and as defined in the Lease.
SECTION 7.02. Remedies Upon Event of Default . If any Event of Default occurs, then, and in each and every such case during the continuance of such Event of Default, the Trustee may, and at the written direction of the Owners of a majority in aggregate principal amount of the Bonds at the time Outstanding shall, in each case, upon receipt of indemnification satisfactory to Trustee against the costs, expenses and liabilities (including fees and expenses of counsel) to be incurred in connection with such action, upon notice in writing to the Authority, declare the principal of all of the Bonds then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Bonds contained to the contrary notwithstanding.
Any such declaration is subject to the condition that if, at any time after such declaration and before any judgment or decree for the payment of the moneys due shall have been obtained or entered, the Authority deposits with the Trustee a sum sufficient to pay all the principal of and installments of interest on the Bonds payment of which is overdue, with interest on such overdue principal at the rate borne by the respective Bonds to the extent permitted by law, and the reasonable fees, charges and expenses (including those of its legal counsel, including the allocated costs of internal attorneys) of the Trustee, and any and all other Events of Default actually known to the Trustee (other than in the payment of principal of and interest on the Bonds due and payable solely by reason of such declaration) have been made good or cured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate has been made therefor, then, and in every such case, the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, by written notice to the Authority, the City and the Trustee, may, on behalf of the Owners of all of the Bonds, rescind and annul such declaration and its consequences and waive such Event of Default; but no such rescission and annulment shall extend to or shall affect any subsequent Event of Default, or shall impair or exhaust any right or power consequent thereon.
Nothing herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Bondholder any plan of reorganization, arrangement, adjustment, or composition affecting the Bonds or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Bondholder in any such proceeding without the approval of the Bondholders so affected.
SECTION 7.03. Application of Revenues and Other Funds After Default. If an Event of Default occurs and is continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Indenture shall be applied by the Trustee in the following order of priority:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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(a) To the payment of reasonable fees, charges and expenses of the Trustee (including reasonable fees and disbursements of its legal counsel including outside counsel and the allocated costs of internal attorneys) incurred in and about the performance of its powers and duties under this Indenture;
(b) To the payment of the principal of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping or otherwise noting thereon of the payment if only partially paid, or surrender thereof if fully paid) in accordance with the provisions of this Indenture, as follows:
First: To the payment to the persons entitled thereto of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof
ratably, according to the amounts due thereon, to the
persons entitled thereto, without any discrimination or preference;
Second: To the payment to the persons entitled thereto of the unpaid principal of any Bonds which shall have become
due, whether at maturity or by acceleration or redemption, with interest on the overdue principal at the rate borne by the respective Bonds (to the extent permitted by law), and, if the amount available shall not be sufficient to pay in full all the Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of
principal due on such date to the persons entitled thereto, without any discrimination or preference; and
SECTION 7.04. Trustee to Represent Bond Owners . The Trustee is hereby irrevocably appointed (and the successive respective Owners of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney-in-fact of the Owners of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Owners under the provisions of the Bonds, this Indenture and applicable provisions of any law. All rights of action under this Indenture or the Bonds may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Owners of such Bonds, subject to the provisions of this Indenture.
SECTION 7.05. Limitation on Bond Owners’ Right to Sue . Notwithstanding any other provision hereof, no Owner of any Bonds has the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Indenture, the Lease or any other applicable law with respect to such Bonds, unless (a) such Owner has given to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of the Bonds
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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then Outstanding have requested the Trustee in writing to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (c) such Owner or Owners have tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee has failed to comply with such request for a period of 60 days after such written request has been received by, and said tender of indemnity has been made to, the Trustee; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60 day period by the Owners of a majority in aggregate principal amount of the Bonds then Outstanding.
Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder or under law; 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 affect, disturb or prejudice the security of this Indenture or the rights of any other Owners of Bonds, or to enforce any right under the Bonds, this Indenture, the Lease or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Owners of the Outstanding Bonds, subject to the provisions of this Indenture.
SECTION 7.06. Absolute Obligation of Authority . Nothing herein or in the Bonds contained affects or impairs the obligation of the Authority, which is absolute and unconditional, to pay the principal of and interest and premium (if any) on the Bonds to the respective Owners of the Bonds at their respective dates of maturity, or upon acceleration or call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such Owners, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.
SECTION 7.07. Termination of Proceedings. In case any proceedings taken by the Trustee or by any one or more Bond Owners on account of any Event of Default have been discontinued or abandoned for any reason or have been determined adversely to the Trustee or the Bond Owners, then in every such case the Authority, the Trustee and the Bond Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Authority, the Trustee and the Bond Owners shall continue as though no such proceedings had been taken.
SECTION 7.08. Remedies Not Exclusive . No remedy herein conferred upon or reserved to the Trustee, to the Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
SECTION 7.09. No Waiver of Default. No delay or omission of the Trustee or any Owner of the Bonds to exercise any right or power arising upon the occurrence of any default or Event of Default shall impair any such right or power or shall be construed to be a waiver of any such default or Event of Default or an acquiescence therein; and every power and remedy given by this Indenture to the Trustee or to the Owners of the Bonds
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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may be exercised from time to time and as often as may be deemed expedient by the Trustee or the Bond Owners.
SECTION 7.10. Notice to Bond Owners of Default. Immediately upon becoming aware of the occurrence of an Event of Default, but in no event later than 5 Business Days following becoming aware of such occurrence, the Trustee shall promptly give written notice thereof by first class mail, postage prepaid, to the Owner of each Outstanding Bond, unless such Event of Default has been cured before the giving of such notice; provided, however that except in the case of an Event of Default described in Sections 7.01(a) or
7.01(b), the Trustee may elect not to give such notice to the Bond Owners if and so long as the Trustee determines that it is in the best interests of the Bond Owners not to give such notice.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Appointment of Trustee. Wilmington Trust, National Association is hereby appointed Trustee by the Authority for the purpose of receiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and apply the same as provided in this Indenture. The Authority will maintain a Trustee which is qualified under the provisions of this Article VIII, so long as any Bonds are Outstanding.
SECTION 8.02. Acceptance of Trusts; Removal and Resignation of Trustee. The Trustee hereby accepts the express 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 shall, prior to an Event of Default, and after the curing or waiver of all Events of Default which may have occurred, perform such duties and only such duties as are expressly and specifically set forth in this Indenture and no implied duties or covenants shall be read into this Indenture against the Trustee. If an Event of Default has occurred (which has not been cured), the Trustee shall exercise such of the rights and powers vested in it by hereunder, and use the degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) The Authority may remove the Trustee upon 30 days’ prior notice, unless an Event of Default has occurred and is then continuing, and shall remove the Trustee (a) if at any time requested to do so by the Owners of a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or (b) if at any time the Trustee ceases to be eligible in accordance with Section
8.02, or becomes incapable of acting, or is adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property is appointed, or any public officer takes control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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(c) The Trustee may at any time resign and be discharged from its duties and obligations hereunder at any time by giving no less than 30 days’ prior written notice of such resignation to the Authority and the City, specifying the date when such resignation shall take effect and by giving the Bond Owners notice of such resignation by mail at the addresses shown on the Registration Books.
(d) Any removal or resignation of the Trustee and appointment of a successor Trustee shall become effective upon acceptance of appointment by the successor Trustee. In the event of the removal or resignation of the Trustee under subsections (b) or (c), respectively, the Authority shall promptly appoint a successor Trustee. If no successor Trustee has been appointed and accepted appointment within 90 days of giving notice of removal or notice of resignation as aforesaid, the retiring Trustee shall be entitled, at its sole discretion (at the sole cost and expense of the Authority, including with respect to reasonable attorneys’ fees and expenses) to petition any court of competent jurisdiction for the appointment of a successor Trustee or for other appropriate relief, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee or order such other appropriate relief, and any such resulting appointment or relief shall be binding upon all of the parties.
