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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Bond Trustee
BONDINDENTURE
Dated as of June 1, 2009
$[2009A PAR]
CITY OF NEWPORT BEACH
REVENUE BONDS
(HOAG MEMORIAL HOSPITAL PRESBYTERIAN)
SERIES 2009A
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OH &S
DRAFT
05/05/09
This BOND INDENTURE, made and entered into as of June 1, 2009, by and
between the CITY OF NEWPORT BEACH, a municipal corporation and charter city duly
organized and existing under a freeholder's charter under the Constitution and the laws of the
State of California (the "City "), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United States of
America, being qualified to accept and administer the trusts hereby created (the "Bond Trustee ");
WITNESSETH:
WHEREAS, the City is a municipal corporation and charter city duly organized
and existing under a freeholder's charter under the Constitution and the laws of the State of
California, and pursuant to the Charter of the City (as it may from time to time be amended,
hereinafter called the "Charter ") has the right and power to make and enforce all laws and
regulations in respect to municipal affairs and certain other matters in accordance with and as
more particularly provided in Sections 3, 5 and 7 of Article XI of the Constitution of the State of
California and Section 200 of Article II of the Charter, and pursuant to such right and power the
City Council of the City adopted Ordinance No. 85 -23 and 84 -4 (said Ordinances, as the same
may from time to time be amended, being hereafter called the "Law ");
WHEREAS, the City is authorized under the Law to issue its bonds for the
purpose of making secured or unsecured loans to any participating health institution (as defined
in the Law) for the cost (as defined in the Law) of acquiring, constructing, rehabilitating or
improving a health facility (as defined in the Law) or financing thereof or working capital
therefor, including reimbursement of costs already expended for such purpose, and for
refinancing outstanding obligations of such participating health institution incurred to finance the
cost of acquiring, constructing, rehabilitating or improving a health facility or financing working
capital for such health facility, all for the purposes set forth in the Law;
WHEREAS, Hoag Memorial Hospital Presbyterian, a California nonprofit public
benefit corporation (the "Corporation "), has requested the assistance of the City in the financing
and refinancing of the acquisition, construction and equipping of health facilities located within
the City;
WHEREAS, the City has previously provided such assistance through the
issuance of its Insured Revenue Bonds (Hoag Memorial Hospital Presbyterian) Series 2007D
(the "2007 Prior Bonds "), and its Refunding Revenue Bonds (Hoag Memorial Hospital
Presbyterian) Series 2008A and Series 2008B (the "2008 Prior Bonds" and together with the
2007 Prior Bonds, the "Prior Bonds ");
WHEREAS, the Corporation has requested the assistance of the City in the
refunding of the outstanding Prior Bonds;
WHEREAS, the Corporation has also requested the assistance of the City in the
acquisition, construction, and equipping of health facilities located within the City;
WHEREAS, after due investigation and deliberation, the City has approved said
request and authorized the issuance of its Revenue Bonds (Hoag Memorial Hospital
Presbyterian), Series 2009A (the "Bonds ") in the aggregate principal amount of [principal
OHS West:260645718.4
amount in words] dollars ($[2009A PAR]), together with its Revenue Bonds (Hoag Memorial
Hospital Presbyterian), Series 2009B, 2009C, 2009D and 2009E, in the aggregate principal
amount of dollars ($), to provide such assistance to the Corporation in
accordance with the Law;
WHEREAS, the City has duly entered into a loan agreement, dated as of
June 1, 2009, with the Corporation specifying the terms and conditions of a loan by the City to
the Corporation of the proceeds of the Bonds and of the payment by the Corporation to the City
of amounts sufficient for the payment of the principal of and interest and premium, if any, on the
Bonds and certain related expenses;
WHEREAS, pursuant to a master trust indenture, dated as of May 1, 2007 (the
"Master Indenture "), between the Corporation, Newport Health Care Center LLC, a California
limited liability company ( "NHC "), the sole corporate member for which is the Corporation, and
Wells Fargo Bank, National Association, as master trustee (the "Master Trustee "), and a
Supplemental Master Indenture for Obligation No. [x], dated as of June 1, 2009, between the
Corporation and the Master Trustee ( "Supplement No. [x] "), the Corporation has issued its
Obligation No. [x] to evidence the joint and several obligation of the Members to make all
payments required of the Corporation under the Loan Agreement, including amounts sufficient
to pay the principal of and premium, if any, and interest on the Bonds;
WHEREAS, 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
secured and to secure the payment of the principal (or Redemption Price) thereof and interest
thereon, the City has authorized the execution and delivery of this Bond Indenture; and
WHEREAS, the Bonds, and the Bond Trustee's certificate of authentication and
assignment to appear thereon, shall be in substantially the forms attached hereto as Exhibit A,
and incorporated into this Indenture by this reference, with necessary or appropriate variations,
omissions and insertions, as permitted or required by this Indenture; and
WHEREAS, the City has determined that all acts and proceedings required by law
necessary to make the Bonds, when executed by the City, authenticated and delivered by the
Bond Trustee and duly issued, the valid, binding and legal limited obligations of the City, and to
constitute this Bond 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 Bond Indenture have been in all respects duly authorized;
NOW, THEREFORE, THIS BOND INDENTURE WITNESSETH, that to secure
the payment of the principal of and the interest on all Bonds at any time issued and outstanding
under this Bond 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 premises and of the mutual covenants herein contained and of the purchase
and acceptance of the Bonds by the Holders thereof, and for other valuable consideration, the
receipt whereof is hereby acknowledged, the City does hereby covenant and agree with the Bond
Trustee, for the respective benefit of the Holders from time to time of the Bonds, as follows:
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ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION 1.01. Definitions. Unless the context otherwise requires, the terms
defined in this Section shall, for all purposes of this Bond Indenture and of any indenture
supplemental hereto and of any certificate, opinion or other document herein mentioned, have
the meanings herein specified, to be equally applicable to both the singular and plural forms of
any of the terms herein defined. Unless otherwise defined in this Bond Indenture, all terms used
herein shall have the meanings assigned to such terms in the Law.
2007 Prior Bonds
"2007 Prior Bonds" means the outstanding City of Newport Beach Insured
Revenue Bonds (Hoag Memorial Hospital Presbyterian) Series 2007D.
2008 Prior Bonds
"2008 Prior Bonds" means the outstanding City of Newport Beach Refunding
Revenue Bonds (Hoag Memorial Hospital Presbyterian) Series 2008A and Series 2008B.
Additional Payments
"Additional Payments" means the payments so designated and required to be
made by the Corporation pursuant to Section 3.2 of the Loan Agreement.
Administrative Fees and Expenses
"Administrative Fees and Expenses" means any application, commitment,
financing or similar fee charged, or reimbursement for administrative or other expenses incurred,
by the City or the Bond Trustee, including Additional Payments.
Authorized Representative
"Authorized Representative" means with respect to the Corporation in whatever
capacity it may then be acting, the chairman of its governing body, its chief executive officer, its
chief financial officer or any other person designated as an Authorized Representative of the
Corporation by a Certificate of the Corporation signed by the chairman of its governing body, its
chief executive officer, its chief financial officer, and filed with the Bond Trustee.
Beneficial Owner
`Beneficial Owner" means any Person which has or shares the power, directly or
indirectly, to make investment decisions concerning ownership of any of the Bonds (including
any Person holding Bonds through nominees, depositories or other intermediaries).
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Bond Counsel
"Bond Counsel" means Orrick, Herrington & Sutcliffe LLP or another attorney-
at-law, or firm of such attorneys, of nationally recognized standing in matters pertaining to the
tax- exempt nature of interest on obligations issued by states and their political subdivisions and
acceptable to the City and the Bond Trustee.
Bond Indenture
"Bond Indenture" means this Bond Indenture, as originally executed or as it may
from time to time be supplemented, modified or amended by any Supplemental Bond Indenture.
Bond Trustee
"Bond Trustee" means Wells Fargo Bank, National Association, a national
banking association organized and existing under and by virtue of the laws of the United States
of America, or its successor, as Bond Trustee hereunder as provided in Section 8.01.
Bonds; Term Bonds
"Bonds" means the City of Newport Beach Revenue Bonds (Hoag Memorial
Hospital Presbyterian), Series 2009A, authorized by, and at any time Outstanding pursuant to,
this Bond Indenture.
"Term Bonds" mean the Bonds payable at or before their specified maturity date
or dates from Mandatory Sinking Account Payments established for the purpose and calculated
to retire such Bonds or on before their specified maturity date or dates.
Business Day
"Business Day" means a day that is not a Saturday, Sunday or legal holiday on
which banking institutions in the State of California, the State of New York or in any state in
which the office of the Master Trustee or the Bond Trustee is located are authorized to remain
closed or a day on which the New York Stock Exchange is closed.
Certificate, Statement. Request or Requisition of the City or the Corporation
"Certificate," "Statement," "Request" and "Requisition" of the City or the
Corporation mean, respectively, a written certificate, statement, request or requisition signed in
the name of the City by its Mayor, City Clerk or such other person as may be designated and
authorized to sign for the City in writing to the Bond Trustee, or in the name of the Corporation
by an Authorized Representative of the Corporation. 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. If and to the extent required by Section 1.02, each such
instrument shall include the statements provided for in Section 1.02.
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citv
"City" means the City of Newport Beach, a municipal corporation and charter city
duly organized and existing under a freeholder's charter under the Constitution and the laws of
the State of California.
"Code" means the Internal Revenue Code of 1986, as amended, or any successor
statute thereto, and any regulations promulgated thereunder.
Continuing Disclosure Certificate
"Continuing Disclosure Certificate" means that certain Continuing Disclosure
Certificate, dated the Date of Issuance, executed by the Corporation with respect to the Bonds
pursuant to Section 5.7 of the Loan Agreement, as originally executed and as it may be amended
in accordance with its terms.
Corporate Trust Office
"Corporate Trust Office" means the office of the Bond Trustee, which as of the
date hereof is located at 707 Wilshire Boulevard, 17th Floor, Los Angeles, California 90017,
Attention: Corporate Trust Services, or such other or additional offices as shall be specified by
the Bond Trustee in writing delivered to the City and the Corporation.
Corporation
"Corporation" means Hoag Memorial Hospital Presbyterian, a California
nonprofit public benefit corporation duly organized and existing under the laws of the State of
California, or any corporation which is the surviving, resulting or transferee corporation in any
merger, consolidation or transfer of, all or substantially all, assets as permitted under the Master
Indenture.
Costs of Issuance
"Costs of Issuance" means all items of expense directly or indirectly payable by
or reimbursable to the City or the Corporation and related to the authorization, issuance, sale and
delivery of the Bonds, including but not limited to advertising and printing costs, costs of
preparation and reproduction of documents, filing and recording fees, initial fees and charges of
the Bond Trustee and the Master Trustee, initial and ongoing fees and charges of the City, legal
fees and charges, fees and disbursements of consultants and professionals, Rating Agency fees,
fees and charges for preparation, execution, transportation 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
"Costs of Issuance Fund" means the fund by that name established pursuant to
Section 3.03.
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Credit Group Representative
"Credit Group Representative" shall have the meaning given such term in the
Master Indenture.
Date of Issuance
"Date of Issuance" means June 1, 2009,
Environmental Laws
"Environmental Laws" means any federal, state or local law, statute, code,
ordinance, regulation, requirement or rule relating to dangerous, toxic or hazardous pollutants,
Hazardous Materials, chemical waste, materials or substances.
Electronic Means
"Electronic Means" means facsimile transmission, email transmission or other
similar electronic means of communication providing evidence of transmission, including a
telephone communication confirmed by any other method set forth in this definition.
Event of Default
"Event of Default" means any of the events specified in Section 7.01.
Favorable Opinion of Bond Counsel
"Favorable Opinion of Bond Counsel" means an opinion of Bond Counsel,
addressed to the City, the Corporation and the Bond Trustee, to the effect that the action
proposed to be taken is authorized or permitted by this Bond Indenture and will not result in the
inclusion of interest on the Bonds in gross income for federal income tax purposes.
Governing Board
"Governing Board" means the board of directors, board of trustees or other board
or group of individuals in which the power of the corporation or other entity is vested, except for
those powers reserved to the corporate membership by the articles of incorporation or bylaws of
such corporation or entity.
Hazardous Materials
"Hazardous Materials" means dangerous, toxic or hazardous pollutants,
contaminants, chemicals, waste, materials or substances (as defined in Environmental Laws), and
also any urea formaldehyde, polychlorinated biphenyls, asbestos, asbestos containing materials,
nuclear fuel or waste, radioactive materials, explosives, carcinogens and petroleum products, or
any other waste, material, substance, pollutant or contaminant the improper storage, disposal or
release of which would subject the person so storing, disposing or releasing (or the owner of the
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property on which such action occurs) to any damages, penalties or liabilities under any
applicable law, regulation, requirement or rule.
Holder or Bondholder
"Holder" or "Bondholder," whenever used herein with respect to a Bond, means
the Person in whose name such Bond is registered.
Interest Account
"Interest Account' means the account by that name established in the Revenue
Fund pursuant to Section 5.02.
Interest Payment Date
"Interest Payment Date" means June 1 and December 1 of each year,
commencing December 1, 2009.
Investment Securities
"Investment Securities" means any of the following:
(A) United States Government Obligations;
(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) Rural Economic Community Development Administration;
(iii) U.S. Maritime Administration;
(iv) Small Business Administration;
(v) U.S. Department of Housing & Urban Development (PHAs);
(vi) Federal Housing Administration; and
(vii) 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 the Federal National Mortgage
Association (FNMA) or Federal Home Loan Mortgage Corporation (FHLMC);
(ii) Obligations of the Resolution Funding Corporation (REFCORP);
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(iii) Senior debt obligations of the Federal Home Loan Bank System;
and
(iv) Senior debt obligations of other government sponsored agencies
approved by the Credit Facility Providers (if any).
(D) U.S. dollar denominated deposit accounts, federal fund and bankers'
acceptances with domestic commercial banks which have a rating on their short term certificates
of deposit on the date of purchase of "P -1" by Moody's and "A -1" or "A -1 +" by S &P and
maturing not more than 360 calendar days after the date of purchase;
(E) Commercial paper which is rated at the time of purchase in the single
highest classification, "P -1" by Moody's and "A -1" or "A -1 +" by S &P and which matures not
more than 360 calendar days after the date of purchase;
(F) Investments in money market funds rated "AAAm" or "AAm -G" or better
by S &P;
(G) Pre - refunded Municipal Obligations defined as follows: any bonds or
other obligations of any state of the United States of America or of any agency, instrumentality
or local governmental unit of any such state which are not callable at the option of the obligor
prior to maturity or as to which irrevocable instructions have been given by the obligor to call on
the date specified in the notice; and
(i) which are rated, based on irrevocable escrow account or fund (the
"escrow "), in the highest Rating Category of Moody's or S &P or any successors thereto;
or
(ii) (a) which are fully secured as to principal, interest and redemption
premium, if any, by an escrow consisting only of cash or United States Government
Obligations, which escrow may be applied only to the payment of such principal of and
interest and redemption premium, if any, on such bonds or other obligations on the
maturity date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as appropriate, and (b) which escrow is sufficient, as verified by
a nationally recognized independent certified public accountant, to pay principal of and
interest and redemption premium, if any, on the bonds or other obligations described in
this paragraph on the maturity date or dates specified in the irrevocable instructions
referred to above, as appropriate.
(H) Municipal obligations rated "Aaa/AAA" or general obligations of States
with a rating of "AVA" or higher by both Moody's and S &P;
(I) Investment agreements approved in writing by the Credit Facility Provider
or Credit Facility Providers (if any) (supported by appropriate opinions of counsel); and
(J) Other forms of investments (including repurchase agreements) approved
in writing by the Credit Facility Provider or Credit Facility Providers (if any).
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The value of the above investments shall be determined as follows:
(K) For the purpose of determining the amount in any fund, all Investment
Securities credited to such fund shall be valued at fair market value. The Bond Trustee shall
determine the fair market value based on accepted industry standards and from accepted industry
providers. Accepted industry providers shall include but are not limited to pricing services
provided by Financial Times Interactive Data Corporation, Merrill Lynch, Citigroup Global
Markets Inc. or Lehman Brothers; and
(L) As to certificates of deposit and bankers' acceptances, the face amount
thereof, plus accrued interest thereon.
Law
"Law" means Ordinance No. 85 -23 and 84 -4 of the City, as now in effect and as it
may from time to time be amended or supplemented.
Loan Agreement
"Loan Agreement" means that certain loan agreement by and between the City
and the Corporation, dated as of June 1, 2009, as originally executed and as it may from time to
time be supplemented, modified or amended in accordance with the terns thereof and of this
Bond Indenture.
Loan Default Event
"Loan Default Event" means any of the events specified in Section 6.1 of the
Loan Agreement.
Loan Repayments
"Loan Repayments" means the payments so designated and required to be made
by the Corporation pursuant to Section 3.1 of the Loan Agreement.
Mandatory Sinking Account Payment
"Mandatory Sinking Account Payment" means the amount required by
Section 5.04 to be paid on any single date for the retirement of Bonds.
Master Indenture
"Master Indenture" means that certain master trust indenture, dated as of
May 1, 2007, between the Corporation, Newport Healthcare Center LLC, a California limited
liability company, the sole corporate member of which is the Corporation, and the Master
Trustee as supplemented, modified and amended as of the date hereof and as it may from time to
time be further supplemented, modified or amended in accordance with the terms thereof.
