Exhibit
10.1
LOAN AND
SECURITY AGREEMENT
by and
among
America
First Tax Exempt Investors, L.P.,
a
publicly traded Delaware limited partnership,
as
Borrower,
Bank of
America, N.A.,
a
national banking association,
as
Lender,
and
Deutsche
Bank Trust Company Americas,
a New
York banking corporation,
as
Collateral Agent
ATAX Loan
Agreement.doc - RE Form - Loan Agreement
Table of
Contents
|
Article
I
|
General Information.
|
2
|
|
Section
1.1
|
Conditions
to Closing.
|
2
|
|
Section
1.2
|
Schedules.
|
2
|
|
Section
1.3
|
Defined
Terms.
|
2
|
|
|
|
|
|
Article
II
|
Terms of the Loan.
|
3
|
|
Section
2.1
|
The
Loan.
|
3
|
|
Section
2.2
|
Initial
Advance.
|
3
|
|
Section
2.3
|
Liability
of Lender.
|
3
|
|
|
|
|
|
Article
III
|
Security Interests; Collateral
Agent
|
3
|
|
Section
3.1
|
Appointment
of Collateral Agent.
|
3
|
|
Section
3.2
|
Pledge
and Grant of Security Interest in Bond Collateral.
|
3
|
|
Section
3.3
|
Delivery
and Protection of teh Bond Collateral.
|
4
|
|
Section
3.4
|
Representations
and Warranties of the Collateral Agent.
|
5
|
|
Section
3.5
|
Collateral
Agent’s Standard of Care, Liabilities and Indemnity.
|
5
|
|
Section
3.6
|
Termination;
Successor Collateral Agent.
|
6
|
|
Section
3.7
|
Duties
of the Collateral Agent.
|
7
|
|
Section
3.8
|
The
Collateral Agent in Other Capacities.
|
7
|
|
Section
3.9
|
Cash
Collateral.
|
7
|
|
Section
3.10
|
Partial
Releases.
|
8
|
|
|
|
|
|
Article
IV
|
Representations and
Warranties.
|
9
|
|
Section
4.1
|
Organization,
Power and Authority of Borrower; Loan Documents.
|
9
|
|
Section
4.2
|
Ownership
of Collateral.
|
9
|
|
Section
4.3
|
Other
Documents; Laws.
|
9
|
|
Section
4.4
|
Security
Interest/Priority/Recordation.
|
9
|
|
Section
4.5
|
Principal
and Interest Payments.
|
10
|
|
Section
4.6
|
Taxes.
|
10
|
|
Section
4.7
|
Legal
Actions.
|
10
|
|
Section
4.8
|
Nature
of Loan.
|
10
|
|
Section
4.9
|
Trade
Names.
|
10
|
|
Section
4.10
|
Financial
Statements.
|
10
|
|
Section
4.11
|
No
Material Adverse Change.
|
10
|
|
Section
4.12
|
ERISA
and Prohibited Transactions.
|
11
|
|
Section
4.13
|
Compliance
with Laws.
|
11
|
|
Section
4.14
|
Project
Loans.
|
11
|
|
Section
4.15
|
No
Defaults.
|
11
|
|
|
|
|
|
Article
V
|
Affirmative Covenants and
Agreements.
|
11
|
|
Section
5.1
|
Compliance
with Laws; Use of Proceeds.
|
11
|
|
Section
5.2
|
Inspections;
Cooperation.
|
11
|
|
Section
5.3
|
Defense
of Title.
|
12
|
|
Section
5.4
|
Bond
Documents; Amendments.
|
12
|
|
Section
5.5
|
Compliance
with Securities Laws.
|
12
|
|
Section
5.6
|
Insurance.
|
12
|
|
Section
5.7
|
Books
and Records; Financial Statements.
|
14
|
|
Section
5.8
|
Estoppel
Certificates.
|
15
|
|
Section
5.9
|
Taxes;
Collateral Notices.
|
15
|
|
Section
5.10
|
Lender’s
Rights to Pay and Perform.
|
15
|
|
Section
5.11
|
Reimbursement;
Interest.
|
15
|
|
Section
5.12
|
Notification
by Borrower.
|
15
|
|
Section
5.13
|
Indemnification
by Borrower.
|
15
|
|
Section
5.14
|
Fees
and Expenses.
|
16
|
|
Section
5.15
|
Appraisals.
|
16
|
|
Section
5.16
|
Representations
and Warranties.
|
16
|
|
Section
5.17
|
Deposit
Accounts; Principal Depository.
|
16
|
|
Section
5.18
|
Financial
Covenants.
|
16
|
|
|
|
|
|
Article
VI
|
Negative Covenants.
|
17
|
|
Section
6.1
|
Liens;
Collateral.
|
17
|
|
Section
6.2
|
Change
of Ownership.
|
17
|
|
Section
6.3
|
Liquidation;
Merger.
|
18
|
|
Section
6.4
|
Additional
Debt.
|
18
|
|
|
|
|
|
Article
VII
|
Events of Default.
|
18
|
|
Section
7.1
|
Payment
Default.
|
18
|
|
Section
7.2
|
Default
Under Other Loan Documents.
|
18
|
|
Section
7.3
|
Accuracy
of Information; Representations and Warranties.
|
18
|
|
Section
7.4
|
Deposits.
|
18
|
|
Section
7.5
|
Other
Obligations.
|
19
|
|
Section
7.6
|
Bankruptcy.
|
19
|
|
Section
7.7
|
Bankruptcy
of Project Owner.
|
19
|
|
Section
7.8
|
Appointment
of Receiver, Trustee, Liquidator.
|
19
|
|
Section
7.9
|
Inability
to Pay Debts.
|
19
|
|
Section
7.10
|
Judgment.
|
19
|
|
Section
7.11
|
Dissolution;
Change in Business Status.
|
20
|
|
Section
7.12
|
Default
Under Other Indebtedness.
|
20
|
|
Section
7.13
|
Material
Adverse Change.
|
20
|
|
Section
7.14
|
Default
With Respect to Bonds, Projects.
|
20
|
|
Section
7.15
|
Challenge
to Agreements.
|
20
|
|
|
|
|
|
Article
VIII
|
Remedies
on Default.
|
21
|
|
Section
8.1
|
Remedies
on Default.
|
21
|
|
Section
8.2
|
Specific
Bond Collateral Remedies.
|
21
|
|
Section
8.3
|
Sale
of Bond Collateral.
|
22
|
|
Section
8.4
|
Retention
of Bond Collateral.
|
23
|
|
Section
8.5
|
Deficiency.
|
23
|
|
Section
8.6
|
Power
of Attorney.
|
24
|
|
Section
8.7
|
No
Release or Waiver; Remedies Cumulative and Concurrent.
|
25
|
|
|
|
|
|
Article
IX
|
Micellaneous.
|
25
|
|
Section
9.1
|
Environmental
Indemnity; Defense of Claims.
|
25
|
|
Section
9.2
|
Further
Assurances; Authorization to File Documents.
|
26
|
|
Section
9.3
|
No
Warranty by Lender.
|
26
|
|
Section
9.4
|
Standard
of Conduct of Lender
|
27
|
|
Section
9.5
|
No
Partnership.
|
27
|
|
Section
9.6
|
Severability.
|
27
|
|
Section
9.7
|
Notices.
|
27
|
|
Section
9.8
|
Permitted
Successors and Assigns; Disclosure of Information.
|
28
|
|
Section
9.9
|
Modification;
Waiver.
|
29
|
|
Section
9.10
|
Third
Parties; Benefit.
|
29
|
|
Section
9.11
|
Rules
of Construction.
|
29
|
|
Section
9.12
|
Counterparts.
|
30
|
|
Section
9.13
|
Publicity.
|
30
|
|
Section
9.14
|
Governing
Law.
|
30
|
|
Section
9.15
|
Time
of Essence.
|
30
|
|
Section
9.16
|
Electronic
Transmission of Data.
|
30
|
|
Section
9.17
|
Consent
to Share Information.
|
30
|
|
Section
9.18
|
Dispute
Resolution.
|
31
|
|
Section
9.19
|
Forum.
|
33
|
|
Section
9.20
|
WAIVER OF JURY TRIAL.
|
33
|
|
Section
9.21
|
USA
Patriot Act Notice.
|
33
|
|
Section
9.22
|
Entire
Agreement.
|
34
|
|
|
Schedules to Loan and Security
Agreement
|
|
Schedule
1
|
Definitions
|
|
|
Schedule
2
|
Bond
Portfolio
|
|
|
Schedule
3
|
Projects
and Project Owners
|
|
|
Schedule
4
|
Borrower’s
Payment Account
|
|
|
Schedule
5
|
Bond
Trustees
|
|
|
Schedule
6
|
Bond
Payments
|
|
Loan and Security
Agreement
This Loan
and Security Agreement (this “Agreement”) is made
as of the 18th day of
June, 2009, by and among America First Tax Exempt Investors, L.P., a publicly
traded Delaware limited partnership (“Borrower”), Bank of
America, N.A., a national banking association (together with its successors and
assigns, the “Lender”) and Deutsche
Bank Trust Company Americas, a New York banking corporation (together with its
successors and assigns, the “Collateral
Agent”).
Recitals
Borrower
has applied to Lender for a term loan (the “Loan”) in the maximum
principal amount of Fifty Million and No/100 Dollars ($50,000,000) for the
purpose of refinancing existing obligations with respect to (a) a certain letter
of credit facility (the “Letter of Credit
Facility”), pursuant to which the Lender previously issued certain
letters of credit in the aggregate stated amount of Eighty-one Million Seven
Hundred Thirty Thousand One Hundred Three and 00/100 Dollars ($81,730,103) for
the account of the Borrower, and (b) a certain tender option bond liquidity
facility pursuant to which Lender has made available to Borrower Seventy-Six
Million Seven Hundred Forty-Five Thousand Two Hundred Thirty-Seven and No/100
Dollars ($76,745,237) in liquidity support (the “TOB Liquidity
Facility” and together with the Letter of Credit Facility, the “TOB
Facility”). The Borrower owns legal title to the 13 issues of
tax-exempt bonds or participation interests in bonds described on Schedule 2 attached
hereto and incorporated herein (each a “Bond” and
collectively, the “Bonds” or, together
with the related unenhanced custody receipts in certain of the Bonds, the “Bond
Portfolio”). Each issue of the Bonds was issued by the
applicable Bond Issuer for the purpose of providing tax-exempt financing (the
“Project
Loans”) for each specific low-income housing and educational project as
are further described on Schedule 3 attached
hereto and incorporated herein (each a “Project” and
collectively, the “Projects”). The
owners of the fee simple interest in each Project are also set forth on Schedule 3 (each a
“Project Owner”
and collectively, the “Project
Owners”). The Project Owners are the borrowers under the
Project Loans. The unenhanced custody receipts previously included as
part of the Bond Portfolio are being cancelled and discharged on the date hereof
and shall not be part of the Bond Portfolio following such cancellation and
discharge.
As
further set forth in that certain Shortfall, Fee and Collateral Agreement dated
as of June 26, 2008 (the “Existing Collateral
Agreement”), by and among the Borrower, as “Obligor” thereunder; the
Lender, in its respective capacities as “Bridge Loan Lender”, “LOC Provider” and
“TOB Liquidity Provider” thereunder; Banc of America Securities LLC, in its
capacity as “TOB Placement and Remarketing Agent” thereunder; and the Collateral
Agent, in its capacity as “Custodian” and “Collateral Agent” thereunder, the
Borrower’s reimbursement obligations with respect to the Letter of Credit
Facility and its obligations under the TOB Liquidity Facility are currently
secured by, among other things, the Bond Portfolio.