Any successor Trustee appointed under this Indenture, must signify its acceptance of such appointment by executing and delivering to the Authority, to its predecessor Trustee a written acceptance thereof, and after payment by the Authority of all unpaid fees and expenses of the predecessor Trustee, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein. At the Written Request of the Authority or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to the Leased Property held by such predecessor Trustee under this Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth.
Upon request of the successor Trustee, the Authority shall execute and deliver any and all instruments as may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the Authority shall promptly mail or cause the successor trustee to mail a notice of the succession of such Trustee to the trusts hereunder to each rating agency which is then rating the Bonds and
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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to the Bond Owners at the addresses shown on the Registration Books. If the Authority fails to mail such notice within 15 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Authority.
(e) Any Trustee appointed under this Indenture shall be a corporation or association organized and doing business under the laws of any state or the United States of America or the District of Columbia, shall be authorized under such laws to exercise corporate trust powers, shall have (or, in the case of a corporation or association that is a member of a bank holding company system, the related bank holding company has) a combined capital and surplus of at least $50,000,000, and shall be subject to supervision or examination by a federal or state agency, so long as any Bonds are Outstanding. If such corporation or association publishes a report of condition at least annually under law or to the requirements of any supervising or examining agency above referred to, then for the purpose of this subsection (e), the combined capital and surplus of such corporation or association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If the Trustee at any time ceases to be eligible in accordance with the provisions of this subsection (e), the Trustee shall resign immediately in the manner and with the effect specified in this Section.
SECTION 8.03. Merger or Consolidation . Any bank, national banking association, federal savings association, or trust company into which the Trustee may be merged or converted or with which it may be consolidated or any bank, national banking association, federal savings association, or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank, national banking association, federal savings association, or trust company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such bank, national banking association, federal savings association, or trust company shall be eligible under subsection (e) of Section 8.02 shall be the successor to such Trustee, without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.
SECTION 8.04. Liability of Trustee.
(a) The recitals of facts herein and in the Bonds contained shall be taken as statements of the Authority, and the Trustee shall not assume responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Indenture, the Bonds or the Lease (including any right to receive moneys thereunder or the value of or title to the premises upon which the Leased Property is located), nor shall the Trustee incur any responsibility in respect thereof, other than as expressly stated herein in connection with the respective duties or obligations of Trustee herein or in the Bonds assigned to or imposed upon it. The Trustee shall, however, be responsible for its representations contained in its certificate of authentication on the Bonds. The Trustee shall not be liable for any acts or omissions, except for such losses, damages or expenses which have been finally adjudicated by a court of competent jurisdiction to have directly resulted from and in connection with the performance of its duties hereunder, except for
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its own negligence or willful misconduct. The Trustee undertakes to perform such duties and only such duties as are specifically and expressly 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. The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and, with respect to such permissive rights, the Trustee shall not be answerable for other than its negligence or willful misconduct. The Trustee may become the Owner of Bonds with the same rights it would have if it were not Trustee, and, to the extent permitted by law, may act as 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 Bond Owners, whether or not such committee shall represent the Owners of a majority in principal amount of the Bonds then Outstanding.
(b) The Trustee is not liable for any action taken, or error of judgment made, in good faith by it or any of its officers, employees or agents, unless it shall have been negligent in ascertaining the pertinent facts.
(c) The Trustee is not liable with respect to any action taken or omitted to be taken by it in accordance with the direction of the Owners of a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture or assigned to it under the Assignment Agreement.
(d) The Trustee is not liable for any action taken by it and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be deemed to have knowledge of any Event of Default hereunder, or any other event which, with the passage of time, the giving of notice, or both, would constitute an Event of Default hereunder unless and until a responsible corporate trust officer shall have actual knowledge thereof, or a responsible corporate trust officer shall have received written notice thereof at its Office from the City, the Authority or the Owners of at least 25% in aggregate principal amount of the Outstanding Bonds.
Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance by the Authority or the City of any of the terms, conditions, covenants or agreements herein, under the Lease or the Bonds or of any of the documents executed in connection with the Bonds, or as to the existence of a default or an Event of Default or an event which would, with the giving of notice, the passage of time, or both, constitute an Event of Default.
The Trustee is not responsible for the validity, effectiveness or priority of any collateral given to or held by it. Without limiting the generality of the foregoing, the Trustee shall not be required to ascertain or inquire as to the performance or observance by the City or the Authority of the terms, conditions, covenants or agreements set forth in the Lease, other than the covenants of the City to make Lease Payments to the Trustee when due and to file with the Trustee when due, such reports and certifications as the City is required to file with the Trustee thereunder.
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(f) No provision of this Indenture requires the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents, receivers or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, receiver or attorney appointed with due care by it hereunder.
(h) The Trustee has no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of the Bond Owners under this Indenture, unless such Owners have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities (including but not limited to fees and expenses of its attorneys), including, without limitations, any liability arising under federal, state or local environmental laws which might be incurred by it in compliance with such request or direction. No permissive power, right or remedy conferred upon the Trustee hereunder shall be construed to impose a duty to exercise such power, right or remedy.
(i) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee is subject to the provisions of Section 8.02(a), this Section 8.04 and Section 8.05, and shall be applicable to the assignment of any rights under the Lease to the Trustee under the Assignment Agreement.
(j) The Trustee is not accountable to anyone for the subsequent use or application of any moneys (including the proceeds of the Bonds) which are released or withdrawn in accordance with the provisions hereof.
(k) The Trustee makes no representation or warranty, expressed or implied as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose for the use contemplated by the Authority or the City of the Leased Property. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Lease or this Indenture for the existence, furnishing or use of the Leased Property.
(l) The Trustee has no responsibility with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds.
(m) The Trustee is authorized and directed to execute the Assignment Agreement in its capacity as Trustee hereunder.
(n) The Trustee shall have the right to accept and act upon Written Instructions given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Authority and/or City shall provide to the Trustee an incumbency certificate listing the Authorized Representatives and containing specimen signatures of such Authorized Representatives, which incumbency certificate shall be amended by the Authority and/or the City whenever a person is to be added or deleted from the listing. If the Authority and/or City elects to give the Trustee Written Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Written Instructions, the Trustee’s
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reasonable understanding of such Written Instructions shall be deemed controlling. The Authority and City understand and agree that the Trustee cannot determine the identity of the actual sender of such Written Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Authority and City shall be responsible for ensuring that only Authorized Representatives transmit such Written Instructions to the Trustee and that the Authority, City and all Authorized Representatives are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Authority and/or City. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Written Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Authority and City agree: (i) to assume all risks arising out of the use of Electronic Means to submit Written Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Written Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to the Trustee and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by the Authority and City; (iii) that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
(o) In acting or omitting to act pursuant to the Assignment Agreement, the Lease or the Site Lease, the Trustee shall be entitled to all of the rights, immunities and indemnities accorded to it under this Indenture, including, but not limited to, this Article VIII. Notwithstanding the effective date of this Indenture or anything to the contrary in this Indenture, the Trustee shall have no liability or responsibility for any act or event relating to this Indenture which occurs prior to the date the Trustee formally executes this Indenture and commences acting as Trustee hereunder.
(p) The Trustee shall not be liable to the parties hereto or deemed in breach or default hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the Trustee and could not have been avoided by exercising due care. Force majeure shall include, but not be limited to, acts of God, terrorism, war, riots, strikes (excluding strikes or work stopages of Trustee’s employees), fire, floods, earthquakes, epidemics, quarantine restrictions or other similar occurrences. The Trustee shall give prompt notice in writing to the Authority that its performance has been prevented or delayed due to a force majeure event and use commercially reasonable efforts to overcome the effect of the circumstance as quickly as possible. The Trustee shall promptly resume performance when the force majeure is avoided, removed, or cured.
(q) Neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Authority, or any of their directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee may assume performance by all such persons of their
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respective obligations. The Trustee shall have no enforcement or notification obligations relating to breaches of representations or warranties of any other person.