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Master Trustee
"Master Trustee" means Wells Fargo Bank, National Association, a national
banking association duly organized and existing under the laws of the United States of America,
or its successor, as successor master trustee under the Master Indenture.
Members
"Members" means each Person that is then obligated under the Master Indenture.
Moodv's
" Moody's" means Moody's Investors Service, a corporation organized and
existing under the laws of the State of Delaware, its successors and their assigns, or, if such
corporation shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, any other nationally recognized securities rating agency designated by
the Corporation by notice in writing to the City and the Bond Trustee.
Obligated Group
"Obligated Group" means all the Members.
Obligation No. fX
"Obligation No. [X]" means the obligation issued under the Master Indenture and
Supplement No. [X].
Opinion of Counsel
"Opinion of Counsel" means a written opinion of counsel (who may be counsel
for the City, the Bond Trustee or the Corporation) selected by the Corporation and not objected
to by the City or the Bond Trustee. If and to the extent required by the provisions of
Section 1.02, each Opinion of Counsel shall include the statements provided for in Section 1.02.
Optional Redemption Account
"Optional Redemption Account" means the account by that name in the
Redemption Fund established pursuant to Section 5.05.
Outstanding
"Outstanding," when used as of any particular time with reference to Bonds,
means (subject to the provisions of Section 11.09) all Bonds theretofore, or thereupon being,
authenticated and delivered by the Bond Trustee under this Bond Indenture except: (1) Bonds
theretofore cancelled by the Bond Trustee or surrendered to the Bond Trustee for cancellation;
(2) Bonds with respect to which all liability of the City shall have been discharged in accordance
with Section 10.02, including Bonds (or portions of Bonds) referred to in Section 11.10; and (3)
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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 Bond Trustee pursuant to this Bond Indenture.
Person
"Person" means an individual, corporation, firm, association, partnership, trust or
other legal entity or group of entities, including a governmental entity or any agency or political
subdivision thereof.
Principal Account
"Principal Account" means the account by that name established in the Revenue
Fund pursuant to Section 5.02.
Principal Payment Date
"Principal Payment Date" means, with respect to a Bond, the date on which
principal evidenced by such Bond becomes due and payable, whether at maturity, upon
redemption, by declaration of acceleration or otherwise.
Program
"Program" means the City's program of making loans under the Law.
Proiect
"Project" means the acquisition, construction, improvement, equipping,
renovation, rehabilitation, remodeling and other capital projects [owned by the Corporation and]
located on and about the hospital campus at One Hoag Drive and on and about the healthcare
facility located at 500 -540 Superior Avenue, each in Newport Beach, California.
Project Fund
"Project Fund" means the fund by that name established pursuant to Section 3.04.
Ratin¢ Agency
"Rating Agency" means S &P and/or Moody's, as the context requires, if then
rating the Bonds at the request of the Corporation.
Rating Categorry
"Rating Category" means a generic securities rating category, without regard to
any refinement or gradation of such rating category by a numerical modifier or otherwise.
Rebate Fund
"Rebate Fund" means the fund by that name established pursuant to Section 5.06.
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Record Date
"Record Date" means the fifteenth (15th) day (whether or not a Business Day) of
the calendar month preceding the calendar month in which such Interest Payment Date falls.
Redemption Fund
"Redemption Fund" means the fund by that name established pursuant to
Section 5.05.
Redemption Price
"Redemption Price" means, with respect to any Bond (or portion thereof), the
principal amount of such Bond (or portion) plus the applicable premium, if any, payable upon
redemption thereof pursuant to the provisions of such Bond and this Bond Indenture.
Revenue Fund
"Revenue Fund" means the fund by that name established pursuant to
Section 5.01.
Revenues
"Revenues" means all amounts received by the City or the Bond Trustee for the
account of the City pursuant or with respect to the Loan Agreement or Obligation No. [X],
including, without limiting the generality of the foregoing, Loan Repayments (including both
timely and delinquent payments, any late charges, and whether paid from any source),
prepayments, insurance proceeds, condemnation proceeds, and all interest, profits or other
income derived from the investment of amounts in any fund or account established pursuant to
this Bond Indenture, but not including any Administrative Fees and Expenses or any moneys
required to be deposited to the Rebate Fund.
S &P
"S &P" means Standard & Poor's, a division of The McGraw -Hill Companies,
Inc., a corporation organized and existing under the laws of the State of New York, its successors
and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, any other nationally recognized securities rating agency
designated by the Corporation by notice in writing to the City and the Bond Trustee.
Securities Depository
"Securities Depository" means The Depository Trust Company and its successors
and assigns, or any other Securities Depository selected as set forth in Section 2.09.
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Sinking. Account
"Sinking Account" means each subaccount in the Principal Account so designated
and established pursuant to Section 5.04(B).
Special Record Date
"Special Record Date" means the date established by the Bond Trustee pursuant
to Section 2.02 as a record date for the payment of defaulted interest on the Bonds.
Special Redemption Account
"Special Redemption Account" means the account by that name in the
Redemption Fund established pursuant to Section 5.05.
State
"State" means the State of California.
Supplemental Bond Indenture
"Supplemental Bond Indenture" means any indenture hereafter duly authorized
and entered into between the City and the Bond Trustee, supplementing, modifying or amending
this Bond Indenture; but only if and to the extent that such Supplemental Bond Indenture is
specifically authorized hereunder.
Supplement No. X
"Supplement No. [X]" means that certain supplemental master indenture, dated as
of June 1, 2009, between the Corporation and the Master Trustee pursuant to which Obligation
No. [x] is issued, as originally executed and as amended or supplemented from time to time in
accordance with the terms of the Master Indenture.
Tax Agreement
"Tax Agreement" means the Tax Certificate and Agreement delivered by the City
and the Corporation at the time of issuance and delivery of the Bonds, as the same may be
amended or supplemented in accordance with its terms.
United States Government Obligations
"United States Government Obligations" means:
(1) noncallable direct 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) or obligations the timely payment of which are fully guaranteed by
the United States of America;
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(2) certificates or other instruments that evidence direct ownership of future
principal and /or interest on obligations described in clause (1), provided that such obligations are
held in the custody of a bank or trust company in a special account separate from the general
assets of such custodian; and
(3) obligations (a) the interest on which is excluded from gross income for
federal income tax purposes pursuant to Section 103 of the Code, (b) the timely payment of the
principal of and interest on which is fully provided for by the deposit in trust or escrow of cash
or obligations described in clauses (1) or (2), and (c) that are rated in the highest Rating Category
by each Rating Agency then rating both the Bonds and such obligations (but in all cases by at
least one Rating Agency then rating the Bonds).
SECTION 1.02. Content of Certificates and Opinions. Every certificate or
opinion provided for in this Bond Indenture with respect to compliance with any provision
hereof shall include (1) a statement that the Person making or giving such certificate or opinion
has read such provision and the definitions herein relating thereto; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the certificate or opinion is
based; (3) a statement that, in the opinion of such Person, he has made or caused to be made such
examination or investigation as is necessary to enable him to express an informed opinion with
respect to the subject matter referred to in the instrument to which his signature is affixed; and
(4) a statement as to whether, in the opinion of such Person, such provision has been complied
with.
Any such certificate or opinion made or given by an officer of the City or the
Corporation may be based, insofar as it relates to legal, accounting or health care matters, upon a
certificate or opinion of or representation by counsel, an accountant or a management consultant,
unless such officer knows, or in the exercise of reasonable care should have known, that the
certificate, opinion or representation with respect to the matters upon which such certificate or
statement may be based, as aforesaid, is erroneous. Any such certificate or opinion made or
given by counsel, an accountant or a management consultant may be based, insofar as it relates
to factual matters (with respect to which information is in the possession of the City or the
Corporation, as the case may be) upon a certificate or opinion of or representation by an officer
of the City or the Corporation, unless such counsel, accountant or management consultant
knows, or in the exercise of reasonable care should have known, that the certificate or opinion or
representation with respect to the matters upon which such Person's certificate or opinion or
representation may be based, as aforesaid, is erroneous. The same officer of the City or the
Corporation, or the same counsel or accountant or management consultant, as the case may be,
need not certify to all of the matters required to be certified under any provision of this Bond
Indenture, but different officers, counsel, accountants or management consultants may certify to
different matters, respectively.
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 mean and include the neuter, masculine or feminine
gender, as appropriate.
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(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 Bond Indenture; the words
"herein," "hereof," "hereby," "hereunder" and other words of similar import refer to this Bond
Indenture as a whole and not to any particular Article, Section or subdivision hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds. There is hereby created one series of
Bonds to be issued hereunder to obtain moneys to carry out the purposes of the Program, for the
benefit of the City and the Corporation. The Bonds are to be designated as "City of Newport
Beach Revenue Bonds (Hoag Memorial Hospital Presbyterian), Series 2009A." The aggregate
principal amount of Bonds that may be issued and Outstanding under this Bond Indenture shall
not exceed [PRINCIPAL AMOUNT IN WORDS] dollars ($[2009A PAR]). This Bond
Indenture constitutes a continuing agreement with the Holders from time to time of the Bonds to
secure the full payment of the principal of and interest on all such Bonds subject to the
covenants, provisions and conditions herein contained.
SECTION 2.02. Terms of the Bonds. The Bonds shall be issued as fully
registered Bonds in denominations of $5,000 or any integral multiple thereof. The Bonds shall
be initially registered in the name of Cede & Co., as nominee of the Securities Depository, or any
successor thereto. Registered ownership of the Bonds, or any portion thereof, may not thereafter
be transferred except as set forth in Section 2.04. The Bonds shall be dated the Date of Issuance.
The Bonds shall mature on the following dates in the following amounts (subject to the right of
prior redemption set forth in Article IV) and shall bear interest at the following rates per annum:
Maturity Date Principal Interest
(December 1) Amount Rate
$
The principal or Redemption Price of the Bonds shall be payable in lawful money
of the United States of America at the Corporate Trust Office of the Bond Trustee upon
surrender of the Bonds to the Bond Trustee for cancellation. Payment of the interest on any
Bond shall be made on each Interest Payment Date to the Holder thereof as of the Record Date
for each Interest Payment Date by check mailed by first -class mail on each Interest Payment
Date to such Holder at his address as it appears on the registration books maintained by the Bond
Trustee or, upon the written request of any Holder of at least $1,000,000 in principal amount of
Bonds, submitted to the Bond Trustee at least one Business Day prior to the Record Date (which
request includes written wire transfer instructions), by wire transfer in immediately available
funds to an account within the United States of America designated by such Bondholder.
OHS West:260645718.4 15
The Bonds shall be numbered in consecutive numerical order from R -1 upwards,
and each such Bond shall bear interest from the Date of Issuance. Interest shall be calculated on
a three hundred sixty- (360) -day year basis of twelve (12) thirty- (30) -day months.
Any such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Record Date and shall be paid to the Person in whose name
the Bond is registered at the close of business on a special record date ( "Special Record Date ")
for the payment of such defaulted interest to be fixed by the Bond Trustee, notice of which shall
be given to the Holders by first -class mail not less than ten (10) days prior to such Special
Record Date.
The Bonds shall be subject to redemption as provided in Article IV.
SECTION 2.03. Execution of Bonds. The Bonds shall be executed in the name
and on behalf of the City with the manual or facsimile signature of its Mayor, under its seal and
attested by the manual or facsimile signature of its City Clerk. Such seal may be in the form of a
facsimile of the City's seal and may be reproduced, imprinted or impressed on the Bonds. The
Bonds shall then be delivered to the Bond Trustee for authentication by it. In case any of the
officers who shall have signed or attested any of the Bonds shall cease to be such officer or
officers of the City before the Bonds so signed or attested shall have been authenticated or
delivered by the Bond Trustee or issued by the City, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as
binding upon the City as though those who signed and attested the same had continued to be
such officers of the City, and also any Bond may be signed and attested on behalf of the City by
such persons as at the actual date of execution of such Bond shall be the proper officers of the
City although at the nominal date of such Bond any such person shall not have been such officer
of the City.
Only such of the Bonds as shall bear thereon a certificate of authentication
substantially in the form attached hereto as part of Exhibit A, manually executed by an
authorized signatory of the Bond Trustee, shall be valid or obligatory for any purpose or entitled
to the benefits of this Bond Indenture, and such certificate of the Bond Trustee shall be
conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and
delivered hereunder and are entitled to the benefits of this Bond Indenture.
SECTION 2.04. Transfer of Bonds. Subject to the provisions of Section 2.09,
any Bond may, in accordance with its terms, be transferred, upon the books required to be kept
pursuant to the provisions of Section 2.06, by the Person in whose name it is registered, in person
or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied
by delivery of a written instrument of transfer, duly executed in a form acceptable to the Bond
Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the City shall
execute and the Bond Trustee shall authenticate and deliver a new Bond or Bonds, of the same
maturity and for a like aggregate principal amount of authorized denominations. The Bond
Trustee shall require the Bondholder requesting such transfer to pay any tax or other
OHS Wesk260645718.4 16
governmental charge or charge imposed by the Bond Trustee required to be paid with respect to
such transfer.
SECTION 2.05. Exchange of Bonds. Bonds may be exchanged at the Corporate
Trust Office of the Bond Trustee for a like aggregate principal amount of Bonds of other
authorized denominations of the same maturity. The Bond Trustee shall require the Bondholder
requesting such exchange to pay any tax or other governmental charge required to be paid with
respect to such exchange and the Bond Trustee may also require the Bondholder requesting such
exchange to pay a reasonable sum to cover expenses incurred by the Bond Trustee or the City in
connection with such exchange.
SECTION 2.06. Bond Register. The Bond Trustee will keep or cause to be kept
sufficient books for the registration and transfer of the Bonds, which shall at all times (during
regular business hours at the location where such books are kept) be open to inspection by any
Bondholder or such Bondholder's agent duly authorized in writing, the City, or the Corporation;
and, upon presentation for such purpose, the Bond Trustee shall, under such reasonable
regulations as it may prescribe, register or transfer or cause to be registered or transferred, on
such books, Bonds as hereinbefore provided.
SECTION 2.07. Temnorary Bonds. The Bonds may be issued in temporary
form exchangeable for definitive Bonds when ready for delivery. Any temporary Bond may be
printed, lithographed or typewritten, shall be of such authorized denominations as may be
determined by the City, shall be in fully registered form without coupons and may contain such
reference to any of the provisions of this Bond Indenture as may be appropriate. A temporary
Bond may be in the form of a single fully registered Bond payable in installments, each on the
date, in the amount and at the rate of interest established for the Bonds maturing on such date.
Every temporary Bond shall be executed by the City and be authenticated by the Bond Trustee
upon the same conditions and in substantially the same manner as the definitive Bonds. If the
City issues temporary Bonds it will execute and deliver definitive Bonds as promptly thereafter
as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, in
exchange therefor at the Corporate Trust Office of the Bond Trustee, and the Bond Trustee shall
authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal
amount of definitive Bonds of authorized denominations of the same maturity or maturities.
Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Bond
Indenture as definitive Bonds authenticated and delivered hereunder.
SECTION 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall
become mutilated, the City, at the expense of the Holder of said Bond, shall execute, and the
Bond 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 Bond Trustee of the Bond
so mutilated. Every mutilated Bond so surrendered to the Bond Trustee shall be cancelled by it.
If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be
submitted to the City and the Bond Trustee and, if such evidence be satisfactory and indemnity
satisfactory to both the Bond Trustee and the City shall be given, the City, at the expense of the
Holder, shall execute, and the Bond Trustee shall thereupon authenticate and deliver, a new
Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if
any such Bond shall have matured or be about to mature, instead of issuing a substitute Bond, the
OHS West260645718.4 17
Bond Trustee may pay the same without surrender thereof upon receipt of the above- mentioned
indemnity). The Bond 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 City and the Bond Trustee in complying with this Section. Any Bond issued under the
provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall replace
the Bond alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall
be entitled to the benefits of this Bond Indenture as an original contractual obligation on the part
of the City with all other Bonds secured by this Bond Indenture.
SECTION 2.09. Use of Securities Denository.
(A) The Bonds shall be initially issued as provided in Section 2.02. Registered
ownership of the Bonds, or any portion thereof, may not thereafter be transferred except:
(B) (i) To any successor of the Securities Depository or its nominee, or to
any substitute depository designated pursuant to clause (ii) of this subsection (A) ( "substitute
depository"); provided that any successor of the Securities Depository or substitute depository
shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(ii) To any substitute depository designated by the City (pursuant to a
Request of the Corporation) upon (a) the resignation of the Securities Depository or its
successor (or any substitute depository or its successor) from its functions as depository
or (b) a determination by the City (pursuant to a Request of the Corporation) that the
Securities Depository or its successor (or any substitute depository or its successor) is no
longer able to carry out its functions as depository; provided that any such substitute
depository shall be qualified under any applicable laws to provide the services proposed
to be provided by it; or
(iii) To any Person as provided below, upon (a) the resignation of the
Securities Depository or its successor (or substitute depository or its successor) from its
functions as depository; provided that no substitute depository can be obtained or (b) a
determination by the City that it is in the best interests of the City to remove the
Securities Depository or its successor (or any substitute depository or its successor) from
its functions as depository.