Pursuant
to the Existing Collateral Agreement, the Bond Portfolio is currently held by
the Collateral Agent as collateral agent and custodian under the TOB
Facility. As further set forth herein, the Borrower’s interests with
respect to the Bonds, the Bond Portfolio, the Projects and related collateral
will continue to be pledged to the Lender as collateral for the Borrower’s
obligations under this Agreement and the Loan. Also as further set
forth herein, Borrower and Lender desire to have the Collateral Agent continue
to serve as collateral agent and custodian with respect to the Bonds, and in
such capacity, the Collateral Agent will continue to hold the Bonds as
collateral agent and custodian for the Lender. This Agreement amends
and restates the Existing Collateral Agreement with respect to the indebtedness
and obligations secured by the Bond Portfolio.
Lender
has agreed to make the Loan on the terms and conditions set forth in this
Agreement and in the other documents evidencing and securing the
loan.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Now,
therefore, in consideration of the premises, and in further consideration of the
mutual covenants and agreements herein set forth and of the sum of Ten Dollars
($10.00) paid by each party to the other, receipt of which is hereby
acknowledged, the parties covenant and agree as follows:
Agreements
ARTICLE
I
GENERAL
INFORMATION.
Section
1.1 Conditions
to Closing.
The
conditions precedent to closing the Loan are set forth in the Closing
Checklist. The conditions precedent to closing include, but are not
limited to, the following:
(a) Evidence
that the Borrower has effected the purchase of all eleven (11) series of the
variable certificates (the “TOB Variable
Certificates”) in accordance with the four (4) Series Trust Agreements
dated as of July 3, 2008, between the Lender, as trustor, and the Collateral
Agent, as trustee (the “TOB Trust
Agreements”) and in accordance with the requirements of the Existing
Collateral Agreement and the other instruments, agreements and documents
evidencing or executed in connection with the TOB Trust Agreements and the
Existing Collateral Agreement (collectively, the “TOB
Documents”).
(b) The
termination and cancellation of the TOB Liquidity Facility, the Letter of Credit
Facility and the TOB Documents on terms satisfactory to the Lender, including,
without limitation, the cancellation and return of all original letters of
credit issued pursuant to the Letter of Credit Facility.
(c) The
receipt by Lender of a payoff statement with respect to the purchase of the TOB
Variable Certificates by the Borrower and, if applicable, the termination of
Liens, if any, that are not continuing under this Agreement.
(d) The
receipt by Lender of a favorable opinion of counsel to the Borrower, addressed
to the Lender, in form and substance satisfactory to the Lender and its counsel
concerning such matters as the Lender and its counsel may reasonably
require.
(e) Payment
by Borrower, in immediately available funds, of all fees, deposits and other
amounts required to be paid to the Lender pursuant to the Commitment Letter and
this Agreement.
Section
1.2 Schedules.
The
Schedules attached to this Agreement are incorporated herein and made a part
hereof.
Section
1.3 Defined
Terms.
Capitalized
terms in this Agreement shall have the meanings ascribed to such terms in the
Preamble and Recitals hereto and in Schedule
1.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
ARTICLE
II
TERMS OF THE
LOAN.
Section
2.1 The
Loan.
Borrower
agrees to borrow the Loan from Lender, and Lender agrees to lend the Loan to
Borrower, subject to the terms and conditions herein set forth, in an amount not
to exceed the Loan Amount. Interest shall accrue and be payable in
arrears on sums advanced hereunder for the period of time outstanding as further
provided in the Note. Principal payments shall be due at the times
and in the amounts set forth in the Note. The Loan is not a revolving
loan; amounts repaid may not be re-borrowed. The Loan is full
recourse to the Borrower.
Section
2.2 Initial
Advance.
At
closing, Lender shall advance the full amount of the Loan proceeds to or for the
account of the Borrower as further specified in the closing memorandum or flow
of funds agreed upon between Borrower and Lender.
Section
2.3 Liability
of Lender.
Lender
shall in no event be responsible or liable to any Person other than Borrower for
the disbursement of or failure to disburse the Loan proceeds or any part thereof
and no Person other than Borrower shall have any right or claim against Lender
under this Agreement or the other Loan Documents.
ARTICLE
III
SECURITY INTERESTS;
COLLATERAL AGENT
Section
3.1 Appointment
of Collateral Agent.
The
Lender and the Borrower agree that the Collateral Agent will continue to serve
as collateral agent and custodian for the Lender and in furtherance thereof, the
Borrower and Lender hereby appoint the Collateral Agent, and the Collateral
Agent hereby agrees to act, as Collateral Agent hereunder. The
Collateral Agent assumes no obligation to review the sufficiency of the
Collateral, or to recommend the purchase, retention or sale of any
Collateral. The Borrower hereby agrees to pay to the Collateral Agent
the Collateral Agent Fees, without notice or demand, in immediately available
funds in advance on the date hereof and on the date of each anniversary of the
date hereof until the termination of this Agreement in accordance with its terms
and the terms of the Collateral Agent Fee Proposal. The Collateral
Agent Fee shall be fully earned when due and nonrefundable when
paid.
Section
3.2 Pledge
and Grant of Security Interest in Bond Collateral.
In order
to secure the prompt and complete payment by the Borrower when due of all
Obligations, the Borrower hereby grants to the Collateral Agent, for the benefit
of the Lender, a first priority perfected, secured lien on, and assigns to the
Collateral Agent, for the benefit of the Lender, all right, title and interest
of the Borrower in and to all Bond Collateral and all proceeds
thereof. Notwithstanding the foregoing, the parties acknowledge and
agree that the Lender shall hold all Cash Collateral as further set forth in
Section 3.9
below.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Section
3.3 Delivery
and Protection of the Bond Collateral.
The
Borrower, the Lender and the Collateral Agent hereby agree that:
(a) The
Borrower has previously delivered to the Collateral Agent each of the Bonds,
together with all certificates and instruments representing the Bonds and all
Bond Documents and has executed and delivered to Collateral Agent and Lender all
documentation necessary to transfer the ownership of each Bond from the Borrower
to the Collateral Agent as registered owner, with instructions to each Bond
Trustee to provide for registration of each such Bond in the name of the
Collateral Agent. If, while this Agreement is in effect, the Borrower
shall receive any certificate or debt instrument (including, without limitation,
any certificate representing an interest payment), option or rights, whether as
an addition to, in substitution of or in exchange for any Bond Collateral, the
Borrower shall accept and hold the same in trust for the Collateral Agent, for
the benefit of the Lender, and shall immediately deliver the same to the
Collateral Agent in the exact form received, together with a bond pledge
certificate or other appropriate assignment, duly executed in blank with
guarantee of signature acceptable to the respective Bond Trustee, to be held by
the Collateral Agent, subject to the terms of this Agreement, as additional Bond
Collateral.
(b) In
conjunction with the pledge in Section 3.2 above and the delivery of the Bond
Collateral as set forth in subsection (a) above, the Borrower will direct each
Bond Trustee to (i) register on its books the lien of the Collateral Agent with
respect to the Bonds, (ii) send to the Collateral Agent and the Lender copies of
all distribution reports and other reports (if any) sent to holders of the
Bonds, and (iii) make all payments or distributions in respect of the Bonds
directly to the Collateral Agent. Each month, the Lender will
transmit to the Collateral Agent and the Borrower an invoice setting forth the
debt service payment or payments then due under the Note (each a “Note Payment
Amount”). Borrower shall pay the Note Payment Amount as and
when due in accordance with the terms of this Agreement and the
Note. Prior to an Event of Default, the Collateral Agent shall
reimburse Borrower, at the account specified on Schedule 4 hereto,
from the proceeds of any payment or distribution received by the Collateral
Agent from any Bond Trustee in respect of the Bonds, upon receipt thereof by the
Collateral Agent, in an amount equal to the Note Payment Amount; provided,
however, that Borrower shall not be entitled to receive any disbursements of
Bond proceeds if any payment then due with respect to the Loan has not been
paid. Prior to an Event of Default and after reimbursing Borrower for
any applicable Note Payment Amount, any amounts received by the Collateral Agent
from any Bond Trustee in respect of the Bonds in excess of the Note Payment
Amount shall be remitted by the Collateral Agent to the Borrower at the account
specified on Schedule
4 hereto. The Borrower, Lender and Collateral Agent
acknowledge and agree that the Collateral Agent shall be entitled to net out any
Collateral Agent Fees then due to the Collateral Agent prior to remitting any
Bond proceeds to the Borrower under the provisions of this subsection
(b). At any time after the occurrence of an Event of Default, the
Borrower shall have no right to receive any further reimbursements, payments or
distributions on the Bonds, and all such payments or distributions on the Bonds
shall (A) constitute “Bond Collateral,” (B) be subject to the lien of the
Collateral Agent hereunder, and (C) be retained by the Collateral Agent on
behalf of the Lender in satisfaction of any outstanding
Obligations. At any time after the occurrence of an Event of
Default, the
Collateral Agent shall present for payment any Bonds or other Bond Collateral
that must be presented for payment to the applicable Bond Trustees or Bond
Issuer thereof, or its agent, as applicable, and apply such proceeds pursuant to
Article IX
hereof.
(c) The
Borrower will from time to time do whatever the Lender or Collateral Agent may
require by way of obtaining, executing, delivering, and/or filing notices of
assignment, financing statements, continuation statements, instruments of
further assurance and other instruments, and amendments and renewals thereof,
and the Borrower will take any and all steps and observe such formalities as the
Lender or Collateral Agent may require, in order to create and maintain a valid
Lien
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
upon,
pledge of, or paramount security interest in, the Bond Collateral, subject to
the Permitted Liens and to enable Lender and/or Collateral Agent to enforce any
rights with respect to the Bond Collateral. The Borrower will
preserve and defend title to the Bond Collateral and the rights of the
Collateral Agent and the Lender in such Bond Collateral against the claims of
all persons and parties. Without implying any limitation on the
foregoing, with respect to the Bond Collateral that may be perfected by control,
the Borrower shall take such steps as the Lender or Collateral Agent may require
in order that Lender or Collateral Agent, as applicable, may have such
control. In furtherance of the foregoing, the Borrower and Collateral
Agent hereby acknowledge and agree that the Bond Collateral shall be subject to
the control and direction of Lender. By their signatures to this
Agreement, Borrower hereby authorizes and directs the Collateral Agent, and the
Collateral Agent agrees, to comply with the instructions of Lender directing
disposition of the Bond Collateral without further consent of
Borrower. Borrower authorizes and directs the Collateral Agent, and
the Collateral Agent agrees, that the Collateral Agent shall not honor
Borrower’s instructions with respect to a release of the Bond Collateral from
the lien of this Agreement, without Lender’s prior written
consent. To the extent permitted by applicable Laws, the Lender or
Collateral Agent may file, without the Borrower’s signature, one or more
financing statements or other notices disclosing the Lender’s liens and other
security interests. The Borrower hereby ratifies and confirms the
Lender’s and Collateral Agent’s authority to file and the validity of any and
all financing statements and notices filed by the Lender or Collateral Agent
prior to the date of this Agreement.
Section
3.4 Representations
and Warranties of the Collateral Agent.
The
Collateral Agent represents and warrants to the Lender and the Borrower that on
the date hereof that:
(a) Its
execution, delivery and performance of this Agreement are within its powers,
have been and remain duly authorized by all necessary action, corporate or
otherwise, and do not conflict with any provision of any law, regulation, rule,
decree, order, judgment or contractual restriction binding or affecting it or
its property or assets or any provision of its formative documents;
and
(b) This
Agreement has been duly executed and delivered and this Agreement constitutes
its valid and legally binding obligation enforceable against it in accordance
with its terms.
