HomeMy WebLinkAboutContract 20502050
$5,040,000
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
PUBLIC FACILITY LEASE REVENUE BONDS, SERIES 2007B
(MUNICIPAL LIQUOR STORES PROJECT)
MORTGAGE AND SECURITY AGREEMENT AND TRUST INDENTURE
Dated as of September 1, 2007
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY,
as Issuer
to
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
This instrument was drafted by
Kennedy & Graven, Chartered (AJP)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
316005v7 AJP CL162-37
TABLE OF CONTENTS
Page
PARTIES, RECITALS AND GRANTING CLAUSES
Parties ...........................................................................................................................
Recitals .........................................................................................................................
Granting Clauses ..........................................................................................................
ARTICLE I
Definitions and Interpretation
Section 1.01. Definitions ..........................................................................................
Section 1.02. Characteristics of Certificate or Opinion ............................................
Section 1.03. Additional Provisions as to Interpretation ..........................................
ARTICLE II
Form, Execution and Registration of Bonds
...................1
................... l
................... 2
...................... 5
...................... 9
....................10
Section 2.01. Form, Maturities and Numeration of Series 2007B Bonds ........................................ l l
Section 2.02. Execution of Bonds .................................................................................................... 12
Section 2.03. Authentication of Bonds ............................................................................................. 12
Section 2.04. Registration, Transfers and Exchange .........................................
...............................
12
Section 2.05. Payment of Interest on Bonds; Interest Rights Preserved .......................................... 13
Section 2.06. Ownership of Bonds ................................................................................................... 14
Section 2.07. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds ...................................... 14
Section 2.08. Conditions for Authentication of Series 2007B Bonds .............................................. 15
Section 2.09. Additional Bonds; Generally ...................................................................................... 16
Section 2.1.0. Additional Bonds to Pay the Cost of Improvements .................................................. 16
Section 2.11, Additional Bonds for Refianding Purposes ................................................................. 16
Section 2.12. Delivery of Additional Bonds .................................................................................... 16
Section 2.13. Book-Entry Only Systein ........................................................................................... 17
ARTICLE III
Redemption of Bonds
Section 3.01. Redemption of Series 2007B Bonds .......................................................................... 19
Section 3.02. Written Notice to Trustee ........................................................................................... 19
Section 3.03. Mailing and Publication of Notice ............................................................................. 19
Section 3.04. Deposit for Redemption .............................................................................................. 19
Section 3.05. Payment of Redeemed Bonds ..................................................................................... 20
Section 3.06. Cancellation of Redeemed Bonds .............................................................................. 20
Section 3.07. Partial Redemption of Bonds ...................................................................................... 20
316005v7 AJP CL162-37
ARTICLE IV
Bond Proceeds; Project Fund
Section 4.01. Deposit of Series 2007B Bond Proceeds .................................................................... 22
Section 4.02. Establishment of Project Fund .................................................................................... 22
Section 4.03. Project Costs Defined ................................................................................................. 22
Section 4.04. Payments from Project Fund ...................................................................................... 23
Section 4.05. Application of Balance in Project Fund ..................................................................... 24
Section 4.06 Investment of Project Fund ......................................................................................... 24
ARTICLE V
Disposition of Pledged Revenues
Section 5.01. Bond Fund ..................................................................................................................27
Section 5.02. Reserve Fund ..............................................................................................................27
Section 5.03. Investment of Funds ...................................................................................................28
Section 5.04. Compliance with Arbitrage Restrictions; Rebate Requirements ...............................29
ARTICLE VI
Particular Covenants of the Authority
Section 6.01. Payment of Bonds ....................................................................................................... 30
Section 6.02. Extensions of Payments of Bonds and Interest ..........................................................30
Section 6.03. Authority of the Authority ..........................................................................................30
Section 6.04. Concerning the Lease ................................................................................................. 31
Section 6.05. To Observe All Covenants and Terms; Limitations on Authority's Obligations......31
Section 6.06. Liens; Further Assurances .......................................................................................... 31
ARTICLE VII
Remedies on Default
Section 7.01. Events of Default ........................................................................................................ 32
Section 7.02. Acceleration of Maturity ............................................................................................ 32
Section 7.03. Enforcement of Covenants and Conditions ................................................................ 32
Section 7.04. Appointment of Receivers .......................................................................................... 33
Section 7.05. Application of Money ................................................................................................. 33
Section 7.06. Right of Trustee to Act Without Possession of Bonds ............................................... 35
Section 7.07. Power of Majority of Owners ..................................................................................... 35
Section 7.08. Limitation on Suits by Owners ................................................................................... 35
Section 7.09. Waiver by Owners ...................................................................................................... 36
Section 7.10. Remedies Cumulative, Delay Not to Constitute Waiver ........................................... 36
Section 7.11. Restoration of Rights Upon Discontinuance of Proceedings ..................................... 36
316005v7 AJP CL162-37 11
ARTICLE VIII
Concerning the Trustee
Section 8.01. Acceptance of Trust and Prudent Performance Thereof ............................................ 37
Section 8.02. Trustee May Rety Upon Certain Documents and Opinions ...................................... 38
Section 8.03. Trustee Not Responsible for Indenture Statements, Validity .................................... 39
Section 8.04. Limits on Duties and Liabilities of Trustee ................................................................ 39
Section 8.05. Money Held in Trust ................................................................................................... 39
Section 8.06. Obligation of Trustee .................................................................................................. 39
Section 8.07. Notice to Owners, Etc ................................................................................................. 39
Section 8.08. Intervention in Judicial Proceedings .......................................................................... 40
Section 8.09. Further Investigation by Trustee ...................................................................
..............
40
Section 8.10. Trustee to Retain Records ........................................................................................... 40
Section 8.11. Compensation. of Trustee ............................................................................................ 40
Section 8.12. Trustee May Hold Bonds ............................................................................................ 41
Section 8.13. Appointment of Trustee .............................................................................................. 41
Section 8.14. Merger of Trustee ....................................................................................................... 41
Section 8.15. Resignation or Removal of Trustee ............................................................................ 41
Section 8.16. Appointment of Successor Trustee .........................................................................
.... 42
Section 8.17. Transfer of Rights and Property to Successor Trustee ............................................... 42
Section 8.18. Appointment of Successor or Alternate Paying Agents ............................................. 42
ARTICLE IX
Concerning the Owners
Section 9.01.. Execution of Instruments by Owners .........................................................................44
Section 9.02. Waiver of Notice .........................................................................................................44
Section 9.03. Determination of Owner Concurrence .......................................................................44
Section 9.04. Owners' Meeting ........................................................................................................45
Section 9.05. Revocation by Owners ...............................................................................................46
ARTICLE X
Payment, Defeasance and Release
Section 10.01. Payment and Discharge of Indenture .........................................................................48
Section 10.02. Bonds Deemed not Outstanding After Deposit ..........................................................49
Section 10.03. Unclaimed Money to be Returned .............................................................................49
ARTICLE XI
Supplemental Indentures
Section 11.01. Purposes for Which Supplemental Indentures maybe Executed .............................. 51
Section 11.02. Execution of Supplemental Indenture ........................................................................52
Section 11.03. Discretion of Trustee ..................................................................................................52
Section 11.04. Modification of Indenture with Consent of Owners .................................................. 52
Section 11.05. Supplemental Indentures to be Part of Indenture ...............................................
3I6005v7 AJP CL162-37 111
Section 11.06, Rights of City Unaffected ...........................................................................................53
ARTICLE XII
Amendments to the Lease and
the Ground Lease
Section 12.01. Amendments to the Lease, the Ground Lease Not
Requiring Consent of Owners .................................................................................... 54
Section 12.02. Amendments to the Lease and the Ground Lease Requiring
Consent of Owners ..................................................................................................... 54
Section 12.03. Rights of Authority .....................................................................................................54
ARTICLE XIII
Miscellaneous
Section 13.01. Covenants of Authority Bind Successors and Assigns ..............................................55
Section 13.02. Immunity of Officers ..................................................................................................55
Section 13.03. No Benefits to Outside Parties ....................................................................................55
Section 13.04. Separability of Indenture Provisions .......................................................................... 55
Section 13.05. Execution of Indenture in Counterparts .....................................................................55
Section 13.06. Headings Not Controlling ...........................................................................................55
Section 13.07. Notices, etc. to Trustee, Authority, Ciry and Original Purchaser and Issuer .............55
SIGNATURES
316005v7 A1P CL162-37 1V
MORTGAGE AND SECURITY AGREEMENT
AND
TRUST INDENTURE
This MORTAGE AND SECURITY AGREEMENT AND TRUST INDENTURE, dated as
of the 1st day of September, 2007 (this "Indenture"), by and between the COLUMBIA HEIGHTS
ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate and politic and political
subdivision of the State of Minnesota (the "Authority"), and U.S. Bank National Association, a
national banking association with trust powers having its main corporate trust office and place of
business in St. Paul, Minnesota (the "Trustee");
WITNESSETH:
WHEREAS, the Authority is a duly organized and existing political subdivision under the
laws of the State of Minnesota (the "State"), and the Authority has authority to enter into and
perform its obligations under this Indenture pursuant to Minnesota Statutes, Sections 469.090 to
469.1082, as amended (the "Act"); and
WHEREAS, pursuant to a Ground Lease dated as of September 1, 2007 (the "Ground
Lease"), the Authority has leased certain land (the "Sites") in the City of Columbia Heights,
Minnesota (the "City") from the City; and
WHEREAS, the Authority has agreed to enter into aLease-Purchase Agreement, dated as of
September 1, 2007 (the "Lease"), whereby the Authority will lease to the City, with option to
purchase by the City, the Sites and facilities to be constructed thereon (the "Facilities"); and
WHEREAS, under the Act the Authority is authorized to issue and sell revenue bonds to
finance the construction of the Facilities and related costs and to assign certain of its interests in the
Ground Lease and the Lease to the Trustee as security therefor; and
WHEREAS, pursuant to a resolution of the Board of Commissioners of the Authority
adopted on August 27, 2007 the Authority has duly authorized and directed the issuance of its
revenue bonds in the aggregate principal amount of $5,040,000 to be designated "Public Facility
Lease Revenue Bonds, Series 2007B (Municipal Liquor Stores Project)" (the "Series 2007B
Bonds"), and the execution and delivery of the Ground Lease, the Lease and this Indenture; and
WHEREAS, under the Lease, the City is required, subject to its right to determine not to
appropriate Lease Payments (as defined herein) and to terminate the Lease, to make Lease
Payments in amounts and at times sufficient to pay the principal of, premium (if any) and interest on
the Series 2007B Bonds and any Additional Bonds when due; and
WHEREAS, pursuant to this Indenture the Authority assigns and mortgages to the Trustee
the Authority's right, title and interest in certain property as further described herein; and
316005v7 A.1P CL162-37 1
WHEREAS, the maximum principal amount of debt secured by the mortgage in this
Indenture is $5,040,000, and matures no later than February 1, 2030; and
WHEREAS, the Series 20078 Bonds, and the form of assignment and the Trustee's
authentication certificate to be endorsed thereon, are to be in substantially the form attached hereto
as Exhibit B; and
WHEREAS, the execution and delivery of this Indenture have been duly authorized by the
Authority, and all conditions, acts and things necessary and required by the Constitution and Laws
of the State of Minnesota, or otherwise, to exist, to have happened or to have been performed
precedent to and in the execution and delivery of this Indenture, and in the issuance of the Series
20078 Bonds, do exist, have happened or have been performed in regular form, time and manner,
and the execution and delivery of this Indenture have been in all respects duly authorized; and
WHEREAS, the Trustee has accepted the trust created by this Indenture and in evidence
thereof has joined in the execution hereof;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Authority, in order to secure the payment of the principal of, premium (if any) and
interest on the Bonds issued under this Indenture according to their tenor and effect and the
performance and observance of each and all of the covenants and conditions herein and therein
contained, and for and in consideration of the premises and of the purchase and acceptance of the
Bonds by the respective purchaser or purchasers and registered Owners thereof, and for other good
and valuable consideration, the receipt whereof is hereby acknowledged, has executed and delivered
this Indenture and has granted, mortgaged, bargained, sold, assigned, transferred, conveyed, pledged
and set over, and by these presents does hereby grant, mortgage, bargain, sell, assign, transfer,
convey, pledge and set over, unto the Trustee, and to its successor or successors in the trust hereby
created and to its assigns forever:
I.
All right, title and interest of the Authority in the land described in Exhibit A hereto (the
"Sites"), together with but not limited to (i) all building materials, supplies, equipment, incinerator
apparatus, air-conditioning equipment, water anal gas apparatus, pipes, faucets and all other fixtures
of every description which are now or may hereafter be placed or used on the Sites or in any
building or improvement now or hereafter located thereon, (ii) all additions, accessions, increase,
parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of
any and all of the foregoing, (iii) all proceeds from insurance and condemnation relating to the Sites,
(iv) all hereditaments, easements repairs and proceeds to and of any and all of the foregoing, and (v)
all hereditaments, easements, appurtenances, estates and other rights and interest now or hereafter
belonging to or in any way pertaining to the Sites or to any building or improvement now or
hereafter located thereon.
316005v7 AJP CL162-37 2
II.
All items of fixtures, machinery, furnishings and other tangible personal property purchased
with proceeds of the Bands and located or to be located on the Sites, and all accessions, increases,
parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of
any thereof.
III.
All of the rights and interests of the Authority in and to the Ground Lease and the Lease,
except for the rights of the Authority relating to expenses, indemnity, payment of attorneys' fees
and advances under Sections 4.3, 7.5 and 7.6 of the Lease.
IV.
A first lien on and pledge of all right, title and interest in (i) the money and investments in
the Bond Fund and the Reserve Fund covenanted to be created and maintained under this Indenture,
(ii) any money and investments in the Project Fund not applied to payment of Project Costs, as
further provided herein, and (iii) Net Proceeds of any insurance or condemnation award held by the
Trustee pursuant to the terms of the Lease or this Indenture.
V.
Any and all other property of every name and nature from time to time hereafter by delivery
or by writing of any kind conveyed, mortgaged, assigned or transferred, or in which a security
interest is granted by the Authority or the City or by anyone in behalf of either of them or with their
written consent, to the Trustee, which is hereby authorized to receive any and all such property at
any and all times and to hold and apply the same according to the terms hereof.
SUBJECT, however, to Permitted Encumbrances.
TO HAVE AND TO HOLD all and singular the said property hereby conveyed and
assigned, or agreed or intended so to be, to the Trustee, its successor or successors in trust and its
and their assigns, FOREVER.
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth, for the equal and
proportionate benefit, security and protection of all Owners of the Bonds issued or to be issued
under and secured by this Indenture, without preference, priority or distinction as to lien or
otherwise of any of the Bonds over any of the others;
PROVIDED, HOWEVER, that if the Authority, or its successors or assigns, shall well and
truly pay or cause to be paid the principal of the Bonds and the premium (if any) and interest due or
to become due thereon, at the times and in the manner mentioned in the Bonds according to the true
intent and meaning thereof, or shall provide, as permitted hereby, for the payment thereof by
depositing with the Trustee sums sufficient to pay the entire amount due or to become due thereon,
316005v7 AJP CL 162-37
and shall well and truly keep, perform and observe all the covenants and conditions pursuant to the
terms of this Indenture to be kept, performed and observed by the Authority and shall pay to the
Trustee all sums of money due or to become due to it in accordance with the terns and provisions
hereof; then upon such final payment this Indenture and the rights hereby granted shall cease,
terminate and be void; otherwise, this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared that all Bonds
issued and secured hereunder are to be issued, authenticated and delivered and all said property
hereby assigned or pledged is to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed,
and the Authority agrees and covenants with the Trustee and with the respective Owners from time
to time of the said Bonds or any part thereof, as follows, that is to say:
(The remainder of this page is intentionally left blank.)
316005v7 AJ[' CLt62-37 4
ARTICLE I
Definitions and Interpretation
Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in this
Article I and in the recitals and succeeding Articles of this Indenture shall, for all purposes of this
Indenture and of any indenture supplemental hereto, have the meanings herein specified, such
definitions to be equally applicable to both the singular and plural farms of any of the terms defined:
"Act" means Minnesota Statutes, Sections 469.090 to 469.1082, as amended.
"Additional Bonds" means any Bonds issued pursuant to Sections 2.09 through 2.12 hereof.
"Additional Lease Payments" means payments due from the City pursuant to Section 4.3 of
the Lease.
"Authority" means the Columbia Heights Economic Development Authority, a public body
corporate and politic and political subdivision of the State, and its successors and assigns.
"Authorized Officer," (i) when used with respect to the City, means its Mayor, its City
Manager, its Finance Director, its Assistant Finance Director or any other person who is designated
in writing by the City as an Authorized Officer for purposes of this Indenture, and (ii) when used
with respect to the Authority, means its Executive Director, Assistant Treasurer, or any other person
who is designated in writing by the Authority as an Authorized Officer for purposes of this
Indenture.
"Bond Counsel" means any attorney or law firm having a national reputation as bond
counsel in connection with the issuance of state and local governmental obligations and appointed
by the Authority and acceptable to the Trustee.
"Bond Fund" means the Bond Fund established under Section 5.01 of this Indenture.
"Bond Resolution" means the resolution adopted by the Board of Commissioners of the
Authority on August 27, 2007 authorizing the issuance and sale of the Series 2007B Bonds, as the
same maybe amended, modified or supplemented by any amendments or modifications thereof.
"Bonds" means the Series 2007B Bonds and any Additional Bonds.
"Business Day" means any day on which the Trustee is open for business.
"Certificate" means a certification in writing required or permitted by the provisions either
of the Lease or this Indenture signed and delivered to the Trustee or other proper person or persons.