(C) In the case of any transfer pursuant to clause (i) or clause (ii) of subsection
(A), upon receipt of the Outstanding Bonds by the Bond Trustee, together with a Certificate of
the City to the Bond Trustee, a single new Bond shall be executed and delivered in the aggregate
principal amount of the Bonds then Outstanding, registered in the name of such successor or
such substitute depository, or their nominees, as the case may be, all as specified in such
Certificate of the City. In the case of any transfer pursuant to clause (iii) of subsection (A), upon
receipt of the Outstanding Bonds by the Bond Trustee together with a Certificate of the City to
the Bond Trustee, new Bonds shall be executed and delivered in such authorized denominations
and registered in the names of such Persons as are requested in such a Certificate of the City,
subject to the limitations of Section 2.02, provided the Bond Trustee shall not be required to
deliver such new Bonds within a period less than sixty (60) days from the date of receipt of such
a Certificate of the City.
OHS West260645718.4 18
(D) In the case of partial redemption or an advance refunding of the Bonds
evidencing all or a portion of such principal amount Outstanding, the Securities Depository shall
make an appropriate notation on such Bonds indicating the date and amounts of such reduction
in principal, in form acceptable to the Bond Trustee.
(E) The City and the Bond Trustee shall be entitled to treat the Person in
whose name any Bond is registered as the Bondholder thereof for all purposes of this Bond
Indenture and any applicable laws, notwithstanding any notice to the contrary received by the
Bond Trustee or the City; and the City and the Bond Trustee shall have no responsibility for
transmitting payments to, communicating with, notifying or otherwise dealing with any
beneficial owners of the Bonds. None of the City or the Bond Trustee will have any
responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party
including the Securities Depository or its successor (or substitute depository or its successor),
except for the Holder of any Bond.
(F) So long as the Outstanding Bonds are registered in the name of Cede &
Co. or its registered assign, the City and the Bond Trustee shall cooperate with Cede & Co., as
sole registered Bondholder, and its registered assigns in effecting payment of the principal of and
redemption premium, if any, and interest on the Bonds by arranging for payment in such manner
that funds for such payments are properly identified and are made immediately available on the
date they are due.
(G) The Corporation may, with the consent of the City and the Bond Trustee,
determine not to continue with the Securities Depository or the book -entry-only system in
accordance with the provisions of this Bond Indenture. In such event, the Corporation shall use
its best efforts to identify another qualified Securities Depository.
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance of Bonds. At any time after the execution of this Bond
Indenture, the City may execute and the Bond Trustee shall authenticate and, upon Request of
the City, deliver the Bonds in the aggregate principal amount of [PRINCIPAL AMOUNT IN
WORDS] dollars ($[2009A PAR]).
SECTION 3.02. Application of Proceeds of Bonds. The proceeds received from
the sale of the Bonds ($ , consisting of the par amount of the Bonds of $[2009A
PAR] [less /plus] $ equal to [net original issue discount/premium]), shall be
deposited in trust with the Bond Trustee, who shall forthwith deposit or transfer such proceeds as
follows:
(A) The Bond Trustee shall deposit the sum of $ in the Costs
of Issuance Fund.
(B) The Bond Trustee shall transfer the sum of $ to the trustee
for the 2007 Prior Bonds pursuant to a Request of the Corporation to be delivered to the Bond
Trustee simultaneously with the issuance of the Bonds..
OHS West260645718.4 19
(C) The Bond Trustee shall transfer the sum of $ to the trustee
for the 2008 Prior Bonds pursuant to a Request of the Corporation to be delivered to the Bond
Trustee simultaneously with the issuance of the Bonds.
(D) The Bond Trustee shall deposit the sum of $ in the Project
Fund.
(E) The Bond Trustee may, in its discretion, establish one or more temporary
funds or accounts in its books and records to facilitate such deposits and transfers.
SECTION 3.03. Establishment and Application of Costs of Issuance Fund. The
Bond Trustee shall establish, maintain and hold in trust a separate fund designated as the "Costs
of Issuance Fund." The moneys in the Costs of Issuance Fund shall be used and withdrawn by
the Bond Trustee to pay the Costs of Issuance upon Requisition of the Corporation substantially
in the form attached hereto as Exhibit B, 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 the Costs of Issuance Fund. On the date no later than 180 days after the
Date of Issuance, or upon the earlier Request of the Corporation, amounts, if any, remaining in
the Costs of Issuance Fund shall be transferred to the Project Fund and the Costs of Issuance
Fund shall be closed.
SECTION 3.04. Establishment and Application of Project Fund. (A) The Bond
Trustee shall establish, maintain and hold in trust a separate fund designated as the "Project
Fund." The moneys in the Project Fund shall be used and withdrawn by the Bond Trustee to pay
the capital costs of the Project. No moneys in the Project Fund shall be used to pay Costs of
Issuance.
(B) Before any payment from the Project Fund shall be made, the Corporation
shall file or cause to be filed with the Bond Trustee a Requisition, in substantially the form
attached hereto as Exhibit C, stating:
(1) the item number of such payment;
(2) the name of the Person to whom each such payment is due, which may be
the Corporation in the case of reimbursement for Project costs theretofore paid by the
Corporation;
(3) the respective amounts to be paid;
(4) the purpose by general classification for which each obligation to be paid
was incurred; and
(5) that obligations in the stated amounts have been incurred by the
Corporation and are presently due and payable and that each item thereof is a proper
charge against the Project Fund and has not been previously paid from the Project Fund
and is only made with respect to elements of the Project for which all approvals, if any,
required under the California Environmental Quality Act have been previously finalized
OHS W� t:26o645n8.4 20
and none of the payments requested will result in a breach of the representations and
agreements in the Tax Agreement.
(C) Upon receipt of such a Requisition, the Bond Trustee shall pay the amount
set forth in such Requisition as directed by the terms thereof out of the Project Fund. The Bond
Trustee shall not make any such payment if it has received any written notice of claim of lien,
right to lien or attachment upon, or claim affecting the right to receive payment of, any of the
monies to be so paid, that has not been released or will not be released simultaneously with such
payment. Each such Requisition shall be sufficient evidence to the Bond Trustee of the facts
stated therein and the Bond Trustee shall have no duty to confirm the accuracy of such facts.
(D) When the Project (or any discrete portion of the Project as determined by
the Corporation at its option) shall have been completed, there shall be delivered to the Bond
Trustee a Certificate of the Corporation stating (i) the fact of such completion, (ii) if moneys
remain on deposit in the Project Fund, (iii) date of such completion and (iv) that all of the costs
thereof have been determined and paid (or that all of such costs have been paid less specified
claims that are subject to dispute and for which a retention in the Project Fund is to be
maintained in the full amount of such claims until such dispute is resolved). Upon the receipt of
such Certificate, the Bond Trustee shall, as directed by said Certificate, transfer any remaining
balance in the Project Fund (or, if completion is only as to a discrete portion of the Project as
described above, the remaining balance in the Project Fund allocable to such discrete portion of
the Project, as specified by the Corporation at its option in said Certificate) to the Optional
Redemption Account. Upon transfer of all moneys remaining on deposit in the Project Fund to
the Optional Redemption Account, the Project Fund shall be closed.
SECTION 3.05. Validity of Bonds. The validity of the authorization and
issuance of the Bonds is not dependent on and shall not be affected in any way by any
proceedings taken by the City or the Bond Trustee with respect to or in connection with the Loan
Agreement. The recital contained in the Bonds that the same are issued pursuant to the Law and
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 BONDS
SECTION 4.01. Terms of Redemption.
(A) The Bonds [maturing on December 1, _ 1 are subject to redemption
prior to their stated maturity in part, by lot, from Mandatory Sinking Account Payments
established in Section 5.04(C) on any December 1, on or after December 1, 20—, at the principal
amount thereof together with interest accrued thereon to the date fixed for redemption, without
premium. [BDV NOTE: REVISE IF MULTIPLE TERM BONDS].
(B) The Bonds are subject to redemption prior to their stated maturity, at the
option of the City (which option shall be exercised upon Request of the Corporation given to the
Bond Trustee (unless waived by the Bond Trustee) at least two Business Days prior to the date
OHS West260645718.4 21
notice of redemption is required to be given pursuant to Section 4.03), from any source of
available funds, as a whole or in part on any date on or after [December 1, 20_], by lot, at a
Redemption Price equal to 100% of the principal amount of Bonds called for redemption,
together with interest accrued thereon to the date fixed for redemption.
(C) The Bonds are subject to redemption prior to their stated maturity, at the
option of the City (which option shall be exercised upon Request of the Corporation given to the
Bond Trustee (unless waived by the Bond Trustee) at least two Business Days prior to the date
notice of redemption is required to be given pursuant to Section 4.03) in whole or in part (in such
amounts as may be specified by the Corporation and by lot on any date, from hazard insurance or
condemnation proceeds received with respect to the facilities of any of the Members and
deposited in the Special Redemption Account pursuant to Section 3.4 of the Loan Agreement, at
a Redemption Price equal to the principal amount thereof, without premium.
(D) The Bonds are also subject to redemption prior to their stated maturity at
the option of the City (which option shall be exercised upon Request of the Corporation given to
the Bond Trustee (unless waived by the Bond Trustee) at least two Business Days prior to the
date notice of redemption is required to be given pursuant to Section 4.03) as a whole (but not in
part) on any date at the principal amount thereof and interest accrued thereon (if any) to the date
fixed for redemption, without premium, from amounts deposited in the Special Redemption
Account pursuant to Section 3.4 of the Loan Agreement, if as a result of any changes in the
Constitution of the United States of America or any state, or legislative or administrative action
or inaction by the United States of America or any state, or any agency or political subdivision
thereof, or by reason of any judicial decisions there is a good faith determination by the Credit
Group Representative that (a) the Master Indenture has become void or unenforceable or
impossible to perform, or (b) unreasonable burdens or excessive liabilities have been imposed
any Member, including without limitation, federal, state or other ad valorem property, income or
other taxes being then imposed which were not being imposed on the Date of Issuance.
SECTION 4.02. Selection of Bonds for Redemption. Whenever provision is
made in this Bond Indenture for the redemption of less than all of the Bonds or any given portion
thereof, the Bond Trustee shall select the Bonds to be redeemed, from all Bonds subject to
redemption or such given portion thereof not previously called for redemption, by lot; provided,
however that in such instances as provided for herein where the Corporation is to specify the
maturities of Bonds to be redeemed, the Bond Trustee shall redeem Bonds in accordance with
any such specification.
SECTION 4.03. Notice of Redemption.
(A) Notice of redemption shall be mailed by the Bond Trustee, not less than
thirty (30) days nor more than sixty (60) days prior to the stated redemption date, to the Holders
of Bonds called for redemption at their addresses appearing on the bond registration books of the
Bond Trustee and to the Master Trustee, with a copy to the City. The Bond Trustee shall also
give notice of redemption by overnight mail or courier service to such securities depositories
and/or securities information services as shall be designated in a Certificate of the Corporation.
For any redemption in whole, the Bond Trustee shall also mail notice of such redemption to S &P
and Moody's. Each notice of redemption shall state the date of such notice and the date of issue
OHS We t:260645718.4 22
of the Bonds, the redemption date, the Redemption Price, the place or places of redemption
(including the name and appropriate address or addresses of the Bond Trustee), the maturity, the
CUSIP numbers, if any, 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,
subject to prior rescission as provided in Section 4.03(B), on said date there will become due and
payable on each of said Bonds the Redemption Price thereof or of said specified portion of the
principal amount thereof in the case of a Bond to be redeemed in part only, together with interest
accrued thereon to the redemption date, and that from and after such redemption date interest
thereon shall cease to accrue, and shall require that such Bonds be then surrendered. Each notice
shall also state that redemption is conditioned upon receipt by the Bond Trustee of sufficient
funds to pay the Redemption Price of the Bonds so redeemed.
(B) Any notice of optional redemption given pursuant to this Section 4.03 may
be rescinded by written notice given to the Bond Trustee by the Corporation no later than two (2)
Business Days prior to the date specified for redemption. The Bond Trustee shall give notice of
such rescission as soon thereafter as practicable in the same manner, and to the same Persons, as
notice of such redemption was given pursuant to Section 4.03 (A).
(C) Failure by the Bond Trustee to give notice pursuant to this Section 4.03 to
the City, the Master Trustee or any one or more of the securities information services or
depositories designated by the Corporation, or the insufficiency of any such notice shall not
affect the sufficiency of the proceedings for redemption. Failure by the Bond Trustee to mail
notice of redemption (or failure by any such Holder or Holders to receive said notice) pursuant to
this Section 4.03 to any one or more of the respective Holders of any Bonds designated for
redemption shall not affect the sufficiency of the proceedings for redemption with respect to the
Holders to whom such notice was mailed.
(D) Notice of redemption of Bonds shall be given by the Bond Trustee, at the
expense of the Corporation, for and on behalf of the City.
SECTION 4.04. Partial Redemption of Bonds. Upon surrender of any Bond
redeemed in part only, the City shall execute (but need to prepare) and the Bond Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Corporation, a new Bond or
Bonds of authorized denominations, and of the same maturity, equal in aggregate principal
amount to the unredeemed portion of the Bond 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 redemption date on, the Bonds (or portions thereof) so called for redemption being
held by the Bond Trustee, on the redemption date designated in such notice, the Bonds (or
portions thereof) so called for redemption shall become due and payable at the Redemption Price
specified in such notice and interest accrued thereon to the redemption date, 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 Bond Indenture, and the Holders of said Bonds
shall have no rights in respect thereof except to receive payment of said Redemption Price and
accrued interest to the date fixed for redemption from funds held by the Bond Trustee for such
payment.
OHS West260645718.4 23
All Bonds redeemed pursuant to the provisions of this Article shall be cancelled
upon surrender thereof.
SECTION 4.06. Purchase in Lieu of Optional Redemption. Each Holder or
Beneficial Owner, by purchase and acceptance of any Bond, irrevocably grants to the
Corporation the option to purchase such Bond at any time such Bond is subject to optional
redemption as described in Section 4.01(B) and Section 4.01(C) of this Bond Indenture. Such
Bond is to be purchased at a purchase price equal to the then applicable Redemption Price of
such Bond, plus accrued interest. The Corporation may only exercise such option, after the
Corporation shall have delivered a Favorable Opinion of Bond Counsel to the Bond Trustee, and
shall have directed the Bond Trustee to provide notice of mandatory purchase, such notice to be
provided, as and to the extent applicable, in accordance with Section 4.03 of this Bond Indenture.
Bonds to be so purchased shall be selected by the Bond Trustee in the same manner as Bonds
called for redemption pursuant to this Bond Indenture. On the date fixed for purchase of any
Bond in lieu of redemption as described in this Section, the Corporation shall pay the purchase
price of such Bond to the Bond Trustee in immediately available funds, and the Bond Trustee
shall pay the same to the Holders of the Bonds being purchased against delivery thereof. No
purchase of any Bond in lieu of redemption as described in this Section shall operate to
extinguish the indebtedness of the City evidenced by such Bond. No Holder or Beneficial
Owner may elect to retain a Bond subject to mandatory purchase in lieu of redemption
ARTICLE V
REVENUES; FUNDS AND ACCOUNTS;
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment Revenue Fund.
(A) Subject only to the provisions of this Bond Indenture permitting the
application thereof for the purposes and on the terms and conditions set forth herein, there are
hereby pledged to secure the payment of the principal (and Redemption Price) of and interest on
the Bonds in accordance with their terms and the provisions of this Bond Indenture, all of the
Revenues and any other amounts held in any fund or account established pursuant to this Bond
Indenture, excepting only moneys on deposit in the Rebate Fund. Said pledge shall constitute a
lien on and security interest in such assets and shall attach, be perfected and be valid and binding
from and after delivery by the Bond Trustee of the Bonds, without any physical delivery thereof
or further act.
(B) The City hereby transfers in trust, grants a security interest in and assigns
to the Bond Trustee, for the benefit of the Holders from time to time of the Bonds, all of the
Revenues and other assets pledged in subsection (A) of this Section and all of the right, title and
interest of the City in the Loan Agreement (except for (i) the right to receive any Administrative
Fees and Expenses to the extent payable by the Corporation to the City, (ii) any rights of the City
to indemnification, (iii) the obligation of the Corporation to make deposits pursuant to the Tax
Agreement) and (iv) as otherwise expressly set forth in the Loan Agreement) and Obligation
No. [x]. The Bond Trustee shall be entitled to and shall collect and receive all of the Revenues,
and any Revenues collected or received by the City shall be deemed to be held, and to have been
OHS West:2606457t8.4 24
collected or received, by the City as the agent of the Bond Trustee and shall forthwith be paid by
the City to the Bond Trustee. The Bond Trustee also shall be entitled to and shall take all steps,
actions and proceedings reasonably necessary in its judgment to enforce all of the rights of the
City and all of the obligations of the Corporation under the Loan Agreement and of the Members
under Obligation No. [x].
(C) All Revenues shall be promptly deposited by the Bond Trustee upon
receipt thereof in a special fund designated as the "Revenue Fund" which the Bond Trustee shall
establish, maintain and hold in trust, except as otherwise provided in Sections 5.06 and 5.07 and
except that all moneys received by the Bond Trustee and required by the Loan Agreement or
Obligation No. [x] to be deposited in the Redemption Fund shall be promptly deposited in the
Redemption Fund. All Revenues deposited with the Bond Trustee shall be held, disbursed,
allocated and applied by the Bond Trustee only as provided in this Bond Indenture.