(c) As
of the date of this Agreement, all of the Bonds (other than those relating to
Woodlynn Village, Ashley Square and Bent Tree (as further identified on Schedule 2 attached
hereto)) are duly registered to SAILORLAUNCH & CO. which is the nominee name
for State Street Bank, which is the Collateral Agent’s custodian
bank. The Bonds relating to Woodlynn Village, Ashley Square and Bent
Tree are in the process of being re-registered to SAILORLAUNCH & CO., and
the Collateral Agent shall work diligently to complete such re-registration on
or before August 1, 2009.
Section
3.5 Collateral
Agent’s Standard of Care, Liabilities and Indemnity.
(a) The
Collateral Agent shall exercise reasonable care in its custody and preservation
of the Bond Collateral and shall be deemed to have exercised reasonable care if
it exercises at least the same degree of care as it would exercise with respect
to a like transaction in which it alone is interested.
(b) The
Collateral Agent shall not be liable to the Borrower or the Lender for any
action taken or omitted by it hereunder at the direction of the
Lender. The Collateral Agent shall be liable only for its gross
negligence, bad faith or willful misconduct.
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(c) The
Borrower hereby agrees to indemnify the Collateral Agent and hold it harmless
against any and all claims, losses, liabilities, damages or expenses, including
reasonable counsel fees, howsoever arising, from or in connection with this
Agreement or the performance of its duties hereunder; provided, that nothing
contained herein shall require that the Collateral Agent be indemnified by the
Borrower for any such claims, losses, liabilities, damages or expenses arising
from the Collateral Agent’s gross negligence, bad faith or willful misconduct or
arising from the Lender’s gross negligence, bad faith or willful
misconduct.
(d) The
Lender hereby agrees to indemnify the Collateral Agent and hold it harmless
against any and all claims, losses, liabilities, damages or expenses, including
reasonable counsel fees, howsoever arising, from or in connection with this
Agreement or the performance of its duties hereunder; provided, that such claims,
losses, liabilities, damages or expenses result from Lender’s gross negligence,
bad faith or willful misconduct.
Section
3.6 Termination;
Successor Collateral Agent.
(a) If
at any time the Collateral Agent become incapable of acting or is adjudged a
bankrupt or insolvent, or a receiver of the Collateral Agent or of its property
is appointed, or any public officer takes charge or control of the Collateral
Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Lender will automatically succeed to the
rights and interests of the Collateral Agent hereunder and will hold the Bonds
and all related Bond Collateral directly, and the Borrower and Collateral Agent
shall cooperate with Lender to have the Bond Collateral re-registered in the
name of the Lender. In furtherance of the foregoing, the Borrower and
Collateral Agent shall execute and deliver to Lender all documentation and shall
take such action necessary to transfer the ownership of each Bond from the
Collateral Agent to Lender as registered owner, with instructions to each Bond
Trustee to provide for registration of each such Bond in the name of the
Lender. If and when the provisions of this Section 3.6(a) take
effect, the Borrower will then immediately direct each Bond Trustee to (i)
register on its books the lien of the Lender with respect to the Bonds, (ii)
send to the Lender copies of all distribution reports and other reports (if any)
sent to holders of the Bonds, and (iii) make all payments or distributions in
respect of the Bonds directly to the Lender. If for any reason Lender
shall elect, in its sole and absolute discretion, not to succeed to the rights
and interests of the Collateral Agent as provided herein, then the Lender or the
Borrower may petition any court of competent jurisdiction for the removal of the
Collateral Agent and the appointment of a successor Collateral Agent in
accordance with the other provisions of this Section
3.6.
(b) If
at any time the Collateral Agent notifies the Lender and the Borrower that the
Collateral Agent elects to resign as Collateral Agent, then the Lender will
automatically succeed to the rights and interests of the Collateral Agent and
will hold the Bonds and all related Bond Collateral directly, and the Borrower
and Collateral Agent will cooperate with Lender to transfer the Bonds and Bond
Collateral as provided in Section 3.6(a)
above. If for any reason Lender shall elect, in its sole and absolute
discretion, not to succeed to the rights and interests of the Collateral Agent
as provided herein, the Lender shall, within 45 days after the delivery of the
notice of resignation (and also within 45 days of a notice or removal pursuant
to Section
3.6(a) above unless Lender has succeeded to the rights and interests of
the Collateral Agent thereunder), appoint a successor Collateral Agent, which
successor shall be a commercial bank or trust company having its principal
office in the United States of America and having a combined capital and surplus
of at least $50,000,000 or whose obligations hereunder are guaranteed by a
Person whose capital and surplus or net worth is at least that
amount. If no successor Collateral Agent has been so appointed within
such 45-day period, the Collateral Agent may petition any court of competent
jurisdiction for the appointment of a successor Collateral Agent.
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(c) Notwithstanding
the foregoing, no resignation or removal of the Collateral Agent (excepting
removal due to Collateral Agent’s insolvency or bankruptcy) in accordance with
the provisions hereof shall become effective until a successor Collateral Agent
(including Lender) has accepted its appointment hereunder.
(d) Any
corporation into which the Collateral Agent may be merged or converted or with
which it may be consolidated or any corporation acquiring or otherwise
succeeding to all or substantially all the business of the department or group
that administers this Agreement shall be the successor of the Collateral Agent
hereunder without the execution or filing of any document or any further act on
the part of any of the parties hereto; provided, that such
corporation shall otherwise satisfy the requirements of Section 3.6(b)
above.
Section
3.7 Duties
of the Collateral Agent.
It is
understood and agreed that the Collateral Agent’s duties are solely those set
forth herein and that the Collateral Agent shall have no duty to take any other
action unless specifically agreed to by the Collateral Agent in
writing. Without limiting the generality of the foregoing, the
Collateral Agent shall not be required to institute, appear in or defend any
suit with respect to any Bond Collateral (other than a suit relating to the
failure of the Collateral Agent to perform its obligations hereunder), unless
requested by the Lender in writing and indemnified to its
satisfaction.
Section
3.8 The
Collateral Agent in Other Capacities.
The
Collateral Agent or any of its subsidiaries or affiliates, acting as principal,
may act as agent for, provide banking and other services to and generally engage
in any kind of business with issuers of securities and money market instruments
purchases for the Lender or the Borrower to the same extent as if the Collateral
Agent were not Collateral Agent hereunder.
Section
3.9 Cash
Collateral.
(a) In
addition to collateral described elsewhere in this Article III, at or
prior to closing, and as an express condition precedent to Lender’s agreement to
make the Loan, Borrower shall have deposited with the Lender the Initial Cash
Collateral. The Initial Cash Collateral, and any additional cash
collateral deposited by Borrower pursuant to the terms of this Agreement (the
Initial Cash Collateral and all such additional cash collateral and interest
earned thereon, collectively, the “Cash Collateral”),
shall be held by Lender in a restricted interest-bearing account (the “Cash Collateral
Account”), with all accrued interest to become part of Borrower’s
deposit. Provided that no Event of Default has occurred, such accrued
interest shall be disbursed to Borrower upon Borrower’s request from time to
time. Borrower agrees that it shall include all interest and earnings
on any such deposit as its income (and, if Borrower is a partnership or other
pass-through entity, the income of its partners, members or beneficiaries, as
the case may be), and shall be the owner of all funds on deposit in the Cash
Collateral Account for federal and applicable state and local tax
purposes. Lender shall have the exclusive right to manage and control
all funds in the Cash Collateral Account, but Lender shall have no fiduciary
duty with respect to such funds. Any account fees and charges may be
deducted from the balance, if any, in the Cash Collateral
Account. Borrower grants to Lender a security interest in the Cash
Collateral Account, the Cash Collateral and all such deposited funds hereafter
deposited to such deposit account, and any proceeds thereof, as security for the
Obligations. Such security interest shall be governed by the Uniform
Commercial Code of the State, and Lender shall have available to it all of the
rights and remedies available to a secured party thereunder. The Cash
Collateral Account may be established and held in such name or names as Lender
shall deem appropriate, including in the name of Lender. Borrower
hereby constitutes and appoints Lender and any officer or agent of Lender its
true and lawful attorneys-in-fact
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with full
power of substitution to open the Cash Collateral Account and to do any and
every act that Borrower might do on its own behalf to fulfill the terms of this
Section
3.9. To the extent permitted by Law, Borrower hereby ratifies
all that said attorneys shall lawfully do or cause to be done by virtue
hereof. It is understood and agreed that this power of attorney,
which shall be deemed to be a power coupled with an interest, cannot be
revoked.
(b) Lender
agrees that after the date hereof the Cash Collateral may be transferred to a
different account with the Lender other than the Cash Collateral Account
described in Section
3.9(a) above, as requested by Borrower, so long as the substitute account
and the funds therein remain subject to the Lender’s control and the Lender has
a perfected first-lien security interest in such substitute account and the
funds therein. Without limiting the generality of the foregoing, any
such substitute account shall be considered to be the Cash Collateral Account
for purposes of Section 3.10
below.
(c) Upon
Borrower’s request from time to time after the date hereof, provided that no
Event of Default has occurred and that a 75% loan-to-value ratio is then
satisfied, the Lender will release the Initial Cash Collateral to Borrower at
such time as (a) all of the Projects have achieved stabilization (defined as
ninety percent (90%) occupancy for three (3) consecutive months) and (b) the
operations of each of the Projects collectively support a Debt Service Coverage
Ratio of 1.1 to 1.0, tested in accordance with Section 5.18(c)
below, all as determined by the Lender is in its sole and absolute
discretion.
Section
3.10 Partial
Releases.
Provided
that no Event of Default has occurred, Borrower may request in writing from time
to time that Bonds be released from the Bond Portfolio (each a “Released
Bond”). Upon receipt of Borrower’s request for a release and
prior to the release being effectuated, Lender will test the Debt Service
Coverage Ratio, in accordance with Section 5.18(c)
below, to determine whether the Bond Portfolio (exclusive of any Released Bond
that is the subject of Borrower’s release request) then satisfies a Debt Service
Coverage Ratio of not less than 1.1 to 1.0. If required by Lender,
Borrower shall provide Lender with current financial statements to be used in
calculating the Debt Service Coverage Ratio. If the remaining Bond
Portfolio, exclusive of any Released Bond that is the subject of Borrower’s
release request, then satisfies the required Debt Service Coverage Ratio, as
determined by Lender in its sole discretion, Lender will grant the Borrower’s
request for a release subject to Lender’s receipt of the Bond Release Price (as
hereinafter defined). If the remaining Bond Portfolio, exclusive of
any Released Bond that is the subject of Borrower’s release request, does not
then satisfy the required Debt Service Coverage Ratio, as determined by Lender
in its sole discretion, Lender shall have no obligation to grant Borrower’s
request for a release unless and until Borrower deposits cash collateral with
the Lender (to be held in the Cash Collateral Account) in an amount sufficient
to cause the Bond Portfolio to meet the Debt Service Coverage Ratio, as
determined by Lender in its sole discretion. If Borrower deposits
cash collateral as required, then Lender will grant the Borrower’s request for a
release subject to Lender’s receipt of the Bond Release Price. With
respect to Bonds other than those relating to Iona Lakes, Ashley Square and Bent
Tree (as further identified on Schedule 2 attached hereto),
the “Bond Release
Price” shall mean a principal amount equal to the greater of (i) the
collateral value of the Released Bonds determined as of the time that Borrower
requested the release and (ii) the collateral value of the Released Bonds
determined as of the time the release is to be effective. With
respect to Bonds relating to Iona Lakes, Ashley Square and Bent Tree, the “Bond
Release Price” shall mean a principal amount equal to the greater of (i)
seventy percent (70%) of the collateral value of the Released Bonds determined
as of the time that Borrower requested the release and (ii) seventy percent
(70%) of the collateral value of the Released Bonds determined as of the time
the release is to be effective. The collateral value of the Released
Bonds will be determined by Lender, in its reasonable discretion, in the manner
described in Section
5.18(d) with respect to Lender’s calculation of the Loan-to-Value
Ratio. Upon receipt of any Bond Release Price, Lender will apply such
funds to reduce the outstanding principal balance
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of the
Loan. In no event shall Lender have any obligation to release any
Bonds from the pledged Bond Portfolio if a Default or Event of Default has
occurred.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES.