If and to the extent required by the provisions of Section 1.02 hereof, each Certificate shall include
the statements provided for in said Section 1.02.
316005v7 AJP CL162-37 5
"Certified Resolution" means a copy of a resolution of the Authority or the City, certified by
the clerk, secretary or other proper person to have been duly adopted and to be in full force and
effect on the date of such certification.
"City" means the City of Columbia Heights, Minnesota, a home rule charter city and
political subdivision of the State, and any successor to its functions.
"Closing Date" means the date on which the Bonds of any series are delivered to the
Original Purchaser against payment therefor. The Closing Date for the Series 2007B Bonds is
September 19, 2007.
"Completion Date" means the date of completion of the Project established in accordance
with Section 3.2(e) of the Lease.
"Construction Period" means (i) the period between the beginning of construction of the
Facilities or (ii) the date on which the Series 2007B Bonds are first delivered to the Original
Purchaser, whichever is earlier, and the Completion Date with respect to the construction. of the
Facilities, as defined in the Lease.
"Default" means default in the performance or observance of any of the covenants,
agreements or conditions contained in this Indenture, or in the Bonds Outstanding hereunder,
exclusive of any notice or period of grace required for a default to constitute an "Event of Default"
as hereinafter provided.
"Event of Default" means an Event of Default described in Section 7.01 of this Indenture
which has not been cured.
"Facilities" means any buildings, structures and improvements to be constructed on the
Sites, and all furniture, fixtures and equipment to be acquired with proceeds of sale of the Bonds
and located thereon.
"Financial Newspaper" or "Financial 3ournal" means any newspaper or journal devoted to
financial news circulated in the English language in Minneapolis or St. Paul, Minnesota.
"Ground Lease" means the Ground Lease, dated as of September 1, 2007, by which the City
leases the Sites to the Authority, as amended or supplemented from tune to time.
"Improvements" means any addition, enlargement, improvement, extension or alteration of
or to the Facilities as they then exist, and also means any fixtures, structures or other facilities (other
than the Facilities) acquired or constructed by the City and located on the Sites.
"Indenture" means this Mortgage and Security Agreement and Trust Indenture, dated as of
September 1, 2007, between the Authority and the Trustee, under which the Bonds are authorized to
be issued, and including any amendments or supplements hereto.
316005v7 AJP CL162-37 6
"Independent," when. used with reference to an attorney, engineer, architect, certified public
accountant, consultant or other professional person, means a person who (i) is in fact independent,
(ii) does not have any material financial interest in the City or the transaction to which such person's
Certificate or opinion relates (other than payment to be received for professional services rendered),
and (iii) is not connected with the Authority or the City as an officer, director or employee.
"Independent Counsel" means an Independent attorney duly admitted to practice law before
the highest court of any state.
"Independent Engineer" means an Independent engineer or engineering firm or an
Independent architect or architectural firm qualified to practice the profession of engineering or
architecture under the laws of Minnesota.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Lease" means the Lease-Purchase Agreement, dated as of September 1, 2007, between the
Authority, as lessor, and the City, as lessee, as amended or supplemented from time to time.
"Lease Payments" means each of the payments due from the City to the Authority on each
Lease Pa}nnent Date during the Term of the Lease, as shown on Exhibit B to the Lease.
"Net Proceeds," when used with respect to proceeds of insurance or a condemnation award,
means money received or receivable by the City, as owner or as lessee under the Lease, or the
Trustee, as lessee under the Ground Lease or as secured party, of the Sites or the Facilities, less the
cost of recovery (including attorneys' fees) of such money from the insuring company or the
condemning authority.
"Opinion of Counsel" means a written opinion of counsel (who need not be Independent
Counsel unless so specified) appointed by the City or the Authority and acceptable to the Trustee ar
appointed by the Trustee. If and to the extent required by the proof sions of Section 1.02 hereof,
each Opinion of Counsel shall include the statements provided for in said Section 1.02.
"Original Purchaser" means, with respect to the Series 2007B Bonds, Stifel, Nicolaus &
Co., Inc., Minneapolis, Minnesota, and with respect to any Additional Bonds, the Original
Purchaser identified in a Supplemental Indenture for the Additional Bonds.
"Outstanding" when used as of any particular time with reference to Bonds means (subject
to the provisions of Section 9.03 of this Indenture pertaining to Bonds owned by the Authority or
the City) all Bonds theretofore authenticated and delivered by the Trustee under this Indenture
except: (i) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation;
(ii) Bonds for the payment or redemption of which funds or direct obligations of or obligations fully
guaranteed by the United States of America in the necessary amount shall have theretofore been
deposited with the Trustee (whether upon or prior to the maturity or the redemption date of such
Bonds), provided that if such Bonds are to be redeemed prior to the inatui-ity thereof, notice of such
redemption shall have been given pursuant to Article III of this Indenture, or provision satisfactory
316005v7 AJP CL162-37 7
to the Trustee shall have been made for the giving of such notice; and (iii) Bonds in lieu of or in
substitution for which other Bonds shall have been authenticated and delivered by the Trustee
pursuant to the terms of Section 2.07 pertaining to replacement of Bands.
"Owner" means the registered owner of any Outstanding Bond.
"Permitted Encumbrances" means, as of any particular time: (i) liens for taxes and
assessments not then delinquent, or which the City may, pursuant to provisions of Section 6.3 of the
Lease, permit to remain unpaid, (ii) the Ground Lease, the Lease, and amendments thereto, (iii) the
Authority's and the Trustee's interest in the Facilities, (iv) any mechanic's, laborer's,
materialmen's, supplier's or vendor's lien or right not filed or perfected in the manner prescribed by
law, (v) such minor defects, irregularities, encumbrances, easements, rights-of--way and clouds on
title as normally exist with respect to properties similar in character to the Sites and which do not, in
the opinion of Independent Counsel, materially impair the property affected thereby for the purpose
for which it was intended, and (vi) easements, restrictions or encumbrances, if any, shown on
Exhibit A to the Lease.
"Permitted Investments" means the investments authorized by Minnesota Statutes, Chapter
1 l 8A, as amended.
"Predecessor Bonds" of any particular Bond means every previous Bond evidencing all or a
portion of the same debt as that evidenced by such particular Bond, and for purposes of this
definition, any Bond authenticated and delivered under Section 2.07 hereof in lieu of a lost,
destroyed or stolen Bond shall be deemed to evidence the same debt as the lost, destroyed or stolen
Bond.
"Project" means the acquisition, construction and equipping of the Facilities as municipal
liquor stores and related facilities for use by the City on the Sites.
"Project Costs" means the costs defined in Section 4.03 of this Indenture.
hereof.
be.
"Project Fund" means the Project Fund established under Section 4.02 hereof.
"Project Fund Draw Request" means the form of the draw request as presented on Exhibit C
"Redeem" or "Redemption" means and includes "prepay" or "prepayment" as the case may
"Regular Record Date" for the interest payable on any interest payment date on the Bonds of
any series means the date specified in the provisions of this Indenture creating such series.
"Reserve Fund" means the Reserve Fund established under Section 5.02 hereof.
"Reserve Requirement" means the least of (i) 10 percent of the original principal amount of
all series of Outstanding Bonds or (ii) the maximum principal and interest to become due on all
31600w7 AJP CL162-37 8
Outstanding Bonds in the current year or any future year or (iii) 125% of the original average annual
principal and interest to become due on all series of Outstanding Bonds. Upon the issuance of the
Series 2007B Bonds, the Reserve Requirement shall be satisfied by delivery to the Trustee of the
Reserve Requirement with respect to the Series 2007B Bonds.
"Responsible Officer" of the Trustee hereunder means and includes the chairman of the
board of directors, the president, every vice president, every assistant vice president, the cashier,
every assistant cashier, every corporate trust officer, and every officer and assistant officer of such
trustee, other than those specifically above mentioned, to whom any corporate trust matter is
referred because of knowledge of, and familiarity with, a particular subject.
"Series 2007B Bonds" means the Authority's $5,040,000 Columbia Heights Economic
Development Authority Public Facility Lease Revenue Bonds, Series 2007B (Municipal Liquor
Stores Project).
"Sites" means the real property described in Exhibit A to the Lease, including any property
added to or substituted for any portion of the Sites, and less any real property released from the
Lease pursuant to Article VI of the Lease.
"Special Record Date" for the payment of any Defaulted Interest (as defined in Section 2.05
hereof) on Bonds means a date fixed by the Trustee pursuant to Section 2.05 hereof.
"State" means the State of Minnesota.
"Term Bonds" means the Series 2007B Bonds so identified in Section 2.01 hereof.
"Trustee" means U.S. Bank National Association, St. Paul, Minnesota, or any successor
serving as such under this Indenture.
"Tnzst Estate" means the interests of the Authority in the Ground Lease and the Lease
assigned. under Granting Ci_ause III of this Indenture; the revenues, money, investments, contract
rights, general intangibles and instruments and proceeds and products and accessions thereof as set
forth in Granting Clause IV of this Indenture; and additional property held by the Trustee pursuant
to Granting Clause V of this Indenture.
Section 1.02. Characteristics of Certificate or Opinion. Any Certificate made or given by
an officer of the Authority or of the City or by an Independent engineer, architect, consultant or
other person may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless
such person knows that the opinion with respect to the matters upon which the Certificate may be
based as aforesaid is erroneous, or, in the exercise of reasonable care, should have known that the
salve was erroneous. Any such Certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of the Authority or the
City, upon a supporting Certificate of an officer or officers of the Authority or the City, unless the
signer knows that the supporting Certificate with respect to the matters upon which the Certificate
or opinion may be based as aforesaid is erroneous, or, in the exercise of reasonable care, should
have known that the same was erroneous.
316005v7 AJP CL162-37 9
Section 1.03. Additional Provisions as to Interpretation. All references herein to "Articles,"
"Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this
Indenture; and the words "herein," "hereof," "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
Whenever in this Indenture it is provided or permitted that there be deposited with or held in
trust by the Trustee money or funds in the necessary amount to pay or redeem any Bonds, the
amount to be deposited or held shall be 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 there shall have been furnished to the Trustee proof satisfactory to it that notice
of such redemption on a specified redemption date has been duly given or provision satisfactory to
the Trustee shall be made for such notice, the amount to be deposited or held shall be the principal
amount of such Bonds and interest thereon. to the redemption date, together with the redemption
premium, if any.
Any teens defined in the Ground Lease or the Lease but not defined herein shall have the
same meaning herein unless the context hereof clearly requires otherwise.
This Indenture is governed by and shall be construed in accordance with the laws of
Minnesota.
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31(i005v7 AJP CL162-37 1 O
ARTICLE II
Form, Execution and Registration of Bonds
Section 2.01. Form Maturities and Numeration of Series 2007B Bonds. The Series 2007B
Bonds to be issued and secured under this Indenture shall each be designated "Columbia Heights
Economic Development Authority Public Facility Lease Revenue Bond, Series 2007B (Municipal
Liquor Stores Project)." The Series 2007B Bonds and Certificates of Trustee and Assignment shall
be substantially in the form set forth in Exhibit B hereto. The Series 2007B Bonds shall be issued in
fully registered form and shall be in authorized denominations of $5,000 each, or any integral
multiple thereof not exceeding the principal amount maturing in any year, initially numbered from
R-1 upwards in order of maturity, and the Series 2007B Bonds originally issued, and not in
exchange for Predecessor Series 2007B Bonds, shall be dated as of the Closing Date. Series 2007B
Bonds issued in exchange for Predecessor Series 2007B Bonds shall be dated as of the date to
which interest on the Predecessor Series 2007B Bonds has been duly paid or provided for, or as of
the Closing Date, if issued prior to the first interest payment date, and shall be numbered in order of
issuance commencing with the next number after the highest number assigned to the initial Series
2007B Bond. No Series 2007E Bond shall represent principal maturing in different years. The
Series 2007B Bonds shall bear interest payable semiannually on February 1 and August 1 of each
year, commencing on August 1, 2008, or the most recent interest pa}nnent date to which interest has
been paid or duly provided for. Interest on the Series 2007B Bonds shall be calculated on the basis
of a 360-day year, consisting of twelve 30-day months. The principal and redemption price of the
Series 2007B Bonds shall be payable to the registered Owners upon presentation at the office of the
Trustee, in such coin or currency of the United States of America as maybe, on the respective dates
of payment thereof, legal tender for the payment of public and private debts, and interest on the
Series 2007B Bonds shall be paid by check or draft mailed to the registered Owners at the Owners'
registered addresses. The Regular Record Date referred to in Section 2.05 for the payment of
interest on the Series 2007B Bonds payable, and punctually paid or duly provided for, on any
interest payment date shall be the L 5th day (whether or not a Business Day) of the calendar month
next preceding such interest payment date. The Series 2007B Bonds shall be issued in the original
aggregate principal amount of Five Million and Forty Thousand Dollars ($5,040,000), shall mature
on February 1 of the years and in the amounts, and shall bear interest at the rates per annum,
according to dates of maturity, as follows:
316005v7 AJP C'L162-37 1 1
Maturity Principal Interest
Date Amount Rate
2010 $140,000 4.50%
2011 150,000 4.50%
2012 155,000 4.50%
2013 165,000 4.50%
2014 1.70,000 4.50%
2015 180,000 4.50%
2016 185,000 4.50%
2017 195,000 4.50%
Tenn Bonds due February 1, 2020 in the aggregate principal amount of $650,000, at an
interest rate of 4.65%.
Term Bonds due February 1, 2023 in the aggregate principal amount of $755,000, at an
interest rate of 4.80%.
Tenn Bonds due February 1, 2027 in the aggregate principal amount of $1,210,000, at an
interest rate of 4.90%.
Tenn Bonds due February 1, 2030 in the aggregate principal amount of $1,085,000, at an
interest rate of 5.00%.
Section 2.02. Execution of Bonds. The Bonds shall be signed in the name of the Authority
by the manual or the facsimile signature of the Chair and the Executive Director of the Authority,
or, in the absence of either or both of such officers, by other officers of the Authority. Said
signatures shall be authenticated by the manual signature of a Responsible Officer of the Trustee,
which is hereby designated as authenticating agent. In the event that any of the officers whose
signatures appear on any Bonds shall cease to be officers of the Authority before such Bond shall
have been authenticated or delivered by the Trustee, such Bonds may, nevertheless, be
authenticated, delivered, and be binding upon the Authority as though those officers who signed the
same had continued to be such officers of the Authority; and, also, any Bond may be signed on
behalf of the Authority by such person who, at the actual date of execution of such Bond, shall be
the proper officer of the Authority, although at the date of such Bond such person shall not have
been such an officer of the Authority. Upon the execution and delivery of this Indenture the
Authority shall execute and deliver the Bonds to the Trustee for authentication.
Section 2.03. Authentication of Bonds. No Bonds shall be valid or obligatory for any
purpose or shall be entitled to any right or benefit hereunder or under the Lease or the Bond
Resolution unless a Responsible Officer of the Trustee shall manually endorse and execute on such
Bond a certificate of authentication substantially in the form of the Certificate of Trustee set forth in
Exhibit B hereto. Such Certificate of Trustee upon any Bond shall be conclusive evidence that such
Bond so authenticated has been duly issued under this Indenture and that the Owner thereof is
entitled to the benefits of this Indenture.
No Bonds shall be authenticated by the Trustee except in accordance with this Article.
316005v7 AJP CL162-37 12
The Trustee shall not be required to authenticate any Bond unless provided with the
documents referred to in Section 2.08 and such further Certified Resolutions, Certificates,
instruments or Opinions of Counsel as the Trustee may reasonably require with respect to the
validity of the Bonds to be issued and the right and authority of the Trustee to authenticate such
Bands.
Section 2.04. Registration, Transfers and Exchange. As long as any of the Bonds issued
hereunder shall remain Outstanding, the Authority shall maintain and keep at the office of the
Trustee, as paying agent, registration records for the payment of the principal of and interest on the
Bonds, as in this Indenture provided, and for the registration and transfer of the Bonds, and shall
also keep at the office of the Trustee records for such registration and transfer. The Authority
hereby appoints the Trustee, and its successors in the trust from time to time, as its agent to maintain
said registration records at the office of the Trustee.
Upon surrender for transfer of any Bond at the office of the Trustee with a written
instrument of transfer satisfactory to the Trustee, duly executed by the registered Owner or the
Owner's duly authorized attorney, and upon payment of any tax, fee or other governmental charge
required to be paid with respect to such transfer, the Authority shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more Bonds
of the same series, of any authorized denominations and of a like aggregate principal amount,
interest rate and maturity.
Except as the right of exchange maybe limited as to Bonds of any series, at the option of the
registered Owner thereof, Bonds may be exchanged for an equal aggregate principal amount of
Bonds of the same series, maturity and interest rate of any authorized denominations, upon
surrender thereof at the office of the Trustee.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is exercised,
the Authority shall execute and the Trustee shall deliver Bonds in accordance with the provisions of
this Indenture. For every such exchange or transfer of Bonds, whether temporary or definitive, the
Authority or the Trustee may make a charge sufficient to reimburse it for any tax, fee or other
governmental charge required to be paid with respect to such exchange or transfer, which sum or
sums shall be paid by the person requesting such exchange or transfer as a condition precedent to
the exercise of the privilege of making such exchange or transfer. Notwithstanding any other
provision of this Indenture, the cost of preparing each new Bond upon each exchange or transfer,
and any other expenses of the Authority or the Trustee incurred in connection therewith (except any
applicable tax, fee or other governmental charge) shall be paid by the City pursuant to the Lease.
The Authority and the Trustee shall not be obligated to make any such exchange or transfer of
Bonds during the fifteen (15) days next preceding the date of the first publication or the mailing (if
there is no publication) of notice of redemption in the case of a proposed redemption of Bonds. The
Authority and the Trustee shall not be required to make any transfer or exchange of any Bonds
called for redemption.