SECTION 8.05. Right to Rely on Documents. The Trustee shall be protected and shall incur no liability in acting or refraining from acting in reliance upon any notice, resolution, request, consent, order, judgment, decree, certificate, report, opinion, bonds, debentures, other evidence of indebtedness, or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein. The Trustee is under no duty to make any investigation or inquiry as to any statements contained or matter referred to in any paper or document but may accept and conclusively rely upon the same as conclusive evidence of the truth and accuracy of any such statement or matter and shall be fully protected in relying thereon. The Trustee may consult with professionals, including counsel, who may be counsel of or to the Authority, with regard to legal questions, and the opinion of such counsel or other professionals shall be full and complete authorization and protection in respect of any action taken, omitted to be taken, or suffered by it hereunder and in accordance therewith. The Trustee may act through attorneys or agents and shall not be responsible for the acts or omissions of any such attorney or agent appointed with due care.
The Trustee may treat the Owners of the Bonds appearing in the Registration Books as the absolute owners of the Bonds for all purposes and the Trustee shall not be affected by any notice to the contrary.
Whenever in the administration of the trusts imposed upon it by this Indenture the Trustee deems it necessary or desirable that a matter be proved or established prior to taking, omitting to take, or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Written Certificate, Written Request or Written Requisition of the Authority or the City, and such Written Certificate, Written Request or Written Requisition shall be full warrant to the Trustee for any action taken or suffered under the provisions of this Indenture in reliance upon such Written Certificate, Written Request or Written Requisition, and the Trustee shall be fully protected in relying thereon, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may deem reasonable.
SECTION 8.06. Preservation and Inspection of Documents. All documents received by the Trustee under the provisions of this Indenture shall be retained in its respective possession and in accordance with its retention policy then in effect and shall, upon reasonable notice to Trustee, be subject to the inspection of the Authority, the City and any Bond Owner, and their agents and representatives duly authorized in writing, during business hours and under reasonable conditions as agreed to by the Trustee.
SECTION 8.07. Compensation and Indemnification. The Authority shall pay to the Trustee from time to time, on demand, the compensation for all services rendered under this Indenture and also all reasonable expenses, advances (including any interest on advances), charges, legal (including outside counsel and the allocated costs of internal attorneys) and consulting fees and other disbursements, incurred in and about the performance of its powers and duties under this Indenture.
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The Authority shall indemnify the Trustee, its officers, directors, employees and agents against any cost, loss, liability, suit, claim, damages, judgment or expense whatsoever (including but not limited to fees and expenses of its attorneys) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust and this Indenture, the Assignment Agreement, the Site Lease and the Lease, including costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers hereunder or under the Assignment Agreement or the Lease. As security for the performance of the obligations of the Authority under this Section 8.07 and the obligation of the Authority to make Additional Rental Payments to the Trustee, the Trustee shall have a lien prior to the lien of the Bonds upon all property and funds held or collected by the Trustee as such. The rights of the Trustee and the obligations of the Authority under this Section 8.07 shall survive the resignation or removal of the Trustee or the discharge of the Bonds and this Indenture and the Lease. When the Trustee incurs expenses or renders services after the occurrence of an Event of Default, such expenses and the compensation for such services are intended to constitute expenses of administration under any federal or state bankruptcy, insolvency, arrangement, moratorium, reorganization or other debtor relief law.
ARTICLE IX
MODIFICATION OR AMENDMENT HEREOF
SECTION 9.01. Amendments Permitted.
(a) Amendments With Bond Owner Consent. This 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 by Supplemental Indenture, which the Authority and the Trustee may enter into when the written consents of the Owners of a majority in aggregate principal amount of all Bonds then Outstanding are filed with the Trustee. All fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred in connection with any amendment, modification or supplement shall be payable by the Authority. No such modification or amendment may (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or extend the time of payment, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, without the consent of the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent of the Owners of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Indenture prior to or on a parity with the lien created by this Indenture except as permitted herein, or deprive the Owners of the Bonds of the lien created by this Indenture on such Revenues and other assets (except as expressly provided in this Indenture), without the consent of the Owners of all of the Bonds then Outstanding. It is not necessary for the consent of the Bond Owners to approve the particular form of any Supplemental Indenture, but it is sufficient if such consent approves the substance thereof.
(b) Amendments Without Owner Consent. This Indenture and the rights and obligations of the Authority, of the Trustee and the Owners of the Bonds may also be modified or amended from time to time and at any time by a Supplemental Indenture, which the Authority and the Trustee may enter into without the consent of any Bond
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Owners, if the Trustee has been furnished an opinion of counsel that the provisions of such Supplemental Indenture shall not materially adversely affect the interests of the Owners of the Bonds, including, without limitation, for any one or more of the following purposes (All fees, costs and expenses (including reasonable attorneys’ fees, costs and expenses) incurred in connection with any amendment, modification or supplement shall be payable by the Authority):
(i) to add to the covenants and agreements of the Authority in this Indenture contained, other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Authority;
(ii) to cure any ambiguity, inconsistency or omission, or to cure or correct any defective provision, contained in this Indenture, or in regard to matters or questions arising under this Indenture, as the Authority deems necessary or desirable, provided that such modification or amendment does not materially adversely affect the interests of the Bond Owners, in the opinion of Bond Counsel filed with the Trustee;
(iii) to modify, amend or supplement this Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute;
(iv) to make such additions, deletions or modifications as may be necessary or desirable to assure exemption from federal income taxation of interest on Bonds the interest of which is intended to be exempt from federal income taxation; or
(v) to provide for the issuance of Additional Bonds pursuant to Section
2.08 hereof.
(c) Limitation. The Trustee is not obligated to enter into any Supplemental Indenture authorized by subsections (a) or (b) of this Section 9.01 which materially adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
(d) Bond Counsel Opinion Requirement. Prior to the Trustee entering into any Supplemental Indenture hereunder, the Authority shall deliver to the Trustee an opinion of Bond Counsel stating, in substance, that such Supplemental Indenture has been adopted in compliance with the requirements of this Indenture.
(e) Notice of Amendments. The Authority shall deliver or cause to be delivered a draft of any Supplemental Indenture to each rating agency which then maintains a rating on the Bonds, at least 10 days prior to the effective date of such Supplemental Indenture under this Section 9.01.
SECTION 9.02. Effect of Supplemental Indenture . Upon the execution of any Supplemental Indenture under this Article IX, this Indenture shall be deemed to be
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modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the Authority, the Trustee and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds . Bonds delivered after the execution of any Supplemental Indenture under this Article may, and if the Authority so determines shall, bear a notation by endorsement or otherwise in form approved by the Authority as to any modification or amendment provided for in such Supplemental Indenture, and, in that case, upon demand on the Owner of any Bonds Outstanding at the time of such execution and presentation of his Bonds for the purpose at the Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bonds. If the Supplemental Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Authority, to any modification or amendment contained in such Supplemental Indenture, shall be prepared and executed by the Authority and authenticated by the Trustee, and upon demand on the Owners of any Bonds then Outstanding shall be exchanged at the Office of the Trustee, without cost to any Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same maturity.
SECTION 9.04. Amendment of Particular Bonds. The provisions of this Article IX do not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by such Owner.
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Indenture. Any or all of the Outstanding Bonds may be paid by the Authority in any of the following ways, provided that the Authority also pays or causes to be paid any other sums payable hereunder by the Authority:
(a) by paying or causing to be paid the principal of and interest and premium (if any) on such Bonds, as and when the same become due and payable;
(b) by depositing with the Trustee, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 10.03) to pay or redeem such Bonds; or
(c) by delivering all of such Bonds to the Trustee for cancellation.
If the Authority also pays or causes to be paid all other sums payable hereunder by the Authority, then and in that case, at the election of the Authority (evidenced by a Written Certificate of the Authority, filed with the Trustee, signifying the intention of the Authority to discharge all such indebtedness and this Indenture), and notwithstanding that any of such Bonds shall not have been surrendered for payment, this Indenture and the
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pledge of Revenues and other assets made under this Indenture with respect to such Bonds and all covenants, agreements and other obligations of the Authority under this Indenture with respect to such Bonds shall cease, terminate, become void and be completely discharged and satisfied, subject to Section 10.02, and except for Section 8.07 hereof, which shall survive. In such event, upon the Written Request of the Authority, the Trustee shall execute and deliver to the Authority all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Trustee shall pay over, transfer, assign or deliver to the City all moneys or securities or other property held by it under this Indenture which are not required for the payment or redemption of any of such Bonds not theretofore surrendered for such payment or redemption. The Trustee is entitled to conclusively rely on any such Written Certificate or Written Request and, in each case, is fully protected in relying thereon.