Borrower
makes the following representations and warranties to Lender as of the date
hereof and as of the date of each advance hereunder:
Section
4.1 Organization,
Power and Authority of Borrower; Loan Documents.
Borrower
(a) is a limited partnership duly organized, existing and in good standing under
the laws of the state in which it is organized and is duly qualified to do
business and in good standing in any other state where the nature of Borrower’s
business or property requires it to be qualified to do business, and (b) has the
power, authority and legal right to own its property and carry on the business
now being conducted by it and to engage in the transactions contemplated by the
Loan Documents, including, without limitation, the pledging of the Bond
Portfolio to the Collateral Agent. The Loan Documents to which
Borrower is a party have been duly executed and delivered by Borrower, and the
execution and delivery of, and the carrying out of the transactions contemplated
by, such Loan Documents, and the performance and observance of the terms and
conditions thereof, have been duly authorized by all necessary organizational
action by and on behalf of Borrower. The Loan Documents to which
Borrower is a party constitute the valid and legally binding obligations of
Borrower and are fully enforceable against Borrower in accordance with their
respective terms, except to the extent that such enforceability may be limited
by applicable bankruptcy, insolvency and other laws generally affecting the
enforcement of creditors’ rights.
Section
4.2 Ownership
of Collateral.
To the
best of Borrower’s knowledge, the Bonds have been validly authorized and issued
by their respective Bond Issuers. The Borrower has purchased and
fully paid for the Bonds, has good and indefeasible title to the Collateral and
will at all times be the beneficial owner of all Collateral free and clear of
any Lien, security interest or rights of any other Person, other than Permitted
Liens.
Section
4.3 Other
Documents; Laws.
The
execution and performance of the Loan Documents to which Borrower is a party and
the consummation of the transactions contemplated thereby will not conflict
with, result in any breach of, or constitute a default under, the organizational
documents of Borrower, or any contract, agreement, document or other instrument
to which Borrower is a party or by which Borrower or any of its properties may
be bound or affected, and such actions do not and will not violate or contravene
any Law to which Borrower is subject, including, without limitation, the terms
of each of the Bond indentures or the terms of the other Bond Documents, binding
on or affecting the Borrower, its property or the Collateral.
Section
4.4 Security
Interest/Priority/Recordation.
This
Agreement creates a valid security interest in favor of the Collateral Agent,
for the benefit of the Lender, in the Bond Collateral. This Agreement
creates a valid security interest in favor of the Lender in all other
Collateral. The taking possession by the Collateral Agent of the
certificates representing the Bonds and all other certificates and instruments
constituting Bond Collateral will perfect and establish the first priority of
the Collateral Agent’s security interest in the Bonds and, when properly
perfected by filing or otherwise, in all other Bond Collateral represented by
such Bonds and instruments securing the
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Obligations. The
name and address of each Bond Trustee with respect to each of the Bonds are set
forth on Schedule
5 attached hereto, and, to the best knowledge of the Borrower, each such
Bond Trustee keeps its books and records relating to the Bond Collateral at such
location.
Section
4.5 Principal
and Interest Payments.
The
outstanding principal amount of each of the Bonds as of the date hereof is set
forth on Schedule
2 attached hereto. Payments of interest on each of the Bonds
are remitted by the Bond Trustees to the Collateral Agent periodically on the
dates set forth on Schedule 6 attached
hereto. Sinking fund payments are remitted by the Bond Trustees to
the Collateral Agent with respect to each of the Bonds on the dates and in the
amounts set forth on Schedule 6 attached
hereto.
Section
4.6 Taxes.
Borrower
has filed all federal, state, county and municipal Tax returns required to have
been filed by Borrower and has paid all Taxes which have become due pursuant to
such returns or pursuant to any Tax assessments received by
Borrower.
Section
4.7 Legal
Actions.
There are
no Claims or investigations by or before any court or Governmental Authority,
pending, or to the best of Borrower’s knowledge and belief, threatened against
or affecting Borrower, Borrower’s business or any of its
properties. Borrower is not in default with respect to any order,
writ, injunction, decree or demand of any court or any Governmental Authority
affecting Borrower, any of the Bonds or any Project.
Section
4.8 Nature
of Loan.
Borrower
is a business or commercial organization. The Loan is being obtained
solely for business or investment purposes, and will not be used for personal,
family, household or agricultural purposes.
Section
4.9 Trade
Names.
Borrower
conducts its business solely under the name set forth in the Preamble to this
Agreement and makes use of no trade names in connection therewith, unless such
trade names have been previously disclosed to Lender in writing.
Section
4.10 Financial
Statements.
The
financial statements heretofore delivered by Borrower to Lender with respect to
Borrower, the General Partner, each Project and Project Owner are true and
correct in all respects, have been prepared in accordance with sound accounting
principles consistently applied, and fairly present the respective financial
conditions of the subjects thereof as of the respective dates
thereof.
Section
4.11 No
Material Adverse Change.
No
material adverse change has occurred in the financial conditions reflected in
the financial statements of Borrower, the General Partner, or to Borrower’s
actual knowledge, any Project or any Project Owner since the respective dates of
such statements, and no material additional liabilities have
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been
incurred by Borrower since the dates of such statements other than the
borrowings contemplated herein or as approved in writing by Lender.
Section
4.12 ERISA
and Prohibited Transactions.
As of the
date hereof and throughout the term of the Loan: (a) Borrower is not and will
not be (i) an “employee benefit plan,” as defined in Section 3(3) of ERISA, (ii)
a “governmental plan” within the meaning of Section 3(32) of ERISA, or (iii) a
“plan” within the meaning of Section 4975(e) of the Code; (b) the assets of
Borrower do not and will not constitute “plan assets” within the meaning of the
United States Department of Labor Regulations set forth in Section 2510.3-101 of
Title 29 of the Code of Federal Regulations; (c) transactions by or with
Borrower are not and will not be subject to state statutes applicable to
Borrower regulating investments of fiduciaries with respect to governmental
plans; and (d) Borrower will not engage in any transaction that would cause any
Obligation or any action taken or to be taken hereunder (or the exercise by
Lender of any of its rights under this Agreement or any of the other Loan
Documents) to be a non-exempt (under a statutory or administrative class
exemption) prohibited transaction under ERISA or Section 4975 of the
Code. Borrower agrees to deliver to Lender such certifications or
other evidence of compliance with the provisions of this Section as Lender may
from time to time request.
Section
4.13 Compliance
with Laws.
Borrower
is in compliance with the requirements of all applicable Laws.
Section
4.14 Project
Loans.
To the
best of Borrower’s knowledge, no default or event of default has occurred with
respect to any of the Project Loans except as to those Project Loans disclosed
to Lender prior to the date hereof including, without limitation, the Project
Loans identified at Schedule 3 (6) and
Schedule 3 (7)
hereto.
Section
4.15 No
Defaults.
There is
no Default or Event of Default under any of the Loan Documents.
ARTICLE
V
AFFIRMATIVE COVENANTS AND
AGREEMENTS.
Borrower
covenants as of the date hereof and until such time as all Obligations shall be
paid and performed in full, that:
Section
5.1 Compliance
with Laws; Use of Proceeds.
Borrower
shall comply with all Laws and all orders, writs, injunctions, decrees and
demands of any court or any Governmental Authority affecting Borrower, the Bonds
and, as applicable, the Projects and Project Loans. Borrower shall
use all proceeds of the Loan for business purposes which are not in
contravention of any Law or any Loan Document.
Section
5.2 Inspections;
Cooperation.
Borrower
shall permit, and to the maximum extent of Borrower’s rights and interests with
respect to the Projects and under the Bond Documents and applicable Laws, shall
cause the Project Owners to permit, representatives of Lender to enter upon and
inspect the Projects and any and all materials to be
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used in
connection with any construction at any of the Projects, to examine all plans
and specifications and similar materials as well as all records and books of
account maintained by or on behalf of any Project Owner relating thereto and to
discuss the affairs, finances and accounts pertaining to the Project Loans, the
Bonds and the Projects with representatives of the Project
Owners. Borrower shall at all times cooperate, and to the maximum
extent of Borrower’s rights and interests with respect to the Projects and under
the Bond Documents and applicable Laws, shall cause the Project Owners to
cooperate with the representatives of Lender in connection with or in aid of the
performance of Lender’s functions under this Agreement. Except in the
event of an emergency or following an Event of Default, Lender shall give
Borrower at least twenty-four hours’ notice by telephone in each instance before
exercising any rights granted in this Section.
Section
5.3 Defense
of Title.
The
Borrower shall (i) warrant and defend title to and ownership of the Collateral
at its own expense against the claims and demands of all other parties other
than Lender claiming an interest therein, keep the Collateral free from all
Liens and security interests, except for the security interest granted herein
and Permitted Liens; (ii) not sell, exchange, transfer, assign, lease or
otherwise dispose of Collateral or any interest therein, except as permitted
under the terms of this Agreement; and (iii) not enter into any agreement or
undertaking restricting the right or ability of the Borrower or the Collateral
Agent to sell, assign or transfer any of the Bond Collateral.
Section
5.4 Bond
Documents; Amendments.
The
Borrower shall, to the full extent of Borrower’s rights thereunder, maintain
compliance with all terms of the respective Bond Documents for each for the
Bonds and with all other material contractual restrictions relating to the Bond
Collateral. The Borrower will not give any consents, approvals,
ratifications or waivers with respect to any Bond Collateral or take any other
actions with respect to the Bond Collateral permitted by the provisions of the
Bond Documents without the prior written consent of the Lender.
Section
5.5 Compliance
with Securities Laws.
The
Borrower shall file all reports and other information when and if required to be
filed by the Borrower with the United States Securities and Exchange Commission
and any other state, federal or foreign agency in connection with the ownership
of the Bond Collateral or with the public sale thereof pursuant to Article VIII
hereof.
Section
5.6 Insurance.
Borrower
shall maintain, and as applicable, to the maximum extent of its rights and
interests with respect to the Projects, shall cause the Project Owner to
maintain, the following insurance at its or their sole cost and
expense:
(a) Insurance
against Casualty to the Projects under a policy or policies covering such risks
as are presently included in “special form” (also known as “all risk”) coverage,
including such risks as are ordinarily insured against by similar businesses,
but in any event including fire, lightning, windstorm, hail, explosion, riot,
riot attending a strike, civil commotion, damage from aircraft, smoke,
vandalism, malicious mischief and acts of terrorism. If required by
Lender, such insurance shall name Lender as mortgagee and loss
payee. Unless otherwise agreed in writing by Lender, such insurance
shall be for the full insurable value of the applicable Project on a replacement
cost basis, with a deductible amount, if any, satisfactory to
Lender. No policy of insurance shall be written such that the
proceeds thereof will
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produce
less than the minimum coverage required by this Section by reason of
co-insurance provisions or otherwise. The term “full insurable value”
means one hundred percent (100%) of the actual replacement cost of the
applicable Project, including tenant improvements (excluding foundation and
excavation costs and costs of underground flues, pipes, drains and other
uninsurable items).
(b) For
Borrower and each Project Owner, commercial (also known as comprehensive)
general liability insurance on an “occurrence” basis against claims for
“personal injury” liability and liability for death, bodily injury and damage to
property, products and completed operations, in limits satisfactory to Lender
with respect to any one occurrence and the aggregate of all occurrences during
any given annual policy period. If required by Lender, such insurance
shall name Lender as an additional insured.