SECTION 5.02. Allocation of Revenues. On or before the following dates, the
Bond Trustee shall transfer from the Revenue Fund and deposit into the following respective
accounts (each of which the Bond Trustee shall establish and maintain within the Revenue Fund)
and then to the Rebate Fund, the following amounts, in the following order of priority, the
requirements of each such account or fund (including the making up of any deficiencies in any
such account resulting from lack of Revenues sufficient to make any earlier required deposit) at
the time of deposit to be satisfied before any transfer is made to any account or fund subsequent
in priority:
First: on the Business Day immediately preceding each Interest Payment Date, to
the Interest Account, the aggregate amount of interest becoming due and payable on the
next succeeding Interest Payment Date on all Bonds then Outstanding;
Second: on the Business Day immediately preceding each Principal Payment
Date, to the Principal Account, the aggregate amount of principal becoming due and
payable on such Principal Payment Date and the aggregate amount of Mandatory Sinking
Account Payments required to be paid into each Sinking Account for Outstanding Term
Bonds at the next ensuing principal payment date and;
Third: on each date specified in the Tax Agreement, to the Rebate Fund, such
amounts as are required to be deposited therein by the Tax Agreement.
Any moneys remaining in the Revenue Fund after the foregoing transfers shall be
transferred to the Corporation as an overpayment of Loan Repayments.
SECTION 5.03. Application of Interest Account. All amounts in the Interest
Account shall be used and withdrawn by the Bond Trustee solely for the purpose of paying
interest on the Bonds as it shall become due and payable (including accrued interest on any
Bonds purchased or redeemed prior to maturity pursuant to this Bond Indenture).
SECTION 5.04. Application of Principal Account.
(A) All amounts in the Principal Account shall be used and withdrawn by the
Bond Trustee solely for the purpose of paying the principal of the Bonds when due and payable,
OHS WesC260645718.4 25
except that all amounts in a Sinking Account shall be used and withdrawn by the Bond Trustee
to purchase or redeem or pay at maturity Term Bonds, as provided herein.
(B) The Bond Trustee shall establish and maintain within the Principal
Account separate subaccounts for each maturity of Tenn Bonds designated as the "
Sinking Account" With respect to each Sinking Account, on each Mandatory Sinking Account
Payment date established for such Sinking Account, the Bond Trustee shall transfer the amount
deposited in the Principal Account pursuant to Section 5.02 for the purpose of making a
Mandatory Sinking Account Payment from the Principal Account to the applicable Sinking
Account. On each Mandatory Sinking Account Payment date, the Bond Trustee shall apply the
Mandatory Sinking Account Payment required on that date to the redemption (or payment at
maturity, as the case may be) of Bonds of the maturity for which such Sinking Account was
established, upon the notice and in the manner provided in Article IV; provided that, at any time
prior to giving such notice of such redemption, the Bond Trustee shall apply such moneys to the
purchase of Bonds of such maturity at public or private sale, as and when and at such prices
(including brokerage and other charges, but excluding accrued interest, which is payable from
the Interest Account) as the Corporation may direct, in writing, except that the purchase price
(excluding accrued interest) shall not exceed the par amount of such Bonds. If, during the
twelve -month period immediately preceding said Mandatory Sinking Account Payment date, the
Bond Trustee has purchased Bonds of the maturity for which such Sinking Account was
established with moneys in the Sinking Account, or, during said period and prior to giving said
notice of redemption, the Corporation has deposited Bonds of such maturity with the Bond
Trustee, or Bonds of such maturity were at any time purchased or redeemed by the Bond Trustee
from the Redemption Fund and allocable to said Mandatory Sinking Account Payment, such
Bonds so purchased or deposited or redeemed shall be applied, to the extent of the full principal
amount thereof, to reduce said Mandatory Sinking Account Payment. All Bonds purchased or
deposited pursuant to this subsection shall be delivered to the Bond Trustee and cancelled. Any
amounts remaining in the Sinking Account when all of the Bonds of the maturity for which such
Sinking Account was established are no longer Outstanding shall be withdrawn by the Bond
Trustee and transferred to the Revenue Fund. All Bonds purchased from the Sinking Account or
deposited by the Corporation with the Bond Trustee shall be allocated first to the next
succeeding Mandatory Sinking Account Payment, then to the remaining Mandatory Sinking
Account Payments as the Corporation directs.
(C) Subject to the terms and conditions set forth in this Section and in
Section 4.01(A), the Bonds shall be redeemed (or paid at maturity, as the case may be) by
application of Mandatory Sinking Account Payments in the following amounts and on the
following dates:
Mandatory Sinking
Account Payment Dates Mandatory Sinking
(December 15) Account Payments
*
* Maturity
OHS WesC260645718.4 26
SECTION 5.05. Application of Redemption Fund. The Bond Trustee shall
establish, maintain and hold in trust a fund separate from any other fund established and
maintained hereunder designated as the "Redemption Fund" and within the Redemption Fund a
separate Optional Redemption Account and a separate Special Redemption Account and shall
accept all moneys deposited for redemption and shall deposit such moneys into said Accounts, as
applicable. All amounts deposited in the Optional Redemption Account and in the Special
Redemption Account shall be accepted and used and withdrawn by the Bond Trustee solely for
the purpose of redeeming Bonds, in the manner and upon the terms and conditions specified in
Article IV, at the next succeeding date of redemption for which notice has not been given and at
the Redemption Prices then applicable to redemptions from the Optional Redemption Account
and the Special Redemption Account, respectively; provided that, at any time prior to giving
such notice of redemption, the Bond Trustee shall, upon written direction of the Corporation,
apply such amounts to the purchase of Bonds at public or private sale, as and when and at such
prices (including brokerage and other charges, but excluding accrued interest, which is payable
from the Interest Account) as the Corporation may direct, except that the purchase price
(exclusive of accrued interest) may not exceed the Redemption Price then applicable to such
Bonds (or, if such Bonds are not then subject to redemption, the par value of such Bonds); and
provided further that in the case of the Optional Redemption Account, in lieu of redemption at
such next succeeding date of redemption, or in combination therewith, amounts in such account
may be transferred to the Revenue Fund and credited against Loan Repayments in order of their
due date as set forth in a Request of the Corporation. All Bonds purchased or redeemed from the
Redemption Fund shall be allocated to applicable Mandatory Sinking Account Payments (in
accordance with the Tax Agreement) designated in a Certificate of the Corporation delivered to
the Bond Trustee, provided, however, if the Corporation fails to deliver such a Certificate, in
inverse order of maturity.
SECTION 5.06. Rebate Fund.
(A) The Bond Trustee shall establish and maintain a fund separate from any
other fund established and maintained hereunder designated as the Rebate Fund. Within the
Rebate Fund, the Bond Trustee shall maintain such accounts as shall be necessary to comply
with instructions of the Corporation given pursuant to the terms and conditions of the Tax
Agreement. Subject to the transfer provisions provided in subsection (E) below, all money at
any time deposited in the Rebate Fund shall be held by the Bond Trustee in trust, to the extent
required to satisfy the Rebate Requirement (as defined in the Tax Agreement), for payment to the
federal government of the United States of America. Neither the City, the Corporation nor the
Holder of any Bonds shall have any rights in or claim to such money. All amounts deposited
into or on deposit in the Rebate Fund shall be governed by this Section, by Section 6.06 and by
the Tax Agreement (which is incorporated herein by reference). The Bond Trustee shall be
deemed conclusively to have complied with such provisions if it follows the written directions of
the Corporation including supplying all necessary information in the manner provided in the Tax
Agreement, and shall have no liability or responsibility to enforce compliance by the Corporation
or the City with the terms of the Tax Agreement. The City shall be deemed conclusively to have
complied with the provisions of this Section if it takes such actions as may reasonably be
requested by the Corporation pursuant to the Tax Agreement.
OHS West:260645718.4 27
(B) Upon the Corporation's written direction, an amount shall be deposited to
the Rebate Fund by the Bond Trustee from deposits by the Corporation or from available
investment earnings on amounts held in the Revenue Fund, if and to the extent required, so that
the balance in the Rebate Fund shall equal the Rebate Requirement. Computations of the Rebate
Requirement shall be furnished to the Bond Trustee by or on behalf of the Corporation in
accordance with the Tax Agreement.
(C) The Bond Trustee shall have no obligation to rebate any amounts required
to be rebated pursuant to this Section, other than from moneys held in the funds and accounts
created under this Bond Indenture or from other moneys provided to it by the Corporation.
(D) At the written direction of the Corporation, the Bond Trustee shall invest
all amounts held in the Rebate Fund in Investment Securities, subject to the restrictions set forth
in the Tax Agreement. Neither the City nor the Bond Trustee shall be liable for any
consequences arising from such investment. Moneys shall not be transferred from the Rebate
Fund except as provided in subsection (E) below.
(E) Upon receipt of the Corporation's written directions, the Bond Trustee
shall remit part or all of the balances in the Rebate Fund to the United States of America, as so
directed. In addition, if the Corporation so directs in writing and certifies that such action is in
accordance with the Tax Agreement, the Bond Trustee will deposit money into or transfer money
out of the Rebate Fund from or into such accounts or funds as directed by the Corporation's
written directions. Any funds remaining in the Rebate Fund, redemption and payment of all of
the Bonds and payment and satisfaction of any Rebate Requirement, or provision made therefor
satisfactory to the Bond Trustee, shall be withdrawn and remitted to the Corporation.
(F) Notwithstanding any other provision of this Bond Indenture, including in
particular Article X, the obligation to remit the Rebate Requirement to the United States of
America and to comply with all other requirements of this Section, Section 6.06 and the Tax
Agreement shall survive the defeasance or payment in full of the Bonds.
SECTION 5.07. Investment of Moneys in Funds and Accounts.
(A) All moneys in any of the funds and accounts established pursuant to this
Bond Indenture shall be invested by the Bond Trustee, upon the written direction of the
Corporation, solely in Investment Securities. Investment Securities shall be purchased at such
prices and on such terms as the Corporation may direct . The directions of the Corporation shall
be subject to the limitations set forth in Section 6.06. All Investment Securities shall be acquired
subject to the limitations as to maturities hereinafter in this Section set forth and such additional
limitations or requirements consistent with the foregoing as may be established by Request of the
Corporation. No Request of the Corporation shall impose any duty on the Bond Trustee
inconsistent with its fiduciary responsibilities. In the absence of directions from the Corporation,
the Bond Trustee shall invest in Investment Securities specified in subsection (f) of the definition
thereof in Section 1.01_
(B) Moneys in all other funds and accounts shall be invested in Investment
Securities maturing not later than the date on which it is estimated that such moneys will be
OHS West:260645718.4 28
required for the purposes specified in this Bond Indenture. Investment Securities purchased
under a repurchase agreement or investment contract may be deemed to mature on the date or
dates on which the Bond Trustee may deliver such Investment Securities for repurchase under
such agreement.
(C) All interest, profits and other income received from the investment of
moneys in any fund or account established pursuant to this Bond Indenture shall be deposited
when received in the fund or account from which the moneys were invested. Notwithstanding
anything to the contrary contained in this paragraph, an amount of interest received with respect
to any Investment Security equal to the amount of accrued interest, if any, paid as part of the
purchase price of such Investment Security shall be credited to the fund or account for the credit
of which such Investment Security was acquired.
(D) Investment Securities acquired as an investment of moneys in any fund or
account established under this Bond Indenture shall be credited to such fund or account. For the
purpose of determining the amount in any such fund or account all Investment Securities credited
to such fund or account shall be valued at the lower of cost (exclusive of accrued interest after
the first payment of interest following acquisition) or par value (plus, prior to the first payment
of interest following acquisition, the amount of interest paid as part of the purchase price).
(E) The Bond Trustee may commingle any of the amounts on deposit in the
funds or accounts established pursuant to this Bond Indenture (other than the Rebate Fund) into a
separate fund or funds for investment purposes only, provided that all funds or accounts held by
the Bond Trustee hereunder shall be accounted for separately as required by this Bond Indenture.
The Bond Trustee may act as principal or agent in the making or disposing of any investment.
The Bond Trustee may sell at the best price reasonably obtainable, or present for redemption,
any Investment Securities so purchased whenever it shall be necessary to provide moneys to
meet any required payment, transfer, withdrawal or disbursement from the fund or account to
which such Investment Security is credited, and, subject to the provisions of Section 8.03 with
respect to the Bond Trustee, neither the City nor the Bond Trustee shall be liable or responsible
for any loss resulting from any investment made in accordance with the provisions of this
Section 5.07.
(F) The City (and the Corporation by its execution of the Loan Agreement)
acknowledges that, to the extent regulations of the Comptroller of the Currency or other
applicable regulatory entity grant the City or the Corporation the right to receive brokerage
confirmations of security transactions as they occur, the City and the Corporation will not
receive such confirmations to the extent permitted by law. The Bond Trustee will furnish the
City and the Corporation periodic cash transaction statements as provided herein which include
detail for all investment transactions made by the Bond Trustee hereunder.
ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Payment. The City shall punctually cause to be paid
the principal of and Redemption Price and interest to become due in respect of all the Bonds, in
OHS West:260645718.4 29
strict conformity with the terms of the Bonds and of this Bond Indenture, according to the true
intent and meaning thereof, but only out of Revenues and other assets pledged for such payment
as provided in this Bond Indenture.
SECTION 6.02. Extension of Payment of Bonds. Except as set forth in Section
9.01, the City 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 or funding of
such Bonds or claims for interest 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
Bond Indenture, except subject to the prior payment in full of the principal of all of the Bonds
then Outstanding and of all claims for interest thereon which shall not have been so extended.
Nothing in this Section shall be deemed to limit the right of the City to issue obligations for the
purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to
constitute an extension of maturity of Bonds.
SECTION 6.03. Against Encumbrances. The City shall not create any pledge,
lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under
this Bond Indenture while any of the Bonds are Outstanding, except the pledges and assignments
created by this Bond Indenture, and will assist the Bond Trustee in contesting any such pledge,
lien, charge or other encumbrance which may be created. Subject to this limitation, the City
expressly reserves the right to enter into one or more other indentures for any of its corporate
purposes, including other programs under the Law, and reserves the right to issue other
obligations for such purposes.
SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment. The
City is duly authorized pursuant to law to issue the Bonds and to enter into this Bond Indenture
and to pledge and assign the Revenues and other assets purported to be pledged and assigned,
respectively, under this Bond Indenture in the manner and to the extent provided in this Bond
Indenture. The Bonds and the provisions of this Bond Indenture are and will be the legal, valid
and binding limited obligations of the City in accordance with their terms, and the City and Bond
Trustee shall at all times, subject to the provisions of this Bond Indenture 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 Bondholders under this Bond Indenture against all claims
and demands of all Persons whomsoever.
SECTION 6.05. Accounting Records and Financial Statements.
(A) The Bond Trustee shall at all times keep, or cause to be kept, proper books
of record and account, prepared in accordance with trust accounting standards, in which
complete and accurate entries shall be made of all transactions made by or on behalf of the Bond
Trustee relating to the receipt, investment, disbursement, allocation and application of the
proceeds of the Bonds, the Revenues, the Loan Agreement, Obligation No. [X] and all funds and
accounts established pursuant to this Bond Indenture. Such books of record and account shall be
available for inspection by the City, the Corporation and any Bondholder, or the agent or
representative of any of them duly authorized in writing during the Bond Trustee's business
hours on days when the Bond Trustee is open for business.
OHS West: 260645718.4 30
(B) The Bond Trustee shall file and furnish on or before the 15th day of each
month to the Corporation and to each Bondholder who shall have filed such Bondholder's name
and address with the Bond Trustee for such purpose, and to the City if requested in writing, a
complete financial statement (which need not be audited) covering receipts, disbursements,
allocation and application of Revenues and any other moneys (including proceeds of Bonds) in
any of the funds and accounts established pursuant to this Bond Indenture for the preceding
month.
(C) The Trustee shall fumish to any Bondholder (upon such Bondholder's
request), and the City if requested in writing a statement of the aggregate principal amount of
Bonds Outstanding and the redemption history of the Bonds (i.e., the dates, amounts, sources of
funds, and distribution of calls to the maturities of any previously occurring redemptions).
SECTION 6.06. Tax Covenants. The City shall at all times do and perform all
acts and things permitted by law and this Bond Indenture which are necessary or desirable to
assure that interest paid on the Bonds (or any of them) will be excluded from gross income for
federal income tax purposes and shall take no action that would result in such interest not being
so excluded. Without limiting the generality of the foregoing, the City agrees to comply with the
provisions of the Tax Agreement. This covenant shall survive payment in full or defeasance of
the Bonds.
SECTION 6.07. Enforcement of Loan Agreement and Obligation No. fXl. The
Bond Trustee shall promptly collect all amounts due from the Corporation pursuant to the Loan
Agreement and from the Obligated Group pursuant to Obligation No. [X], shall perform all
duties imposed upon it pursuant to the Loan Agreement and shall enforce, and take all steps,
actions and proceedings reasonably necessary for the enforcement of all of the rights of the City
and all of the obligations of the Corporation and the other Members.
SECTION 6.08. Amendment of Loan Agreement.