SECTION 10.02. Discharge of Liability on Bonds. Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.03) to pay or redeem any Outstanding Bonds (whether upon or prior to the maturity or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Authority in respect of such Bonds shall cease, terminate and be completely discharged, and the Owners thereof shall thereafter be entitled only to payment out of such money or securities deposited with the Trustee as aforesaid for their payment, subject, however, to the provisions of Section 10.04.
The Authority may at any time surrender to the Trustee, for cancellation by the Trustee, any Bonds previously issued and delivered, which the Authority may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired.
SECTION 10.03. Deposit of Money or Securities with Trustee . Whenever in this Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established under this Indenture and shall be:
(a) lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount of such Bonds, premium, if any, and all unpaid interest thereon to the redemption date; or
(b) non-callable Federal Securities, the principal of and interest on which when due will, in the written opinion of an Independent Accountant filed with the City, the Authority and the Trustee, provide money sufficient to pay the principal of and interest and premium (if any) on the Bonds to be paid or redeemed, as such principal, interest and premium become due, provided that in the case of Bonds which are
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to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee has been made for the giving of such notice;
provided, in each case, that (i) the Trustee shall have been irrevocably instructed (by the terms of this Indenture or by Written Request of the Authority) to apply such money to the payment of such principal, interest and premium (if any) with respect to such Bonds, and (ii) the Authority shall have delivered to the Trustee an opinion of Bond Counsel to the effect that such Bonds have been discharged in accordance with this Indenture (which opinion may rely upon and assume the accuracy of the Independent Accountant’s opinion referred to above). The Trustee shall be entitled to conclusively rely on such Written Request or opinion and shall be fully protected, in each case, in relying thereon.
SECTION 10.04. Unclaimed Funds . Notwithstanding any provisions of this Indenture, any moneys held by the Trustee in trust for the payment of the principal of, or interest on, any Bonds and remaining unclaimed for 2 years after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Indenture), if such moneys were so held at such date, or 2 years after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid (without liability for interest) to the Authority free from the trusts created by this Indenture, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however , that before the repayment of such moneys to the Authority as aforesaid, the Trustee shall (at the cost of the Authority) first mail to the Owners of Bonds which have not yet been paid, at the addresses shown on the Registration Books, a notice, in such form as may be deemed appropriate by the Trustee with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the Authority of the moneys held for the payment thereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Authority Limited to Revenues . Notwithstanding anything in this Indenture or in the Bonds contained, the Authority is not required to advance any moneys derived from any source other than the Revenues, the Additional Rental Payments and other assets pledged under this Indenture for any of the purposes in this Indenture mentioned, whether for the payment of the principal of or interest on the Bonds or for any other purpose of this Indenture. Nevertheless, the Authority may, but is not required to, advance for any of the purposes hereof any funds of the Authority which may be made available to it for such purposes.
SECTION 11.02. Limitation of Rights to Parties and Bond Owners . Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any person other than the Authority, the Trustee, the City and the Owners of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Authority, the Trustee, the City and the Owners of the Bonds.
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SECTION 11.03. 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 purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with corporate industry standards to the extent practicable, and with due regard for the requirements of Section 6.05 and for the protection of the security of the Bonds and the rights of every Owner thereof. The Trustee may establish such funds and accounts as it deems necessary or appropriate to perform its obligations under this Indenture.
SECTION 11.04. Waiver of Notice; Requirement of Mailed Notice. Whenever in this Indenture the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Whenever in this Indenture any notice is required to be given by mail, such requirement may be satisfied by the deposit of such notice in the United States mail, postage prepaid, by first class mail.
SECTION 11.05. Destruction of Bonds . Whenever in this Indenture provision is made for the cancellation by the Trustee, and the delivery to the Authority, of any Bonds, the Trustee shall destroy such Bonds as may be allowed by law and, upon the Authority’s request, deliver a certificate of such destruction to the Authority.
SECTION 11.06. Severability of Invalid Provisions . If any one or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, and this Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Authority hereby declares that it would have entered into this Indenture and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Indenture may be held illegal, invalid or unenforceable.
SECTION 11.07. Notices. All notices or communications to be given under this Indenture shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to time. Notice shall be effective either (a) upon transmission by email, or other form of telecommunication, confirmed by telephone, (b) 7 Business Days after deposit in the United States mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The Authority, the City or the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder.
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If to the City City of San José
or the Authority: Finance - Debt Management
200 East Santa Clara Street, 13th Floor
San José, California 95113-1905
Attention: Director of Finance
Telephone: (408) 535-7010
Email: [email protected]
If to the Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Attention: Corporate Trust
SECTION 11.08. Evidence of Rights of Bond Owners. Any request, consent or other instrument required or permitted by this Indenture to be signed and executed by Bond Owners may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bond Owners in person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the holding by any person of Bonds transferable by delivery, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee and the Authority if made in the manner provided in this Section 11.08.
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 certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.
The ownership of Bonds shall be proved by the Registration Books. Any request, consent, or other instrument or writing of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of every 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 accordance therewith or reliance thereon.
SECTION 11.09. 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 actually known by the Trustee to be owned or held by or for the account of the Authority or the City, or by any other obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Authority or the City or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination unless all Bonds are so owned or held, in which case such Bonds shall be considered Outstanding for the purpose of such determination. Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Bonds and that the pledgee is not a person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Authority or the City or any other obligor on the Bonds. In case of a dispute as to such right, the
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Trustee shall be entitled to rely upon the advice of counsel in any decision by Trustee and shall be fully protected in relying thereon.
Upon request, the Authority shall certify to the Trustee those Bonds disqualified under this Section 11.09, and the Trustee may conclusively rely on such certifications.
SECTION 11.10. Money Held for Particular Bonds. The money held by the Trustee for the payment of the interest, premium, if any, or principal due on any date with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Owners of the Bonds entitled thereto, subject, however, to the provisions of Section 10.04 but without any liability for interest thereon.
SECTION 11.11. Waiver of Personal Liability . No member, officer, agent or employee of the Authority shall be individually or personally liable for the payment of the principal of or interest or premium (if any) on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law or by this Indenture.
SECTION 11.12. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Indenture either the Authority, the City or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the Authority, the City or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
SECTION 11.13. Execution in Several Counterparts . This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Authority and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
SECTION 11.14. Payment on Non-Business Day . In the event any payment is required to be made hereunder on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and with the same effect as if made on such preceding non-Business Day.
SECTION 11.15. Governing Law . This Indenture shall be governed by and construed in accordance with the laws of the State of California. THE PARTIES AGREE
THAT VENUE SHALL BE EXCLUSIVELY VESTED IN THE STATE COURTS OF THE
COUNTY OF SANTA CLARA, OR IF FEDERAL JURISDICTION IS APPROPRIATE,
EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, LOCATED IN SAN JOSE, CALIFORNIA.
SECTION 11.16. Entire Agreement. This Indenture and the exhibits hereto set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior agreements and understandings, oral or written.
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IN WITNESS WHEREOF, the CITY OF SAN JOSE FINANCING AUTHORITY has caused this Indenture to be signed in its name by its Treasurer, and WILMINGTON TRUST, NATIONAL ASSOCIATION, in token of its acceptance of the trusts created hereunder, has caused this Indenture to be signed in its corporate name by its officer thereunto duly authorized, all as of the day and year first above written.
CITY OF SAN JOSE FINANCING
AUTHORITY
By
Julia H. Cooper
Treasurer
Approved as to form:
Nora Frimann, City Attorney
By:
Rosa Tsongtaatarii
Senior Deputy City Attorney
WILMINGTON TRUST, NATIONAL
ASSOCIATION,
as Trustee
By
Authorized Officer
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APPENDIX A
DEFINITIONS
“Additional Bonds” means Bonds issued in accordance with Section 2.08.