Section 2.05. Payment of Interest on Bonds; Interest Rights Preserved. Interest on any
Bond of any series which is payable, and is punctually paid or duly provided for, on any interest
payment date shall be paid to the person in whose name that Bond (or one or more Predecessor
316005v7 AJP CL162-37 13
Bonds) is registered at the close of business on the Regular Record Date for such interest specified
in the provisions of this Indenture creating such series.
Any interest on the Bonds which is payable, but is not punctually paid or duly provided for,
on any interest payment date (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered Owner on the relevant Regular Record Date solely by virtue of such Owner having
been such Owner; and such Defaulted Interest may be paid at the election of the Trustee in each
case, as provided in Subsection A or B below:
A. The Trustee may elect to make payment of any Defaulted Interest on the
Bonds of any series to the persons in whose names such Bonds (or their respective
Predecessor Bonds) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The
Authority or the City shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Bond and the date of the proposed payment (which date shall
be such as will enable the Trustee to comply with the next sentence hereof j, and at the same
time the Authority or the City shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall snake
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the persons
entitled to such Defaulted Interest as in this Subsection provided and not to be deemed part
of the Trust Estate. Thereupon the Trustee may fix a Special Record Date for the payment
of Defaulted Interest, which shall be not more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the City and the
Authority of such Special Record Date and, in the name of the Authority and at the expense
of the City, shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class postage prepaid, to each Owner of a
Bond of such series at the Owner's address as it appears in the registration records not less
than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the
name of the Authority and at the expense of the City, cause a similar notice to be published.
at least once in a Financial Newspaper, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the persons in whose names the
Bonds of such series (or their respective Predecessor Bonds) are registered on such Special
Record Date and shall no longer be payable pursuant to the following Subsection B.
B. The Trustee may make payment of any Defaulted Interest on the Bonds of
any series in any other lawful manner, if, after notice given by the Authority or the City to
the Trustee of the proposed manner of payment pursuant to this Subsection, such payment
shall be acceptable to the Trustee.
Subject to the foregoing provisions of this Section, each Bond delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Bond shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Bond and each such Bond
316005v7 AJP CL162-37 14
shall bear interest from such date that neither gain nor loss in interest shall. result from such transfer,
exchange or substitution.
Section 2.06. Ownership of Bonds. As to any Bond, the Authority, the City and the Trustee
and their respective successars, each in its discretion, may deem and treat the person in whose name
the same for the time being shall be registered as the absolute Owner thereof for all purposes and
neither the Authority nor the Trustee nor their respective successors shall be affected by any notice
to the contrary. Payment of or on account of the principal of any such Bond shall be made only to
or upon the order of the registered Owner thereof, but such registration may be changed as above
provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon
such Bond to the extent of the sum or sums so paid.
Section 2.07. Reissuance of Mutilated, Destroyed, Stolen or Lost Bonds. In case any
Outstanding Bond shall become mutilated or be destroyed, stolen or lost, the Trustee shall
authenticate and deliver a new Bond of like tenor, number and amount as the Bond so mutilated,
destroyed, stolen or lost, in exchange and substitution for such mutilated Bond, upon surrender of
such mutilated Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, upon filing
with the Trustee evidence satisfactory to the Authority and the Trustee that such Bond has been
destroyed, stolen or lost and upon furnishing the Authority, the Trustee and the City with indemnity
satisfactory to them and complying with such other reasonable regulations as the Authority, the
Trustee and the City may establish and payment of any expenses which the Authority, the Trustee
or the City may incur in connection therewith. In the event any such Bond shall have matured,
instead of issuing a substitute Bond, the Authority may pay the same without surrender thereof.
Section 2.08. Conditions for Authentication of Series 2007B Bonds. The Trustee shall not
authenticate and deliver the Series 2007B Bonds to be issued and delivered pursuant to this
Indenture unless theretofore or simultaneously therewith there shall have been delivered to the
Trustee the following:
(a) Certified copies of the Bond Resolution authorizing the issuance of the
Series 2007B Bonds and the execution and delivery of the Ground Lease, the Lease and this
Indenture, and of the resolution adopted by the City, giving approval to the Project and
authorizing the execution and delivery of the Ground Lease and the Lease.
(b) Executed counterparts of the Ground Lease, the Lease, this Indenture and
UCC-1 financing statements executed by the City as Debtor and describing as collateral any
tangible personal property leased pursuant to the Lease, and by the Authority as Debtor and
describing as collateral the property granted to the Trustee pursuant to the granting clauses
hereof.
(c} The manually signed approving opinion of Bond Counsel, concerning the
validity, legality and tax-exempt status of the Series 2007B Bonds and exclusion of interest
thereon from gross income under the Internal Revenue Code.
(d) A Certificate of an Authorized Officer of the City to the effect that the City
has deposited in the Project Fund, or has expended for Project Costs, or has on hand such
316005v7 AJP CL162-37 15
amounts of money as are currently estimated to be needed to meet Project Costs for the
Project in excess of the proceeds of the Series 2007B Bonds to be deposited in the Project
Fund pursuant to Section 4.01 hereof.
(e) An order for authentication and registration of the Series 20078 Bonds,
signed by the Executive Director or other officer of the Authority, specifying the aggregate
principal amount of the Series 2007B Bonds to be issued and directing the Trustee to deliver
the Series 2007B Bonds to or upon the order of the Original Purchaser upon payment of the
purchase price therefor.
(f) A certificate of the Authority pursuant to Section 148 of the Internal
Revenue Code as to the absence of arbitrage expectation with respect to the Series 2007B
Bonds, which certificate may be based on certifications of the City.
(g) Such further certifications, documents and Opinions of Counsel as the
Trustee, the Authority or Bond Counsel may require.
Section 2.09. Additional Bonds; Generally. The Authority, upon request of the City, may
issue Additional Bonds of any series in amounts which are sufficient to (i) pay the cost of
completing the Project, acquiring, constructing or equipping Improvements and refunding
Outstanding Bonds, (ii) pay the costs of issuing such Additional Bonds, (iii) increase the balance in
the Reserve Fund to the Reserve Requirement required by this Indenture after the issuance of such
Additional Bonds and, (iv) in the case of Additional Bonds issued to pay the cost of Improvements,
to fund interest payable on such Additional Bonds for a period of time not to exceed six (6) months
beyond the completion of any Improvements financed with the proceeds thereof.
Section 2.10. Additional Bonds to Pay the Cost of IJnproveinents. Additional Bonds of any
series may be issued, at one time or from time to tune, subject to the conditions hereinafter
described, in an aggregate amount sufficient with any other funds available and committed therefor,
to pay the cost of any Improvements, including Improvements located on real property contiguous
with the Sites, if such real property is to be acquired by the City and leased to the Authority
pursuant to the Ground Lease; provided, however, that such real property, whether or not financed
with the proceeds of Additional Bonds shall, as a condition to the issuance of such Additional
Bonds, be subjected to the Ground Lease and the Lease and become part of the Sites, and the City,
the Trustee and the Authority shall take all action necessary to so provide.
Section 2.11. Additional Bonds for Refunding Purposes. Additional Bonds may be issued
at any time or from time to time, subject to the conditions hereinafter described, for the purpose of
providing funds, with any other funds available and committed therefor, for paying at their stated
maturities or earlier optional redemption date all the Outstanding Bonds of any one or snore series,
including the payment of any interest which will accrue on such Bonds to the stated maturities or
earlier optional redemption date thereof, and any expenses in connection with such refunding.
Section 2.12. Delivery of Additional Bonds. Additional Bonds of any series may be
executed by the Authority and delivered to the Trustee for authentication, but only upon receipt by
the Trustee of the following:
316005v7 AJP CL162-37 16
(a) An executed counterpart of the Supplemental Indenture creating such
Additional Bonds;
(b) Cash or Bond proceeds in the amount necessary to increase the balance in
the Reserve Fund to the Reserve Requirement immediately after the issuance of the
Additional Bonds; and
(c) Executed counterparts of amendments to the Ground Lease and the Lease
adding the property, if any, financed with the Additional Bonds to the Sites and providing
for additional Lease Payments sufficient to provide for the payment of principal, premium,
if any, and interest on ail Bonds to be Outstanding after the issuance of the Additional
Bonds.
Section 2.13. Book-Entry On1~S sue.
(a) The Series 2007B Bonds will be initially issued in the form of a separate single
typewritten or printed fully registered Bond for each of the maturities set forth in Section 2.01
hereof. Upon initial issuance, the ownership of each such Series 2007B Bond will be registered in
the registration books kept by the Trustee in the name of Cede & Co., as nominee for The
Depository Trust Company, New York, New York, and its successors and assigns ("DTC"). Except
as provided in this Section, all of the Outstanding Series 2007B Bonds will be registered in the
registration books kept by the Trustee in the name of Cede & Co., as nominee of DTC.
(b) With respect to Bonds of any series registered in the registration books kept by the
Trustee in the name of Cede & Co., as nominee of DTC, the Authority, the City and the Trustee will
have no responsibility or obligation to any broker dealers, banks and other financial institutions
from time to time for which DTC holds Bonds as securities depository (the "Participants") or to any
other person on behalf of which a Participant holds an interest in the Bonds, including but not
limited to any responsibility or obligation with respect to (i) the accuracy of the records of DTC,
Cede & Co. or any Participant with respect to any ownership interest in the Bonds, (ii) the delivery
to any Participant or any other person other than a registered Owner of Bonds, as shown by the
registration books kept by the Trustee, of any notice with respect to the Bonds, including any notice
of redemption, or (iii) the payment to any Participant or any other person, other than a registered
Owner of Bonds, of any amount with respect to principal of, premium, if any, or interest on the
Bonds. The Authority, the City and the Trustee may treat and consider the person in whose name
each Bond is registered in the registration books kept by the Trustee as the absolute owner of such
Bond for the purpose of payment of principal, premium and interest with respect to such Bond, for
the purpose of registering transfers of such Bond, and for all other purposes. The Trustee will pay
all principal of, premium, if any, and interest on the Bonds only to or on the order of the respective
registered Owners, as shown in the registration books kept by the Trustee, and all such payments
will be valid and effectual to fully satisfy and discharge the Authority's obligations with respect to
payment of principal of, premium, if any, or interest on the Bonds to the extent of the sum or sums
so paid. No person other than a registered Owner of Bonds, as shown in the registration books kept
by the Trustee, will receive a certificated Bond evidencing the obligation of this Indenture. Upon
delivery by DTC to the Trustee of a written notice to the effect that DTC has determined to
316005v7 AJP CL162-37 1 "~
substitute a new nominee in place of Cede & Co., the words "Cede & Co.," will refer to such new
nominee of DTC.
(c) The Authority has heretofore executed and delivered to DTC a Blanket Issuer
Letter of Representations which shall govern payment of principal of, premium, if any, and
interest on the Series 2007B Bonds and notices with respect to the Series 2007B Bonds.
(d) In the event the Authority, by resolution, determines that it is in the best interests of
the persons having beneficial interests in the Bonds of any series issued in book-entry form that they
be able to obtain Bond certificates, the Authority will notify the Trustee, which will notify DTC,
whereupon DTC will notify the Participants, of the availability through DTC of Bond certificates.
In such event the Authority will issue, transfer and exchange Bond certificates as requested by DTC
and any other registered owners in accordance with the provisions of this Indenture. DTC may
determine to discontinue providing its services with respect to the Bonds at any time by giving
notice to the Authority and the Trustee and discharging its responsibilities with respect thereto under
applicable law. In such event, if no successor securities depository is appointed, the Authority will
issue and the Trustee will authenticate Bond certificates in accordance with this Indenture and the
provisions hereof will apply to the transfer, exchange and method of payment thereof.
(e) Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to
principal of, premium, if any, and interest on such Bond and all notices with respect to such Bond
will be made and given, respectively in the manner provided in the Representation Letter.
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316005v7 AJP CLI62-37 1 g
ARTICLE III
Redemption of Bonds
Section 3.01. Redemption of Series 20078 Bonds. (a) Extraordinary Redemption. The
Series 2007E Bonds are subject to extraordinary redemption on any Business Day in whole or in
part, at a redemption price equal to par, plus accrued interest to the redemption date, at the election
of the City, upon the happening of certain events of damage to or destruction or condemnation of
the Sites or the Facilities or change of law rendering the Lease unenforceable or impossible of
performance, all as more fully provided in Section 7.7 of the Lease.
(b) Optional Redemption. The Series 20078 Bonds maturing on or after February 1, 2018
are subject to optional redemption, at the election of the City, in whole or in part, and if in part in
such manner as the City shall determine, on February 1, 2017 and any date thereafter, at a
redemption price of par plus accrued interest.
(c) Mandatory Sinking Fund Redemption. Tenn Bonds due February 1, 2020, 2023, 2027,
and 2030 are subject to Mandatory Sinking Fund Redemption on February 1 in the years and
amounts described as follows:
Sinking Fund Installment Date Principal Amount
February 1,
2020 Term Bonds
2018 $205,000
2019 215,000
2020 (maturity) 230,000
2023 Term Bonds
2021 2405000
2022 250,000
2023 (maturity) 265,000
2027 Term Bonds
2024 280,000
2025 295,000
2026 310,000
2027 (maturity) 325,000
Notice of any redemption of Series 20078 Bonds, except any mandatory sinking fund
redemption, shall be mailed in the form provided by Section 3.02 and in the manner and to the
extent required by Section 3.03. Prior to the date fixed for redemption, funds shall be deposited
with the Trustee sufficient to pay the Series 20078 Bonds called and accrued interest thereon. Upon
the happening of the above conditions, any Series 20078 Bonds thus called shall not bear interest on
316005v7 AJP CL162-37 19
or after the redemption date, and except for the purpose of payment by application of the funds so
deposited, shall no longer be protected by this Indenture.
Section 3.02. Written Notice to Trustee. The Authority (upon direction of the City) shall
provide to the Trustee written notice of its election to redeem Bonds, describing the Outstanding
Bonds to be redeemed, the date of redemption, and the redemption price.
Section 3.03. Mailing and Publication of Notice. Notice of redemption (including when
only a portion of the Bonds is to be redeemed, the series and numbers of such Bonds) shall be
mailed by the Trustee, not less than thirty (30) days before the redemption date, by first class mail,
to the registered Owners of any Bonds which are to be redeemed, at their last addresses appearing
upon the registration books maintained by the Trustee. If required by the Act or other applicable
law a similar notice shall also be published in such manner as may be required by the Act or other
applicable law. No notice of redemption need be given if the Owners of all Bonds called for
redemption waive notice thereof in writing and such waiver is filed with the Trustee.
Section 3.04. Deposit for Redemption. On or prior to the redemption date, there shall be
deposited with the Trustee cash in an aggregate amount which shall be sufficient to pay the
redemption price of the Bonds to be redeemed and interest thereon to the redemption date; and there
shall be deposited, or arrangements shall be made with the Trustee to deposit, with the Trustee a
sum sufficient to pay the proper expenses and charges of the Trustee in connection with such
redemption. Upon deposit with the Trustee of the aggregate amount of such redemption price and
interest, such money shall be set aside by the Trustee and held by it for the account of the respective
Owners of the Bonds being redeemed.
Section 3.05. Payment of Redeemed Bands. After notice of redemption shall. have been
given as provided in Section 3.03, the Bonds specified in such notice shall become due and payable
on the redemption date. Payment of the redemption price and interest shall be made to or upon
order of each registered Owner, upon the surrender of the Bonds. Any installment of interest
rnaturing on or prior to the redemption date shall be payable to the registered Owners of Bonds on
the relevant Record Dates according to the terms of such Bonds and ±he provisions of Section 2.05
hereof and the notice of redemption herein provided for may so state. If redemption money is
available for the payment of all of the Bonds called for redemption on the redemption date, the
Bonds so called shall cease to accrue interest on or after the redemption date, and such Bonds shall
not be deemed to be Outstanding hereunder for any purpose, except that the Owners thereof, on
presentation, as herein provided, shall be entitled to receive payment of the redemption price and
interest accrued thereon to the redemption date from the money set aside by the Trustee as
aforesaid.
Section 3.06. Cancellation of Redeemed Bonds. All Bonds so redeemed shall forthwith be
canceled and destroyed by the Trustee; and no further Bonds shall be executed or authenticated or
issued hereunder in exchange or substitution therefor.
Section 3.07. Partial Redemption of Bonds. If less than. all of the Bonds of a series of a
particular maturity at the time Outstanding are to be called for prior redemption, the particular
Bonds or portions thereof of such maturity to be redeemed shall be selected by lot or other random
316005v7 AJP CL162-37 20
means, except as otherwise provided herein, by the Trustee in such manner as the Trustee, in its
discretion, may determine. The Trustee shall call for redemption in accordance with the foregoing
provisions as many Bands or portions thereof as will, as nearly as practicable, exhaust the money
available therefor. Particular Bonds or portions thereof shall be redeemed only in integral multiples
of principal amount of $5,000.