(A) Except as provided in Section 6.08(B), the City shall not amend, modify
or terminate any of the terms of the Loan Agreement, or consent to any such amendment,
modification or termination unless the written consent of the Holders of a majority in principal
amount of the Bonds then Outstanding to such amendment, modification or termination is filed
with the Bond Trustee, provided that no such amendment, modification or termination shall
reduce the amount of Loan Repayments to be made to the City or the Bond Trustee by the
Corporation pursuant to the Loan Agreement, or extend the time for making such payments,
without the written consent of all of the Holders of the Bonds then Outstanding.
(B) Notwithstanding the provisions of Section 6.08(A), the terms of the Loan
Agreement may also be modified or amended from time to time and at any time by the City
without the necessity of obtaining the consent of or any Bondholders, only to the extent
permitted by law and only for any one or more of the following purposes:
(1) to add to the covenants and agreements of the City or the Corporation
contained in the Loan Agreement 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
OHS West260645718.4 31
right or power therein reserved to or conferred upon the City or the Corporation, provided, that
no such covenant, agreement, pledge, assignment or surrender shall materially adversely affect
the interests of the Holders of the Bonds;
(2) to make such provisions for the purpose of curing any ambiguity,
inconsistency or omission, or of curing or correcting any defective provision, contained in the
Loan Agreement, or in regard to matters or questions arising under the Loan Agreement, as the
City may deem necessary or desirable and not inconsistent with the Loan Agreement or this
Bond Indenture, and which shall not materially adversely affect the interests of the Holders of
the Bonds;
(3) to maintain the exclusion from gross income for federal income tax
purposes of interest payable with respect to the Bonds; or
(4) to make any modification or amendment that, if it was a change made to
or under the Indenture, would not require consent of Bondholders.
(C) In executing or consenting to any amendment to the Loan Agreement
permitted by this Section, the City and the Bond Trustee shall receive, and shall be fully
protected in relying upon, an Opinion of Bond Counsel addressed to the City and the Bond
Trustee stating that the execution of such amendment is authorized or permitted by the Loan
Agreement and this Bond Indenture and applicable law, will upon the execution and delivery
thereof be valid and binding obligations of the parties thereto, and that the execution and delivery
thereof will not adversely affect the exclusion from federal gross income of interest on the
Bonds.
SECTION 6.09. Waiver of Laws. The City 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 Bond Indenture or in the Bonds, and all benefit or advantage of any such law or
laws is hereby expressly waived by the City to the extent permitted by law.
SECTION 6.10. Further Assurances. The City will make, execute and deliver
any and all such further indentures, instruments and assurances as may be reasonably necessary
or proper to cant' out the intention or to facilitate the performance of this Bond Indenture and for
the better assuring and confirming unto the Holders of the Bonds of the rights and benefits
provided in this Bond Indenture.
SECTION 6.11. Continuing Disclosure. Pursuant to Section 5.7 of the Loan
Agreement, the Corporation has undertaken all responsibility for compliance with continuing
disclosure requirements to the extent set forth therein, and the City shall have no liability to the
Holders of the Bonds or any other Person with respect to S.E.C. Rule 15c2 -12. Notwithstanding
any other provision of this Bond Indenture, failure of the Corporation or the Dissemination
Agent (as defined in the Continuing Disclosure Certificate) to comply with the Continuing
Disclosure Certificate shall not be considered an Event of Default; however, the Bond Trustee
may (and, at the request of any Participating Underwriter (as defined in the Continuing
Disclosure Certificate) or the Holders of at least 25% aggregate principal amount of Outstanding
OHS West:260645718.4 32
Bonds, shall) or any Bondholder or Beneficial Owner may take such actions as may be necessary
and appropriate, including seeking mandate or specific performance by court order, to cause the
Corporation to comply with its obligations under Section 5.9 of the Loan Agreement or to cause
the Bond Trustee to comply with its obligations under this Section 6.11.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION 7.01. Events of Default. The following events shall be Events of
Default:
(A) default in the due and punctual payment of the principal or Redemption
Price of any Bond when and as the same shall become due and payable, whether at maturity as
therein expressed, by proceedings for redemption, by acceleration or otherwise or default in the
redemption of any Bonds from Mandatory Sinking Account Payments in the amount and at the
times provided therefor;
(B) default in the due and punctual payment of any installment of interest on
any Bond when and as such interest installment shall become due and payable;
(C) default in any material respect by the City in the observance of any of the
other covenants, agreements or conditions on its part in this Bond Indenture or in the Bonds
contained, if such default shall have continued for a period of sixty (60) days after written notice
thereof, specifying such default and requiring the same to be remedied, shall have been given to
the City and the Corporation by the Bond Trustee, or to the City, the Corporation and the Bond
Trustee by Holders of not less than twenty -five per cent (25 %) in aggregate principal amount of
the Bonds at the time Outstanding; or
(D) a Loan Default Event.
Upon actual knowledge of the existence of any Event of Default, the Bond
Trustee and the City shall notify the Corporation, the City, the Master Trustee and the Bond
Trustee in writing as soon as practicable (but no later than 30 days after obtaining actual
knowledge thereof); provided, however, that the Bond Trustee or City need not provide notice of
any Loan Default Event if the Corporation has expressly acknowledged the existence of such
Loan Default Event in a writing delivered to the Bond Trustee, the City.
SECTION 7.02. Acceleration of Maturities. Whenever any Event of Default
referred to in Section 7.01 hereof shall have happened and be continuing, the Bond Trustee may
take the following remedial steps:
(A) In the case of an Event of Default described in Section 7.01 (A) or (B) of
this Bond Indenture, the Bond Trustee may notify the City and the Master Trustee of such Event
of Default, may make a demand for payment under Obligation No. [X] and request the Master
Trustee in writing to give notice to the Credit Group Representative pursuant to Section 4.02 of
the Master Indenture declaring the principal of all obligations issued under the Master Indenture
then outstanding to be due and immediately payable. Upon such declaration by the Master
OHS West260645718.4 - 33
Trustee, the Bond Trustee shall declare the principal of all 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 (and interest shall cease to accrue
as of the date of such declaration unless such declaration is rescinded in accordance herewith),
anything in this Bond Indenture to the contrary notwithstanding. In addition, the Bond Trustee
and the City may take whatever action at law or in equity is necessary or desirable to collect the
payments due under Obligation No. [X];
(B) In the case of an Event of Default described in Section 7.01(C) of this
Bond Indenture, the Bond Trustee may take whatever action at law or in equity is necessary or
desirable to enforce the performance, observance or compliance by the City with any covenant,
condition or agreement by the City under this Bond Indenture; and
(C) In the case of an Event of Default described in Section 7.01(D) of this
Bond Indenture, the Bond Trustee may take whatever action the City would be entitled to take,
and shall take whatever action the City would be required to take, pursuant to the Loan
Agreement to remedy the Loan Default Event.
Any such declaration, however, 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 City or the Corporation shall deposit with the Bond Trustee a
sum sufficient to pay all the principal, Mandatory Sinking Amount Payments or Redemption
Price 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, and the reasonable charges and
expenses of the Bond Trustee, and if the Bond Trustee has received notification from the Master
Trustee that the declaration of acceleration of Obligation No. [X] has been annulled pursuant to
the Master Indenture and any and all other defaults known to the Bond Trustee (other than in the
payment of principal of and interest on the Bonds due and payable solely by reason of such
declaration) shall have been made good or cured to the satisfaction of the Bond Trustee or
provision deemed by the Bond Trustee to be adequate shall have been made therefor, then, and in
every such case, the Bond Trustee shall, on behalf of the Holders of all of the Bonds, rescind and
annul such declaration and its consequences and waive such default; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any
right or power consequent thereon.
Immediately after any acceleration hereunder, the Bond Trustee, to the extent it
has not already done so, shall notify in writing the City of the occurrence of such acceleration.
Nothing contained herein, however, shall require the Bond Trustee to exercise any
remedies in connection with an Event of Default unless the Bond Trustee shall have actual
knowledge or shall have received written notice of such Event of Default.
SECTION 7.03. Application of Revenues and Other Funds After Default. If an
Event of Default shall occur and be continuing, all Revenues and any other funds then held or
thereafter received by the Bond Trustee under any of the provisions of this Bond Indenture
(subject to Section 11.10 and other than moneys required to be deposited in the Rebate Fund)
shall be applied by the Bond Trustee as follows and in the following order:
OHS West260645718.4 34
(A) To the payment of any expenses necessary in the opinion of the Bond
Trustee to protect the interests of the Holders of the Bonds and payment of reasonable fees,
charges and expenses of the Bond Trustee (including reasonable fees and disbursements of its
counsel) incurred in and about the performance of its powers and duties under this Bond
Indenture; and
(B) To the payment of the principal or Redemption Price of and interest then
due on the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the
payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this
Bond Indenture (including Section 6.02), as follows:
(1) Unless the principal of all of the Bonds shall have become or have
been declared due and payable,
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; and
Second: To the payment to the Persons entitled thereto of the
unpaid principal (including Mandatory Sinking Account Payments) or
Redemption Price of any Bonds which shall have become due, whether at
maturity or by call for redemption, in the order of their due dates, with interest on
the overdue principal at the rate bome by the respective Bonds, and, if the amount
available shall not be sufficient to pay in full all the Bonds due on any date,
together with such interest, then to the payment thereof ratably, according to the
amounts of principal or Redemption Price due on such date to the Persons entitled
thereto, without any discrimination or preference.
(2) If the principal of all of the Bonds shall have become or have been
declared due and payable, to the payment of the principal and interest then due and
unpaid upon the Bonds, with interest on the overdue principal at the rate borne by the
Bonds, and, if the amount available shall not be sufficient to pay in full the whole amount
so due and unpaid, then to the payment thereof ratably, without preference or priority of
principal over interest, or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Bond over any other Bond, according to the
amounts due respectively for principal and interest, to the Persons entitled thereto without
any discrimination or preference.
SECTION 7.04. Bond Trustee to Represent Bondholders. The Bond Trustee is
hereby irrevocably appointed (and the successive respective Holders of the Bonds, by taking and
holding the same, shall be conclusively deemed to have so appointed the Bond Trustee) as
trustee and true and lawful attorney -in -fact of the Holders of the Bonds for the purpose of
exercising and prosecuting on their behalf such rights and remedies as may be available to such
Holders under the provisions of the Bonds, this Bond Indenture, the Loan Agreement, Obligation
OHS West:260645718.4 35
No. [X], the Law and applicable provisions of any other law. Upon the occurrence and
continuance of an Event of Default or other occasion giving rise to a right in the Bond Trustee to
represent the Bondholders, the Bond Trustee in its discretion may, and upon the written request
of the Holders of not less than twenty -five percent (25 %) in aggregate principal amount of the
Bonds then Outstanding, and upon being indemnified to its satisfaction therefor, shall, proceed to
protect or enforce its rights or the rights of such Holders by such appropriate action, suit,
mandamus or other proceedings as it shall deem most effectual to protect and enforce any such
right, at law or in equity, either for the specific performance of any covenant or agreement
contained herein, or in aid of the execution of any power herein granted, or for the enforcement
of any other appropriate legal or equitable right or remedy vested in the Bond Trustee or in such
Holders under this Bond Indenture, the Loan Agreement, Obligation No. [X], the Law or any
other law; and upon instituting such proceeding, the Bond Trustee shall be entitled, as a matter of
right, to the appointment of a receiver of the Revenues and other amounts and assets pledged
under this Bond Indenture, pending such proceedings. If more than one such request is received
by the Bond Trustee from the Holders, the Bond Trustee shall follow the written request
executed by the Holders of the greater percentage of Bonds then Outstanding in excess of
twenty -five percent (25 %). All rights of action under this Bond Indenture or the Bonds or
otherwise may be prosecuted and enforced by the Bond 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 Bond Trustee shall be brought in the name of the Bond Trustee
for the benefit and protection of all the Holders of such Bonds, subject to the provisions of this
Bond Indenture (including Section 6.02).
SECTION 7.05. Bondholders' Direction of Proceedings. Anything in this Bond
Indenture to the contrary notwithstanding, the Holders of a majority in aggregate principal
amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent,
instruments in writing executed and delivered to the Bond Trustee, and upon indemnifying the
Bond Trustee to its satisfaction therefor, to direct the method of conducting all remedial
proceedings taken by the Bond Trustee hereunder, provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Bond Indenture, and that the
Bond Trustee shall have the right to decline to follow any such direction which in the opinion of
the Bond Trustee would be unjustly prejudicial to Bondholders not parties to such direction.
SECTION 7.06. Limitation on Bondholders' Right to Sue. No Holder of any
Bond shall have 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 Bond Indenture, the Loan
Agreement, Obligation No. [x], the Law or any other applicable law with respect to such Bond,
unless (1) such Holder shall have given to the Bond Trustee written notice of the occurrence of
an Event of Default; (2) the Holders of not less than twenty -five per cent (25 %) in aggregate
principal amount of the Bonds then Outstanding shall have made written request upon the Bond
Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding
in its own name; provided, however, that if more than one such request is received by the Bond
Trustee from the Holders, the Bond Trustee shall follow the written request executed by the
Holders of the greater percentage of Bonds then Outstanding in excess of twenty -five percent
(25 %); (3) such Holder or said Holders shall have tendered to the Bond Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such
request upon the Bond Trustee to exercise the powers hereinbefore granted or to institute such
OHS wesc260645718.4 36
suit, action or proceeding in its own name; (3) such Holder or said Holders shall have tendered to
the Bond Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request; and (4) the Bond Trustee shall have refused or omitted to
comply with such request for a period of sixty (60) days after such written request shall have
been received by, and said tender of indemnity shall have been made to, the Bond Trustee.
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 Holder of Bonds of any
remedy hereunder or under law; it being understood and intended that no one or more Holders of
Bonds shall have any right in any manner whatever by such Holder's or Holders' action to affect,
disturb or prejudice the security of this Bond Indenture or the rights of any other Holders of
Bonds, or to enforce any right under this Bond Indenture, the Loan Agreement, Obligation No.
[x], the Law 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
Holders of the Outstanding Bonds, subject to the provisions of this Bond Indenture (including
Section 6.02)..
SECTION 7.07. Absolute Obligation of City. Nothing contained in Section 7.06
or in any other provision of this Bond Indenture or in the Bonds shall affect or impair the
obligation of the City, which is absolute and unconditional, to pay the principal or Redemption
Price of and interest on the Bonds to the respective Holders of the Bonds at their respective dates
of maturity, or upon 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 Holders, which is also
absolute and unconditional, to enforce such payment by virtue of the contract embodied in the
Bonds.
SECTION 7.08. Termination of Proceedings. In case any proceedings taken by
the Bond Trustee or any one or more Bondholders on account of any Event of Default shall have
been discontinued or abandoned for any reason or shall have been determined adversely to the
Bond Trustee or the Bondholders, then in every such case the City, the Bond Trustee and the
Bondholders, 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 City, the Bond Trustee and the Bondholders shall continue as though no such
proceedings had been taken.
SECTION 7.09. Remedies Not Exclusive. No remedy herein conferred upon or
reserved to the Bond Trustee or to the Holders 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 7.10. No Waiver of Default. No delay or omission of the Bond
Trustee or of any Holder of the Bonds to exercise any right or power arising upon the occurrence
of any default shall impair any such right or power or shall be construed to be a waiver of any
such default or an acquiescence therein; and every power and remedy given by this Bond
OHS West:260645718.4 37
Indenture to the Bond Trustee or the Holders of the Bonds may be exercised from time to time
and as often as may be deemed expedient.
ARTICLE VIII
THE BOND TRUSTEE
SECTION 8.01. Appointment, Duties, Immunities and Liabilities of Bond
Trustee.
(A) The City (at the request of the Corporation) hereby appoints Wells Fargo
Bank, National Association, as bond trustee. The Bond 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 specifically set forth in this Bond Indenture, and,
except to the extent required by law, no implied covenants or obligations shall be read into this
Bond Indenture against the Bond Trustee. The Bond Trustee shall, during the existence of any
Event of Default (which has not been cured or waived), exercise such of the rights and powers
vested in it by this Bond Indenture, and use the same degree of care and skill in their exercise, as
a prudent person that customarily engages in activities essentially similar to those provided for
the Bond Trustee hereunder would exercise or use under the circumstances in the conduct of
such person's own affairs.
(B) The City may, and upon written request of the Corporation shall, remove
the Bond Trustee at any time unless an Event of Default shall have occurred and then be
continuing, and shall remove the Bond Trustee if at any time requested to do so by an instrument
or concurrent instruments in writing signed by the Holders of not less than a majority in
aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in
writing) or if at any time the Bond Trustee shall cease to be eligible in accordance with
subsection (E) of this Section, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Bond Trustee or its property shall be appointed, or any
public officer shall take control or charge of the Bond Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of
such removal to the Bond Trustee, and thereupon shall appoint, with the written consent of the
Corporation, a successor Bond Trustee by an instrument in writing. The City, the Corporation or
any Holder may at any time petition any court of competent jurisdiction for the removal for
cause of the Bond Trustee.
(C) The Bond Trustee may at any time resign by giving written notice of such
resignation to the City and the Corporation and by giving the Bondholders notice of such
resignation by mail at the addresses shown on the registration books maintained by the Bond
Trustee. Upon receiving such notice of resignation, the City shall promptly appoint, with the
written consent of the Corporation and the Credit Facility Provider (if any), a successor Bond
Trustee by an instrument in writing. The Bond Trustee shall not be relieved of its duties until
such successor Bond Trustee has accepted appointment. If the Bond Trustee has or shall acquire
any conflicting interest, as defined in the Trust Indenture Act of 1939, as amended, it shall,
within 90 days after ascertaining that it has a conflicting interest, or within 30 days after
receiving written notice from the City or the Corporation (so long as the Corporation is not in
OHS West260645718.4 38
default under the Loan Agreement) that it has a conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect specified in this Subsection (C).