“Additional Rental Payments” means the amounts of additional rental which are payable by the City under Section 4.5 of the Lease or which are otherwise identified as Additional Rental Payments under the Lease.
“Assignment Agreement” means the Assignment Agreement dated as of April 1, 2022, between the Authority as assignor and the Trustee as assignee, as originally executed or as thereafter amended.
“Authority” means the City of San José Financing Authority, a joint exercise of powers authority duly organized and existing under the laws of the State of California.
“Authorized Representative” means: (a) with respect to the Authority, its Executive Director, Treasurer, Assistant Director of Finance or Deputy Director of Finance responsible for managing the City’s debt program or any other person designated as an Authorized Representative of the Authority by a Written Certificate of the Authority signed by its Executive Director or Treasurer and filed with the City and the Trustee; and (b) with respect to the City, its City Manager, Director of Finance, Assistant Director of Finance or Deputy Director of Finance responsible for managing the City’s debt program or any other person designated as an Authorized Representative of the City by a Written Certificate of the City signed by its City Manager or Director of Finance and filed with the Authority and the Trustee.
“Bond Counsel” means (a) Jones Hall, A Professional Law Corporation, or (b) any other attorney or firm of attorneys appointed by or acceptable to the Authority of nationally- recognized experience in the issuance of obligations the interest on which is excludable from gross income for federal income tax purposes under the Code.
“Bond Fund” means the fund by that name established and held by the Trustee under Section 5.01.
“Bond Law” means Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code.
“Bond Year” means each twelve-month period extending from May 2 in one calendar year to May 1 of the succeeding calendar year, both dates inclusive; except that the first Bond Year commences on the Closing Date and extends to and including May 1, 2023.
“Bonds” means the 2022A Bonds and any Additional Bonds
“Business Day” means a day (other than a Saturday or a Sunday) on which banks or trust companies are not required or authorized to remain closed in New York, New York, Wilmington, Delaware, or the city in which the Office of the Trustee is located.
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“Chapter” means the City of San José’s Municipal Code, Chapter 14.32 entitled “Convention Center Facilities District Financing Procedure,” which includes by reference, to the extent they are not amended by the specific terms of Chapter 14.31, the provisions of the Mello-Roos Act as they existed as of August 26, 2008 (the date of adoption of Ordinance No. 28387, which placed Chapter 14.31 into the City of San José’s Municipal Code).
“City” means the City of San José, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California.
“Closing Date” means, with respect to the 2022A Bonds, April __, 2022, the date of delivery of the 2022A Bonds to the Original Purchasers, and with respect to any Additional Bonds, the respective date of delivery of such Additional Bonds to the original purchase thereof.
“Code” means the Internal Revenue Code of 1986 as in effect on the Closing Date or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the Closing Date, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code.
“Commercial Paper Notes Trustee” means Wells Fargo Bank, National Association, its successors and assigns, in its capacity as Trustee and as Issuing and Paying Agent for the Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes.
“Comparable Treasury Issue” means, with respect to any redemption date for a particular Bond, the U.S. Treasury security or securities selected by the Designated Investment Banker that has or have an actual maturity closest to (one equal to or one earlier and one later than) the remaining average life of the Bonds to be redeemed, and that would be utilized in accordance with customary financial practice in pricing new issues of debt securities of comparable maturity to the remaining average life of such Bonds to be redeemed.
“Comparable Treasury Price” means, with respect to any redemption date for a particular Bond, the average of five Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or if the Designated Investment Banker obtains fewer than five Reference Treasury Dealer Quotations, the average of all such quotations.
"Convention Center” has the meaning given to such terms in the recitals hereto.
“Convention Center Facilities District” means the City of San José Convention Center Facilities District No. 2008-1, County of Santa Clara, State of California, a convention center facilities district organized by the City and existing in the City under and by virtue of the Chapter.
“Costs of Issuance” means all items of expense directly or indirectly payable by or reimbursable to the City relating to the authorization, issuance, sale and delivery of the Bonds, including but not limited to: printing expenses; rating agency fees; filing and recording fees; initial fees, expenses and charges of the Trustee and their respective
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counsel, including the Trustee’s first annual administrative fee; fees, charges and disbursements of attorneys, municipal advisors, accounting firms, consultants and other professionals; fees and charges for preparation, execution and safekeeping of the Bonds; and any other cost, charge or fee in connection with the original issuance of the Bonds.
“Costs of Issuance Fund” means the fund by that name established and held by the Trustee under Section 3.03.
“Depository” means (a) initially, DTC, and (b) any other Securities Depositories acting as Depository under Section 2.04.
“Depository System Participant” means any participant in the Depository’s book- entry system.
“Designated Investment Banker” means a Reference Treasury Dealer appointed by the Authority and the City.
“DTC” means The Depository Trust Company, New York, New York, and its successors and assigns.
“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Event of Default” means any of the events specified in Section 7.01.
“Exhibit Hall Commercial Paper Notes” means, collectively, the Taxable Lease Revenue Commercial Paper Notes in the original aggregate principal amount of $15,000,000 issued by the Authority to assist the City with financing, on an interim basis, certain public capital improvements of the City, consisting of lighting and ceiling upgrades to the exhibit hall of the Convention Center and certain related costs, together with all Taxable Lease Revenue Commercial Paper Notes subsequently issued by the Authority to refinance such notes.
“Federal Securities” means: (a) any U.S. Treasury securities; (b) obligations of any agency, department or instrumentality of the United States of America, the timely payment of principal and interest on which are directly or indirectly secured or guaranteed by the full faith and credit of the United States of America.
“Fiscal Year” means any twelve-month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve-month period selected and designated by the Authority as its official fiscal year period.
“Fitch” means Fitch Ratings, and its successors and assigns.
“Indenture” means this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Indenture under the provisions hereof.
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“Independent Accountant” means any certified public accountant or firm of certified public accountants appointed and paid by the Authority or the City, and who, or each of whom (a) is in fact independent and not under domination of the Authority or the City; (b) does not have any substantial interest, direct or indirect, in the Authority or the City; and (c) is not connected with the Authority or the City as an officer or employee of the Authority or the City but who may be regularly retained to make annual or other audits of the books of or reports to the Authority or the City.
“Insurance and Condemnation Fund” means the fund by that name established and held by the Trustee under Section 5.06.
“Interest Account” means the account by that name established and held by the Trustee in the Bond Fund under Section 5.02.
“Interest Payment Date” means each May 1 and November 1, commencing [November 1, 2022], so long as any Bonds remain unpaid.
“Investment Policy” means the City's Council Investment Policy 1-12, as previously adopted and as may hereafter be amended.
“Lease” means the Lease Agreement dated as of April 1, 2022, between the Authority as lessor and the City as lessee of the Leased Property, as originally executed and as it may from time to time be supplemented, modified or amended in accordance with the terms thereof and of this Indenture.
“Lease Payment Date” means, with respect to any Interest Payment Date, the Business Day immediately preceding such Interest Payment Date.
“Lease Payments” means the amounts payable by the City under Section 4.3(a) of the Lease, including any prepayment thereof and including any amounts payable upon a delinquency in the payment thereof.
“Leased Property” means the real property described in Appendix A to the Lease, together with all improvements and facilities at any time situated thereon.
“Make-Whole Redemption Price of Bonds” has the meaning given to such term in Section 4.01(b).
“Mello-Roos Act” means the Mello-Roos Community Facilities Act of 1982, as amended, Chapter 2.5 of Part 1 of Division 2 of Title 5 (commencing with Section 53311) of the California Government Code.
“Moody’s” means Moody's Investors Service, its successors and assigns.
“Net Proceeds” means amounts derived from any policy of casualty insurance or title insurance with respect to the Leased Property, or the proceeds of any taking of the Leased Property or any portion thereof in eminent domain proceedings (including sale under threat of such proceedings), to the extent remaining after payment therefrom of all expenses incurred in the collection and administration thereof.