In the case of Bonds of denominations greater than $5,000, if less than all of such Bonds
then Outstanding are to be called for redemption, then for all purposes in connection with
redemption, each $5,000 of principal amount shall be treated as though it was a separate Bond of the
denomination of $5,000. If it is determined that one or more, but not all of the $5,000 units of
principal amount represented by any such Bond is to be called for redemption, then upon notice of
intention to redeem such $5,000 unit or units, the Owner of such Bond shall forthwith surrender
such Bond to the Trustee (1) for payment of the redemption price (including the redemption
premium, if any, and interest to the date fixed for redemption) of the $5,000 unit or units of
principal amount called for redemption and (2) exchange for a new Bond or Bonds of the aggregate
principal amount of the unredeemed balance of the principal amount of such Bond, without charge
therefor. If the Owner of any such Bond of a denomination greater than $5,000 shall fail to present
such Bond to the Trustee for payment and exchange as aforesaid, such Bond shall nevertheless
become due and payable on the date fixed for redemption to the extent of the $5,000 unit or units of
principal amount called for redemption (and to that extent only). Interest shall cease to accrue on
the portion of the principal amount of such Bond represented by such $5,000 unit or units of
principal amount on and after the date fixed for redemption; provided, that funds sufficient for the
payment of the redemption price shall have been deposited with the Trustee and shall be available
for the redemption of said $5,000 unit or units on the date fixed for redemption, and in such event,
such Bond shall not be entitled to the benefit or security of this Indenture or the Bond Resolution to
the extent of the portion of its principal amount (and accrued interest thereon to the date fixed for
redemption and applicable premium, if any) represented by such $5,000 unit or units of principal
amount, nor shall new Bonds be thereafter issued corresponding to said unit or units.
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3I6005v7 AJP CL162-37 21
ARTICLE IV
Bond Proceeds; Project Fund
Section 4.01. Deposit of Series 2007B Bond Proceeds. The Authority shall deposit, or shall
direct the Original Purchaser of the Series 2007B Bonds to deposit, with the Trustee all of the net
proceeds of the sale of the Series 2007B Bonds, not including costs of issuance and underwriter's
discount ($4,921,836.50):
(i) With the Trustee to the credit of the Reserve Fund the amount of
$399,250.00, in satisfaction of the Reserve Requirement for the Reserve Fund; and
(ii) With the Trustee to the credit of the Project Fund the balance of such
proceeds, $4,522,586.50, which includes the amount by which the purchase price paid by
the Original Purchaser exceeds the minimum bid.
Section 4.02. Establishment of Project Fund. The Authority hereby establishes a fund
(herein called the "Project Fund") with the Trustee and, on the Closing Date, there shall be
deposited with the Trustee to the credit of the Project Fund proceeds of the Series 2007B Bonds, as
provided in clause (ii) of Section 4.01. As provided in Section 4.05 hereof, Construction Period
income and profit from the investment of money in the Project Fund shall be credited to the Project
Fund. In addition to such proceeds of the Series 2007B Bonds, income and profit, the City has
covenanted in the Lease that, upon request of the Trustee, it will deposit in the Project Fund the
additional money, if any, which, together with such proceeds, income and profit will be sufficient to
finance the total Project Costs. The Authority has no obligation to deposit any money in the Project
Fund or to apply money to Project Costs except proceeds of Bonds or funds made available therefor
by the City.
The money in the Project Fund shall be held in trust by the Trustee and applied to the
payment of the Project Costs ire accordance with and subject to the provisions of this Article, and
pending such application shall be subject to a lien and charge in favor of the Owners of the Bonds
issued and Outstanding under this Indenture and shall be held for the further security of such
Owners until paid out as herein provided.
Section 4.03. Project Costs Defined. For the purposes of this Article, Project Costs shall.
include, without intending thereby to limit or restrict any proper definition of such cost under any
applicable laws and generally accepted accounting principles, the following:
(a) Obligations incurred for labor (including payroll cost of City employees
according to tune spent by such employees on the Project) and to contractors, builders and
material suppliers in connection with the acquisition, construction, reconstruction,
renovation and installation of the Project, including obligations for machinery, materials and
equipment therefor;
316005v7 AJP CLt62-37 22
(b) Costs of acquisition of land and all interests in land required specifically for
the Sites, site improvements required for the construction or operation of the Project,
demolition of any existing building on the Sites and removal of any equipment therefrom
(net of any salvage).
(c) The cost of any indemnity and surety bonds deemed necessary by the City,
the fees and expenses of the Trustee and any paying agent during the Construction Period,
taxes and other municipal or governmental charges levied or assessed during the
Construction Period on the Sites, and any premiu>s for insurance incurred in connection
with the Project during the Construction Period;
(d) Costs of acquisition and installation of equipment, furnishings and other
tangible personal properly required for the Project;
(e} Fees and expenses of engineers and architects for surveys, estimates and
other preliminary investigations, preparation of plans, drawings and specifications, and
supervising construction, as well as for the performance of all other duties of engineers and
architects in relation to the Project or the issuance of the Bonds therefor, including the costs
of such services as may have been performed by employees of the City;
(f) Expenses of administration, supervision and inspection properly chargeable
to the Project, administrative fees and other expenses relating to the Project, title insurance
premiums, abstracting and filing fees, legal expenses and fees, fiscal consultant fees and
expenses, cost of audits and of preparing, offering, selling and issuing any of the Bonds and
initial fees of the Trustee; and
(g) Any other obligation or expense heretofore or hereafter incurred by the City
in connection with the Project defined as and constituting a proper Project cost and approved
by an Authorized Officer of the City.
Section 4.04. Payments from Project Fund. Each of the payments referred to in Section
4.03 shall be made from the Project Fund only upon receipt of a Project Fund Draw Request of an
Authorized Officer of the City, in substantially the form attached hereto as Exhibit C.
(1) Before any of the payments referred to in Section 4.03 may be made from the
Project Fund, an Authorized Officer of the City shall certify with respect to each such payment: (i)
that none of the items for which the payment is proposed to be made has formed the basis for any
payment theretofore made from the Project Fund; and (ii} that each item for which payment is
proposed to be made is or was necessary in connection with the Project. In the case of any
construction contract providing for the retention of a portion of the contract price, there shall be paid
only the net amount remaining after deduction of any such portion. All payments made from the
Project Fund shall be presumed by the Trustee to be made for the purposes certified in said
statement, and the Trustee shall not be required to see to the application of any payments made from
the Project Fund or to inquire into the purposes for which withdrawals are being made from the
Project Fund.
316005v7 AJF CL162-37 23
(2) Money in the Project Fund shall be subject to withdrawal from time to time only for
the purposes of paying Project Costs or for the reimbursement to the City, subject to any applicable
provision of law, for payments theretofore made by the City for Project Costs. The Authority
agrees that none of the funds in the Project Fund shall be used for any purposes other than payment
or reimbursement of Project Costs and the payment of principal of, premium (if any) on and interest
on the Bonds.
(3) Money deposited in the Project Fund shall be paid out from time to time by the
Trustee in order to pay, or to reimburse the City for payment made by the City, any Project Costs
and such other costs related thereto, within three (3) business days after receipt by the Trustee of
a written Project Fund Draw Request.
(4) Each written Project Fund Draw Request of the City shall be prepared
substantially in the form of APPENDIX C attached hereto and shall certify:
(A) the item number of such Project Fund Draw Request, the name of the
person, fine, or corporation to whom each such payment is due, each amount to be paid
or reimbursed, and that such Project Costs were incurred for or in connection with the
Project;
(B) that such Project Costs have been paid or incurred by the City and are
presently due and payable or have been paid by the City and are reimbursable hereunder
and each item thereof is a proper charge against the Project Fund and has not been
previously paid or reimbursed from the proceeds of the Series 2007B Bonds;
(C) that such costs have not been included in any other Project Fund Draw
Requests previously filed with the Trustee under the provisions hereof; and
(D) that there has not been filed with or served upon the City, any notice of
any lien, right to a lien, or attachment upon or claim affecting the right of any person to
receive payment of the respective amount stated in such Project Fund Draw Request
unless payment is being contested.
(5) In the event that the Trustee requires that payouts be made pursuant to a
disbursement agreement with a title insurance company, the Trustee is authorized to enter into a
disbursement agreement with the City and the Authority and a title insurance company
acceptable to the Trustee. In the event such disbursement agreement is entered into, the Trustee
shall disburse Project Costs pursuant to Project Fund Draw Requests in accordance with any
additional requirements of the disbursement agreement.
(6) Upon receipt of each Project Fund Draw Request of the City, the Trustee shall
pay the obligation set forth in such Project Fund Draw Request out of money in the Project Fund.
In making such payments the Trustee may rely upon such Project Fund Draw Request. If for any
reason the City should decide prior to the payment of any item in said Project Fund Draw
Request not to pay such item it shall. give written notice of such decision to the Trustee and upon
receipt thereof the Trustee shall not snake such payment if such payment has not theretofore been.
316005v7 AJP CL 162-37 24,
made. The Trustee shall not be liable to the City for any payment made pursuant to a Project
Fund Draw Request prior to the Trustee's receipt of such written notice. For purposes of
complying with the requirements of this Section 4.04, the Trustee may conclusively rely and
shall be protected in acting or refraining from acting upon the Project Fund Draw Request of the
City, which imay be submitted by email or fax. The Trustee shall not be bound to make an
investigation into the facts or matters stated in any Project Fund Draw Request of the City. The
Trustee shall not be responsible for determining whether the funds on hand in the Project Fund
are sufficient to complete the Project. The Trustee shall not be required to collect or verify lien
waivers.
(7) The City shall deliver to the Trustee within ninety (90) days after the completion
of the Project, a certificate of the City certifying:
(A) that all pernits necessary for the occupancy and use of the Project have
been obtained and are in full force and effect;
(B) that all fixtures required for the operation of the Project have been
installed and are free and clear of all liens and security interests other than Permitted
Encumbrances; and
(C) that the Project has been fully paid for and no claim or claims exist against
the City or against the Project out of which a lien based on furnishing labor or material
exists or might, with the passage of time or the giving of notice, or both, ripen; provided,
however, there may be excepted from the foregoing statement any claim or claims out of
which a lien exists or might, with the passage of time or the giving of notice, or both,
ripen in the event that the City intends to contest such claim or claims, in which event
such claim or claims shall be described; provided that sufficient funds are on deposit in
the Project Fund and are committed by and available to the City for the Project sufficient
to make payment of the full amount which might in any event be payable in order to
satisfy such claim or claims.
Section 4.05. Application of Balance in Project Fund. When the City has furnished to the
Trustee a Certificate of an Authorized Officer as to the Completion Date, any balance then
remaining in the Project Fund (after reserving such amount as the Authorized Officer shall deem
necessary for the payment of any remaining amounts due or to become due for Project Costs, and
after returning to the City any contingent funds which it may have deposited into the Project Fund
as additional funds to finance total Project Costs and found to be unnecessary for such purpose),
shall be transferred to the Bond Fund.
Section 4.06. Investment of Project Fund. The Trustee shall invest the money on deposit in
the Project Fund at the written request of an Authorized Officer of the City in Permitted Investments
which shall (i) be payable in such amounts and at such times not later than the time or times when.
such money will be needed to pay Project Costs, and (ii) mature or may be redeemed no later than
twelve (12) months from the date of investment. The type, ammount and maturity of Penmitted
Investments made pursuant to this Section shall conform to any instructions of the Authorized
Officer. The Trustee may, from time to time, cause any such investments in the Project Fund to be
316005v7 AJP CL162-37 25
sold or otherwise be converted into cash, whereupon the proceeds derived from such sale or
conversion shall be deposited into the Project Fund. Any interest or profit derived from investments
shall be credited to the Project Fund. Any lass derived from investments shall be debited to the
Project Fund. Investments permitted under this Section may be purchased from the Trustee or from
any of its affiliates. The Authority hereby covenants that no portion of the Project Fund
representing proceeds of the Series 2007B Bonds shall be directed or permitted to be invested or
used in such a manner that any of the Series 2007B Bonds would be "arbitrage bonds" under
Section 148 of the Internal Revenue Code or regulations thereunder.
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316005v7 AJP CL162-37 26
ARTICLE V
Disposition of Pledged Revenues
Section 5.01. Bond Fund. The Authority hereby establishes and shall maintain with the
Trustee, so long as any Bonds are Outstanding, a separate Fund to be designated "Columbia
Heights Economic Development Authority Public Facility Lease Revenue Bond (Municipal
Liquor Stores Project) Bond Fund" (herein called the "Bond Fund"), into which the Trustee shall
make the following deposits:
(a) On July 15, 2008 and each January 15 and July 15 thereafter, or as soon after
the due date as received from the City, all payments by the City as Lease Payments under
Sections 4.2 and 4.3 of the Lease.
(b) All other money received by the Trustee from the City when accompanied
by directions of the City that such money is to be paid into the Bond Fund or used for
purposes for which money in the Bond Fund may be used.
(c) All other money required to be deposited in the Bond Fund pursuant to any
provision of this Indenture, the Ground Lease, the Lease or the Bond Resolution.
The money and investments in the Bond Fund are irrevocably pledged and shall be used by
the Trustee, from time to time, to the extent required:
FIRST: For the payment of principal of, premium (if any) on and interest on the
Bonds, as and when such principal, premium and interest shall become due
and payable; and
SECOND: Upon direction by the Authority, to purchase Outstanding Bonds at purchase
prices not exceeding par plus accrued interest.
Section 5.02. Reserve Fund. The Authority hereby establishes and shall maintain with the
Trustee, so long as any of the Bonds are Outstanding, a separate Fund to be designated "Columbia
Heights Economic Development Authority Public Facility Lease Revenue Bond (Municipal Liquor
Stores Project) Reserve Fund" (herein called the "Reserve Fund"), into which the Trustee shall
make the following deposits:
(a) After the Series 2007B Bonds have been delivered, the Trustee shall deposit
into the Reserve Fund money received from the Series 2007B Bonds in the amount of
$399,250.00, in order to satisfy the Reserve Requirement for the Series 2007B Bonds.
(b) After the Series 2007B Bonds have been delivered, the Trustee shall deposit
into the Reserve Fund all money and income of the Trust Estate not deposited or required to
be deposited in the Bond Fund, and all Additional Lease Pa}nnents pursuant to Section
316005v7 AJP CL162-37 27
4.3(g) of the Lease, as further required under this Section 5.02, in order to maintain or
restore the balance on deposit in the Reserve Fund in an amount at least equal to the Reserve
Requirement, as further provided in this Section.
(c) All other funds required or permitted to be deposited into the Reserve Fund
under this Indenture or the Lease.
The funds and investments in the Reserve Fund are irrevocably pledged to and shall be used
by the Trustee, from time to time, as may be required, for the payment of principal of, premium (if
any) on and interest on the Bonds as and when such principal, premium and interest shall become
due and payable, and for those purposes only; provided that (i) if cash amounts on deposit in the
Reserve Fund at any time exceed the Reserve Requirement, the Trustee shall transfer the excess to
the Bond Fund and (ii) cash amounts in the Reserve Fund shall be transferred to the Bond Fund,
when the money and proceeds of investments in the Reserve Fund are sufficient (with money and
proceeds of investments in the Bond Fund) to pay when due the principal of and interest on all
Outstanding Bonds.
Notwithstanding any other provision of this Section 5.02 to the contrary, in the event of a
failure by the City to make Lease Payments in the amounts or at the times required under Section
4.2 of the Lease, the Trustee shall transfer from the Reserve Fund any amount required to make
good the deficiency, and the City shall be required to restore the balance in the Reserve Fund to the
Reserve Requirement by making Additional Lease Payments pursuant to Section 4.3(g) of the
Lease.
The Trustee, in its discretion, is authorized to use funds and investments in the Reserve
Fund to pay the amount of any rebate due the United States with respect to the Bonds under Section
148 of the Internal Revenue Code, if the City shall have failed to pay or provide for the payment
thereof under Section 4.3(e) of the Lease.
If any transfer of funds is made from the Reserve Fund to the Bond Fund under this Section,
or if an Event of Default occurs, the Trustee may use any funds in the Reserve Fund to pay for any
mortgage registration tax or other recording fees required to be paid for purposes of filing this
Indenture with the County Recorder of Anoka County, Minnesota.
Section 5.03. Investment of Funds. To the extent authorized by applicable law, money on
deposit to the credit of the Project Fund, the Bond Fund and the Reserve Fund shall be invested by
the Trustee in Permitted Investments, unless directed otherwise upon written request by an
Authorized Officer of the City. Investments permitted under this Section may be purchased from
the Trustee or from any of its affiliates. Investments so made shall be deemed at all times to be a
part of the respective Fund, but may from time to time be sold or otherwise converted into cash,
whereupon the proceeds derived from such sale or conversion shall be credited to such Fund. Any
interest accruing on and any profit realized from such investment shall be credited to the respective
Fund, except that, so long as there shall be credited to the Reserve Fund a sum not less than the
Reserve Requirement, earnings thereon shall be credited to the Bond Fund. All funds and accounts
shall be marked to market by the Trustee on a semiannual basis no fewer than fifteen (15) days prior
to each interest payment date. Any investments purchased with. amounts on deposit in any Fund
316005v7 AJP C'L162-37 28
under this Indenture maybe exchanged for cash or investments of equal value credited to any other
Fund. The Trustee shall redeem or sell, at the best price obtainable, any investments so made,
whenever it shall be necessary to do so in order to provide money to meet any payment from the
respective Fund. Neither the Trustee nor the Authority shall be liable for any loss resulting from
any such investment, nor from failure to preserve rights against endorsers or other prior parties to
instruments evidencing any such investment. Investment of funds pursuant to this Section shall be
limited as to amount and yield of investment in such manner that no part of the Outstanding Bonds
shall be deemed "arbitrage bonds" under Section 148 of the Internal Revenue Code and regulations
thereunder. The Trustee shall be entitled to rely on the Non-Arbitrage Certificate delivered in
connection with the issuance of cash series of Bonds. Investment of funds pursuant to this Section
shall comply with all procedures required under applicable provisions of the Internal Revenue Code
to qualify the purchase price of an investment as the fair market value of such investment.