(c) Workers’
compensation insurance for all employees of Borrower and each Project Owner in
such amount as is required by Law and including employer’s liability insurance,
if required by Lender.
(d) During
any period of other construction upon any Project, each Project Owner shall
maintain, or cause others to maintain, builder’s risk insurance (non-reporting
form) of the type customarily carried in the case of similar construction for
one hundred percent (100%) of the full replacement cost of work in place and
materials stored at or upon the applicable Project.
(e) If
at any time any portion of any structure on any Project is insurable against
Casualty by flood and is located in a Special Flood Hazard Area under the Flood
Disaster Protection Act of 1973, as amended, a flood insurance policy in form
and amount sufficient to meet the requirements of applicable Law as such
requirements may from time to time be in effect.
(f) Loss
of rental value insurance or business interruption insurance in an amount equal
to twelve (12) months of the projected gross income of each Project and an
extended period of indemnity endorsement providing an additional twelve (12)
months’ loss of rental value or business interruption insurance after any
Project has been restored or until the projected gross income returns to the
level that existed prior to the loss, whichever is first to occur.
(g) Such
other and further insurance as may be required from time to time by Lender in
order to comply with regular requirements and practices of Lender with respect
to loans of the same type as the Loan and which do not place any undue burden on
Borrower different from the burdens placed on other borrowers from the
Lender.
Each
policy of insurance (i) shall be issued by one or more insurance companies each
of which must have an A.M. Best Company financial and performance rating of A-IX
or better and are qualified or authorized by the Laws of the applicable
jurisdiction to assume the risks covered by such policy, (ii) with respect to
the insurance described under the preceding Subsections (a), (d), (e)
and (f), shall have attached thereto standard non-contributing,
non-reporting mortgagee clauses in favor of and entitling Lender without
contribution to collect any and all proceeds payable under such insurance,
either as sole payee or as joint payee with Borrower, subject to the rights of
the Bond Trustees under the Bond Documents, (iii) shall provide that such policy
shall not be canceled or modified for nonpayment of premiums without at least
ten (10) days prior written notice to Lender, or for any other reason without at
least thirty (30) days prior written notice to Lender, and (iv) shall provide
that any loss otherwise payable thereunder shall be payable notwithstanding any
act or negligence of Borrower or any Project Owner, as applicable, which might,
absent such agreement, result in a forfeiture of all or a part of such insurance
payment. Borrower or each Project Owner, as applicable, shall
promptly pay all premiums when due on such insurance and, not less than ten (10)
days prior to the expiration dates of each such policy, Borrower will deliver to
Lender acceptable evidence of insurance, such as a renewal policy or policies
marked “premium paid” or
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other
evidence satisfactory to Lender reflecting that all required insurance is
current and in force. Borrower will immediately give Notice to Lender
of any cancellation of, or change in, any insurance policy of which Borrower has
been notified. Lender shall not, because of accepting, rejecting,
approving or obtaining insurance, incur any liability for (A) the existence,
nonexistence, form or legal sufficiency thereof, (B) the solvency of any
insurer, or (C) the payment of losses. Borrower may satisfy any
insurance requirement hereunder by providing one or more “blanket” insurance
policies, subject to Lender’s approval in each instance as to limits, coverages,
forms, deductibles, inception and expiration dates, and cancellation
provisions.
Section
5.7 Books
and Records; Financial Statements.
Borrower
will keep and maintain full and accurate books and records administered in
accordance with sound accounting principles, consistently applied, showing in
detail the earnings and expenses of Borrower and each of the Projects and the
operation thereof. Borrower will keep and maintain its books and
records, including recorded data of any kind and regardless of the medium of
recording, at the address of Borrower set forth in Section
9.7. Borrower shall permit Lender, or any Person authorized by
Lender, to inspect and examine such books and records (regardless of where
maintained) and all supporting vouchers and data and to make copies and extracts
therefrom at all reasonable times and as often as may be requested by
Lender. Borrower will furnish or cause to be furnished to Lender the
following financial information:
(a) Within
one hundred eighty (180) days after the end of each fiscal year of Borrower,
audited financial statements for that fiscal year, including a statement of
income and expenses for Borrower and a balance sheet showing all assets and
liabilities of Borrower as of the end of that fiscal year, and accompanying
footnotes thereon.
(b) Within
sixty (60) days after the end of each fiscal quarter of Borrower accountant
prepared financial statements for that fiscal quarter, including a statement of
income and expenses for Borrower and a balance sheet showing all assets and
liabilities of Borrower as of the end of that fiscal quarter, and accompanying
footnotes thereon.
(c) Within
forty-five (45) days after the end of each fiscal quarter of Borrower, (i) a
current rent roll for each Project as of the end of such quarter, in form and
level of detail reasonably acceptable to the Lender, detailing, with respect to
each Project, each lease, the tenant’s name, the lease date, the premises
demised, the term, the rent, the security deposit and any rent paid more than
one month in advance, and (ii) operating statements for each Project for such
quarter, in form and level of detail reasonably acceptable to the Lender,
together with a certification by the chief financial officer of Borrower that
the information in all of the items required pursuant hereto are true and
correct. The Lender reserves the right to require the foregoing
financial information more frequently than quarterly.
(d) In
addition, Borrower will furnish or cause to be furnished to Lender, with
reasonable promptness, such interim financial statements of Borrower, General
Partner and each Project, together with such additional information, reports or
statements in connection therewith, as Lender may from time to time
request.
All
financial statements must be in form and detail acceptable to Lender and must be
certified as to accuracy by Borrower or the Project Owners, as
applicable. All annual financial statements of Borrower must be
audited with an unqualified opinion by an independent certified public
accountant satisfactory to Lender. Borrower shall provide, upon
Lender’s request, convenient facilities for the audit and verification of any
such statement. All certifications and signatures on behalf of
corporations,
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partnerships,
limited liability companies and other entities shall be by a representative of
the reporting party satisfactory to Lender.
Section
5.8 Estoppel
Certificates.
Within
ten (10) days after any request by Lender or a proposed assignee or purchaser of
the Loan or any interest therein, Borrower shall certify in writing to Lender,
or to such proposed assignee or purchaser, the then unpaid balance of the Loan
and whether Borrower claims any right of defense or setoff to the payment or
performance of any of the Obligations, and if Borrower claims any such right of
defense or setoff, Borrower shall give a detailed written description of such
claimed right.
Section
5.9 Taxes;
Collateral Notices.
Borrower
will pay in timely fashion all Taxes, assessments or charges of any nature that
are imposed with respect to the Collateral, including without limitation any
filing fees payable in connection with the filing, continuation, amendment or
termination of any related financing statements. The Borrower will
give notice to the Collateral Agent and the Lender of, and defend the
Collateral, against, (i) any suit, action or proceeding against such Collateral,
and (ii) any lien that may be asserted with respect to any Collateral (other
than the lien of this Agreement).
Section
5.10 Lender’s
Rights to Pay and Perform.
If, after
any required notice, Borrower fails to promptly pay or perform any of the
Obligations within any applicable grace or cure periods, Lender, without Notice
to or demand upon Borrower, and without waiving or releasing any Obligation or
Default, may (but shall be under no obligation to) at any time thereafter make
such payment or perform such act for the account and at the expense of
Borrower.
Section
5.11 Reimbursement;
Interest.
If Lender
shall incur any Expenses or pay any Claims by reason of the Loan or the rights
and remedies provided under the Loan Documents (regardless of whether or not any
of the Loan Documents expressly provide for an indemnification by Borrower
against such Claims), Lender’s payment of such Expenses and Claims shall
constitute advances to Borrower which shall be paid by Borrower to Lender on
demand, together with interest thereon from the date incurred until paid in full
at the rate of interest then applicable to the Loan under the terms of the
Note. Each advance shall be secured hereby and by the other Loan
Documents as fully as if made to Borrower, regardless of the disposition thereof
by the party or parties to whom such advance is made.
Section
5.12 Notification
by Borrower.
Borrower
will promptly give Notice to Lender of the occurrence of any Default or Event of
Default hereunder or under any of the other Loan Documents. Borrower
will also promptly give Notice to Lender of the Borrower’s receipt of notice of
the occurrence of any default or event of default under any of the Bond
Documents or documents evidencing, securing or relating to the Project
Loans.
Section
5.13 Indemnification
by Borrower.
Borrower
agrees to indemnify Lender and to hold Lender harmless from and against, and to
defend Lender by counsel approved by Lender against, any and all Claims directly
or indirectly arising
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out of or
resulting from any transaction, act, omission, event or circumstance in any way
connected with the Bonds, any Project or the Loan, including any Claim arising
out of or resulting from (a) any failure by Borrower to comply with the
requirements of any Laws or to comply with any agreement that applies or
pertains to Bonds or any Project, including any agreement with a broker or
“finder” in connection with the Loan; (b) any other Default or Event of Default
hereunder or under any of the other Loan Documents; or (c) any assertion or
allegation that Lender is liable for any act or omission of Borrower or any
other Person in connection with the Loan or the Bonds; provided, however,
that Borrower shall not be obligated to indemnify Lender with respect to any
Claim arising solely from the gross negligence or willful misconduct of
Lender. The agreements and indemnifications contained in this Section
shall apply to Claims arising both before and after the repayment of the Loan
and shall survive the repayment of the Loan and any action by Lender to enforce
the rights and remedies of Lender hereunder or under the other Loan
Documents.
Section
5.14 Fees
and Expenses.
Borrower
shall pay all fees, charges, costs and expenses required to satisfy the
conditions of the Loan Documents. Without limitation of the
foregoing, Borrower will pay, when due, and if paid by Lender will reimburse
Lender on demand for, all fees and expenses of any appraisers, consultants,
advisors and Lender’s counsel in connection with the closing, administration,
modification or any “workout” of the Loan, or the enforcement of Lender’s rights
and remedies under any of the Loan Documents.
Section
5.15 Appraisals.
Lender
may obtain from time to time an appraisal of all or any part of the Projects,
prepared in accordance with written instructions from Lender, from a third-party
appraiser satisfactory to, and engaged directly by, Lender. The cost
of one such appraisal obtained by Lender in each calendar year and the cost of
each such appraisal obtained by Lender following the occurrence of an Event of
Default shall by borne by Borrower and shall be paid by Borrower on
demand.
Section
5.16 Representations
and Warranties.
Borrower
shall take all actions and shall do all things necessary or desirable to cause
all of Borrower’s representations and warranties in this Agreement to be true
and correct at all times.
Section
5.17 Deposit
Accounts; Principal Depository.
Borrower
shall maintain Bank of America, N.A. as its principal depository bank, including
for the maintenance of Borrower’s corporate, business, cash management,
operating and administrative deposit accounts and including all of Borrower’s
deposit accounts related to the Bonds and the Projects (except for accounts
maintained by the Collateral Agent in connection with this Agreement or accounts
maintained by the Project Owners in which Borrower may have an
interest). Borrower hereby grants to Lender a security interest in
the foregoing accounts and deposit accounts.
Section
5.18 Financial
Covenants.
(a) Leverage
Ratio. Borrower shall at all times maintain a Leverage Ratio
of not more than seventy percent (70%), to be tested quarterly by the Lender as
of the last day of each calendar quarter, commencing with the quarter ending
June 30, 2009, based on a certification from Borrower as to
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its
Leverage Ratio, Borrower’s most recent financial statements then on file with
the Lender and such other supporting documentation as shall be reasonably
requested by the Lender.
(b) Minimum
Liquidity. Borrower shall at all times maintain Minimum
Unencumbered Liquidity of not less than $5,000,000, to be tested quarterly by
the Lender as of the last day of each calendar quarter, commencing with the
quarter ending June 30, 2009, based on a certification from Borrower as to its
Minimum Liquidity balance, Borrower’s most recent financial statements then on
file with the Lender and such other supporting documentation and brokerage and
account statements as shall be reasonably requested by the Lender.