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“Nominee” means (a) initially, Cede & Co. as nominee of DTC, and (b) any other nominee of the Depository designated under Section 2.04(a).
“Office” means the corporate trust office of the Trustee in Costa Mesa, California, or such other or additional offices as the Trustee may designate in writing to the Authority from time to time as the corporate trust office for purposes of the Indenture; except that with respect to presentation of Bonds for payment or for registration of transfer and exchange such term means the office or agency of the Trustee at which, at any particular time, its corporate trust agency business is conducted.
“Original Purchasers” means, collectively, Morgan Stanley & Co. LLC, Stifel, Nicolaus & Company, Incorporated and Jefferies LLC, as original purchasers of the 2022A Bonds upon their delivery by the Trustee on the Closing Date.
“Outstanding”, when used as of any particular time with reference to Bonds, means all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Indenture except: (a) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation; (b) Bonds with respect to which all liability of the Authority shall have been discharged in accordance with Section 10.02, including Bonds (or portions thereof) described in Section 11.09; and (c) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Trustee under this Indenture.
“Owner”, whenever used herein with respect to a Bond, means the person in whose name the ownership of such Bond is registered on the Registration Books.
“Permitted Encumbrances” means, as of any time: (a) liens for general ad valorem taxes and assessments, if any, not then delinquent, or which the City may permit to remain unpaid under Article V of the Lease; (b) the Site Lease, the Lease and the Assignment Agreement; (c) any right or claim of any mechanic, laborer, material man, supplier or vendor not filed or perfected in the manner prescribed by law; (d) the exceptions disclosed in the title insurance policy with respect to the Leased Property issued as of the Closing Date for the 2022A Bonds by Chicago Title Insurance Company; and (e) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record and which the City certifies in writing will not materially impair the use of the Leased Property for its intended purposes.
“Permitted Investments” means any of the following which at the time acquired or made are legal investments for the Authority under applicable State laws and the Investment Policy (unless compliance with the Investment Policy is waived in writing by the Director of Finance of the City), for the moneys held hereunder then proposed to be invested therein:
(a) any U.S. Treasury securities.
(b) Obligations of any of the following federal agencies, which obligations represent the full faith and credit of the United States of America:
(i) Export-Import Bank, (ii) Farm Credit System Financial Assistance Corporation, (ii) Rural Economic Community Development
Administration (formerly the Farmers Home Administration), (iv) General Services Administration, (v) U.S. Maritime
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Administration, (vi) Small Business Administration, (vii) Government National Mortgage Association (GNMA), (viii) U.S. Department of Housing & Urban Development (PHA’s), (ix) Federal Housing Administration, and (x) Federal Financing Bank.
(c) Direct obligations of any of the following federal agencies which obligations are not fully guaranteed by the full faith and credit of the United States of America: (i) senior debt obligations issued by Fannie Mae, the Federal Home Loan Mortgage Corporation (FHLMC) or the Student Loan Marketing Association (SLMA), (ii) obligations of the Resolution Funding Corporation (REFCORP), (iii) senior debt obligations of the Federal Home Loan Bank System, (iv) consolidated systemwide bonds and notes of the Farm Credit System, and (v) senior debt obligations of other government-sponsored agencies.
(d) U.S. dollar denominated deposit accounts, federal funds and bankers’ acceptances with domestic commercial banks which have a rating on their short term certificates of deposit on the date of purchase of A-1 or A-1+ by S&P and P-1 by Moody’s and maturing no more than 360 days after the date of purchase, provided that a rating on a holding company is not considered to be the rating of the bank.
(e) Commercial paper which is rated at the time of purchase in the single highest classification, A-1+ by S&P and P-1 by Moody’s and which matures not more than 270 days after the date of purchase.
(f) Investments in a money market fund registered under the Federal Investment Company Act of 1940, whose shares are registered under the Securities Act of 1933, comprised of investments described in clauses (a), (b) or (c) or of repurchase agreements comprised of such investments, which fund may include a fund for which the Trustee, its affiliates or subsidiaries provide investment, advisory or other services.
(g) Municipal obligations with a rating of at least A2/A or higher by both Moody’s and S&P.
(h) Investment agreements, supported by appropriate opinions of counsel, with notice to Fitch, S&P and Moody's.
(i) Obligations with a maximum remaining maturity of not more than five years issued by any corporation organized and operating within the United States of America having assets in excess of $500,000,000, which obligations are rated in one of the two highest rating categories (without regard to numeric or other modifier) by Moody's and S&P and Fitch, if such obligations are rated by Fitch.
(j) Other forms of investments (including repurchase agreements) with notice to Fitch, S&P and Moody's.
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(k) The Local Agency Investment Fund of the State of California, created pursuant to Section 16429.1 of the California Government Code, to the extent the Trustee is authorized to register such investment in its name.
(l) The City’s investment pool.
“Pledge Agreement” means the Pledge Agreement dated as of April 1, 2022, between the City, for and on behalf of the Convention Center Facilities District, and the Authority, as originally executed and as it may from time to time be supplemented, modified or amended in accordance with the terms thereof and of this Indenture.
“Principal Account” means the account by that name established and held by the Trustee in the Bond Fund under Section 5.02.
“Record Date” means, with respect to any Interest Payment Date, the 15th calendar day of the month preceding such Interest Payment Date, whether or not such day is a Business Day.
“Redemption Fund” means the fund by that name established and held by the Trustee under Section 5.05.
“Reference Treasury Dealer” means each of five firms, specified by the Authority and City from time to time, that are primary U.S. Treasury securities dealers in the City of New York (each, a “Primary Treasury Dealer”); provided, however, that if any of them ceases to be a Primary Treasury Dealer, the Authority will substitute another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date for a particular Bond, the average, as determined by the Designated Investment Banker, of the bid and asked prices for the Comparable Treasury Issue or Comparable Treasury Issues, as applicable (expressed in each case as a percentage of its principal amount), quoted in writing to the Authority and the City and the Trustee by such Reference Treasury Dealer at 3:30 p.m. (New York City time) on the Valuation Date.
“Refunding Bonds” means bonds issued by the City for the Convention Center Facilities District and Additional Bonds issued by the Authority, the net proceeds of which are used to refund all or a portion of the then-Outstanding Bonds and for other lawful purposes; provided that the principal and interest on the Refunding Bonds to their final maturity date is less than the principal and interest on the Bonds being refunded to their final maturity date, and the final maturity of the Refunding Bonds is not later than the final maturity of the Bonds being refunded.
“Refunding Instructions (Exhibit Hall and South Hall Commercial Paper Notes)” means the Irrevocable Refunding Instructions dated as of the Closing Date, among the Authority, the City, and the Commercial Paper Notes Trustee, relating to the refunding of the Exhibit Hall Commercial Paper Notes and South Hall Commercial Paper Notes.
“Refunding Instructions (2011 CCFD Bonds)” means the Irrevocable Refunding Instructions (2011 CCFD Bonds) dated as of the Closing Date, between the City and the
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2011 CCFD Bonds Trustee, relating to the refunding of the outstanding 2011 CCFD Bonds and the discharge of the obligations of the City relating thereto.
“Refunding Instructions (2011A Lease Revenue Bonds)” means the Irrevocable Refunding Instructions (2011A Lease Revenue Bonds) dated as of the Closing Date, among the Authority, the City and the 2011A Lease Revenue Bonds Trustee, relating to the refunding of the outstanding 2011A Lease Revenue Bonds and the discharge of the obligations of the Authority and the City relating thereto.
“Registration Books” means the records maintained by the Trustee under Section
2.05 for the registration and transfer of ownership of the Bonds.
“Rental Period” means each twelve-month period extending from May 2 in one calendar year to May 1 of the succeeding calendar year, both dates inclusive, during the term of the Lease; except that the first Rental Period commences on the Closing Date and extends to and including May 1, 2022.
"Resolution of Formation” means Resolution No. 74826, adopted by the City Council on March 10, 2009.