Section 5.04. Compliance with Arbitrage Restrictions; Rebate Requirements. The
Authority hereby acknowledges and confines that the maintenance of the tax-exempt status of
interest on the Bonds is dependent, among other things, on compliance with the arbitrage
requirements set forth in Section 148 of the Internal Revenue Code. In order to confirm and carry
out such understanding, the City has agreed under the Lease, inter alia, to make or cause to be made
periodic computations and rebate payments to the United States as and when required by said
Section. 148 of the Internal Revenue Code. The Authority and the City expect that the proceeds of
the Bonds (other than proceeds deposited in the Reserve Fund) will. be exempt from the rebate
requirements of Section 148(f) of the Internal Revenue Code, for issues the gross proceeds of which
will be spent within 24 months. However, if that exception is inapplicable and no other exemption
is available, the City is to cause to be computed as of each computation date all rebatable arbitrage
earned with respect to nonpurpose investments made with gross proceeds of the Bonds. Payment of
all rebates required to be made to the United States under Section 6.$(b) of the Lease and under this
Section shall be made from payments made by the City under Section 4.3(e) of the Lease or from
other available funds held under this Indenture. Such required rebate payments shall. be made in the
minimum amounts required by said Section 148 of the Internal Revenue Code not later than 60 days
after each installment computation date. Not later than. 60 days after the final computation date, the
Trustee shall. pay or cause to be paid, as directed by the Authority or the City, from the sources
described in the Lease and in this Section 5.04, 100 percent of the aggregate amount described
above not theretofore paid to the United States. In construing this Section 5.04 all terms used in this
Section shall have the meanings provided in Section 148 of the Internal Revenue Code.
Notwithstanding any other provision of this Section 5.04, any requirement unposed hereunder may
be deemed inapplicable and of no force or effect if an opinion of Bond Counsel is rendered to the
Trustee to the effect that the failure to impose such requirement will not adversely effect the
tax-exempt status of interest on the Bonds.
In order to comply with the provisions of this Section 5.04 or Section 6.8(b) of the Lease,
the Trustee is hereby authorized to obtain such Opinions of Counsel, reports of accountants and
Certificates of the City as may be necessary for the purpose, and any expenses thereof shall be
borne by the City. The Trustee is also authorized to apply amounts credited to the Reserve Fund to
the payment of any rebate then owing, as further provided in Section 5.02 hereof, and to establish
such other fund or account hereunder as it may deem necessary or desirable in order to maintain
funds for the purpose of making any payment required under this Section 5.04.
316005v7 AJP CL162-37 29
ARTICLE VI
Particular Covenants of the Authority
The Authority covenants and agrees, so long as any Bonds shall be Outstanding and subject
to the limitations on its obligations herein set forth, that:
Section 6.01. Payment of Bonds. It will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this Indenture and the Bond
Resolution and in each and every Bond executed, authenticated and delivered hereunder; will pay,
but solely from Lease Payments by the City and other amounts received or held by the Trustee
hereunder, the principal of, premium (if any) on and interest on every Bond issued hereunder on the
dates, at the places and in the manner prescribed in such Bonds in any coin or currency which, on
the respective dates of payment of such principal and interest, is legal tender for the payment of
public and private debts; and will cause such amounts received to be deposited with the Trustee
prior to the due date of each installment of principal and interest and prior to the maturity of any
Bond in amounts sufficient to pay such installment or Bond to the end that the Trustee may cause to
be placed in any other bank of payment specified herein and in the Bonds, on time, money required
for payment of principal, premium and interest; provided, however, that the principal of and interest
on any Bond is not and shall not constitute an indebtedness of the Authority or the City, within the
meaning of any state constitutional provision or statutory limitation and shall not be deemed to
represent a debt or pledge the full faith or credit of the Authority or the City or grant to the Owner of
any Bond any right to have the Authority or the City levy any taxes or appropriate any funds to the
payment of principal of or interest on the Bonds, and the Bonds do not constitute or give rise to a
charge against the general credit or taxing powers of the Authority or the City or a pecuniary
liability of the Authority or the City, the payment of the Bonds to be made solely and only out of the
money received pursuant to the Lease and the Funds and Accounts established and maintained with
the Tnzstee pursuant to this Indenture and appropriated to the payment of the Bonds by this
Indenture.
Section 6.02. Extensions of Payments of Bonds and Interest. The Authority shall not
directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the
time of payment of any claims for interest, except as inay be expressly permitted by the provisions
of this Indenture. Nothing in this Section shall, however, be deemed to limit the right of the
Authority to fund or refund such Bonds and claims for interest.
Section. 6.03. Authority of the Authority. The Authority has undertaken, pursuant to the
Constitution and laws of the State, to create and issue the Bonds, to use the proceeds thereof to
finance the Project, to execute this Indenture and assign and pledge to the Trustee the Trust Estate,
including the Lease Payments, and to make the covenants as herein provided. All necessary action
and proceedings on their part to be taken for the creation and issuance of the Bonds and the
execution and delivery of this Indenture have been duly and effectively taken, and the Bonds in the
hands of the Owners thereof are and will be duly issued special, limited obligations of the Authority
316005v7 A.tP CL162-37 30
in accordance with their terms. The Bonds are being issued pursuant to the Act and are intended to
be subject to no other general provisions of law respecting the authorization, execution and delivery
of bonds.
Section 6.04. Concerning the Lease. The Authority will cooperate or cause and permit the
Trustee to take such action as may be necessary or advisable to enforce the covenants, terms and
conditions of the Lease if such action shall be deemed to be in the best interest of the Authority or
the Owners. The Authority shall do or cause to be done all things on its part to be performed under
the Lease so that the obligations of the City thereunder shall not be impaired or excused.
Section 6.05. To Observe All Covenants and Terms; Limitations on Authority's
Obligations. The Authority will not issue or permit to be issued any Bonds hereunder in any
manner other than in accordance with the provisions of this Indenture and the agreements in that
behalf herein contained, and will not suffer or permit any Default to occur under this Indenture, but
will faithfully observe and perform all the conditions, covenants and requirements hereof. It is
expressly agreed that the Authority has no obligation to levy taxes for, or make any advance or
payment or incur any expense or liability from its general funds in performing, any of the
conditions, covenants or requirements of the Bonds or this Indenture or from any funds other than
revenues and income received pursuant to the Lease or money in the Funds and Accounts provided
for herein.
Section 6.06. Liens• Further Assurances. The Authority agrees that it will not mortgage,
sell or otherwise encumber its interest in the Sites and the Facilities during the term of the Lease,
except as such liens lnay constitute Permitted Encumbrances.
The Authority will execute or cause to be executed any and all further instruments that may
reasonably be requested by the Trustee and be authorized by law to perfect the lien of this Indenture
on the property secured hereby, or to vest in the Trustee the right to receive and apply the revenues
and income pledged to the payment or protection and security of the Bonds, and will execute,
deliver, file or record any financing statement pursuant to the Uniform Commercial Cade if such
filing, registration or recording shall be necessary or convenient to effect, protect or confirm the
pledge and lien of this Indenture. The City shall. pay all fees and expenses in connection with the
preparation of such. documents and all filing and registration taxes and fees in connection therewith.
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316005v7 A.iP CL162-37 31
ARTICLE VII
Remedies on Default
Section 7.01. Events of Default. Each of the following events is hereby defined as, and is
declared to be and to constitute, an "Event of Default":
(a) If payment of the principal of any of the Bonds, or any premium thereon,
when the same shall become due and payable, whether at maturity or proceedings for
redemption, declaration or otherwise, shall not be made; or
(b) If payment of any interest on the Bonds when the same shall become due
and payable (in which case interest shall be payable to the extent permitted by law on any
overdue installments of interest, in each case at the interest rate home by the Bonds in
respect of which such interest is overdue) shall not be made; or
(c) If the Authority shall default in the due and punctual performance of any of
the other covenants, conditions, agreements and provisions contained in the Bonds or in this
Indenture, or in any indenture supplemental hereto on the part of the Authority to be
performed, and such default shall have continued for a period of sixty (60) days after written
notice, specifying such default and requiring the same to be remedied, shall have been given
to the Authority and to the City by the Trustee, or if such notice is given to the Trustee, the
Authority and the City by the Owners of not less than twenty-five per cent (25%) in
principal amount of the Bonds then Outstanding; or
(d) If any "event of default" as that term is defined in the Lease shall occur and
be continuing.
Section '7.02. Acceleration. of Maturity. Upon the occurrence of an Event of Default, or if
the City shall determine pursuant to Section 5.6 of the Lease not to appropriate funds for the
payment of Lease Payments to become due after the then-current Fiscal Year and to terminate the
Lease at the end of the then-current Fiscal Year, the Trustee may, upon written request of the
Owners of twenty-five percent (25%) in aggregate principal amount of Bonds Outstanding
hereunder, by notice in writing delivered to the Authority and the City, declare the principal of all
Bonds hereby secured then Outstanding and the interest accrued thereon immediately due and
payable.
Section 7.03. Enforcement of Covenants and Conditions. In any case of Default or breach
of any of the covenants and conditions of this Indenture, or to protect the Trust Estate, the Trustee,
anything herein contained to the contrary notwithstanding and without any request from any Owner
(subject, however, to the provisions of Section 8.06 hereof), may take such action or actions for the
enforcement of its rights and the rights of the Owners and the rights of the Authority under the
Ground Lease or the Lease as due diligence, prudence and care would require and to pursue the
same with like diligence, prudence and care.
316005v7 AJP CL162-37 32
Upon the happening and continuance of an Event of Default, the Trustee may, and upon the
written request of the Owners of not less than twenty-five percent (25%) in aggregate principal
amount of Outstanding Bonds the Trustee shall, proceed forthwith by suit or suits at law or in equity
or by any other appropriate remedy to enforce payment of the Bonds, to enforce application to such
payment of the funds, revenues and income appropriated thereto by this Indenture and by the
Bonds, to enforce rights of the Authority under the Ground Lease and the Lease, and to pursue any
such other appropriate legal or equitable remedy as the Trustee, being advised by counsel, shall
deem most effectual to protect and enforce any of its rights or any of the rights of the Owners.
Notwithstanding the foregoing, the Trustee need not proceed upon any such written request of the
Owners, as aforesaid, unless such Owners shall have offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby.
The Trustee may (and is hereby authorized and empowered to) foreclose this Indenture by
action or advertisement pursuant to the laws of the State in such case made and provided, power
being expressly granted to sell the Authority's interest in the Sites and the Facilities at public
auction and convey the same to the purchaser in fee simple (subject to the Ground Lease), out of the
proceeds arising from such sale, to pay the Bonds secured hereby, with interest, and all legal costs
and charges of such foreclosure and the maximum attorneys' fees permitted by law, which costs,
charges and fees the Authority agrees to pay.
The Trustee shall have and may exercise with respect to all personal property and fixtures
which are part of the Facilities, all the rights and remedies accorded upon default to a secured parry
under the Uniform Commercial Code as in effect in the State. If notice to the Authority of the
intended disposition of such property is required by law in a particular instance such notice shall be
deemed commercially reasonable if given to the Authority at least 10 calendar days prior to the date
of intended disposition.
Notwithstanding anything to the contrary in this Indenture, upon foreclosure and satisfaction
of the mortgage given to the Trustee under this Indenture, all other provisions of the Indenture
remain in effect and the Bonds remain Outstanding, except upon compliance with the requirements
for discharge of the Indenture under Article X hereof.
Section 7.04. Appointment of Receivers. Upon the occurrence of an Event of Default, and
upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the
Trustee and the Owners of Bonds under this Indenture, the Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the Trust Estate and of the revenues, issues,
payments and profits thereof, pending such proceedings, with such powers as the court making such
appointment shall confer.
Section 7.05. Application of Money. All money received by the Trustee pursuant to any
right given or action taken under the provisions of this Indenture, the Lease or the Ground Lease
shall, a$er pa}nnent of the cost and expenses of the proceedings resulting in the collection of such
money and of the expenses, liabilities and advances incurred or made by the Trustee (including, but
not limited to, fees and expenses incurred to date by the Trustee and which are unpaid), be deposited
in the Bond Fund, and all money then held hereunder, including but not limited to money in the
Bond Fund and the Reserve Fund, shall be applied as follows:
316005v7 AJP CL162-37 33
(a) Unless the principal of all the Bonds shall have become or shall have been
declared due and payable, all such money shall be applied:
FIRST: To the payment to the persons entitled thereto of ail installments of
interest then due on the Bonds, in the order of the maturity of the
installments of such interest, and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the
payment ratably, according to the amounts due on such installment,
to the persons entitled thereto, without any discrimination or
privilege; and
SECOND: To the payment to the persons entitled thereto of the unpaid principal
of any of the Bonds which shall have become due (other than Bonds
called for redemption for the payment of which money is held
pursuant to the provisions of this Indenture), in the order of their due
dates, and, if the amount available shall not be sufficient to pay in
full the Bonds due on any particular date, then to the payment
ratably, according to the amount of principal due on such date, to the
persons entitled thereto without any discrimination or privilege.
(b) If the principal of all the Bonds shall have become due or shall have been
declared due and payable, all such money shall be applied to the payment of the principal
and interest then due and unpaid upon the Bonds, 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, ratably, according to the
amounts due respectively for principal and interest, to the persons entitled thereto without
any discrimination. or privilege.
(c} If the principal of all the Bonds shall have been. declared due and payable,
and if such declaration shall thereafter have been. rescinded and annulled under the
provisions of this Article, then, subject to the provisions of paragraph (b) of this Section in
the event that the principal of all the Bonds shall later become due or be declared due and
payable, the money shall be applied in accordance with the provisions of paragraph (a) of
this Section.
Whenever money is to be applied by the Trustee pursuant to the provisions of this Section,
such money shall be applied by it at such times, and from time to time, as the Trustee shall
determine, having due regard to the amount of such money available for application and the
likelihood of additional money becoming available for such application in the future. Whenever the
Trustee shall apply such funds, it shall fix the date (which shall be an interest payment date unless it
shall deem another date more suitable) upon which such application is to be made and upon such
date interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such money and of
the fixing of any such date, and shall not be required to snake payment to the Owner of any unpaid
316005v7 AJP C'LI62-37 34.
Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
Whenever all Bonds and interest thereon have been paid under the provisions of this Section
and alI expenses and charges of the Trustee and the Authority have been paid, any balance
remaining shall be paid to the persons entitled to receive the same; if no other person shall be
entitled thereto, then the balance shall be paid to the City.
Section 7.06. Right of Trustee to Act Without Possession of Bonds. All rights of action
(including the right to file proof of claim) under this Indenture, the Lease, the Ground Lease, or the
Bond Resolution, or under any of the Bonds, maybe enforced by the Trustee without the possession
of any of the Bonds or the production thereof in any trial or other proceeding relating thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee, without
the necessity of joining as plaintiffs or defendants any Owners of the Bonds hereby secured, and any
recovery of judgment shall be for the equal benefit of the Owners of the Outstanding Bonds, subject
to the provisions of Section 6.02 hereof with respect to extended Bonds and claims for interest.
Section 7.07. Power of Majority of Owners. Anything in this Indenture to the contrary
notwithstanding, the Owners of a majority in aggregate principal amount of Bonds Outstanding
hereunder shall have the right, at any time, by an instrument or instruments in writing executed and
delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken
under this Indenture, the Lease, the Ground Lease, and the Bond Resolution; provided that such
direction shall not be otherwise than in accordance with the provisions of applicable law and that the
Trustee shall be indemnified as provided in Section 8.06.
Section 7.08. Limitation on Suits by Owners. No Owner of any Bond shall have any right
to institute any suit, action or proceeding at law or in equity for the enforcement of this Indenture, or
for the execution of any trust hereof or for any other remedy hereunder, unless a Default has
occurred of which the Trustee has been notified or of which it is deemed to have notice; nor unless
also such Default shall have become an Event of Default and the Owners of twenty-five percent
(25%) in aggregate principal amount of Bonds Outstanding hereunder shall have made written.
request to the Trustee and shall have offered it reasonable opportunity either to proceed to exercise
the powers granted herein or to institute such action, suit or proceeding in its own name; nor unless
also they shall have offered to the Trustee indemnity as provided in Section 8.06; and such
notification, request and offer of indemnity are hereby declared in every such case at the option of
the Trustee to be conditions precedent to the execution of the powers and trusts of this Indenture,
and to any action or cause of action for enforcement or for any other remedy hereunder; it being
understood and intended that no one or more Owners of the Bonds shall have any right in any
manner whatsoever to affect, disturb, or prejudice the lien of this Indenture by their action or to
enforce any right hereunder except in the manner herein provided, and that all proceedings at law or
in equity shall be instituted, had and maintained in the manner herein provided and for the equal
benefit of the Owners of all Bonds Outstanding hereunder. Nothing in this Indenture shall,
however, affect or impair the right of any Owner, which is absolute and unconditional, to enforce
and bring suit for the payment of the principal of and interest on any Bond at and after the maturity
thereof or the obligations of the Authority to pay from the sources provided herein the principal of
316005v7 AJP CL162-37 35
and interest on each of the Bonds issued hereunder to the respective Owners thereof at the time and
place in said Bonds expressed, in accordance with the terms of the Bonds.
Section 7.09. Waiver by Owners. The Trustee, upon the written request of the Owners of
not less than a majority in aggregate principal amount of the Bonds at the time Outstanding
hereunder, shall waive any Event of Default hereunder and its consequences, except an Event of
Default in the payment of the principal of the Bonds at the date of maturity specified therein;
provided, however, that an Event of Default in the payment of interest on the Bonds shall not be
waived unless, prior to such waiver, all arrears of interest, and all expenses of the Trustee shall have
been paid or shall have been provided for by deposit with the Trustee of a sum sufficient to pay the
same. In case of any such waiver, the Authority, the Trustee and the Owners of the Bonds shall be
restored to their former positions and rights hereunder respectively.