(D) Any removal or resignation of the Bond Trustee and appointment of a
successor Bond Trustee shall only become effective upon acceptance of appointment by the
successor Bond Trustee. If no successor Bond Trustee shall have been appointed and have
accepted appointment within thirty (30) days of giving notice of removal or notice of resignation
as aforesaid, the resigning Bond Trustee or any Bondholder (on behalf of such Bondholder and
all other Bondholders) may petition any court of competent jurisdiction for the appointment of a
successor Bond Trustee, and such court may thereupon, after such notice (if any) as it may deem
proper, appoint such successor Bond Trustee. Any successor Bond Trustee appointed under this
Bond Indenture shall signify its acceptance of such appointment by executing and delivering to
the City and to its predecessor Bond Trustee a written acceptance thereof, and thereupon such
successor Bond 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 Bond Trustee, with like effect as if originally named Bond Trustee herein; but,
nevertheless at the request of the City or the request of the successor Bond Trustee, such
predecessor Bond 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 Bond Trustee all the right, title and interest
of such predecessor Bond Trustee in and to any property held by it under this Bond Indenture
and shall pay over, transfer, assign and deliver to the successor Bond Trustee any money or other
property subject to the trusts and conditions herein set forth. Upon request of the successor Bond
Trustee, the City 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 Bond Trustee all such
moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of
appointment by a successor Bond Trustee as provided in this subsection, the successor Bond
Trustee shall mail a notice of the succession of such Bond Trustee to the trusts hereunder to the
Bondholders at the addresses shown on the registration books maintained by the Bond Trustee.
(E) The Bond Trustee and any successor Bond Trustee shall be a trust
company or bank having a combined capital and surplus of at least seventy -five million dollars
($75,000,000) (or providing a guarantee of the full and prompt performance by the Bond Trustee
of its obligations under this Bond Indenture by a guarantor with such combined capital and
surplus), duly authorized to exercise trust powers and subject to supervision or examination by
federal or state authority. If such bank or trust company publishes a report of condition at least
annually, pursuant to law or to the requirements of any supervising or examining authority above
referred to, then for the purpose of this subsection the combined capital and surplus of such bank
or trust company shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Bond Trustee shall cease to be
eligible in accordance with the provisions of this subsection (E), the Bond Trustee shall resign
immediately in the manner and with the effect specified in this Section.
SECTION 8.02. Mercer or Consolidation. Any company into which the Bond
Trustee may be merged or converted or with which it may be consolidated or any company
resulting from any merger, conversion or consolidation to which it shall be a party or any
company to which the Bond Trustee may sell or transfer all or substantially all of its corporate
OHS West260645718.4 39
trust business, provided such company shall be eligible under subsection (E) of Section 8.01,
shall be the successor to such Bond Trustee without the execution or filing of any paper or any
further act, anything herein to the contrary notwithstanding.
SECTION 8.03. Liability of Bond Trustee.
(A) The recitals of facts herein and in the Bonds contained shall be taken as
statements of the City, and the Bond Trustee assumes no responsibility for the correctness of the
same, makes no representations as to the validity or sufficiency of this Bond Indenture, of the
Loan Agreement, of the Remarketing Agreement, of Obligation No. [x], or of the Bonds, and
shall incur no responsibility in respect thereof, other than in connection with the duties or
obligations herein or in the Bonds assigned to or imposed upon it except for any recital or
representation specifically relating to the Bond Trustee or its powers. The Bond Trustee assumes
no responsibility or liability for any information, statement or recital in any offering
memorandum or other disclosure material prepared or distributed in connection with the issuance
of the Bonds. The Bond Trustee shall, however, be responsible for its representations contained
in its certificate of authentication on the Bonds. The Bond Trustee shall not be liable in
connection with the performance of its duties hereunder, except for its own negligence or willful
misconduct. The Bond Trustee may become the owner of Bonds with the same rights it would
have if it were not Bond Trustee, and, to the extent permitted by law, may act as depositary 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 Bondholders, whether or not such
committee shall represent the Holders of a majority in principal amount of the Bonds then
Outstanding.
(B) The Bond Trustee shall not be liable for any error of judgment made in
good faith by any of its officers, employees, agents or representatives, unless it shall be proved
that the Bond Trustee was negligent.
(C) The Bond Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Holders of not less
than twenty -five percent (25 %) 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 Bond Trustee, or exercising any trust or power conferred upon the Bond Trustee
under this Bond Indenture.
(D) The Bond Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by Section 7.02 of this Bond Indenture (except for declaring an
acceleration of the Bonds in accordance with the terms thereof) at the request, order or direction
of any of the Bondholders pursuant to the provisions of this Bond Indenture unless such
Bondholders shall have offered to the Bond Trustee reasonable security or indemnity,
satisfactory to the Bond Trustee, against the costs, expenses and liabilities which may be
incurred therein or thereby. The Bond Trustee has no obligation or liability to the Holders for
the payment of interest on, principal of or redemption premium, if any, with respect to the Bonds
from its own funds; but rather the Bond Trustee's obligations shall be limited to the performance
of its duties hereunder.
OHS West260645718.4 40
(E) Except with respect to Events of Default specified in Section 7.01(A) or
(B), the Bond Trustee shall not be deemed to have knowledge of any Event of Default unless and
until an officer at the Corporate Trust Office responsible for the administration of its duties
hereunder shall have actual knowledge thereof or the Bond Trustee shall have received written
notice thereof at the Corporate Trust Office. The Bond Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions, covenants or
agreements herein or of any of the documents executed in connection with the Bonds, or as to the
existence of a default or Event of Default thereunder. The Bond Trustee shall not be responsible
for the validity or effectiveness of any collateral given to or held by it.
(F) The Bond Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through attorneys -in -fact, agents, receivers,
officers, employees or representatives, and shall not be answerable for the negligence or
misconduct of any such attorney -in -fact, agent, receiver, officer, employee or representative
selected by it with due care. The Bond Trustee shall be entitled to advice of counsel and other
professionals concerning all matters of trust and its duty hereunder, but the Bond Trustee shall
not be answerable for the professional malpractice of any counsel or other professional
(including without limiting the generality of the foregoing, attorneys -in -law or certified public
accountants) in connection with the rendering of such counsel's or other professionals' advice in
accordance with the terms of this Bond Indenture, if such counsel or other professional was
selected by the Bond Trustee with due care.
(G) The Bond Trustee shall not be concerned with or accountable to anyone
for the subsequent use or application of any moneys that shall be released or withdrawn in
accordance with the provisions hereof.
(H) Whether or not therein expressly so provided, every provision of this Bond
Indenture, the Loan Agreement, Obligation No. [x] or related documents relating to the conduct
or affecting the liability of or affording protection to the Bond Trustee shall be subject to the
provisions of this Article.
SECTION 8.04. Right of Bond Trustee to Rely on Documents. The Bond
Trustee shall be protected in acting upon any notice, resolution, request, consent, order,
certificate, report, opinion, bond or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Bond Trustee may consult
with counsel, who may be counsel of or to the City and/or counsel selected by the Bond Trustee,
with regard to legal questions, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by it hereunder in good
faith and in accordance therewith.
Whenever in the administration of the trusts imposed upon it by this Bond
Indenture the Bond Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved
and established by a Certificate of the City, and such Certificate shall be full warrant to the Bond
Trustee for any action taken or suffered in good faith under the provisions of this Bond Indenture
in reliance upon such Certificate, but in its discretion the Bond Trustee may, in lieu thereof,
OHS West260645718.4 41
accept other evidence of such matter or may require such additional evidence as to it may deem
reasonable.
SECTION 8.05. Preservation and Inspection of Documents. All documents
received by the Bond Trustee under the provisions of this Bond Indenture shall be retained in its
possession and shall be subject at all reasonable times to the inspection of the City, the
Corporation, and any Bondholder, and their agents and representatives duly authorized in
writing, during the Bond Trustee's business hours on days when the Bond Trustee is open for
business..
SECTION 8.06.Compensation and Indemnification. The Corporation shall pay
to the Bond Trustee from time to time reasonable compensation for all services rendered under
this Bond Indenture, and also all reasonable expenses, charges, legal and consulting fees and
other disbursements and those of its attorneys, agents and employees, incurred in and about the
performance of its powers and duties under this Bond Indenture.
No provision of this Bond Indenture shall require the Bond 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 its rights or powers, if it has not received the agreed
compensation for such services or, in cases where the Bond Trustee has a right to reimbursement
or indemnification for such performance or exercise, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 8.07.Bond Trustee's Relationship to City.
(A) The Bond Trustee acknowledges that the Bonds are payable solely from
Revenues, including payments to be made by the Corporation pursuant to the Loan Agreement
and the Bonds, that the City is a passive conduit for the payments to be made by the Corporation
pursuant to the Loan Agreement and the Bonds and that the Bonds are not general obligations of
the City. The Bond Trustee, by execution of this Bond Indenture, has accepted the assignment
by the City to the Bond Trustee of the payments to be made by the Corporation pursuant to the
Loan Agreement and the Bonds and of certain of the rights of the City under the Loan
Agreement and the Bonds and, to the extent permitted by law and subject to the limiting
provisions contained herein, has assumed any and all responsibilities of the City (other than the
right of the City to indemnification under the Loan Agreement and administration expense and
fees under the Loan Agreement and as otherwise set forth therein) under the Loan Agreement
and the Bonds to enforce those rights. The Bond Trustee will notify the City of any default
known to the Bond Trustee under the Loan Agreement or the Bonds, and will at the expense of
the Corporation and upon receipt of a Request of the City provide the City with any information
reasonably available to the Bond Trustee which the City may reasonably request regarding any
events of default.
(B) The Bond Trustee agrees to provide the City at the expense of the
Corporation and within a reasonable time after the receipt of a Request of the City any financial
or other information it may reasonably request relating to the Corporation or to this Bond
OHS West:260645718.4 42
Indenture or the Loan Agreement and the Bonds which the City finds necessary or desirable and
which is reasonably available to the Bond Trustee.
ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS INDENTURE
SECTION 9.01. Amendments Permitted. (A) This Bond Indenture and the
rights and obligations of the City, of the Bond Trustee and of the Holders of the Bonds may be
modified or amended from time to time and at any time by indenture or indentures supplemental
hereto, which the City and the Bond Trustee may enter into with the written consent of the
Corporation when the written consent the Holders of a majority in aggregate principal amount of
the Bonds then Outstanding, shall have been filed with the Bond Trustee. No such modification
or amendment shall (1) extend the fixed maturity of any Bond, or reduce the amount of principal
thereof, or extend the time of payment or reduce the amount of any Mandatory Sinking Account
Payment, or reduce the rate of interest thereon, or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, without the consent of the Holder
of each Bond so affected, or (2) reduce the aforesaid percentage of Bonds the consent of the
Holders 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 Bond Indenture prior to
or on a parity with the lien created by this Bond Indenture, or deprive the Holders of the Bonds
of the lien created by this Bond Indenture on such Revenues and other assets (except as expressly
provided in this Bond Indenture), without the consent of the Holders of all Bonds then
Outstanding. It shall not be necessary for the consent of the Bondholders to approve the
particular form of any Supplemental Bond Indenture, but it shall be sufficient if such consent
shall approve the substance thereof. Promptly after the execution by the City and the Bond
Trustee of any Supplemental Bond Indenture pursuant to this subsection (A), the Bond Trustee
shall mail a notice, setting forth in general terms the substance of such Supplemental Bond
Indenture to the Bondholders at the addresses shown on the registration books maintained by the
Bond Trustee. Any failure to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such Supplemental Bond Indenture.
(B) This Bond Indenture and the rights and obligations of the City, of the
Bond Trustee and of the Holders of the Bonds may also be modified or amended from time to
time and at any time by an indenture or indentures supplemental hereto, which the City and the
Bond Trustee may enter into without the consent of any Bondholders, but with the written
consent of the Corporation, but only to the extent permitted by law and only for any one or more
of the following purposes:
(1) to add to the covenants and agreements of the City contained in
this Bond Indenture 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 City, provided, that no such
covenant, agreement, pledge, assignment or surrender shall materially adversely affect
the interests of the Holders of the Bonds;
OHS West:260645718.4 43
(2) to make such provisions for the purpose of curing any ambiguity,
inconsistency or omission, or of curing or correcting any defective provision, contained
in this Bond Indenture, or in regard to matters or questions arising under this Bond
Indenture, as the City or the Bond Trustee may deem necessary or desirable and not
inconsistent with this Bond Indenture, and which shall not materially adversely affect the
interests of the Holders of the Bonds;
(3) to modify, amend or supplement this Bond 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, and
which shall not materially adversely affect the interests of the Holders of the Bonds;
(4) to provide any additional procedures, covenants or agreements to
maintain the exclusion from gross income for federal income tax purposes of the interest
on the Bonds, including the amendment of any Tax Agreement;
(5) to facilitate (i) the transfer of Bonds from one Securities
Depository to another in the succession of Securities Depositories, or (ii) the withdrawal
from a Securities Depository of Bonds held in a Book -Entry System and the issuance of
replacement Bonds in fully registered form to Persons other than a Securities Depository;
or
(6) to make any other changes which will not materially adversely
affect the interests of the Holders of the Bonds.
(C) The Bond Trustee may in its discretion, but shall not be obligated to, enter
into any such Supplemental Bond Indenture authorized by subsections (A) or (B) of this Section
which materially adversely affects the Bond Trustee's own rights, duties or immunities under
this Bond Indenture or otherwise.
(D) In executing, or accepting the additional trusts created by, any
Supplemental Bond Indenture permitted by this Article or the modification thereby of the trusts
created by this Bond Indenture, the Bond Trustee and the City shall receive, and shall be fully
protected in relying upon, a Favorable Opinion of Bond Counsel addressed and delivered to the
Bond Trustee and the City stating that the execution of such Supplemental Bond Indenture is
permitted by and in compliance with this Bond Indenture, and that the execution and delivery
thereof will not adversely affect the exclusion from federal gross income of interest on the
Bonds.
(E) The Bond Trustee shall provide written notice and a copy of any
amendment to this Bond Indenture or the Loan Agreement to S &P and Moody's at least fifteen
(15) days in advance (unless S &P and Moody's waives or reduces such time period) of the
execution of any amendment to such documents.
SECTION 9.02. Effect of Sumlemental Bond Indenture. Upon the execution of
any Supplemental Bond Indenture pursuant to this Article, this Bond Indenture shall be deemed
to be modified and amended in accordance therewith, and the respective rights, duties and
OHS wesc260645718.4 44
obligations under this Bond Indenture of the City, the Bond Trustee and all Holders 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 Bond Indenture shall be deemed to be part of the terms and conditions of this
Bond Indenture for any and all purposes.
SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds. Bonds
delivered after the execution of any Supplemental Bond Indenture pursuant to this Article may,
and if the City so determines shall, bear a notation by endorsement or otherwise in form
approved by the City and the Bond Trustee as to any modification or amendment provided for in
such Supplemental Bond Indenture, and, in that case, upon demand of the Holder of any Bond
Outstanding at the time of such execution and presentation of such Holder's Bond for the
purpose at the Corporate Trust Office of the Bond Trustee or at such additional offices as the
Bond Trustee may select and designate for that purpose, a suitable notation shall be made on
such Bond. If the Supplemental Bond Indenture shall so provide, new Bonds so modified as to
conform, in the opinion of the City and the Bond Trustee, to any modification or amendment
contained in such Supplemental Bond Indenture, shall be prepared by the Bond Trustee at the
expense of the Corporation, executed by the City and authenticated by the Bond Trustee, and
upon demand of the Holders of any Bonds then Outstanding shall be exchanged at the Corporate
Trust Office of the Bond Trustee, without cost to any Bondholder, for Bonds then Outstanding,
upon surrender for cancellation of such Bonds, in equal aggregate principal amounts of the same
maturity.
SECTION 9.04. Amendment of Particular Bonds. The provisions of this Article
shall not prevent any Bondholder from accepting any amendment as to the particular Bonds held
by such Bondholder, provided that due notation thereof is made on such Bonds.
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bond Indenture.
(A) The Bonds may be paid by the City or the Bond Trustee on behalf of the
City in any of the following ways:
(i) by paying or causing to be paid the principal or Redemption Price
of and interest on all Bonds Outstanding, as and when the same become due and payable;
(ii) by depositing with the Bond Trustee, in trust, at or before maturity,
moneys or securities in the necessary amount (as provided in Section 10.03) to pay when due or
redeem all Bonds then Outstanding; or
(iii) by delivering to the Bond Trustee, for cancellation by it, all Bonds
then Outstanding.