“Revenues” means: (a) all amounts received by the Authority or the Trustee under or with respect to the Lease, including, without limiting the generality of the foregoing, all of the Lease Payments (including both timely and delinquent payments, any late charges, and whether paid from any source), but excluding any Additional Rental Payments; (b) all Special Tax Revenues; and (c) all interest, profits or other income derived from the investment of amounts in any fund or account established under this Indenture.
“Risk Management Consultant” means a person or firm of favorable reputation, qualified and experienced in the field of insurance and risk management consultation with respect to structures of the same nature as the Leased Property, as may from time to time be designated by the City and who may be an employee of the City.
“Securities Depositories” means DTC; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other securities depositories as the Authority designates in written notice filed with the Trustee.
“Site Lease” means the Site Lease dated as of April 1, 2022, between the City as lessor and the Authority as lessee, as amended from time to time in accordance with its terms.
“Site Lease Payment” means the amount of $[Purchase Price] which is payable by the Authority to the City on the Closing Date under Section 3 of the Site Lease.
“Special Tax” means the special tax as set forth in the “Rate and Method of Apportionment of Special Tax” adopted by the City Council as part of the Resolution of Formation.
“Special Tax Revenues” means all Special Taxes paid by the City, on behalf of the Convention Center Facilities District, and received by the Trustee pursuant to the Pledge Agreement for the purpose of satisfying all or a portion of the City’s obligation to make Lease Payments under the Lease. For the avoidance of doubt, Special Tax Revenues
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include any Special Taxes that are transferred by the City, at its discretion, to the Trustee from amounts on deposit in the Revenue Stabilization Reserve established and held by the City under the Pledge Agreement.
“South Hall Commercial Paper Notes” means, collectively, the Taxable Lease Revenue Commercial Paper Notes in the original aggregate principal amount of $42,400,000 issued by the Authority to assist the City with financing, on an interim basis, the purchase of certain real property in the City commonly known as the San José Convention Center South Hall and payment of certain related costs, together with all Taxable Lease Revenue Commercial Paper Notes subsequently issued by the Authority to refinance such notes.
“Supplemental Indenture” means any indenture hereafter duly authorized and entered into between the Authority and the Trustee, supplementing, modifying or amending this Indenture; but only if and to the extent that such Supplemental Indenture is specifically authorized hereunder.
“S&P” means S&P Global Ratings, its successors and assigns.
“Term” means, with reference to the Lease, the time during which the Lease is in effect, as provided in Section 4.2 thereof.
“Term Bonds” means, collectively, the 2022A Term Bonds and any Additional Bonds identified as such in a Supplemental Indenture.
“Treasury Rate” means, with respect to any redemption date for particular Bonds, the rate per annum, expressed as a percentage of the principal amount, equal to the actual or interpolated rate based on (a) the most recent yield data for the Comparable Treasury Issue, as applicable, from the Federal Reserve Statistical Release H.15 Daily Update (or any comparable or successor publication) reported, as of 11:00 a.m. New York City time, on the Valuation Date; or (b) if the yield described in (a) above is not reported as of such date and time or the yield reported as of such date and time is not ascertainable, the semi- annual equivalent yield to maturity of the Comparable Treasury Issue or Comparable Treasury Issues on the Valuation Date, assuming that such Comparable Treasury Issue or Comparable Treasury Issues are purchased on the redemption date for a price equal to the applicable Comparable Treasury Price, as calculated by the Designated Investment Banker.
“Trustee” means Wilmington Trust, National Association, a national banking association organized and existing under the laws of United States of America, or its successor or successors, as Trustee hereunder as provided in Article VIII.
“U.S. Treasury” means any direct general obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), for which the full faith and credit of the United States of America are pledged.
“Valuation Date” means a date, as determined by the Authority and the City, after consultation with the Designated Investment Banker, that is no earlier than 45 days prior to the redemption date.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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“Written Certificate,” “Written Request,” “Written Requisition” and “Written Instructions” of the Authority or the City mean, respectively, a written certificate, request, requisition or instructions (including wire instructions) signed in the name of the Authority or the City by its Authorized Representative. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument.
“2011 CCFD Bonds” means the City of San José Special Hotel Tax Revenue Bonds, Series 2011 (Convention Center Expansion and Renovation Project), originally issued in the aggregate principal amount of $107,425,000.
“2011 CCFD Bond Trustee” means U.S. Bank National Association, its successor and assigns, as trustee for the 2011 CCFD Bonds.
“2011A Lease Revenue Bonds” means the City of San José Financing Authority Lease Revenue Bonds, Series 2011A (Convention Center Expansion and Renovation Project), originally issued in the aggregate principal amount of $30,985,000.
“2011A Lease Revenue Bonds Trustee” means U.S. Bank National Association, its successor and assigns, as trustee for the 2011A Lease Revenue Bonds.
“2022A Bonds” means the $[PAR].00 aggregate principal amount of City of San José Financing Authority Taxable Lease Revenue Bonds, Series 2022A (Convention Center Refunding Project) authorized by and at any time Outstanding under this Indenture.
“2022A Term Bonds” means, collectively, the 2022A Bonds maturing on May 1, 20__ and May 1, 20__.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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APPENDIX B
BOND FORM
NO. R- ***$ ***
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
CITY OF SAN JOSE FINANCING AUTHORITY
TAXABLE LEASE REVENUE BONDS, SERIES 2022A
(CONVENTION CENTER REFUNDING PROJECT)
INTEREST RATE: MATURITY DATE: ORIGINAL ISSUE DATE: CUSIP:
______% May 1, ____ ______, 2022 _______
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: *** ***
The CITY OF SAN JOSE FINANCING AUTHORITY, a public body corporate and politic duly organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay to the Registered Owner specified above or registered assigns (the “Registered Owner”), on the Maturity Date specified above (subject to any right of prior redemption hereinafter provided for), the Principal Amount specified above, in lawful money of the United States of America, and to pay interest thereon in like lawful money from the Interest Payment Date (as hereinafter defined) next preceding the date of authentication of this Bond unless (i) this Bond is authenticated on or before an Interest Payment Date and after the close of business on the 15 th day of the month preceding such interest payment date, in which event it shall bear interest from such Interest Payment Date, or (ii) this Bond is authenticated on or before ______ 15, 20__, in which event it shall bear interest from the Original Issue Date specified above; provided, however, that if at the time of authentication of this Bond, interest is in default on this Bond, this Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment on this Bond, at the Interest Rate per annum specified above, payable semiannually on May 1 and November 1 in each year, commencing [November 1, 2023] (the “Interest Payment Dates”), calculated on the basis of a 360-day year composed of twelve 30-day months.
Principal hereof and premium, if any, upon early redemption hereof are payable upon presentation and surrender hereof at the designated corporate trust office (the “Trust Office”) of Wilmington Trust, National Association, as trustee (the “Trustee”). Interest hereon is payable by check of the Trustee mailed to the Registered Owner hereof at the Registered Owner’s address as it appears on the registration books of the Trustee as of the close of business on the fifteenth day of the month preceding each Interest Payment
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Date (a “Record Date”), or, upon written request filed with the Trustee as of such Record Date by a registered owner of at least $1,000,000 in aggregate principal amount of Bonds, by wire transfer in immediately available funds to an account in the United States designated by such registered owner in such written request.
This Bond is not a debt of the City of José (the “City”), the County of Santa Clara, the State of California, or any of its political subdivisions, and neither the City, said County, said State, nor any of its political subdivisions, is liable hereon nor in any event shall this Bond be payable out of any funds or properties of the Authority other than the Revenues.