Section 7.10. Remedies Cumulative Delay Not To Constitute Waiver. No remedy by the
terms of this Indenture, the Lease, the Ground Lease, or the Bond Resolution conferred upon or
reserved to the Trustee (or to the Owners) is intended to be exclusive of any other remedy, but each
and every such remedy shall be cumulative and shall be in addition to any other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any Default or Event of
Default shall impair any such right or power or shall be construed to be a waiver of any such
Default or Event of Default or acquiescence therein, and every such right and power may be
exercised from time to time and as often as maybe deemed expedient.
No waiver of any Default or Event of Default hereunder, whether by the Trustee or by the
Owners, shall extend to or shall affect any subsequent Default or Event of Default or shall impair
any rights or remedies consequent thereon.
Section 7.11. Restoration of Ri hg is Upon Discontinuance of Proceedings. In case the
Trustee or Owners shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or Owners, then and in every such case the Authority, the City,
the Trustee and the Owners shall be restored to their former positions and rights hereunder with
respect to the Trust Estate, and all rights, remedies and powers of the Trustee or Owners shall
continue as if no such proceedings had been taken.
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316005v7 AJP CL162-37 3C
ARTICLE VIII
Concerning the Trustee
Section 8.01. Acceptance of Trust and Prudent Performance Thereof. The Trustee, prior to
the occurrence of an Event of Default and after the curing of all such Events of Default as >nay have
occurred, undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. During the existence of any Event of Default which has not been cured, the Trustee shall
exercise such rights and powers, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of his or her own
affairs.
The Trustee shall not be required to take notice or be deemed to have notice of any Default
or Event of Default hereunder except Default in the deposits or payments specified, or failure by the
Authority or the City to file with it any of the documents required or to deposit with it evidence of
the insurance policies required hereunder or under the Lease, unless the Trustee shall be specifically
notified in writing of such Default or Event of Default by the City, by the Authority or by the
Owners of at least twenty-five percent (25%} in aggregate principal amount of Bonds Outstanding
hereunder, and in order to be effective, all notices or other instruments required by this Indenture to
be delivered to the Trustee must be delivered at the office of the Trustee, and in the absence of such
notice so delivered, the Trustee may conclusively assume that there is no Default or Event of
Default except as aforesaid.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its
awn negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(a) prior to an Event of Default hereunder, and after the curing of all such
Events of Default which may have occurred:
(1 } the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and to the correctness of the
opinions expressed therein, upon any certificate or opinion furnished to the Trustee
conforming to the requirements of this Indenture; but in the case of any such
certificate or opinion which by any provision hereof is specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether it conforms to the requirements of this Indenture; and
(b} at all times, regardless of whether or not any Event of Default shall exist:
316005v7 AJP CL162-37 37
(1) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts, and
(2) the 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
Owners of not less than a majority in aggregate principal amount of all the Bonds at
the time Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur individual financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
Section 8.02. Trustee May Rely Upon Certain Documents and Opinions. Except as
otherwise provided in Section 8.01,
(a) the Trustee may rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, or
other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, election, order, certification or demand of either of the
Authority or the City shall be sufficiently evidenced by an instrument signed by an
Authorized Officer of the Authority or the City, as the case maybe (unless otherwise in this
Indenture specifically prescribed), and any resolution of the Authority or the City may be
evidenced to the Trustee by a Certified Resolution.;
(c) the Trustee may consult with counsel (who maybe counsel for the Authority
or the City) and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel; and
(d) whenever, in the administration of the trusts of this Indenture, the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by a Certificate of the
Authority or the City, and such Certificate shall, in the absence of negligence or bad faith on
the part of the Trustee, be full warrant to the Trustee for any action taken or suffered by it
under the provisions of this Indenture upon the faith thereof.
316005v7 AJP CL162-37 38
Section 8.03. Trustee Not Responsible for Indenture Statements, Validity. The Trustee shall
not be responsible for any recital or statement herein, or in the Bonds (except in respect of the
Certificate of the Trustee endorsed on the Bonds), or for the validity of the execution by the
Authority of this Indenture or the validity or execution of the Ground Lease, the Lease or the Bond
Resolution or of any supplemental instrument, or for the sufficiency of the security of the Bonds
issued hereunder or intended to be secured hereby, or for the value or title of any of the Trust Estate,
or otherwise as to the maintenance of the security hereof; and the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenant, condition or agreement on
the part of the Authority or the City except as herein set forth, but the Trustee may require of the
Authority and the City full information and advice as to the performance of the covenants,
conditions and agreements aforesaid and of the condition of the physical property included in the
Trust Estate. The Trustee shall not be accountable for the use of any Bonds authenticated or
delivered hereunder.
Section 8.04. Limits on Duties and Liabilities of Trustee. The pei7nissive right of the
Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee and
the Trustee shall be answerable only for its own negligence or willful default. The Trustee shall not
be required to give any bond or surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
Section 8.05. Money Held in Trust. Money held by the Trustee hereunder is held in trust
but need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder except as otherwise agreed
with the Authority or the City.
Section 8.06. Obligation of Trustee. The Trustee shall be under no obligation to institute
any suit, or to take any proceeding under this Indenture, or to enter any appearance or in any way
defend in any suit in which it may be defendant, or to take any steps in the execution of the trusts
hereby created or in the enforcement of any rights and powers hereunder, until it shall have
reasonable grounds to believe that repayment of all costs and expenses, outlays and counsel fees and
other reasonable disbursements in connection therewith and adequate indemnity against all risk and
liability is reasonably assured to it; the Trustee inay, nevertheless, begin suit, or appear in and
defend suit, or do anything else in its judgment proper to be done by it, without assurance of
reimbursement or indemnity, and in such case the Trustee shall. be reimbursed for all costs and
expenses, outlays and counsel fees and other reasonable disbursements properly incurred in
connection therewith. If the City shall fail to make such reimbursement, the Trustee may reimburse
itself from any money in its possession under the provisions of this Indenture and shall be entitled to
a preference therefor over any of the Bonds Outstanding hereunder.
Section $.07. Notice to Owners Etc. The Trustee shall give to the Owners of the Bonds
whose names and addresses are known to it written notice of all Events of Default known to the
Trustee by virtue of actual knowledge of a Responsible Officer, within sixty (60) days after the
occurrence of the Event of Default, unless the Event of Default has been cured before the giving of
such notice; provided that, except in the case of Events of Default in the payment of principal of or
interest on any of the Bonds, the Trustee shall be protected in withholding such notice if and so long
as its board of directors, an executive committee or trust committee of directors or the chief
316005v7 AJP CL162-3? 39
executive officer of the Trustee in good faith determines that the withholding of such notice is in the
interest of the Owners; and further provided that no such notice shall be given unless and until any
Default becomes an Event of Default.
The Trustee shall notify any rating agency then maintaining a rating on the Outstanding
Bonds (i) not less than ten (10) Business Days in advance of the execution of any supplement,
amendment or change to any financing documents; (ii) upon any draw upon the Reserve Fund; (iii)
upon any deficiency in any fund or account held by the Trustee; (iv) upon a direction from the City
to purchase or redeem all or any portion of the Bonds; (v) upon the resignation or petition for
removal of the Trustee or the appointment of a successor Trustee; and (vi) upon any Event of
Default or upon any event, that with notice and/or with the lapse of time, could become an Event of
Default under this Indenture or any other transaction document.
Section 8.08. Intervention in Judicial Proceedings. In any judicial proceeding to which the
Authority or the City is a party and which, in the opinion of the Trustee, based upon an Opinion of
Counsel which shall be reasonably satisfactory to the City, has a substantial bearing on the interests
of the Owners of Bonds issued hereunder, the Trustee may intervene on behalf of Owners and shall
do so if requested in writing by the Owners of at least twenty-five percent (25%) in aggregate
principal amount of Bonds Outstanding hereunder. The rights and obligations of the Trustee under
this Section are subject to the approval of the court having jurisdiction in the premises.
Section 8.09. Further Investi atg ion by Trustee. The resolutions, opinions, Certificates and
other instruments provided for in this Indenture may be accepted by the Trustee as conclusive
evidence of the facts and conclusions stated therein and shall be in full warrant, protection and
authority to the Trustee for its actions hereunder; but the Trustee may, in its unrestricted discretion,
and shall, if requested in writing so to do by the Owners of not less than twenty-five percent (25%)
in aggregate principal amount of Bonds Outstanding hereunder, cause to be made such independent
investigation as it inay see fit, and in that event may decline to release any property, or pay over
cash, or take other action unless satisfied by such investigation of the truth and accuracy of the
matters so investigated. The expense of such investigation. shall be paid by the City.
Section 8.10. Trustee to Retain Records. The Trustee shall retain all financial statements
furnished by the City in accordance with this Indenture or the Lease so long as any of the Bonds
shall be Outstanding.
Section 8.11. Compensation of Trustee. All advances, counsel fees and other expenses
reasonably made or incurred by the Trustee in and about the execution of the trust hereby created
and reasonable compensation to the Trustee for its services in the premises shall be paid by the City.
The compensation of the Trustee shall not be limited to or by any provision of law in regard to the
compensation of trustees of an express trust. If not paid by the City, the Trustee shall have a first
lien, with right of payment prior to payment on account of interest on or principal of any Bond
issued hereunder, for reasonable compensation, expenses, advances and counsel fees incurred in and
about the execution of the trusts hereby created and the exercise and performance of the powers and
duties of the Trustee hereunder and for the cost and expense incurred in defending against any
liability in the premises of any character whatsoever (unless such liability is adjudicated to have
resulted from the negligence or willful default of the Trustee).
316005v7 AJP CL162-37 q,~
Section 8.12. Trustee May Hold Bonds. 'The Trustee and its officers and directors may
acquire and own, or become the pledgee of, Bonds and otherwise deal with the Authority or the City
in the same manner and to the same extent and with like effect as though it were not Trustee
hereunder.
Section 8.13. Appointment of Trustee. There shall at ail times be a trustee hereunder which
shall be an association or a corporation organized and doing business under the laws of the United
States or any State thereof, authorized under such laws to exercise corporate trust powers, having a
combined capital, surplus and undivided profits of at least Ten Million Dollars ($10,000,000), and
subject to supervision or examination by Federal or State authority. If such association or
corporation publishes reports of condition at least annually, pursuant to law or to the requirements
of any supervising or examining authority above referred to, then for the purposes of this Section
the combined capital, surplus and undivided profits of such corporation shall be deemed to be its
combined capital as set forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this Section, and another
association or corporation is eligible, the Trustee shall resign irrunediately in the manner and with
the effect specified in Section 8.16 hereof.
Section 8.14. Merger of Trustee. Any corporation or national banking association into
which the Trustee or substantially all of its corporate trust business may be converted or merged, or
with which it maybe consolidated, or to which it may sell or transfer its trust business and assets as
a whole or substantially as a whole, or any corporation or national banking association resulting
from any such conversion, sale, merger, consolidation or transfer to which it is a parry, ipso facto,
shall be and become successor trustee hereunder and vested with all of the title to the Trust Estate
and all the trusts, powers, discretions, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.15. Resignation or Removal of Trustee. The Trustee may resign and be
discharged from the trusts created by this Indenture by giving to the City thirty (30} days' notice in
writing, and to the Owners notice by first class mail at their addresses as set forth on the registration
books, of such resignation, specifying a date when such resignation shall take effect. Such
resignation shall take effect no earlier than the date on which a successor trustee shall have been
appointed as hereinafter provided.
Any Trustee hereunder may be removed at any time by an instrument or instruments in
writing, appointing a successor to the Trustee so removed, filed with the Trustee and executed by
either (i) the Authority and the City, or (ii) the Owners of a majority in principal amount of the
Bonds hereby secured and then Outstanding.
No resignation or removal of the Trustee or any successor shall be effective until a successor
Trustee shall have been. appointed and such party shall have accepted the duties of Trustee
hereunder.
316005v7 AJP CL162-37 41
Section 8.16. Appointment of Successor Trustee. In case at any time the Trustee shall
resign or shall be removed or otherwise shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if a
public supervisory office shall take charge or control of the Trustee or of its property or affairs, a
vacancy shall forthwith be created in the office of such Trustee hereunder, and a successor may be
appointed by either (i) the Authority and the City or (ii) the Owners of a majority in principal
amount of the Bonds hereby secured and then Outstanding, by an instrument or instruments in
writing filed with the Trustee and executed by the Authority and the City or by such Owners, as
applicable, notification thereof being given to the City, but in the event the Trustee has been
removed by action of the Owners, until a new Trustee shall be appointed by the Owners as herein
authorized, the Authority inay, subject to the provisions hereof, appoint a Trustee to fill such
vacancy. After any appointment by the Authority, the Trustee so appointed shall cause notice of its
appointment to be mailed within thirty (30} days after such appointment to the registered Owners of
the Bonds, but any new Trustee appointed by the Authority shall immediately and without further
act be superseded by a Trustee appointed in the manner above provided by the Owners of a majority
in principal amount of the Bonds whenever such appointment by the Owners shall be made.
If, in a proper case, no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of this Section within six (6) months after a vacancy shall have occurred in the
office of Trustee, the Owner of any Bond hereby secured or any retiring Trustee may apply to any
court of competent jurisdiction to appoint a successor Trustee. Said court may thereupon, after such
notice, if any, as such court inay deem proper and prescribe, appoint a successor Trustee.
Section 8.17. Transfer of Rights and Property to Successor Trustee. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to
the Authority and the City an instrument in writing accepting such appointment hereunder, and
thereupon such successor, without any further act, deed or conveyance, shall become fully vested
with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but
such predecessor shall, nevertheless, on the written request of the Authority or of its successor
Trustee execute and deliver an instrument transferring to such successor all the estate, properties,
rights, powers and trusts of such predecessor hereunder, and every predecessor Trustee shall deliver
all securities and money held by it as Trustee hereunder to its successor. Should any assignment,
conveyance or instrument in writing from the Authority be required by any successor Trustee for
more fully and certainly vesting in such successor Trustee the estates, rights, powers and duties
hereby vested or intended to be vested in the predecessor Trustee, any and all such assignments,
conveyances and instruments in writing shall, on request, be executed, acknowledged and delivered
by the Authority. The resignation of any Trustee and the instrument or instruments removing any
Trustee and appointing a successor hereunder, together with all assignments, conveyances and other
instruments provided for in this Article shall, at the expense of the City, be forthwith filed and/or
recorded by the successor Trustee in each recording office where this Indenture shall have been
filed and/or recorded.
Section 8.18. Appointment of Successor or Alternate Paying Agents. In the event the initial
Trustee shall also have been appointed paying agent for any Bonds, a successor Trustee shall
become successor paying agent with respect to such Bonds unless otherwise provided in the
instrument appointing such successor Trustee. If any paying agent other than the initial Trustee
316005v7 AJP CL162-37 4,2
shall resign or become incapable of acting, or shall be removed under a supplemental indenture
entered into pursuant to the terms hereof, the Trustee may appoint a successor paying agent which is
a bank or trust company qualified to act as paying agent under the Act and which is willing to
accept the office on reasonable and customary terms approved by an Authorized Officer of the City.
The Trustee may appoint successor paying agents. "Paying agent" as used in this Section refers to
the bank or trust company named in the form of Bond provided for the Bonds in the recitals hereof,
where principal of and interest on Bonds may be paid.
(The remainder of this page is intentionally le$ blank.)
316005v7 AJP CL162-37 43
ARTICLE IX
Concerning the Owners
Section 9.01.. Execution of Instruments by Owners. Any request, direction, consent or other
instrument in writing required by this Indenture to be signed or executed by Owners may be in any
number of concurrent instruments of similar tenor and may be signed or executed by such Owners
in person or by agent duly appointed by an instrument in writing. Proof of the execution of any
such instrument and of the ownership of Bonds shall be sufficient for any purpose of this Indenture
and shall be conclusive in favor of the Trustee with regard to any action taken by it under such
instrument if made in the following manner:
(a) The fact and date of the execution by any person of any such instrument may
be proved by the certificate of any officer in any jurisdiction who, by the laws thereof, has
power to take acknowledgments of deeds to be recorded within such jurisdiction, to the
effect that the person signing such. instrument acknowledged the execution thereof, or by an
affidavit of a witness to such execution.
(b) The ownership of Bonds shall be proved by the registration records kept
under the provisions of this Indenture.
Nothing contained in this Article shall be construed as limiting the Trustee to the proof
above specified, it being intended that the Trustee may accept any other evidence of the matters
herein stated which to it may seem sufficient.
Section 9.02. Waiver of Notice. Any notice or other communication required by this
Indenture to be given by delivery, publication or otherwise to the Owners or any one or more
thereof maybe waived, at any time before such notice or communication is so required to be given,
by a writing mailed or delivered to the Trustee by the Owner or Owners of all of the Bonds entitled
to such notice or communication.
Section 9.03. Determination of Owner Concurrence. In determining whether the Owners of
the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction,
consent or waiver under this Indenture, Bonds which are owned by the Authority or the City shall
be disregarded and deemed not to be Outstanding for the purpose of any such determination,
provided that for the purpose of determining whether the Trustee shall be protected in relying on
any such demand, request, direction, consent or waiver only Bonds which the Trustee knows to be
so owned shall be disregarded. Bonds so owned which have been pledged in good faith inay be
regarded as Outstanding for the purposes of this Section if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right to vote such Bonds and that the pledgee is not a person directly or
indirectly controlling or controlled by or under common control with the Authority or the City. In
case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
316005v7 AJP CL162-37 44
Section 9.04. Owners' Meeting. A meeting of the Owners may be called at any time and
from time to tune for any of the following purposes:
(1) to give any notice to the Authority or to the Trustee, or to give any
direction to the Trustee, or to make any request of the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to take any other action
authorized to be taken by Owners pursuant to any of the provisions of Article VII
hereof;
(2) to remove the Trustee or appoint a successor Trustee pursuant to the
provisions of Article VIII hereof;
(3) subject to Article XI hereof, to consent to the execution of an
indenture or indentures supplemental hereto;
(4) subject to Article XII hereof, to consent to any amendment of the
Lease or the Ground Lease or to any instrument supplemental thereto; or
(5) to take any other action authorized to be taken by or on behalf of the
Owners of any percentage of the Outstanding Bonds under any other provisions of
this Indenture or under applicable law.