(c) Debt Service
Coverage. The Bond Portfolio shall at all times maintain a
minimum Debt Service Coverage Ratio of 1.1 to 1.0, to be tested quarterly by the
Lender as of the last day of each calendar quarter, commencing with the quarter
ending June 30, 2009. If at any time the Debt Service Coverage Ratio
is violated, as determined by Lender in its sole discretion, the Borrower shall,
promptly upon demand by the Lender, deposit cash collateral with the Lender in
an amount sufficient to cause the Debt Service Coverage Ratio to be no less than
1.1 to 1.0, as determined by the Lender in its sole discretion.
(d) Loan-to-Value
Ratio. The Bond Portfolio shall at all times maintain a
Loan-to-Value Ratio of not more than 75% inclusive of the Initial Cash
Collateral and any additional cash collateral then held by the Lender as
security for the Obligations, to be tested as of the first day of each
month. The Lender will calculate the Loan-to-Value Ratio utilizing
the Lender’s then applicable internal non-CRA need rate under its Special Bond
Offering program plus a spread of one hundred (100) basis points based on the
lesser of the supportable loan amount or the par value of each
Bond. The supportable loan amount shall be based on a loan constant
of 8.35% applied to the annualized net operating income for the 11 Bonds other
than those relating to Ashley Square and Bent Tree (as further identified on
Schedule 2
attached hereto). The Ashley Square and Bent Tree Bonds (as further
identified on Schedule
2 attached hereto) will be measured using a loan constant of 8.81% or the
Lender’s then applicable open-ended taxable rate applied to the applicable
annualized net operating income. If at any time the Loan-to Value
Ratio exceeds 75%, as determined by Lender in its sole discretion, the Borrower
shall, promptly upon demand by the Lender, deposit cash collateral with the
Lender in an amount sufficient to reduce the Loan-to Value Ratio to 75% or less,
as determined by Lender in its sole discretion.
ARTICLE
VI
NEGATIVE
COVENANTS.
Borrower
covenants as of the date hereof and until such time as all Obligations shall be
paid and performed in full, that:
Section
6.1 Liens;
Collateral.
Borrower
will not, nor will it permit any other person to, sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, any
Collateral, nor will it create, incur or permit to exist any lien on or with
respect to the Collateral, any interest therein, or any proceeds thereof (other
than the lien of this Agreement).
Section
6.2 Change
of Ownership.
The
Borrower will not permit the substitution of the General Partner or other change
in its ownership structure without the Lender’s prior written consent, other
than transfers of limited
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partnership
interests. The Borrower will not, without providing 30 days prior
written notice to the Lender and without filing such amendments to any
previously filed financing statements as the Lender may require, change the
jurisdiction of its formation from the jurisdiction in which it is currently
formed.
Section
6.3 Liquidation;
Merger.
The
Borrower will not terminate, wind up, liquidate or dissolve its affairs, nor
will Borrower consolidate or merge with or into or transfer substantially all of
its assets to any other Person.
Section
6.4 Additional
Debt.
No debt
of any kind, whether direct or contingent (other than the Loan), may be secured
by the Collateral, whether senior, subordinate or pari passu.
ARTICLE
VII
EVENTS OF
DEFAULT.
The
occurrence or happening, from time to time, of any one or more of the following
shall constitute an Event of Default under this Agreement:
Section
7.1 Payment
Default.
Borrower
fails to pay any Obligation under this Agreement within ten (10) Banking Days of
when due, whether on the scheduled due date or upon acceleration, maturity or
otherwise.
Section
7.2 Default
Under Other Loan Documents.
An Event
of Default (as defined therein) occurs under the Note or any other Loan
Document, or Borrower fails to promptly pay, perform, observe or comply with any
term, obligation or agreement contained in any of the Loan Documents (within any
applicable grace or cure period).
Section
7.3 Accuracy
of Information; Representations and Warranties.
Any
information contained in any financial statement, schedule, report or any other
document delivered by Borrower, any Project Owner or any other Person to Lender
in connection with the Loan proves at any time not to be true and accurate in
all material respects, or Borrower, any Project Owner or any other Person shall
have failed to state any material fact or any fact necessary to make such
information not misleading, or any representation or warranty contained in this
Agreement or in any other Loan Document or other document, certificate or
opinion delivered to Lender in connection with the Loan, proves at any time to
be incorrect or misleading in any material respect either on the date when made
or on the date when reaffirmed pursuant to the terms of this
Agreement.
Section
7.4 Deposits.
Borrower
fails to deposit funds with Lender, in the amount requested by Lender, pursuant
to the provisions of Section 5.19(c) or
Section 5.19(d)
within ten (10) days from the effective date of a Notice from Lender requesting
such deposit, or Borrower fails to deliver to Lender any Bond Release Price
under Section
3.10 within ten (10) days after Borrower’s receipt thereof.
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Section
7.5 Other
Obligations.
Borrower
fails to promptly perform or comply with any of the Obligations set forth in
this Agreement (other than those expressly described in other Sections of this
Article VII),
and such failure continues uncured for a period of thirty (30) days after Notice
from Lender to Borrower.
Section
7.6 Bankruptcy.
Borrower
or General Partner files a bankruptcy petition or makes a general assignment for
the benefit of creditors, or a bankruptcy petition is filed against Borrower or
General Partner and such involuntary bankruptcy petition continues undismissed
for a period of sixty (60) days after the filing thereof.
Section
7.7 Bankruptcy
of Project Owner.
Any
Project Owner files a bankruptcy petition or makes a general assignment for the
benefit of creditors, or a bankruptcy petition is filed against any Project
Owner and (a) such involuntary bankruptcy petition continues undismissed for a
period of sixty (60) days after the filing thereof or (b) with respect to a
voluntary bankruptcy petition or general assignment for the benefit of
creditors, Borrower has not had a receiver appointed for such Project or has not
taken reasonable steps, as determined by Lender, to exercise its remedies under
the Bond Documents to Lender’s reasonable satisfaction within ninety (90) days
after Borrower becomes aware of such bankruptcy petition or general assignment
for the benefit of creditors. In such case, in addition to other
available remedies, Lender may require that the Bond relating to any such
Project be released from the Bond Portfolio and require Borrower to make a
prepayment of the Loan in an amount to be determined by Lender with respect to
such Bond in accordance with the provisions of Section 3.10
hereof.
Section
7.8 Appointment
of Receiver, Trustee, Liquidator.
Borrower,
General Partner or any Project Owner applies for or consents in writing to the
appointment of a receiver, trustee or liquidator of Borrower, General Partner or
any Project Owner or any Project, or all or substantially all of the other
assets of Borrower, General Partner or any Project Owner, or an order, judgment
or decree is entered by any court of competent jurisdiction on the application
of a creditor appointing a receiver, trustee or liquidator of Borrower, General
Partner or any Project Owner, any Project, or all or substantially all of the
other assets of Borrower, General Partner or any Project Owner.
Section
7.9 Inability
to Pay Debts.
Borrower, General Partner or any
Project Owner becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due.
Section
7.10 Judgment.
A final
nonappealable judgment for the payment of money involving more than $500,000 is
entered against Borrower, and Borrower fails to
discharge the same, or fails to cause it to be discharged or bonded off to
Lender’s satisfaction, within thirty (30) days from the date of the entry of
such judgment.
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Section
7.11 Dissolution; Change in Business
Status.
Unless
the written consent of Lender is previously obtained, all or substantially all
of the business assets of Borrower, General Partner or any Project Owner are
sold, Borrower General Partner or any Project Owner is dissolved, or there
occurs any change in the form of business entity through which Borrower, General
Partner or any Project Owner presently conducts its business or any merger or
consolidation involving Borrower, General Partner or any Project
Owner. Notwithstanding the foregoing, the Project Owners identified
on Schedule 3
under items (2), (3), (11) and (13) may change their form of business entities,
be dissolved, merge or undergo a change in ownership structure so long as (i)
Borrower demonstrates to Lender’s reasonable satisfaction that there does not
then exist, and such change will not result in, a default under the applicable
Bond Documents or Project Loan documents, (ii) any and all approvals or consents
that are required for such change are obtained in advance and (iii) the Borrower
notifies the Lender promptly upon its knowledge of any such change and provides
the Lender with the name and organizational structure of the new Project Owner
and any other information reasonably required by Lender.
Section
7.12 Default
Under Other Indebtedness.
Borrower
fails to pay any indebtedness (other than the Loan) owed by Borrower to Lender
when and as due and payable (whether by acceleration or otherwise).
Section
7.13 Material
Adverse Change.
In the
reasonable opinion of Lender, the prospect of payment or performance of all or
any part of the Obligations has been impaired because of a material adverse
change in the financial condition, results of operations, business or properties
of Borrower or General Partner.
Section
7.14 Default
With Respect to Bonds, Projects.
There has
occurred an event of default (as defined therein) with respect to any Bond or
under any Bond Documents or any Project Loan, subject to any applicable notice
or cure period, or in the reasonable opinion of Lender, there has occurred a
material adverse change in the financial condition, results of operations,
business or properties of any Project Owner or any Project, and Borrower has not
taken reasonable steps, as determined by Lender, to exercise its remedies under
the Bond Documents or otherwise fails to cure or mitigate such event of default
or material adverse change to Lender’s reasonable satisfaction within forty-five
(45) days after Borrower becomes aware of such occurrence, whether by Notice
from Lender or otherwise; provided that, if during such forty-five (45) day
period Borrower has taken reasonable steps to cure such default and is
diligently pursuing such cure, Borrower shall be granted an additional thirty
(30) days to effectuate such cure for a total of seventy-five (75) days after
Borrower becomes aware of such occurrence. In such case, in addition
to other available remedies, Lender may require that the Bond relating to any
such Project be released from the Bond Portfolio and require Borrower to make a
prepayment of the Loan in an amount to be determined by Lender with respect to
such Bond in accordance with the provisions of Section 3.10
hereof.
Section
7.15 Challenge
to Agreements.
Any
material provision of this Agreement or any of the other Loan Document shall at
any time for any reason cease to be valid and binding in accordance with its
terms on the Borrower or shall be declared to be null and void, or the validity
or enforceability hereof or thereof shall be contested by
the
Borrower, or a proceeding shall be commenced by the Borrower seeking to
establish the invalidity or unenforceability hereof or of any of the other Loan
Document, or the Borrower shall deny that it has any further liability or
obligation under this Agreement or any of the other Loan Documents.
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ARTICLE
VIII
Remedies
on Default.
Section
8.1 Remedies
on Default.
Upon the
happening of any Event of Default, Lender and, as applicable, Collateral Agent,
shall have the right, in addition to any other rights or remedies available to
Lender and Collateral Agent under the other Loan Documents or under applicable
Law, to exercise any one or more of the following rights and
remedies:
(a) Lender
may accelerate all of Borrower’s Obligations under the Loan Documents whereupon
such Obligations shall become immediately due and payable, without notice of
default, acceleration or intention to accelerate, presentment or demand for
payment, protest or notice of nonpayment or dishonor, or notices or demands of
any kind or character (all of which are hereby waived by Borrower).
(b) Lender
may set off the amounts due Lender under the Loan Documents against any and all
accounts, credits, money, securities or other property of Borrower now or
hereafter on deposit with, held by or in the possession of Lender to the credit
or for the account of Borrower, without notice to or the consent of
Borrower.
Section
8.2 Specific
Bond Collateral Remedies.
Upon the
happening of any Event of Default, Lender and, as applicable, Collateral Agent,
shall have the right, in addition to any other rights or remedies available to
Lender and Collateral Agent under the other Loan Documents or under applicable
Law, to exercise any one or more of the following rights and
remedies:
(a) The
Collateral Agent and the Lender shall have, in respect of the Bond Collateral,
in addition to the rights and remedies provided herein, in the other Loan
Documents, or by law, the rights and remedies of a secured party under the
Uniform Commercial Code or any other applicable law.