(B) If the City shall also pay or cause to be paid all other sums payable
hereunder by the City and the Corporation shall have paid all Administrative Fees and Expenses
OHS West260645718.4 45
payable to the City pursuant to the Loan Agreement, then and in that case at the election of the
City (evidenced by a Certificate of the City filed with the Bond Trustee signifying the intention
of the City to discharge all such indebtedness and this Bond Indenture), and notwithstanding that
any Bonds shall not have been surrendered for payment, this Bond Indenture and the pledge of
Revenues and other assets made under this Bond Indenture and all covenants, agreements and
other obligations of the City under this Bond Indenture (except as otherwise provided in Section
5.06) shall cease, terminate, become void and be completely discharged and satisfied. In such
event, upon the request of the City, the Bond Trustee shall cause an accounting for such period
or periods as may be requested by the City to be prepared and filed with the City and shall
execute and deliver to the City all such instruments as may be necessary to evidence such
discharge and satisfaction, and the Bond Trustee shall pay over, transfer, assign or deliver to the
Corporation all moneys or securities or other property held by it pursuant to this Bond Indenture
which are not required for the payment or redemption of Bonds not theretofore surrendered for
such payment or redemption; provided that in all events moneys in the Rebate Fund shall be
subject to the provisions of Section 5.06.
SECTION 10.02. Discharge of Liability on Bonds.
(A) Upon the deposit with the Bond 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 Bond (whether upon or prior to its maturity or the redemption date of such Bond),
provided that, if such Bond is to be redeemed prior to maturity, notice of such redemption shall
have been given as in Article IV provided or provision satisfactory to the Bond Trustee shall
have been made for the giving of such notice, then all liability of the City in respect of such
Bond shall cease, terminate and be completely discharged, except only that thereafter the Holder
thereof shall be entitled to payment of the principal of and interest on such Bond by the City, and
the City shall remain liable for such payments, but only out of such money or securities
deposited with the Bond Trustee as aforesaid for their payment, subject, however, to the
provisions of Section 10.04.
(B) The City may at any time surrender to the Bond Trustee for cancellation
by it any Bonds previously issued and delivered, which the City 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 Bond Trustee.
(A) Whenever in this Bond Indenture it is provided or permitted that there be
deposited with or held in trust by the Bond 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 Bond Trustee in the funds and accounts established pursuant to
this Bond Indenture (other than the Rebate Fund) and shall be:
(i) 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 in Article IV provided or provision satisfactory to the
OHS West:260645718.4 46
Bond Trustee shall have been made for the giving of such notice, the amount to be deposited or
held shall be the principal amount or Redemption Price of such Bonds and all unpaid interest
thereon to the redemption date; or
(ii) United States Government Obligations (not callable by the issuer
thereof prior to maturity), the principal of and interest on which when due (without any income
from the reinvestment thereof) will provide money sufficient to pay the principal or Redemption
Price of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the
Bonds to be paid or redeemed, as such principal or Redemption Price and interest become due;
provided that, in the case of Bonds which are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as in Article IV provided or provision satisfactory to
the Bond Trustee shall have been made for the giving of such notice;
provided, in each case, that the Bond Trustee shall have been irrevocably instructed (by the terms
of this Bond Indenture or by Request of the City) to apply such money to the payment of such
principal or Redemption Price and interest with respect to such Bonds, and provided further, if
the Bonds are then rated by S &P, the Bond Trustee shall have received written confirmation
from S &P that the rating on the Bonds will not be reduced or withdrawn solely as a result of the
defeasance; and provided further, that with respect to the deposit of United States Government
Obligations pursuant to subsection (B) in connection with an advance refunding, the Bond
Trustee shall have received a verification report from a firm of independent accountants or other
qualified verifier, addressed to the City and the Bond Trustee, acceptable in form and substance
to the Bond Trustee, to the effect that the amount deposited is sufficient to make the payments
specified therein.
SECTION 10.04. Payment of Bonds After Discharge of Bond Indenture.
Notwithstanding any provisions of this Bond Indenture, any moneys held by the Bond Trustee in
trust for the payment of the principal of or premium, if any, or interest on, any Bonds and
remaining unclaimed for three years (or, if shorter, one day before such moneys would escheat to
the State of California under then applicable California law) after such principal or interest, as
the case may be, has become due and payable (whether at maturity or upon call for redemption
or by acceleration as provided in this Bond Indenture), if such moneys were so held at such date,
or three years (or, if shorter, one day before such moneys would escheat to the State of California
under then applicable California law) 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 to the Corporation free
from the trusts created by this Bond Indenture upon receipt of an indemnification agreement
acceptable to the City and the Bond Trustee indemnifying the City and the Bond Trustee with
respect to claims of Holders of Bonds which have not yet been paid and containing the
agreement of the Corporation to remain liable for the amount so repaid to the Corporation, and
all liability of the City and the Bond Trustee with respect to such moneys shall thereupon cease;
provided, however, that before the repayment of such moneys to the Corporation as aforesaid,
the Bond Trustee may (at the cost of the Corporation) first mail to the Holders of Bonds which
have not yet been paid, at the addresses shown on the registration books maintained by the Bond
Trustee, a notice, in such form as may be deemed appropriate by the Bond Trustee with respect
to the Bonds so payable and not presented and with respect to the provisions relating to the
repayment to the Corporation of the moneys held for the payment thereof.
OHS West:260645718.4 47
ARTICLE XI
MISCELLANEOUS
SECTION 11.01.Limited Liability of City. Notwithstanding anything in this
Bond Indenture or in the Bonds contained, the City shall not be required to advance any moneys
derived from any source other than the Revenues and other assets pledged under this Bond
Indenture for any of the purposes in this Bond Indenture mentioned, whether for the payment of
the principal or Redemption Price of or interest on the Bonds or for any other purpose of this
Bond Indenture.
SECTION 11.02. Successor is Deemed Included in All References to
Predecessor. Whenever in this Bond Indenture either the City or the Bond 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 Bond Indenture contained by or on behalf of the City or the
Bond Trustee shall bind and inure to the benefit of the respective successors and assigns thereof
whether so expressed or not.
SECTION 11.03. Limitation of Rights to Parties, Corporation and Bondholders.
Nothing in this Bond Indenture or in the Bonds expressed or implied is intended or shall be
construed to give to any Person other than the City, the Bond Trustee, the Corporation and the
Holders of the Bonds, any legal or equitable right, remedy or claim under or in respect of this
Bond 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 City, the Bond Trustee, the Corporation and the Holders of the Bonds.
SECTION 11.04. Waiver of Notice. Whenever in this Bond 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.
SECTION 11.05. Destruction of Bonds. Whenever in this Bond Indenture
provision is made for the cancellation by the Bond Trustee and the delivery to the City of any
Bonds, the Bond Trustee shall, in lieu of such cancellation and delivery, destroy such Bonds, and
deliver a certificate of such destruction to the City.
SECTION 11.06. Severability of Invalid Provisions. If any one or more of the
provisions contained in this Bond 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 Bond Indenture and such
invalidity, illegality or unenforceability shall not affect any other provision of this Bond
Indenture, and this Bond Indenture shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein.
SECTION 11.07. Notices. Subject to Section 11.04, any notice or request to or
demand upon the Bond Trustee shall be in writing and may be served or presented, and such
OHS West:260645718.4 48
demand may be made, at the Corporate Trust Office of the Bond Trustee or at such other address
as may have been filed in writing by the Bond Trustee with the City. Any notice to or demand
upon the City and the Corporation shall be deemed to have been sufficiently given or served for
all purposes by being delivered or sent by Electronic Means receipt confirmed or by being
mailed by first -class mail, postage prepaid, addressed as follows:
(1) to the City at:
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, California 92658
Attention: Treasurer
Telephone: (949) 644 -3123
Facsimile: (949) 644 -3339
E -mail:
(2) to the Corporation at:
Hoag Memorial Hospital Presbyterian
One Hoag Drive
P.O. Box 6100
Newport Beach, California 92658 -6100
Attention: Chief Financial Officer
Telephone: (949) 764 -4411
Facsimile: (949) 764 -4416
E -mail:
(3) to the Bond Trustee at:
Wells Fargo Bank, National Association
707 Wilshire Boulevard, 17th Floor
Los Angeles, CA 90017
Attention: Corporate Trust Services
Telephone: (213) 614 -3350
Facsimile: (213) 614 -3355
E -mail:
(or in each case at such other or additional addresses as may have been filed in writing with the
Bond Trustee).
(b) S &P and Moody's shall be entitled to written notice (in the same
fashion as is specified for notices in subsection (A) above) to the following address, as applicable
(or such other address as may be filed in writing with the Bond Trustee upon the occurrence of
each of the following events: (1) redemption of the Bonds in whole; (2) acceleration of the
Bonds and (3) an amendment or modification of the Loan Agreement or Bond Indenture.
Standard & Poor's
OHS West260645718.4 49
55 Water Street, 38th Floor
New York, NY 10041
Attn: Municipal Structured Surveillance
Telephone: (212) 438 -2021
Facsimile: (212) 438 -2151
Moody's Investor Service
99 Church Street
New York, NY 10007
SECTION 11.08. Evidence of Rights of Bondholders. Any request, consent or
other instrument required or permitted by this Bond Indenture to be signed and executed by
Bondholders may be in any number of concurrent instruments of substantially similar tenor and
shall be signed or executed by such Bondholders 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 Bond Indenture and shall be conclusive in
favor of the Bond Trustee and of the City if made in the manner provided in this Section.
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 such notary
public or officer 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 bond registration books held by
the Bond Trustee.
Any request, consent, or other instrument or writing of the Holder of any Bond
shall bind every future Holder of the same Bond and the Holder of every Bond issued in
exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the
Bond Trustee or the City in accordance therewith or reliance thereon.
SECTION 11.09. Disqualified Bonds. In determining whether the Holders of
the requisite aggregate principal amount of Bonds have concurred in any demand, request,
direction, consent or waiver under this Bond Indenture, Bonds which are owned or held by or for
the account of the City, the Corporation or any of the other Members 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 City, the Corporation or any of the other Members or any
other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, but only to the extent the Bond Trustee has actual knowledge
of such ownership. 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 Bond 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
OHS WesC260645718.4 50
with, the City, the Corporation or any of the other Members or any other obligor on the Bonds.
In case of a dispute as to such right, any decision by the Bond Trustee taken upon an Opinion of
Counsel shall be full protection to the Bond Trustee,
SECTION 11.10. Money Held for Particular Bonds. The money held by the
Bond Trustee for the payment of the interest, principal or Redemption Price 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 uninvested by it for the Holders of the Bonds entitled thereto, subject, however, to the
provisions of Section 10.04.
SECTION 11.11. Funds and Accounts. The Bond Trustee may establish such
funds and accounts as it deems necessary or appropriate to fulfill its obligations under this Bond
Indenture. Any fund required by this Bond Indenture to be established and maintained by the
Bond Trustee may be established and maintained in the accounting records of the Bond 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 shall at all times be maintained in accordance with
customary standards of the corporate trust industry, to the extent practicable, and with due regard
for the requirements of Section 6.06 and for the protection of the security of the Bonds and the
rights of every Holder thereof.
SECTION 11.12. Waiver of Personal Liability. No member, officer, agent or
employee of the City shall be individually or personally liable for the payment of the principal
(or Redemption Price) of or interest 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 Bond Indenture.
SECTION 11.13. Business Days. If any date specified herein shall not be a
Business Day, any action required on such date may be made on the next succeeding Business
Day with the same effect as if made on such date.
SECTION 11.14. Affiliates Not Liable. No organization with whom the
Corporation is affiliated in any manner, other than the Members, is liable under this Bond
Indenture, the Master Indenture, Obligation No. Lx] or the Loan Agreement for the commitments
of the Corporation or any of the Members.
SECTION 11.15. Governing Law and Venue. This Bond Indenture and the
Bonds are contracts made under the laws of the State of California, and shall be governed by and
construed in accordance with the Constitution and such laws applicable to contracts made and
performed in said State.
SECTION 11.16. Execution in Several Counterparts. This Bond 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 City and the Bond
Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
OHS West:260645718.4 51
IN WITNESS WHEREOF, CITY OF NEWPORT BEACH has caused this Bond
Indenture to be signed in its name by its Mayor and its seal to be hereunto affixed and attested by
its City Clerk, and WELLS FARGO BANK, NATIONAL ASSOCIATION, in token of its
acceptance of the trusts created hereunder, has caused this Bond Indenture to be signed in its
corporate name by its duly authorized officer, all as of the day and year first above written.
[SEAL]
Attest:
:
City Clerk
OHS West260645718.4
CITY OF NEWPORT BEACH
Un
Mayor
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Bond Trustee
Authorized Officer
NUMBER
R -1
Iu�4411:3YII.1
FORM OF BOND
[NOT YET FULLY UPDATED OR REVIEWED]
CITY OF NEWPORT BEACH
REVENUE BONDS
(HOAG MEMORIAL HOSPITAL PRESBYTERIAN)
SERIES 2009A
INTEREST MATURITY DATED
RATE DATE DATE
_% June 1, 2009
REGISTERED HOLDER: Cede & Co.
AMOUNT
$[2009A PAR]
CUSIP
NUMBER
PRINCIPAL AMOUNT: [PRINCIPAL AMOUNT IN WORDS] DOLLARS
CITY OF NEWPORT BEACH, a public entity of the State of California (herein
called the "City "), for value received, hereby promises to pay (but only out of the Revenues and
other assets pledged therefor as hereinafter mentioned) to the registered holder stated above, or
registered assigns, on the maturity date specified above (subject to any right of prior redemption
hereinafter mentioned), the principal amount stated above in lawful money of the United States
of America; and to pay interest thereon (but only from said Revenues and other assets pledged
therefor) in like lawful money from the date hereof until payment of such principal sum shall be
discharged as provided in the Bond Indenture hereinafter mentioned, at the rate per annum stated
above, payable on June 1 and December 1 of each year, commencing December 1, 2009. The
principal (or redemption price) hereof is payable upon surrender at the Corporate Trust Office (as
defined in the Bond Indenture) of Wells Fargo Bank, National Association (herein called the
"Bond Trustee "). Interest hereon is payable by check mailed by first class mail on each interest
payment date (except with respect to defaulted interest) to the person whose name appears on the
bond registration books of the Bond Trustee as the registered holder hereof on the fifteenth
(15th) day (whether or not a Business Day as defined in the Bond Indenture hereinafter defined)
of the calendar month preceding the calendar month in which such related Interest Payment Date
falls (the "Record Date ") at the address appearing on the bond registration books maintained by
the Bond Trustee, or by wire transfer to an account within the United States of America to any
registered holder of at least $1,000,000 in principal amount of Bonds if such registered holder
has submitted a written request for such wire transfer to the Bond Trustee at least one Business
Day prior to the Record Date. Interest shall be calculated on a three hundred sixty (360) day
year basis of twelve (12) thirty (30) day months.
OHS West:260645718.4 A -1
This Bond is one of a duly authorized issue of bonds of the City designated as
"City of Newport Beach Revenue Bonds (Hoag Memorial Hospital Presbyterian), Series 2009x"
(herein called the "Bonds "), limited in aggregate principal amount to forty-seven million three
hundred twenty -five thousand dollars ($[2009A PAR]). The Bonds are issued pursuant to a bond
indenture, dated as of June 1, 2009, between the City and the Bond Trustee (herein called the
"Bond Indenture "). The Bonds are issued for the purpose of making a loan to Hoag Memorial
Hospital Presbyterian (herein called the "Corporation "), pursuant to a loan agreement, dated as
of June 1, 2009 (herein called the "Loan Agreement "), between the City and the Corporation, for
the purposes and on the terms and conditions set forth therein. The Bonds are further secured by
an assignment of the right, title and interest of the City in the Loan Agreement (to the extent and
as more particularly described in the Bond Indenture) and in Obligation No. [X], dated as of June
1, 2009 (herein called "Obligation No. [X] "), and issued by the Corporation, pursuant to the
terms of a master trust indenture, dated as of May 1, 2007 (the "Master Indenture "), between the
Corporation, Newport Health Care Center LLC, a California limited liability company ( "NHC "),
the sole corporate member for which is the Corporation, and Wells Fargo Bank, National
Association, as master trustee (the "Master Trustee ") and a supplemental master indenture, dated
as of June 1, 2009, between the Corporation and the Master Trustee.
Reference is hereby made to the Bond Indenture (a copy of which is on file at said
Corporate Trust Office of the Bond Trustee) and all indentures supplemental thereto and, to the
Loan Agreement (a copy of which is on file at said Corporate Trust Office of the Bond Trustee)
for a description of the rights thereunder of the registered holders of the Bonds, of the nature and
extent of the security, of the rights, duties and immunities of the Bond Trustee and of the rights
and obligations of the City thereunder, to all the provisions of which Bond Indenture and Loan
Agreement the registered holder of this Bond, by acceptance hereof, assents and agrees. All
capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed
to them in the Bond Indenture.
The Bonds and the interest thereon are payable from Revenues and, from certain
funds and accounts established and maintained under the Bond Indenture, and are secured by a
pledge and assignment of said Revenues and of amounts held in the funds and accounts
established pursuant to the Bond Indenture (including proceeds of the sale of the Bonds but
excluding amounts held in the Rebate Fund), subject only to the provisions of the Bond
Indenture permitting the application thereof for the purposes and on the terms and conditions set
forth in the Bond Indenture. The Bonds are further secured by an assignment of the right, title
and interest of the City in the Loan Agreement and in Obligation No. [X] (to the extent and as
more particularly described in the Bond Indenture).