Any Owners' meeting maybe called and held as follows:
(a) A meeting of Owners may be held at such place within the city where the
Trustee has its principal office as the Trustee or, in case of its failure to act, the Authority or
Owners calling the meeting shall prescribe.
(b) Notice of every meeting of Owners, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting, shall be
mailed, postage prepaid, to each Owner of Bonds and to the City. Any failure of the Trustee
to mail such notice, or any defect therein shall not, however, in any way impair or affect the
validity of any such meeting.
(c) In case at any time the Authority or the City, pursuant to a Certified
Resolution, or the Owners of at least ten percent (10%) in aggregate principal amount of the
Bonds then Outstanding, shall have requested the Trustee to call a meeting of the Owners,
by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have given notice of such meeting within 20 days after
receipt of such request, then the Authority or the Owners of Bonds in the amount above
specified may call such meeting to take any action authorized in this Section by giving
notice thereof as provided in paragraph (b) of this Section.
(d) Only an Owner of one or snore Bonds or a person appointed as proxy by an
instrument in writing of such Owner shall be entitled to vote at or to participate with their
counsel and the representatives of the Trustee, the City or the Authority in such meeting.
316005v7 AJP CL162-37 45
Each Owner shall be entitled to one vote for each $5,000 in principal amount of Outstanding
Bonds held.
(e) The Trustee or, in case of its failure to act, the Authority, the City or Owners
calling or requesting the meeting, may snake such reasonable regulations as it may deem
advisable for any meeting of Owners in regard to proof of the holding of Bonds and of the
appointment of proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
(f) At any meeting of Owners, the presence of persons holding or representing
Bonds in an aggregate principal amount sufficient under the appropriate provision of this
Indenture to take action upon the business for the transaction of which such meeting was
called shall constitute a quorum. Any meeting of Owners duly called pursuant to this
Section may be adjourned from time to time by vote of the Owners (or proxies for the
Owners) of a majority of the Bonds represented at the meeting and entitled to vote, whether
or not a quorum shall be present; and the meeting may be held as so adjourned without
further notice.
(g) The vote upon any resolution submitted to any meeting of Owners shall be
by written ballots on which shall be subscribed the signatures of the Owners of Bonds or of
their representatives by proxy and the serial number or numbers of the Bonds held or
represented by them. The chair of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who shall make and
file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of
Owners shall be prepared by the secretary of the meeting, and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot taken and
affidavits by one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in paragraph (b)
hereof. Each copy shall be signed and verified by the affidavits of the chair and secretary of
the meeting and one such copy shall be delivered to the City and the Authority and another
to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.05. Revocation by Owners. At any time prior to (but not after) the evidencing to
the Trustee of the taking of any action by the Owners of the percentage in aggregate principal
amount of the Bonds specified in this Indenture in connection with such action, any Owner of any
such Bond may, by filing written notice with the Trustee at its principal office revoke any consent
given by such Owner or the predecessor Owner of such Bond. Except as aforesaid, any such
consent given by the Owner of any Bond shall be conclusive and binding upon such Owner and
upon all future Owners of such Bond and of any Bond issued in exchange therefor or in lieu thereof,
irrespective of whether any notation in regard thereto is made upon such Bond. Any action taken by
the Owners of the percentage in aggregate principal amount of Bonds specified in this Indenture in
316005v7 AJP CL162-37 46
connection with such action shall be conclusively binding upon the Authority, the City, the Trustee
and the Owners of all the Bonds.
(The remainder of this page is intentionally Left blank.}
316005v7 AJP CL162-37 ~l7
ARTICLE X
Payment, Defeasance and Release
Section 10.01. Payment and Discharge of Indenture. If the City or the Authority, their
successors or assigns, shall:
(a} pay or cause to be paid the principal of and premium, if any, and interest on
the Bonds at the time and in the manner stipulated therein and herein, or
(b) provide for the payment of principal and premium, if any, of the Bonds and
interest thereon by depositing with the Trustee at or at any time before maturity amounts
sufficient either in cash or in direct obligations of or obligations fully guaranteed as to
principal and interest by the United States of America, the principal and interest on which
when due and payable (or redeemable at the option of the holder thereof but not at the
option of the issuer thereof) and without consideration of any reinvestment thereof shall be
sufficient, to pay the entire amount due or to become due thereon for principal and premium,
if any, and interest to maturity of all said Bonds Outstanding, or
(c) deliver to the Trustee (1) proof satisfactory to the Trustee that notice of
redemption of all of the Outstanding callable Bonds not surrendered or to be surrendered to
it for cancellation has been given or waived as provided in Article III hereof, or that
arrangements satisfactory to the Trustee have been made insuring that such notice will be
given or waived, or (2) a written instrument executed by the Authority and expressed to be
irrevocable, authorizing the Trustee to give such notice far and on behalf of the Authority, or
(3) file with the Trustee a waiver of such notice of redemption signed by the Owners of all
Outstanding callable Bonds, and in any such case, deposit with the Trustee before the date
on which such Bonds are to be redeemed, as provided in said Article III, the entire amount
of the redemption price, including accrued interest and premium, if any, either in cash or
direct obligations of or obligations fully guaranteed as to principal and interest by the United
States of America and described below (which do not permit the prior redemption thereof at
the option of the issuer) in such aggregate face amount, bearing interest at such rates and
maturing at such dates as shall be sufficient to provide for the payment of such redemption
price on the date such Bonds are to be redeemed and on such prior dates when principal of
and interest on the Outstanding Bonds is due and payable,
and surrender to the Trustee for cancellation all Bonds for which payment is not so provided, and
shall also pay all other sums due and payable hereunder by the Authority or the City, provided that
if Bonds are to be defeased under either paragraph (b) or (c) above, an Opinion of Bond Counsel is
rendered to the Trustee to the effect that the tax-exempt status of interest on the Bonds will not be
unpaired thereby, then and in that case, all the Trust Estate shall revert to the Authority and the City
as their interests may appear, and the entire estate, right, title and interest of the Trustee and of the
registered Owners of the Bonds in respect thereof shall thereupon cease, determine and become
void; and the Trustee in such case, upon the cancellation of all Bonds for the payment of which cash
or securities shall not have been deposited in accordance with the provisions of this Indenture, shall,
316005v7 AJP CL162-37 q.g
upon receipt of a written request of the Authority and of a Certificate of the Authority and an
Opinion of Counsel as to compliance with conditions precedent, and at the City's cost and expense,
execute to the Authority, or its order, proper instruments acknowledging satisfaction of this
Indenture and surrender to the Authority and the City, as their interests appear, all cash and
deposited securities, if any (other than cash or securities for the payment of the Bonds and interest
thereon), which shall then be held hereunder as a part of the Trust Estate.
The investments for a defeasance must consist solely of one or more of the following: (i)
cash; (ii) State and Local Government Series issued by the United States Treasury ("SLGs"); (iii}
United States Treasury bills, notes and bonds, as traded on the open market; (iv) Zero Coupon
United States Treasury Bonds; and (v) Refcorp Interest Strips (stripped by the Federal Reserve
Bank of New York).
Nothing contained in this Section 10.01 shall be construed to prohibit the defeasance of one
or more, but not all, series of Bonds by any of the methods set forth in clause (a), (b) or (c) above, as
the same would apply to the particular series of Bonds being discharged.
Section 10.02. Bonds Deemed Not Outstanding After Deposits. When there shall have
been deposited at any time with the Trustee in trust for the purpose, cash or direct obligations of or
obligations fully guaranteed by the United States of America the principal and interest on which
shall be sufficient to pay the principal of any Bonds (and premium, if any) when the same become
due, either at maturity or otherwise, or at the date fixed for the redemption thereof, and to pay all
interest with respect thereto at the due dates for such interest to maturity or to the date fixed for
redemption, for the use and benefit of the Owners thereof, then upon such deposit all such Bonds
shall cease to be entitled to any lien, benefit or security of this Indenture except the right to receive
the funds so deposited, and such Bonds shall be deemed not to be Outstanding hereunder; and it
shall be the duty of the Trustee to hold the cash and securities so deposited for the benefit of the
Owners of such Bonds, and from and after such date, redemption date or maturity, interest on such
Bonds called for redemption shall cease to accrue.
Section 10.03. Unclaimed Money To Be Returned. Any money deposited with the Trustee
pursuant to the terms of this Indenture, for the payment or redemption of Bonds and remaining
unclaimed by the Owners of such Bonds on the date fixed for redemption of the same, as the case
may be, for a period of three (3) years after the due date, shall, upon the written request of the City,
and if the Authority or any successor to the obligations of the Authority under this Indenture and the
Bonds shall not at the time, to the knowledge of the Trustee, be in default with respect to any of the
terms and conditions contained in this Indenture or in such Bonds, be paid to the City, and such
Owners of the Bonds shall thereafter look only to the City for payment and then only to the extent
of the amounts so received without interest thereon; PROVIDED, HOWEVER, that within thirty
(30) days prior to the expiration of the three (3) year period mentioned above, the Trustee, before
being required to make any such repayment, may, at the expense of the City cause to be published
in a Financial Journal, a notice that after a date named therein said money will be returned to the
City. If the City does not request that the money be returned to the City, the Trustee shall pay the
money over to the State of Minnesota in accordance with applicable law.
316005v7 AJP CL 162-37 49
ARTICLE XI
Supplemental Indentures
Section 11.01. Purposes for Which Supplemental Indentures may be Executed. The
Authority, upon resolution, and the Trustee from time to time and at any time, subject to the
conditions and restrictions contained in this Indenture, may enter into such indentures supplemental
hereto as may or shall by them be deemed necessary or desirable, without the consent of any
Owner, for any one or more of the following purposes:
(a) To correct the description of any property hereby pledged or intended so to
be, or to assign, convey, pledge or transfer and set over to the Trustee, subject to such liens
or other encumbrances as shall be therein specifically described, additional property or
properties of the Authority or the City for the equal and proportional benefit and security of
the Owners of all Bonds at any time issued and Outstanding under this Indenture, subject,
however, to the provisions hereinabove set forth with respect to extended Bonds;
(b) To add to the covenants and agreements of the Authority in this Indenture
other covenants and agreements thereafter to be observed, or to surrender any right or power
reserved to or conferred upon the Authority or to or upon any successor;
(c) To evidence the succession or successive successions of any other
department, agency, body or corporation to the Authority and the assumption by such
successor of the covenants, agreements and obligations of the predecessor Authority in the
Bonds hereby secured and in this Indenture and in any and every supplemental indenture
contained or the succession, removal or appoinhnent of any trustee or paying agent
hereunder;
(d} To cure any ambiguity or to correct or supplement any provision contained
herein or in any supplemental indentures which may be defective or inconsistent with any
other provision contained herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this Indenture or any supplemental
indenture as the Authority may deem necessary or desirable and which shall not be
inconsistent with the provisions of this Indenture or any supplemental indenture and which
shall not impair the security of the same;
(e) To modify, eliminate and/or add to the provisions of this Indenture to such
extent as shall be necessary to effect the qualification of this Indenture under the Trust
Indenture Act of 1939, as then amended, or under any similar federal statute hereafter
enacted, and to add to this Indenture such other provisions as maybe expressly permitted by
the Trust Indenture Act of 1939, excluding, however, the provisions referred to in Section
316(a)(2) of the Trust Indenture Act of 1939; and
(f) To provide for the creation of any series of Additional Bonds, as provided in,
and subject to the conditions and requirements of, Sections 2.09 through 2.12 hereof.
31600w7 AJP CL162-37 50
Section 11.02. Execution of Supplemental Indenture. The Trustee is authorized to join with
the Authority in the execution of any such supplemental indenture, to make the further agreements
and stipulations which may be therein contained, and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects its rights, duties or immunities under this Indenture.
Section 11.03. Discretion of Trustee. In each and every case provided for in this Article
(other than a supplemental indenture approved by the Owners of a majority in aggregate principal
amount of the Bonds pursuant to Section 11.04 hereof), the Trustee shall be entitled to exercise its
unrestricted discretion in determining whether or not any proposed supplemental indenture or any
teen or provisions therein contained is necessary or desirable, having in view the needs of the
Authority and the respective rights and interests of the Owners of Bonds theretofore issued
hereunder; and the Trustee shall be under no responsibility or liability to the Authority or to the City
or to any Owner of any such Bond, or to anyone whatever, for any act or thing which it may do or
decline to do in good faith subject to the provisions of this Article, in the exercise of such discretion.
Section 11.04. Modification of Indenture with Consent of Owners. Subject to the terms and
provisions contained in this Section, the Owners of not less than a majority in aggregate principal
amount of the Bonds then Outstanding shall have the right, from time to time, to consent to and
approve the execution by the Authority and the Trustee of such indenture or indentures
supplemental hereto as shall be deemed necessary or desirable by the Authority for the purpose of
modifying, altering, amending, adding to or rescinding in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental indenture; PROVIDED, HOWEVER,
that nothing herein contained shall permit or be construed as permitting, without the consent of the
Owners of all Outstanding Bonds, (a) an extension of the maturity of any Bond issued hereunder, or
(b) a reduction in the principal amount of any Bond or the redemption premium or the rate of
interest thereon, or (c) the creation of a lien upon or a pledge of revenues ranking prior to or on a
parity with the lien or pledge created by this Indenture, or (d) a preference or priority of any Bond or
Bonds over any others, or (e} a reduction in the aggregate principal amount of the Bonds required to
consent to supplemental indentures or amendments to the Lease or the Ground Lease or (f) a
reduction in the aggregate principal amount of the Bonds required to waive an Event of Default.
Whenever the Authority shall deliver to the Trustee a resolution of Owners adopted at an
Owners' meeting approved by, or an instrument or instruments purporting to be executed by, the
Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding,
which resolution or instrument or instruments shall refer to the proposed supplemental indenture
and shall specifically consent to and approve the execution thereof, the Authority and the Trustee
may execute such supplemental indenture without liability or responsibility to any Owner of any
Bond, whether or not such Owner shall have consented thereto.
If the Owners of not less than a majority in aggregate principal amount of the Bonds
Outstanding at the time of the execution of such supplemental indenture shall have consented to and
approved the execution thereof as herein provided, no Owner of any Bond shall have any right to
object to the execution of such supplemental indenture, or to object to any of the teens and
provisions contained therein or the operation thereof, or in any manner to question the propriety of
316005v7 AJP CL162-37 51
the execution thereof, or to enjoin or restrain the Trustee or the Authority from executing the same
or from taking any action pursuant to the provisions thereof.
Section 11.05. Supplemental Indentures to be Part of Indenture. Any supplemental
indenture executed in accordance with any of the provisions of this Article shall thereafter form a
part of this Indenture; and all the terms and conditions contained in any such supplemental indenture
as to any provisions authorized to be contained therein shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes, and the respective rights, duties and
obligations under this Indenture of the Authority, the Trustee and all Owners of Bonds then
Outstanding shall thereafter be determined, exercised and enforced hereunder, subject in all respects
to such modifications and amendments. If deemed necessary or desirable by the Trustee, reference
to any such supplemental indenture or any of such terms or conditions thereof may be set forth in a
reasonable and customary manner in the text of the Bonds or in a legend stamped on the Bonds.
Section 11.06. Rights of City Unaffected. Anything herein to the contrary notwithstanding,
a supplemental indenture under this Article XI which adversely affects the rights of the City under
the Lease, the Ground Lease or this Indenture, so long as the Lease, the Ground Lease and this
Indenture are in effect, shall not become effective unless and until the City shall have consented to
the execution and delivery of such supplemental indenture. The Trustee shall cause notice of the
proposed execution and delivery of any such supplemental indenture (to the execution and delivery
of which the City has not already consented), together with a copy of the proposed supplemental
indenture, to be mailed to the City at least thirty (30) days prior to the proposed date of execution
and delivery of any such supplemental indenture.
(The remainder of this page is intentionally left blank.)
316005v7 AJP CL162-37 52
ARTICLE XII
Amendments to the Lease and the Ground Lease
Section. 12.01. Amendments to the Lease and the Ground Lease Not Requiring Consent of
Owners. The Authority, the City and the Trustee shall, without the consent of or notice to the
Owners, consent to any amendment, change or modification of the Lease or the Ground Lease as
may be required (i) by the provisions of the Lease, the Ground Lease, or this Indenture, (ii) for the
purpose of curing any ambiguity or formal defect or omission, (iii) in connection with the issuance
of Additional Bonds as provided herein, or (iv) in connection with any other change in the Lease or
the Ground Lease which, in the judgment of the Trustee, is not to the prejudice of the Trustee or the
Owners of the Bonds.
Section 12.02. Amendments to the Lease and the Ground Lease Requiring Consent of
Owners. Except for amendments, changes or modifications as provided in Section 12.01 hereof,
neither the Authority, nor the City nor the Trustee shall consent to any other amendment, change or
modification of the Lease or the Ground Lease without the written approval or consent of the
Owners of not Less than a majority in aggregate principal amount of the Bonds at the time
Outstanding given and procured as in this Section provided; provided, however, that no such
amendment, change or modification shall ever affect the obligation of the City to make Lease
Payments as they become due and payable. If the Owners of not less than a majority in aggregate
principal amount of the Bonds Outstanding hereunder at the time of the execution of any such
amendment, change or modification shall have consented to and approved the execution thereof as
herein provided, no Owner of any Bond shall have any right to object to any of the terms and
provisions contained therein, or in the operation thereof, or in any manner to question the propriety
of the execution thereof, or to enjoin or restrain the Trustee, the Authority or the City from
executing the same or from taking any action pursuant to the provisions thereof.