(b) Lender
shall have the right to the extent permitted by law, and the Borrower shall take
all such action as may be necessary or appropriate to give effect to such right,
to cause the Bond Collateral to be registered in its name.
(c) The
Lender may instruct the Collateral Agent to sell Bond Collateral (in accordance
with subsection (d) below and other applicable provisions of this Agreement), in
an amount estimated by the Lender to be sufficient to generate proceeds in the
amount of all or any portion of any cash deficiency needed to satisfy all
outstanding Obligations.
(d) The
Collateral Agent shall use its best efforts to sell any Bond Collateral pursuant
hereto in good faith and in such manner as the Collateral Agent deems advisable
at the highest obtainable price under current market conditions within a period
of four (4) Banking Days from the date of the Event of Default.
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(e) All
proceeds from the sale of any Bond Collateral pursuant to this Section 8.2
(whether to the Borrower or to a third party) shall be applied by the Collateral
Agent in the following order:
(i) first, to payment of Expenses
of such sale or other disposition any costs associated with the exercise of any
remedies by the Lender and Collateral Agent, including reasonable counsel fees
and all expenses, recording charges, liabilities and advances incurred or made
by the Collateral Agent or the Lender in connection therewith, including without
limitation the amount of any accrued but unpaid Collateral Agent
Fee;
(ii) second, to payment to the
Lender for application to payment of all outstanding Obligations;
and
(iii) finally, on or after the date
on which all Obligations hereunder shall have been paid in full, to payment to
or upon the order of the Borrower or any other Person legally entitled thereto
of any surplus.
Section
8.3 Sale
of Bond Collateral.
(a) General Sale
Provisions. In furtherance of the foregoing, upon the
happening of any Event of Default, without limiting the generality of this
Section, the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Borrower or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, and in its sole discretion, forthwith
request that the Bond Trustees record and effect a transfer of ownership of the
Bonds to the Collateral Agent and collect, receive, appropriate and realize upon
the Bonds and the other Bond Collateral, or any part thereof, and/or may
forthwith sell, assign, give an option or options to purchase or otherwise
dispose of and deliver the Bond Collateral or any part thereof (or contract to
do any of the foregoing), in one or more parcels at public or private sale or
sales, in the over-the-counter market, at any exchange, broker’s board or office
of the Collateral Agent or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The
Collateral Agent or Lender shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to bid for the purchase of the whole or any part of the Bond Collateral so sold,
free of any right or equity of redemption in the Borrower, which right or equity
of redemption is hereby waived or released to extent permitted by applicable
law. The Borrower agrees that, to the extent notice of sale shall be
required by law and has not been waived by the Borrower, any requirement of
reasonable notice shall be met if notice, specifying the place of any public
sale or the time after which any private sale is to be made, is personally
served on or mailed, postage prepaid, to the Borrower, in accordance with the
notice provisions of this Agreement at least 10 Business Days before the time of
such sale. The Collateral Agent shall not be obligated to make any
sale of Bond Collateral regardless of notice of sale having been
given. The Collateral Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
(b) Registration Prior to Public
Sale. Upon the written request of the Collateral Agent prior
to a public sale as contemplated in subsection (b) above the Borrower shall (i)
use its best efforts, at its own expense, to cause any registration,
qualification or compliance under any Federal or state securities laws,
including, without limitation, the Securities Act as then in effect (or other
similar Federal statute as then in effect) to be effected (and to be kept
effective) with respect to all or any part of
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the Bond
Collateral as would permit or facilitate the registration and sale of all or
such part of the Bond Collateral under such Federal or state laws, (ii) provide
to the Collateral Agent reports on the progress of such registration,
qualification or compliance, inform the Collateral Agent immediately upon the
completion thereof, and provide to the Collateral Agent such number of
prospectuses, offering circulars or other documents incident thereto as the
Collateral Agent may from time to time request in order to effect such public
sale of all or such part of the Bond Collateral, and (iii) indemnify the
Collateral Agent, Lender and any other Person participating in such public sale
of all or such part of the Bond Collateral against all claims, losses, damages
and liabilities caused by any misstatement (or alleged misstatement) of a
material fact contained in any related registration statement, notification or
the like or omission of a material fact necessary to make the statements therein
not misleading, except insofar as the same may have been caused by the gross
negligence or willful misconduct of the Collateral Agent or
Lender. The Collateral Agent shall furnish to the Borrower such
information regarding the Collateral Agent or the terms of this Agreement as the
Borrower may request in writing in connection with any such registration,
qualification or compliance.
(c) Private
Sale. Upon the happening of any Event of Default, the Borrower
recognizes that the Collateral Agent may deem it impracticable to effect a
public sale of all or any part of the Bond Collateral and that the Collateral
Agent may, therefore, determine to make one or more private sales of any such
Bond Collateral to a purchaser or restricted group of purchasers who will be
obligated to agree, among other things, to acquire such Bond Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof. The Borrower acknowledges that any such private sale
may be at prices and on terms less favorable to the seller than the prices and
other terms which might have been obtained at a public sale and, notwithstanding
the foregoing, agrees that such private sale shall be deemed to have been made
in a commercially reasonable manner and that the Collateral Agent shall have no
obligation to sell such Bond Collateral at public sale notwithstanding the fact
that a registration for public sale has been obtained pursuant to subsection (b)
hereof or to delay any such sale for the period of time necessary to permit the
Borrower to obtain such registration. The Borrower further
acknowledges and agrees that any offer to sell such Bond Collateral which has
been (i) publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New York, New
York or such other jurisdiction as Collateral Agent may determine to be
appropriate (to the extent that such offer may be advertised without prior
registration under the Securities Act), or (ii) made privately in the manner
described above shall be deemed to involve a “public sale” under the Uniform
Commercial Code, notwithstanding that such sale may not constitute a “public
offering” under the Securities Act, and the Collateral Agent may, in such event,
bid for the purchase of such Bond Collateral.
Section
8.4 Retention
of Bond Collateral.
In
addition to the rights and remedies hereunder, upon the happening of any Event
of Default, the Lender, or Collateral Agent on behalf of Lender, may, after
providing the notices required by the applicable provisions of the Uniform
Commercial Code or otherwise complying with the requirements of applicable law
of the relevant jurisdiction, retain all or any portion of the Collateral in
satisfaction of the Obligations. Unless and until the Lender or the
Collateral Agent shall have provided such notices, however, neither Lender nor
the Collateral Agent shall be deemed to have retained any Collateral in
satisfaction of any Obligations for any reason.
Section
8.5 Deficiency.
In the
event that the proceeds of any sale, collection or realization are insufficient
to pay all amounts to which the Collateral Agent or the Lender are legally
entitled, the Borrower shall be liable for the deficiency, together with
interest thereon at the Past-Due Rate specified in the Note, the costs of
collection and the reasonable, documented fees of any attorneys employed by the
Collateral Agent and/or
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the
Lender to collect such deficiency. Any surplus remaining after the
full payment and satisfaction of the Obligations shall be returned to the
Borrower or to whomsoever a court of competent jurisdiction shall determine to
be entitled thereto.
Section
8.6 Power
of Attorney.
In
addition to other powers of attorney contained herein, the Borrower hereby
designates and appoints each of the Lender and the Collateral Agent, on behalf
of the Lender, and each of its designees or agents as attorney-in-fact of the
Borrower, irrevocably and with power of substitution, with authority to take any
or all of the following actions upon the occurrence and during the continuance
of an Event of Default:
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(a)
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to
demand, collect, settle, compromise, adjust and give discharges and
releases concerning the Collateral, all as the Lender may reasonably
determine;
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(b)
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to
commence and prosecute any actions at any court for the purposes of
collecting any of the Collateral and enforcing any other right in respect
thereof;
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(c)
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to
defend, settle or compromise any action brought and, in connection
therewith, give such discharge or release as the Lender may deem
reasonably appropriate;
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(d)
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to
pay or discharge taxes, liens, security interests, or other encumbrances
levied or placed on or threatened against the
Collateral;
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(e)
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to
direct any parties liable for any payment under any of the Collateral to
make payment of any and all monies due and to become due thereunder
directly to the Collateral Agent or as the Lender shall
direct;
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(f)
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to
receive payment of and receipt for any and all monies, claims, and other
amounts due and to become due at any time in respect of or arising out of
any Collateral;
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(g)
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to
sign and endorse any drafts, assignments, bond pledge certificates,
verifications, notices and other documents relating to the
Collateral;
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(h)
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to
settle, compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or releases as
the Lender may deem reasonably
appropriate;
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(i)
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execute
and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, pledge agreements, affidavits,
notices and other agreements, instruments and documents that the Lender or
Collateral Agent may determine necessary in order to perfect and maintain
the security interests and liens granted in this Agreement and in order to
fully consummate all of the transactions contemplated
therein;
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(j)
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to
exchange any of the Collateral or other property upon any reorganization
or change in structure of any Bond Issuer upon such terms as the Lender
may determine;
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(k)
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to
sign an instrument in writing, sanctioning the transfer of any or all of
the Bonds of the Borrower into the name of the Lender or the Collateral
Agent for the benefit of the Lender or into the name of any transferee to
whom the Bonds or any part thereof may be sold pursuant to this Article VIII;
and
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(l) to
do and perform all such other acts and things as the Lender or the Collateral
Agent may reasonably deem to be necessary, proper or convenient in connection
with the Collateral.
This
power of attorney is a power coupled with an interest and shall be irrevocable
for so long as any of the Obligations remain outstanding or any Loan Document is
in effect. Neither the Lender nor the Collateral Agent shall be under
any duty to exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the Lender and/or the
Collateral Agent in this Agreement, and shall not be liable for any failure to
do so or any delay in doing so. Neither the Lender nor the Collateral
Agent shall be liable for any act or omission or for any error of judgment or
any mistake of fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross negligence or
willful misconduct. This power of attorney is conferred on the Lender
and the Collateral Agent solely to protect, preserve and realize upon its or
their security interest in Collateral.
Section
8.7 No
Release or Waiver; Remedies Cumulative and Concurrent.
Borrower
shall not be relieved of any Obligation by reason of the failure of Lender to
comply with any request of Borrower or of any other Person to enforce any
provision of the Loan Documents, or by reason of the release, regardless of
consideration, of all or any part of the Collateral. No delay or
omission of Lender to exercise any right, power or remedy accruing upon the
happening of an Event of Default shall impair any such right, power or remedy or
shall be construed to be a waiver of any such Event of Default or any
acquiescence therein. No delay or omission on the part of Lender to
exercise any option for acceleration of the maturity of the Obligations, or any
other option granted to Lender hereunder in any one or more instances, or the
acceptance by Lender of any partial payment on account of the Obligations shall
constitute a waiver of any such Event of Default and each such option shall
remain continuously in full force and effect. No remedy herein
conferred upon or reserved to Lender is intended to be exclusive of any other
remedies provided for in the Loan Documents, and each and every such remedy
shall be cumulative, and shall be in addition to every other remedy given
hereunder, or under the Loan Documents, or now or hereafter existing at Law or
in equity or by statute. Every right, power and remedy given by the
Loan Documents to Lender shall be concurrent and may be pursued separately,
successively or together against Borrower or the Collateral or any part thereof,
and every right, power and remedy given by the Loan Documents may be exercised
from time to time as often as may be deemed expedient by Lender.
ARTICLE
IX
Miscellaneous.
Section
9.1 Environmental
Indemnity; Defense of Claims.