This Bond is one of a duly authorized issue of bonds of the Authority designated as the “City of San José Financing Authority Taxable Lease Revenue Bonds, Series 2022A (Convention Center Refunding Project)” (the “Bonds”), in an aggregate principal amount of $[PAR], all of like tenor and date (except for such variation, if any, as may be required to designate varying numbers, maturities, interest rates or redemption provisions) and all issued under the provisions of Article 4 of Chapter 5, Division 7, Title 1 of the Government Code of the State of California, commencing with Section 6584 of said Code, and under an Indenture of Trust dated as of April 1, 2022, between the Authority and the Trustee (the “Indenture”) and a resolution of the Authority adopted on [March 29, 2022] authorizing the issuance of the Bonds. Reference is hereby made to the Indenture (copies of which are on file at the office of the Authority) and all supplements thereto for a description of the terms on which the Bonds are issued, the provisions with regard to the nature and extent of the Revenues, and the rights thereunder of the owners of the Bonds and the rights, duties and immunities of the Trustee and the rights and obligations of the Authority thereunder, to all of the provisions of which the Registered Owner of this Bond, by acceptance hereof, assents and agrees.
The Bonds have been issued by the Authority to refinance certain outstanding bonds of the Authority and the City. This Bond and the interest and premium, if any, hereon are special obligations of the Authority, payable from the Revenues, and secured by a charge and lien on the Revenues as defined in the Indenture, consisting principally of lease payments made by the City under a Lease Agreement dated as of April 1, 2022, between the Authority as lessor and the City as lessee (the “Lease”). As and to the extent set forth in the Indenture, all of the Revenues are exclusively and irrevocably pledged in accordance with the terms hereof and the provisions of the Indenture, to the payment of the principal of and interest and premium (if any) on the Bonds.
The rights and obligations of the Authority and the owners of the Bonds may be modified or amended at any time in the manner, to the extent and upon the terms provided in the Indenture, but no such modification or amendment shall extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or premium (if any) thereon, or extend the time of payment, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, without the consent of the owner of each Bond so affected.
The Bonds maturing on or after May 1, 20__, are subject to redemption at the option of the Authority, as a whole or in part at the election of the Authority, on May 1, 20__, and on any date thereafter, at a redemption price equal to 100% of the principal amount of Bonds to be redeemed, together with accrued interest thereon to the date fixed for redemption, without premium.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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The Bonds may be redeemed in whole or in part at the election of the Authority on any date before May 1, 20__, from any moneys that may be provided for such purpose, at a redemption price for such Bonds to be redeemed determined by the Designated Investment Banker equal to the greater of (i) 100% of the principal amount of such Bonds to be redeemed, or (ii) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on each of such Bonds to be redeemed, not including any portion of those payments of interest accrued and unpaid as of the date on which the are to be redeemed, discounted to the date on which such Bonds are to be redeemed on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the applicable Treasury Rate plus __ basis points, plus accrued and unpaid interest on the to be redeemed on the redemption date.
The Bonds are subject to redemption as a whole, or in part on a pro rata basis among maturities, on any date, to the extent of any net proceeds of hazard or title insurance with respect to the property which has been leased under the Lease (the “Leased Property”) or any portion thereof which are not used to repair or replace the Leased Property pursuant to the Lease, or to the extent of any net proceeds arising from the disposition of the Leased Property or any portion thereof in eminent domain proceedings which the City elects to be used for such purpose pursuant to the Lease, at a redemption price equal to the principal amount thereof plus interest accrued thereon to the date fixed for redemption, without premium.
The Bonds maturing on May 1, 20__ and May 1, 20__ (“Term Bonds”) are subject to mandatory redemption in part by lot, at a redemption price equal to 100% of the principal amount thereof to be redeemed, without premium, in the aggregate respective principal amounts and on May 1 in the respective years as set forth in the following tables; provided, however, that if some but not all of the Term Bonds have been redeemed as a result of an optional redemption or a special mandatory redemption, the total amount of all future sinking fund payments will be reduced by the aggregate principal amount of the Term Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata basis in integral multiples of $5,000 (as set forth in a schedule provided by the Authority to the Trustee).
Term Bonds Maturing May 1, 20__
Redemption Date
(May 1)
Principal Amount of Bonds
to be Redeemed
(maturity)
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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Term Bonds Maturing May 1, 20__
Redemption Date
(May 1)
Principal Amount of Bonds
to be Redeemed
(maturity)
As provided in the Indenture, notice of redemption will be mailed by the Trustee by first class mail not less than 20 nor more than 60 days prior to the redemption date to the respective owners of any Bonds designated for redemption at their addresses appearing on the registration books of the Trustee, but neither failure to receive such notice nor any defect in the notice so mailed shall affect the sufficiency of the proceedings for redemption or the cessation of accrual of interest thereon from and after the date fixed for redemption.
Notice of any optional redemption of the Bonds may be rescinded under the circumstances set forth in the Indenture, upon notice to the owners of such Bonds.
Bonds will be selected for redemption as provided in the Indenture. If this Bond is called for redemption and payment is duly provided therefor as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption.
This Bond is transferable by the Registered Owner hereof, in person or by his attorney duly authorized in writing, at the Trust Office, 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 Bond. Upon registration of such transfer, a new Bond or Bonds, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange herefor. This Bond may be exchanged at the Trust Office for Bonds of the same tenor, aggregate principal amount, interest rate and maturity, of other authorized denominations.
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.
Unless this Bond is presented by an authorized representative of The Depository Trust Company to the Authority or the Trustee for registration of transfer, exchange or payment, and any Bond issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
It is hereby certified by the Authority that all of the things, conditions and acts required to exist, to have happened or to have been performed precedent to and in the issuance of this Bond do exist, have happened or have been performed in due and regular time, form and manner as required by the laws of the State of California and that the amount of this Bond, together with all other indebtedness of the Authority, does not exceed
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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any limit prescribed by the laws of the State of California, and is not in excess of the amount of Bonds permitted to be issued under the Indenture.
This 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 endorsed shall have been manually signed by the Trustee.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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IN WITNESS WHEREOF, the City of San José Financing Authority has caused this Bond to be executed in its name and on its behalf with the facsimile signature of its Treasurer and attested to by the facsimile signature of its Secretary, all as of the Original Issue Date specified above.
CITY OF SAN JOSE FINANCING
AUTHORITY
By
Julia H. Cooper
Treasurer
Attest:
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in the within-mentioned Indenture.
Dated:
WILMINGTON TRUST, NATIONAL
ASSOCIATION,
as Trustee
By
Authorized Signatory
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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ASSIGNMENT
For value received the undersigned hereby sells, assigns and transfers unto __________________________________ whose address and social security or other tax identifying number is ____________________, the within-mentioned Bond and hereby irrevocably constitute(s) and appoint(s)
________________________________________ attorney, to transfer the same on the registration books of the Trustee with full power of substitution in the premises.
Dated:
S
ignature Guaranteed:
Note: Signature(s) must be guaranteed by an eligible
guarantor institution.
Note: The signature(s) on this Assignment must
correspond with the name(s) as written on the face of the within Bond in every particular without alteration or
enlargement or any change whatsoever.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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APPENDIX C
FORM OF COSTS OF ISSUANCE FUND REQUISITION
REQUISITION NO. __
COST OF ISSUANCE FUND
Wilmington Trust, National Association
650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Attention: Corporate Trust
Re: $[PAR] City of San José Financing Authority Taxable Lease Revenue Bonds, Series 2022A (Convention Center Refunding Project) In accordance with the terms of an Indenture of Trust, by and between you and the undersigned, dated as of April 1, 2022 (the “Indenture”), you are hereby authorized and requested to make immediate disbursement of funds held by you in the Costs of Issuance Fund for Costs of Issuance (as such terms are defined in the Indenture) pursuant to Section 3.03 of the Indenture.
You are hereby requested to pay from the Costs of Issuance Fund established by the Indenture, to the person(s), corporation(s) or other entity(ies) designated on Schedule A attached hereto, in payment of all or a portion of the Costs of Issuance described on said Schedule.
The undersigned hereby certifies that (i) the amounts listed on Schedule A constitute Costs of Issuance (as defined in the Indenture), and (ii) no part of the amount requested herein has been included in any other request previously filed with you.
Dated: __________, 20___.
CITY OF SAN JOSE FINANCING
AUTHORITY
By:
Authorized Representative
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
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SCHEDULE A
Payee
(include address) Amount Purpose
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.