THE BONDS DO NOT CONSTITUTE A DEBT OR LIABILITY OF THE
STATE OF CALIFORNIA OR OF ANY POLITICAL SUBDIVISION THEREOF, OTHER
THAN THE AUTHORITY, BUT SHALL BE PAYABLE SOLELY FROM THE FUNDS
PROVIDED THEREFOR. THE AUTHORITY SHALL NOT BE OBLIGATED TO PAY THE
PRINCIPAL OF THE BONDS, OR THE REDEMPTION PREMIUM, IF ANY, OR INTEREST
THEREON, EXCEPT FROM THE FUNDS PROVIDED UNDER THIS INDENTURE AND
THE LOAN AGREEMENT AND NEITHER THE FAITH AND CREDIT NOR THE TAXING
POWER OF THE STATE OF CALIFORNIA OR OF ANY POLITICAL SUBDIVISION
THEREOF, INCLUDING THE AUTHORITY, IS PLEDGED TO THE PAYMENT OF THE
OHS West260645718.4 A -2
PRINCIPAL OF OR THE REDEMPTION PREMIUM, IF ANY, OR INTEREST ON THE
BONDS. THE ISSUANCE OF THE BONDS SHALL NOT DIRECTLY OR INDIRECTLY
OR CONTINGENTLY OBLIGATE THE STATE OF CALIFORNIA OR ANY POLITICAL
SUBDIVISION THEREOF TO LEVY OR TO PLEDGE ANY FORM OF TAXATION OR TO
MAKE ANY APPROPRIATION FOR THEIR PAYMENT. THE AUTHORITY HAS NO
TAXING POWER.
The Bonds are subject to redemption prior to their maturity in part, by lot, from
Mandatory Sinking Account Payments, as provided in the Bond Indenture, on any December 1,
on or after December 1, 20 , at the principal amount thereof together with interest accrued
thereon to the date fixed for redemption, without premium.
The Bonds are subject to redemption prior to their stated maturity, at the option of
the City (which option shall be exercised upon Request of the Corporation given (unless waived
by the Bond Trustee) at least forty -five (45) days prior to such redemption date), from any source
of available funds, as a whole or in part on any date on or after December 1, 20_, by lot, at a
Redemption Price equal to 100% of the principal amount of Bonds called for redemption,
together with interest accrued thereon to the date fixed for redemption.
The Bonds are subject to redemption prior to their stated maturity, at the option of
the City (which option shall be exercised upon Request of the Corporation given to the Bond
Trustee (unless waived by the Bond Trustee) at least forty -five (45) days prior to the date fixed
for redemption) in whole or in part in such amounts and maturities as may be specified by the
Corporation, by lot, on any date, from hazard insurance or condemnation proceeds received with
respect to the facilities of any of the Members and deposited in the Special Redemption Account,
at a Redemption Price equal to the principal amount thereof, without premium.
Notice of redemption shall be mailed by the Bond Trustee, not less than thirty
(30) days, and not more than sixty (60) days prior to the redemption date, to the respective
holders of any Bonds designated for redemption at their addresses appearing on the bond
registration books of the Bond Trustee. If this Bond is called for redemption and payment is
duly provided therefor as specified in the Bond Indenture, interest shall cease to accrue hereon
from and after the date fixed for redemption. Any notice of redemption may be rescinded by
written notice delivered in the same manner as the initial redemption notice up through ten day
prior to the proposed redemption date.
If an Event of Default shall occur, the principal of all Bonds may be declared due
and payable upon the conditions, in the manner and with the effect provided in the Bond
Indenture. The Bond Indenture provides that in certain events such declaration and its
consequences may be rescinded by the holders of not less than a majority in aggregate principal
amount of the Bonds then outstanding or by the Bond Trustee.
The Bonds are issuable only as fully registered Bonds in denominations of $5,000
or any integral multiple thereof. Subject to the limitations and upon payment of the charges, if
any, provided in the Bond Indenture, Bonds may be exchanged, at the Corporate Trust Office of
the Bond Trustee, for a like aggregate principal amount of Bonds of other authorized
denominations of the same maturity.
OHS West:260645718.4 A -3
This Bond is transferable by the registered holder hereof, in person or by his
attorney duly authorized in writing, at the Corporate Trust Office of the Bond Trustee, but only
in the manner, subject to the limitations and upon payment of the charges, if any, provided in the
Bond Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a Bond or
Bonds, of authorized denomination or denominations, of the same maturity and for the same
aggregate principal amount, will be issued to the transferee in exchange herefor.
The City and the Bond Trustee may treat the registered holder hereof as the
absolute owner hereof for all purposes, and the City and the Bond Trustee shall not be affected
by any notice to the contrary.
The Bond Indenture and the rights and obligations of the City and of the
registered holders of the Bonds and of the Bond Trustee may be modified or amended from time
to time and at any time in the manner, to the extent, and upon the terms provided in the Bond
Indenture; provided that no such modification or amendment shall (i) extend the fixed maturity
of this Bond, or reduce the amount of principal hereof, or extend the time of payment or reduce
the amount of any Mandatory Sinking Account Payment provided in the Bond Indenture for the
payment of the Bonds, or reduce the rate of interest hereon, or change the method of determining
the rate of interest thereon, or extend the time of payment of interest hereon, or reduce any
premium payable upon the redemption hereof, without the consent of the registered holder
hereof, or (ii) reduce the percentage of Bonds the consent of the registered holders 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 the Bond Indenture prior to or on a parity with the lien
created by the Bond Indenture, or deprive the registered holders of the Bonds of the lien created
by the Bond Indenture on such Revenues and other assets (except as expressly provided in the
Bond Indenture), without the consent of the registered holders of all Bonds then outstanding, all
as more fully set forth in the Bond Indenture.
It is hereby certified and recited that any and all act, conditions and things
required to exist, to have happened and to have been performed precedent to and in the issuance
of this Bond do exist, have happened and have been performed in due time, form and manner as
required by the by the Constitution and laws of the State of California, and that the amount of
this Bond, together with all other indebtedness of the City, does not exceed any limit prescribed
by the Constitution and laws of the State of California, and is not in excess of the amount of
Bonds permitted to be issued under the Bond Indenture.
This Bond shall not be entitled to any benefit under the Bond Indenture, or
become valid or obligatory for any purpose, until the certificate of authentication and registration
hereon endorsed shall have been signed by the Bond Trustee.
OHS West:260645718.4 A -4
IN WITNESS WHEREOF, CITY OF NEWPORT BEACH has caused this Bond
to be executed in its name and on its behalf by the facsimile signature of its Mayor and its seal to
be reproduced hereon by facsimile and attested by the facsimile signature of its City Clerk, all as
of the date set forth above.
14Tr'LO7MeL�li�/Y�]:711
go
(Seal)
Attest:
L-3
City Clerk
OHS West260645718.4 A -5
Mayor
[FORM OF BOND TRUSTEE'S CERTIFICATE OF AUTHENTICATION
AND REGISTRATION]
This is one of the Bonds described in the within mentioned Bond Indenture,
which has been authenticated on the date set forth below.
Dated: , 2009.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Bond Trustee
Authorized Signatory
OHS West26W5718.4 A -6
[FORM OF ASSIGNMENT]
For value received, the undersigned do(es) hereby sell, assign and transfer unto
the within- mentioned Bond and hereby irrevocably constitute(s) and
appoint(s) , attorney, to transfer the same on the books of the within -
named Bond Trustee, with full power of substitution in the premises.
Dated:
NOTICE: Signature must be guaranteed by a qualified guarantor institution.
OHS West:260645718.4 A -7
EXHIBIT B
FORM OF REQUISITION — COSTS OF ISSUANCE FUND
REQUISITION NO. _ - COSTS OF ISSUANCE FUND
Re: City of Newport Beach Revenue Bonds (Hoag Memorial Hospital Presbyterian),
Series 2009A
Hoag Memorial Hospital Presbyterian (the "Corporation ") hereby requests Wells
Fargo Bank, National Association (the "Bond Trustee "), as Bond Trustee under the bond
indenture between the City of Newport Beach (the "City ") and the Bond Trustee, dated as of
June 1, 2009, relating to the City of Newport Beach Revenue Bonds (Hoag Memorial Hospital
Presbyterian), Series 2009A (the "Bonds "), to pay to the following Persons the following
amounts for the following purposes from the Costs of Issuance Fund:
ITEM NO. TO AMOUNT PURPOSE
OHS West260645718.4 B -1
The Corporation hereby certifies that obligations in the amounts stated above
have been incurred by the Corporation and are presently due and payable, and that each item is a
proper charge against the Costs of Issuance Fund and has not been previously paid from said
fund or from the proceeds of the Bonds.
Dated: 20 .
HOAG MEMORIAL HOSPITAL
PRESBYTERIAN
LE
Authorized Representative
OHS West260645718.4 B -2
EXHIBIT B
FORM OF REQUISITION - PROJECT FUND
REQUISITION NO. _ - PROJECT FUND
To: Wells Fargo Bank, National Association
707 Wilshire Boulevard
Los Angeles, California
Attn: Corporate Trust Services
Re: City of Newport Beach Revenue Bonds
(Hoag Memorial Hospital Presbyterian), Series 2009A (the "Bonds ")
The undersigned, on behalf of Hoag Memorial Hospital Presbyterian (the
"Corporation "), hereby requests payment, from the Project Fund (as defined in the Indenture
executed and delivered in connection with the Bonds, the "Indenture "), the total amount shown
below to the order of the payee or payees named below, as payment or reimbursement for costs
incurred or expenditures made in connection with the Project (as defined in the Indenture). The
item number of payment, payee(s), the purpose by serial classification and the amount of the
disbursement requested are as follows:
SEE SCHEDULE I ATTACHED HERETO
The Corporation hereby certifies as follows:
That each obligation mentioned herein is relating to the Project, has been properly
incurred by the Corporation and is presently due and payable and is a proper charge against the
Project Fund, and each item for which payment is requested is or was necessary in connection
with the acquisition, construction, installation, or rehabilitation of the Project. None of the items
for which payment is requested has been paid previously from the Project Fund and is only made
with respect to elements of the Project for which all approvals, if any, required under the
California Environmental Quality Act have been previously finalized, none of the payments
herein requested will result in a breach of the representations and agreements in the Tax
Agreement (as defined in the Indenture) relating to the Project.
Dated:
HOAG MEMORIAL HOSPITAL PRESBYTERIAN
Authorized Representative
OHS West260645718.4 C -1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION1.01. Definitions ........................................................................ ..............................3
SECTION 1.02. Content of Certificates and Opinions .............................. .............................14
SECTION 1.03. Interpretation ................................................................... .............................14
ARTICLE II
SECTION
2.01.
Authorization of Bonds ................................................... .............................15
SECTION
SECTION
2.02.
Terms of the Bonds ......................................................... .............................15
4.02.
SECTION
2.03.
Execution of Bonds ......................................................... .............................16
20
SECTION
2.04.
Transfer of Bonds ............................................................ .............................16
SECTION
SECTION
2.05.
Exchange of Bonds ......................................................... .............................17
21
SECTION
2.06.
Bond Register .................................................................. .............................17
SECTION
2.07.
Temporary Bonds ............................................................ .............................17
SECTION
2.08.
Bonds Mutilated, Lost, Destroyed or Stolen ................... .............................17
SECTION
2.09.
Use of Securities Depository ........................................... .............................18
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
SECTION
3.01.
Issuance of Bonds ........................................................... .............................19
SECTION
SECTION
3.02.
Application of Proceeds of Bonds ................................... .............................19
4.02.
SECTION
3.03.
Establishment and Application of Costs of issuance Fund ..........................
20
SECTION
3.04.
Establishment and Application of Project Fund .............. .............................20
SECTION
SECTION
3.05.
Validity of Bonds .......................................................... ...............................
21
ARTICLE IV
ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment; Revenue Fund ........................ ............................... 24
SECTION 5.02. Allocation of Revenues ................................................. ............................... 25
OHS Wes1:260645718.4 _i_
REDEMPTION OF BONDS
SECTION
4.01.
Terms of Redemption ... ...............................
SECTION
4.02.
Selection of Bonds for Redemption ............
SECTION
4.03.
Notice of Redemption .. ...............................
SECTION
4.04.
Partial Redemption of Bonds ......................
SECTION
4.05.
Effect of Redemption ... ...............................
SECTION
4.06.
Purchase in Lieu of Optional Redemption..
ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment; Revenue Fund ........................ ............................... 24
SECTION 5.02. Allocation of Revenues ................................................. ............................... 25
OHS Wes1:260645718.4 _i_
TABLE OF CONTENTS
(continued)
Page
SECTION
5.03.
Application of Interest Account ....................................
............................... 25
SECTION
5.04.
Application of Principal Account ..................................
............................... 25
SECTION
5.05.
Application of Redemption Fund ..................................
............................... 27
SECTION
5.06.
Rebate Fund ..................................................................
............................... 27
SECTION
5.07.
Investment of Moneys in Funds and Accounts .............
............................... 28
ARTICLE VI
PARTICULAR COVENANTS
SECTION
6.01.
Punctual Payment ............................................................ .............................29
38
SECTION
6.02.
Extension of Payment of Bonds .................................... ...............................
30
SECTION
6.03.
Against Encumbrances .................................................... .............................30
34
SECTION
6.04.
Power to Issue Bonds and Make Pledge and Assignment ...........................
30
SECTION
6.05.
Accounting Records and Financial Statements ............... .............................30
36
SECTION
6.06.
Tax Covenants ............................................................... ...............................
31
SECTION
6.07.
Enforcement of Loan Agreement and Obligation No. [X] ...........................
31
SECTION
6.08.
Amendment of Loan Agreement ................................... ...............................
31
SECTION
6.09.
Waiver of Laws ............................................................... .............................32
37
SECTION
6.10.
Further Assurances ........................................................ ...............................
32
SECTION
6.11.
Continuing Disclosure ..................................................... .............................32
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION
7.01.
Events of Default ............................................................. .............................33
38
SECTION
7.02.
Acceleration of Maturities ............................................. ...............................
33
SECTION
7.03.
Application of Revenues and Other Funds After Default ............................
34
SECTION
7.04.
Bond Trustee to Represent Bondholders ....................... ...............................
35
SECTION
7.05.
Bondholders' Direction of Proceedings ........................ ...............................
36
SECTION
7.06.
Limitation on Bondholders' Right to Sue ..................... ...............................
36
SECTION
7.07.
Absolute Obligation of City .......................................... ...............................
37
SECTION
7.08.
Termination of Proceedings .......................................... ...............................
37
SECTION
7.09.
Remedies Not Exclusive ............................................... ...............................
37
SECTION
7.10.
No Waiver of Default .................................................... ...............................
37
ARTICLE VIII
THE BOND TRUSTEE
SECTION
8.01.
Appointment, Duties, Immunities and Liabilities of Bond Trustee .............
38
SECTION
8.02.
Merger or Consolidation ............................................... ...............................
39
SECTION
8.03.
Liability of Bond Trustee .............................................. ...............................
40
SECTION
8.04.
Right of Bond Trustee to Rely on Documents .............. ...............................
41
SECTION
8.05.
Preservation and Inspection of Documents ................... ...............................
42
OHS We t260645718.4 -ii-
TABLE OF CONTENTS
(continued)
Page
SECTION 8.06. Compensation and Indemnification .............................. ............................... 42
SECTION 8.07. Bond Trustee's Relationship to City ............................. ............................... 42
ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS INDENTURE
SECTION
9.01.
Amendments Permitted ................................................... .............................43
45
SECTION
9.02.
Effect of Supplemental Bond Indenture .......................... .............................44
46
SECTION
9.03.
Endorsement of Bonds; Preparation of New Bonds ..... ...............................
45
SECTION
9.04.
Amendment of Particular Bonds ..................................... .............................45
47
ARTICLE X
DEFEASANCE
SECTION
10.01.
Discharge of Bond Indenture ........................................ ...............................
45
SECTION
10.02.
Discharge of Liability on Bonds ................................... ...............................
46
SECTION
10.03.
Deposit of Money or Securities with Bond Trustee ...... ...............................
46
SECTION
10.04.
Payment of Bonds After Discharge of Bond Indenture ...............................
47
ARTICLE XI
MISCELLANEOUS
SECTION
11.01.
Limited Liability of City ............................................... ...............................
48
SECTION
11.02.
Successor is Deemed Included in All References to Predecessor ................
48
SECTION
11.03.
Limitation of Rights to Parties, Corporation and Bondholders ....................
48
SECTION
11.04.
Waiver of Notice ........................................................... ...............................
48
SECTION
11.05.
Destruction of Bonds ..................................................... ...............................
48
SECTION
11.06.
Severability of Invalid Provisions ................................... .............................48
SECTION
11.07.
Notices ............................................................................. .............................48
SECTION
11.08.
Evidence of Rights of Bondholders .............................. ...............................
50
SECTION
11.09.
Disqualified Bonds ........................................................ ...............................
50
SECTION
11.10.
Money Held for Particular Bonds ................................. ...............................
51
SECTION
11.11.
Funds and Accounts ...................................................... ...............................
51
SECTION
11.12.
Waiver of Personal Liability ......................................... ...............................
51
SECTION
11.13.
Business Days ............................................................... ...............................
51
SECTION
11.14.
Affiliates Not Liable ..................................................... ...............................
51
SECTION
11.15.
Governing Law and Venue ........................................... ...............................
51
SECTION
11.16.
Execution in Several Counterparts ................................ ...............................
51
EXHIBIT A
FORM OF BOND ............................................................ ............................A
-1
EXHIBIT B
FORM OF REQUISITION — COSTS OF ISSUANCE FUND ...................
B -1
OHS West:260645718.4 -iii-