Section 12.03. Rights of Authority. The Authority has no duty or obligation to consent to
any proposed amendment to the Lease or the Ground Lease and may, at the expense of the City,
request and receive an opinion of such counsel as the Authority may select in connection with any
matter relating to a proposed amendment.
(The remainder of this page is intentionally left blank.)
316005v7 AJP CL162-37 53
ARTICLE XIII
Miscellaneous
Section 13.01. Covenants of Authority Bind Successors and Assi ns. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Authority,
shall bind and inure to the benefit of its successors and assigns, whether so expressed or not.
Section 13.02. Immunity of Officers. No recourse for the payment of any part of the
principal of or interest on any Bond or for the satisfaction of any liability arising from, founded
upon or existing by reason of the issue, purchase or ownership of the Bonds shall be had against any
officer, member or agent of the Authority or the State of Minnesota; as such, all such liability being
hereby expressly released and waived as a condition of and as a part of the consideration for the
execution of this Indenture and the issuance of the Bonds.
Section 13.03. No Benefits to Outside Parties. Nothing in this Indenture, express or
implied, is intended or shall be construed to confer upon or to give to any person or corporation,
other than the City, the parties hereto and the Owners of the Bonds issued hereunder, any right,
remedy or claim under or by reason of this Indenture or any covenant, condition or stipulation
thereof; and the covenants, stipulations and agreements in this Indenture are and shall be for the sole
and exclusive benefit of the City, the parties hereto, their successors and assigns, and the Owners of
the Bonds.
Section 13.04. Separability of Indenture Provisions. In case any one or more of the
provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
Section 13.05. Execution of Indenture in Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which, when so executed, shall be deemed
to be an original, and such counterparts shall together constitute one and the same instnunent.
Section 13.06. Headings Not Controlling. The headings of the several Articles and Sections
hereof are inserted for the convenience of reference only and shall not control or affect the meaning
or construction of any of the provisions hereof.
Section 13.07. Notices etc. to Trustee Authority City and Original Purchaser. Any
request, demand, authorization, direction, notice, consent of Owners or other document provided or
permitted by this Indenture shall be sufficient for any purpose under this Indenture, the Lease or the
Ground Lease, when hand delivered or mailed by first class mail, postage prepaid (except as
otherwise provided in this Indenture) (with a copy to the other parties) at the following addresses (or
such other address as may be provided by any party by notice) and shall be deemed to be effective
upon receipt:
31600w7 AJP CL162-37 54
To the Authority: Columbia Heights Economic
Development Authority
590 40`i' Avenue Northeast
Columbia Heights, Minnesota 55421-3878
Attention: Executive Director
To the Trustee: U.S. Bank National Association
EP-MN-WS3C
60 Livingston Avenue
St. Paul, Minnesota 55107
Attention: Corporate Trust Services
To the City: City of Columbia Heights
590 40~' Avenue Northeast
Columbia Heights, Minnesota 55421-3878
Attention: City Manager
To the Original Stifel, Nicolaus & Co., Inc.
Purchaser: 7701 France Avenue South
Suite 475
Edina, Minnesota 55435
(The remainder of this page is intentionally left blank.)
316005v7 AJI' CL162-37 55
IN WITNESS WHEREOF, the Authority has caused this Indenture to be signed in its name
by its duly authorized officers and U.S. Bank National Association, as Trustee, to evidence its
acceptance of the trust hereby created, has caused this Indenture to be signed in its name by
authorized officers of the Trustee, all as of the day and year first above written, but actually on the
13th day of September , 2007.
STATE OF MINNESOTA
ss
COUNTY OF ANOKA
The foregoing instrument was acknowledged before me this ~_ day of September,
2007 by Gary L. Peterson, the President of the Columbia Heights Economic Development
Authority, a public body corporate and politic and political subdivision under the laws of
Minnesota, by and on behalf of said authority. l~
otary Public
STATE OF MINNESOTA
ss
COUNTY OF ANOKA
The foregoing instrument was acknowledged before me this ~_ day of
~,.. _, 2007 by Walter R. Fehst, the Executive Director of the Columbia Heights
Ec nomic Development Authority, a public body corporate and politic and political subdivision
under the laws of Minnesota, by and on behalf of said authority.
ary Public
316005v7 AJP CL162-37 S-1
U.S. BANK NATIONAL ASSOCIATION
as Trustee
..-~
~, ` -
By ,d`` e'
~'
Its Vice President
STATE OF MI]~1NESOTA
ss
COUNTY OF R.f1MSEY
The foregoing instrument was acknowledged before me this 14th day of Setpember, 2007,
by Jay Paulson the Vice President of U.S. Bank National Association, a national banking
association with trust powers, by and on behalf of said national banking association.
~,. _ .. ~
fe f n
Notary Public
•wYY
JUDY A. G~LBERTH
NOTARYPUBUC•MIt~SOTA
Mfr Cammiaion Etpiwt Jan. 3t. tON
t
316005v7 AJP CL162-37 S-2
EXHIBIT A
LEGAL DESCRIPTIONS OF THE SITES
37th Avenue Liquor Store:
Lots 2 and 2A, Block 1, Hart Lake Addition, according to the plat thereof on file
in the Office of the Registrar of Titles and the Office of the County Recorder in
and for Anoka County, Minnesota
Lot 2, Block 1 is registered property
Central Avenue Liquor Store:
Lot 19, Revised Auditor's Subdivision No. 15, according to the plat thereof on
file in the Office of the Registrar of Titles and the Office of the County Recorder
in and for Anoka County, Minnesota
316005v7 AJP CL (62-37 A-1
EXHIBIT B
FORM OF SERIES 2007B BOND
UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF ANOKA
CITY OF COLUMBIA HEIGHTS
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
No. R
Public Facility Lease Revenue Bond, Series 2007B
(Municipal Liquor Stores Project)
Date of
Interest Rate Maturity Date Original Issue CUSIP
September 19, 2007
Registered Owner: CEDE & CO.
Principal Amount:
The Columbia Heights Economic Development Authority, a public body corporate and
politic and political subdivision of the State of Minnesota (the "Authority"), for value received,
hereby promises to pay, but solely from the sources hereinafter described, to the Registered Owner
specified above or registered assigns, the Principal Amount set forth above on the Maturity date
specified above, upon the presentation and surrender hereof, and to pay to the Registered Owner
hereof interest on such Principal Amount from such sources at the Interest Rate specified above
from the Date of Original Issue set forth above, or the most recent interest payment date to which
interest has been paid or duly provided for as specified below, on February 1 and August 1 of each
year, commencing August 1, 2008, until said principal amount is paid. Principal and the
redemption price are payable in lawful money of the United States of America at the office of U.S.
Bank National Association, St. Paul, Minnesota, as Trustee under the Indenture hereinafter
described or of its successor as Trustee. Interest shall be paid on each interest payment date by
check or draft mailed to the person in whose name this Bond is registered at the close of business on
the fifteenth (1 Sth) day of the month immediately preceding such interest payment date (whether or
not a business day) at the Owner's address as set forth on the registration records maintained by the
Trustee. Any such interest not punctually paid or provided for will cease to be payable on such
regular record dates and such defaulted interest maybe paid to the person in whose name this Bond
is registered at the close of business on a special record date for the payment of such defaulted
interest established by the Trustee pursuant to the Indenture.
316005v7 AJP CL162-37 B-1
This Bond is issued pursuant to Minnesota Statutes, Sections 469.090 to 469.1082, as amended
(herein called the "Act"), and in conformity with the provisions, restrictions and limitations thereof.
This Bond does not constitute or give rise to a charge against the general credit or properties or
taxing powers of the Authority or the City of Columbia Heights, Minnesota (the "City"} and does
not grant to the Owner of this Bond any right to have the Authority or the City levy any taxes or
appropriate any funds for the payment of the principal hereof or interest hereon, nor is this Bond a
general obligation or a pecuniary liability of the Authority or the City or the individual officers or
agents thereof. This Bond does not constitute an indebtedness of the Authority or the City, within
the meaning of any state constitutional provision or statutory or charter limitation. The principal of
this Bond and interest hereon are payable solely from Lease Payments to be paid by the City
pursuant to aLease-Purchase Agreement dated as of September 1, 2007 (the "Lease"), from the
Authority to the City, or other money appropriated to the payment of the Bonds of this series under
the Mortgage and Security Agreement and Trust Indenture, dated as of September 1, 2007 (the
"Indenture") and held by the Trustee in a Fund or Account established thereunder.
THE OBLIGATION OF THE CITY TO MAKE LEASE PAYMENTS PURSUANT TO
THE LEASE IS SUBJECT TO ANNUAL APPROPRIATION BY THE CITY COUNCIL OF
THE CITY. IN THE EVENT THE CITY COUNCIL DETERMINES NOT TO APPROPRIATE
MONEY FOR THE PAYMENT OF LEASE PAYMENTS DUE IN A FISCAL YEAR, THE
LEASE WILL TERMINATE AT THE END OF THE THEN-CURRENT FISCAL YEAR, AND
THE CITY WILL HAVE NO FURTHER OBLIGATION TO MAKE LEASE PAYMENTS
PURSUANT TO THE LEASE.
This Bond is one of a duly authorized series of special, limited obligation Bonds (the
"Bonds") in an aggregate principal amount of $5,040,000 in denominations of $5,000 or integral
multiples thereof not exceeding the principal amount maturing in any year, and numbered from R-1
upwards, and of like tenor and effect except as to serial number, denomination, interest rate,
maturity and right of prior redemption, all of which have been authorized by law to be issued and
have been issued or are to be issued by the Authority pursuant to a Bond Resolution adopted by the
Authority, on August 27, 2007 (the "Bond Resolution"), to provide financing for the acquisition and
construction of the Sites and Facilities described in the Lease. The Bonds are equally and ratably
secured by the Indenture and the Lease. Pursuant to the Indenture, the Authority has assigned and
mortgaged to the Trustee all of its right, title and interest (other than certain rights to indemnity and
payment of expenses) in and to the Sites, the Facilities, the Lease and the Ground Lease, dated as of
September 1, 2007 (the "Ground Lease") from the City to the Authority. Reference is hereby made
to the Ground Lease, the Lease, the Indenture, the Bond Resolution, and any amendments or
supplements thereto for a description and limitation of the property, revenues and funds pledged and
appropriated to the payment of the Bonds, the nature and extent of the security thereby created, the
rights of the Owners of the Bonds, the rights, duties and immmunities of the Trustee, and the rights,
immunities and obligations of the Authority and the City thereunder. Certified copies of the Bond
Resolution and executed counterparts of the Indenture, the Ground Lease and the Lease are on file
at the office of the Trustee.
The Bonds are subject to extraordinary redemption on any Business Day in whole or in part
in certain events of damage to or destruction or condemnation of the Sites or the Facilities, or
change of law as provided in the Lease, at a redemption price equal to par plus accrued interest.
316005v7 AJP CL162-37 B-2
The Bonds maturing on or after February 1, 2018 are subject to optional redemption, at the
election of the City, in whole or in part, and if in part in such manner as the City shall determine, on
February 1, 2017 and any date thereafter, at a redemption price of par plus accrued interest.
Tenn Bonds due are subject to Mandatory Sinking Fund Redemption in the years and
amounts described in the Indenture.
Notice of any such redemption shall be given to the registered Owner of each such Bond by
first class mail, addressed to the Owner's registered address, not later than thirty (30) days prior to
the date fixed for redemption. Prior to the date fixed for redemption, funds shall be deposited with
the Trustee sufficient to pay the Bonds called and accrued interest thereon, plus premium, if any.
Upon the happening of the above conditions, Bonds thus called shall not bear interest on or after the
call date and, except for the purpose of payment from the funds so deposited, shall no longer be
protected by the Indenture.
This Bond is transferable, as provided in the Indenture, only upon the registration records
maintained by the Trustee by the Registered Owner hereof in person or by the Owner's duly
authorized attorney, upon surrender of this Bond for transfer at the office of the Trustee, duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Trustee
duly executed by, the Registered Owner hereof or the Owner's duly authorized attorney, and, upon
payment of any tax, fee or other governmental charge required to be paid with respect to such
transfer, one or more Bonds of the same maturity, aggregate principal amount and interest rate will
be issued to the designated transferee or transferees.
The Bonds are issuable only as fully registered bonds without coupons in denominations of
$5,000 or any integral multiple thereof not exceeding the principal amount maturing in any year.
As provided in the Indenture and subject to certain limitations set forth therein, the Bonds are
exchangeable for a like aggregate principal amount of Bonds of the same maturity and interest rate,
of different authorized denominations, as requested by the Registered Owner or the Owner's duly
authorized attorney upon surrender thereof to the Trustee.
In case an Event of Default as defined in the Indenture or the Lease occurs, or in the event of
non-appropriation by the City Council of the City, the principal of this Bond and all other Bonds
Outstanding may be declared or may become due and payable prior to the stated maturity hereof in
the manner and with the effect and subject to the conditions provided in the Indenture, but no
Owner of any Bond shall have any right to enforce the provisions of the Indenture, the Lease or the
Ground Lease except as provided in the Indenture.
With the consent of the Authority and the Trustee, and to the extent permitted by and as
provided in the Indenture, the terms and provisions of the Indenture, the Lease and the Ground
Lease, or of any instrument supplemental thereto, may be modified or altered by the assent or
authority of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding
thereunder.
316005v7 AJP CL162-37 B-3
It is hereby certified and recited and the Authority has found: that all acts, conditions and
things required to be done precedent to and in the issuance of this Bond and the series of which it is
apart have been properly done, have happened and have been performed in regular and due time,
form and manner as required by law; and that this Bond and the series of which it is a part does not
constitute a debt of the Authority within the meaning of any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose until it shall have been
authenticated by the execution of the certificate hereon endorsed by the Trustee under the Indenture.
IN WITNESS WHEREOF, the Columbia Heights Economic Development Authority has
caused this Bond to be executed in its name by the facsimile signatures of its duly authorized
officers, all as of the Date of Original Issue specified above.
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT
AUTHORITY
(Facsimile)
President
Facsimile)
Executive Director
Date:
(Form of Trustee's Certificate)
This is one of the Bonds described in the within. mentioned Lndenture.
U.S. BANK NATIONAL ASSOCIATION
Saint Paul, Minnesota
Date: By
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address of Transferee)
316005v7 AJP CL162-37 B-~l
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books
kept for registration thereof, with full power of substitution in the premises.
Dated:
Insert Social Security Number or Other Notice: The signature to this assignment
Identifying Number of Assignee must correspond with the name as it appears
on the face of this Bond in every particular,
without alteration or any change whatever.
PROVISIONS AS TO REGISTRATION
The ownership of the principal of and interest on the within Bond has been registered on the
books of the Trustee in the name of the person last noted below.
Signature of
Date of Registration Registered Owner Trustee
Cede & Co.
Federal ID #13-2555119
3I6005v7 AJP CL162-37 B-5
EXHIBIT C
PROJECT FUND DRAW REQUEST
WRITTEN REQUEST NO.
The undersigned, being the duly elected and qualified City Administrator (the
"Representative") of the City of Columbia Heights, Minnesota (the "City"), pursuant to Section
4.04 of that certain Mortgage and Security Agreement and Trust Indenture, dated as of September 1,
2007 (the "Indenture"), by and between the Columbia Heights Economic Development Authority
(the "Authority") and U.S. Bank National Association, as trustee (the "Trustee"), hereby requests on
behalf of the Authority that you, as Trustee, pay to the Representative the Project Costs (as defined
in the Indenture) with respect to the Project (as defined in the Indenture) authorized to be disbursed
by the terms of the Indenture, within three (3) business days after receipt hereof by you, in the
aggregate amount of $ from the Project Fund. I hereby further certify as follows:
The Representative requests reimbursement for the following incurred Project Costs:
DATE PAYEE TYPE OF COST
AMOUNT
$
Such Project Costs have been incurred by the City, as lessee under that certain Lease-
Purchase Agreement, dated as of September 1, 2007, by and between the City and the Authority,
are presently due and payable, have not been paid and each. item thereof is a proper charge
against the Project Fund;
Such Project Costs have not been included in any other Project Fund Draw Request
previously filed with the Trustee under Section 4.04 of the Indenture;
Any necessary permits and approvals, if any, required for the portion of the Project for
which such withdrawal is to be made have been issued and are in full force and effect;
There has not been filed with or served upon the Authority or the City any notice of any
lien, right to a lien or attachment upon or claim affecting the right of any person, firm or
corporation to receive payment of the respective amount stated in this Project Fund Draw
Request unless such payment is being contested;
The withdrawal and use of the Project Fund money for the purposes intended will. not
cause any of the representations or certifications contained in the Indenture or any certificate
delivered by the Authority on the Closing Date to be untrue;
316005v7 AJP CL162-37 C-1
The amount of money which will remain on deposit in the Project Fund after the
withdrawal in question is made, together with the Authority's reasonable estimate of investment
income to be earned thereon and on other funds created under the Indenture and held by the
Trustee which income is required to be deposited in the Project Fund, and the amount of money,
if any, committed by and available to the Authority for payment of the Project Costs of the
Project will, after payment of the amounts then requested, be sufficient to pay the cost of
completing the Project.
Capitalized terms used and not otherwise defined herein are defined as in the Indenture.
(The remainder of this page is intentionally left blank.)
316005v7 A7P CL162-37 C-2
Itv wtTNESS wt-tEREOF, the undersigned has executed and delivered this Project Fund Draw
Request as of the day of ,
CITY OF COLUMBIA HEIGHTS, MINNESOTA
By
Its City Manager
316005v7 AJP CL162-37 C_3