(a) The
Borrower hereby agrees to protect, indemnify, defend, release and hold harmless
the Lender from and against, and reimburse each such party on demand for, any
and all Losses paid, incurred or suffered by, or asserted against, such party by
any Person in connection with, arising out of or resulting in any way whatsoever
from:
(i) the
presence, Release or threatened Release of any Hazardous Material at or from any
Project;
(ii) any
violation or potential violation of any Environmental Requirement, regardless of
whether any act, omission, event or circumstance giving rise to the violation
constituted
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a
violation at the time of the occurrence or inception of such act, omission,
event or circumstance;
(iii) any
Environmental Claim related to any act, omission, event or condition existing or
occurring in connection with the use or occupancy of any Project;
or
(iv) the
filing or imposition of any environmental lien against any Project;
and
regardless of whether any matter set forth in the foregoing clauses (i) through
(iv) was caused by the Borrower or any other Person whatsoever. Such
indemnity shall not apply, however, to the extent that the subject of the
indemnification is or was caused by or arises out of the sole or gross
negligence or willful misconduct of such party.
(b) Upon
demand by the Lender, the Borrower shall diligently defend any Environmental
Claim which relates to any Project or is threatened or commenced against the
Lender, all at the Borrower’s own cost and expense and by counsel to be approved
by the Lender in the exercise of its reasonable judgment.
(c) The
provisions of this Section 9.1. shall survive the termination of this
Agreement.
Section
9.2 Further
Assurances; Authorization to File Documents.
At any
time, and from time to time, upon request by Lender, Borrower will, at
Borrower’s expense, (a) correct any defect, error or omission which may be
discovered in the form or content of any of the Loan Documents, and (b) make,
execute, deliver and record, or cause to be made, executed, delivered and
recorded, any and all further instruments, certificates and other documents as
may, in the opinion of Lender, be necessary or desirable in order to complete,
perfect or continue and preserve the lien of this Agreement. Upon any
failure by Borrower to do so, Lender may make, execute and record any and all
such instruments, certificates and other documents for and in the name of
Borrower, all at the sole expense of Borrower, and Borrower hereby appoints
Lender the agent and attorney-in-fact of Borrower to do so, this appointment
being coupled with an interest and being irrevocable. Without
limitation of the foregoing, Borrower irrevocably authorizes Lender at any time
and from time to time to file any initial financing statements, amendments
thereto and continuation statements deemed necessary or desirable by Lender to
establish or maintain the validity, perfection and priority of the security
interests granted in this Agreement, and Borrower ratifies any such filings made
by Lender prior to the date hereof. In addition, at any time, and
from time to time, upon request by Lender, Borrower will, at Borrower's expense,
provide any and all further instruments, certificates and other documents as
may, in the opinion of Lender, be necessary or desirable in order to verify the
Borrower’s identity and background in a manner satisfactory to
Lender.
Section
9.3 No
Warranty by Lender.
By
accepting or approving anything required to be observed, performed or fulfilled
by Borrower or to be given to Lender pursuant to this Agreement, including any
certificate, receipt, appraisal or insurance policy, Lender shall not be deemed
to have warranted or represented the sufficiency, legality, effectiveness or
legal effect of the same, or of any term, provision or condition thereof and any
such acceptance or approval thereof shall not be or constitute any warranty or
representation with respect thereto by Lender.
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Section
9.4 Standard
of Conduct of Lender.
Nothing
contained in this Agreement or any other Loan Document shall limit the right of
Lender to exercise its business judgment or to act, in the context of the
granting or withholding of any advance or consent under this Agreement or any
other Loan Document, in a subjective manner, whether or not objectively
reasonable under the circumstances, so long as Lender’s exercise of its business
judgment or action is made or undertaken in good faith. Borrower and
Lender intend by the foregoing to set forth and affirm their entire
understanding with respect to the standard pursuant to which Lender’s duties and
obligations are to be judged and the parameters within which Lender’s discretion
may be exercised hereunder and under the other Loan Documents. As
used herein, “good faith” means honesty in fact in the conduct and transaction
concerned.
Section
9.5 No
Partnership.
Nothing
contained in this Agreement shall be construed in a manner to create any
relationship between Borrower and Lender other than the relationship of borrower
and lender and Borrower and Lender shall not be considered partners or
co-venturers for any purpose on account of this Agreement.
Section
9.6 Severability.
In the
event any one or more of the provisions of this Agreement or any of the other
Loan Documents shall for any reason be held to be invalid, illegal or
unenforceable, in whole or in part or in any other respect, or in the event any
one or more of the provisions of any of the Loan Documents operates or would
prospectively operate to invalidate this Agreement or any of the other Loan
Documents, then and in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect the validity of the remaining
Obligations, and the remaining provisions of the Loan Documents shall remain
operative and in full force and effect and shall in no way be affected,
prejudiced or disturbed thereby.
Section
9.7 Notices.
All
Notices required or which any party desires to give hereunder or under any other
Loan Document shall be in writing and, unless otherwise specifically provided in
such other Loan Document, shall be deemed sufficiently given or furnished if
delivered by personal delivery, by nationally recognized overnight courier
service or by certified United States mail, postage prepaid, addressed to the
party to whom directed at the applicable address set forth below (unless changed
by similar notice in writing given by the particular party whose address is to
be changed) or by facsimile. Any Notice shall be deemed to have been
given either at the time of personal delivery or, in the case of courier or
mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or, in the case of facsimile, upon receipt; provided
that service of a Notice required by any applicable statute shall be considered
complete when the requirements of that statute are
met. Notwithstanding the foregoing, no notice of change of address
shall be effective except upon actual receipt. This Section shall not
be construed in any way to affect or impair any waiver of notice or demand
provided in this Agreement or in any other Loan Document or to require giving of
notice or demand to or upon any Person in any situation or for any
reason.
The
address and fax number of Borrower are:
America
First Tax Exempt Investors, L.P.
1004
Farnam Street, Suite 400
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Omaha,
Nebraska 68102
Attention: Chad
Daffer
Fax
Number: 402-930-3047
The
address and fax number of Lender are:
Bank of
America, N.A.
Community
Development Lending
Mail
Code: DC9-909-02-02
1801 K
Street NW, 2nd
Floor
Washington,
DC 20006
Attention: Loan
Administration Manager
Fax
Number: 212-378-3433
With a
copy to:
Bank of
America, N.A.
Community
Development Lending
100 S.
Charles Street, 4th Floor
Baltimore,
Maryland 21202
Attention: Laura
E. Sheehan, Vice President
Fax
Number:. 410-547-4050
The
address and fax number of Collateral Agent are:
Deutsche
Bank Trust Company Americas
60 Wall
Street, 27th Floor
New York,
New York 10005
Attention:
Trust & Securities Services (Municipal Group)
Fax
Number: 212-797-8618
Section
9.8 Permitted
Successors and Assigns; Disclosure of Information.
(a) Each
and every one of the covenants, terms, provisions and conditions of this
Agreement and the Loan Documents shall apply to, bind and inure to the benefit
of Borrower, its successors and those assigns of Borrower consented to in
writing by Lender, and shall apply to, bind and inure to the benefit of Lender
and the endorsees, transferees, successors and assigns of Lender, and all
Persons claiming under or through any of them.
(b) Borrower
agrees not to transfer, assign, pledge or hypothecate any right or interest in
any payment or advance due pursuant to this Agreement, or any of the other
benefits of this Agreement, without the prior written consent of Lender, which
consent may be withheld by Lender in its sole and absolute
discretion. Any such transfer, assignment, pledge or hypothecation
made or attempted by Borrower without the prior written consent of Lender shall
be void and of no effect. No consent by Lender to an assignment shall
be deemed to be a waiver of the requirement of prior written consent by Lender
with respect to each and every further assignment and as a condition precedent
to the effectiveness of such assignment.
(c) Lender
may sell or offer to sell the Loan or interests therein to one or more assignees
or participants. Borrower shall execute, acknowledge and deliver any
and all instruments reasonably requested by Lender in connection therewith, and
to the extent, if any, specified in any such assignment or participation,
such
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assignee(s)
or participant(s) shall have the same rights and benefits with respect to the
Loan Documents as such Person(s) would have if such Person(s) were Lender
hereunder. The Borrower agrees that the Lender may exchange or
disclose information pertaining to the Loan, the Loan Documents, any Bond and
any Project (including, without limitation, financial information, copies of
appraisals, environmental reports, physical needs assessments, inspection
reports, engineering reports, copies of Bond documents and participation
documents, if applicable, and any other information in the possession of the
Lender) and financial information about the Borrower, any of its partners or any
affiliate with or to any Bank of America Corporation affiliates or other related
entities, to any regulatory body having jurisdiction over the Lender, with
professional service providers engaged by the Lender or its affiliates or other
related entities or by any such prospective purchaser, and with any other
persons who require or request such information as necessary or appropriate in
the Lender’s reasonable judgment, and the Lender may disclose all legally
required or customary information regarding the Borrower, the Bonds, the Loan
and each Project to all purchasers or prospective purchasers of the Loan and the
Bonds; provided, that
the Lender agrees not to publicly disclose any confidential financial
information regarding the Borrower that is specifically designated as
confidential by the Borrower, except as such information is required to be
disclosed by the Lender to any regulatory body having jurisdiction over the
Lender or to professional service providers engaged by the Lender or its
affiliates or other related entities, which shall also agree to maintain the
confidentiality of such information. The Borrower agrees to update
this information at such times as may be reasonably requested by the Lender, and
if so requested by the Lender, to provide summary disclosure information about
each Project and each Bond for which no current disclosure is
available.
Section
9.9 Modification;
Waiver.
None of
the terms or provisions of this Agreement may be changed, waived, modified,
discharged or terminated except by instrument in writing executed by the party
or parties against whom enforcement of the change, waiver, modification,
discharge or termination is asserted. None of the terms or provisions
of this Agreement shall be deemed to have been abrogated or waived by reason of
any failure or failures to enforce the same.
Section
9.10 Third
Parties; Benefit.
All
conditions to the obligation of Lender to make advances hereunder are imposed
solely and exclusively for the benefit of Lender and its assigns and no other
Persons shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that Lender will refuse to
make advances in the absence of strict compliance with any or all thereof and no
other Person shall, under any circumstances, be deemed to be the beneficiary of
such conditions, any or all of which may be freely waived in whole or in part by
Lender at any time in the sole and absolute exercise of its
discretion. The terms and provisions of this Agreement are for the
benefit of the parties hereto and, except as herein specifically provided, no
other Person shall have any right or cause of action on account
thereof.
Section
9.11 Rules
of Construction.
The words
“hereof,” “herein,” “hereunder,” “hereto,” and other words of similar import
refer to this Agreement in its entirety. The terms “agree” and
“agreements” mean and include “covenant” and “covenants.” The words
“include” and “including” shall be interpreted as if followed by the words
“without limitation.” The captions and headings contained in this
Agreement are included herein for convenience of reference only and shall not be
considered a part hereof and are not in any way intended to define, limit or
enlarge the terms hereof. All references (a) made in the neuter,
masculine or feminine gender shall be deemed to have been made in all such
genders, (b) made in the singular or plural number shall be deemed to have been
made, respectively, in the plural or singular number as well, (c) to the Loan
Documents are to the same as extended, amended, restated, supplemented or
otherwise modified from time to time unless expressly indicated otherwise, and
(d) to Articles, Sections and Schedules are to the respective Articles, Sections
and Schedules contained in this Agreement unless expressly indicated
otherwise.
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Section
9.12 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall be
considered an original for all purposes; provided, however, that all such
counterparts shall together constitute one and the same instrument.
Section
9.13 Publicity.
Borrower
agrees that the Lender may issue publicity releases announcing the
financing. The Lender agrees that the Borrower may issue any
publicity releases required by applicable law; provided that any such release
that names the Lender shall be subject to the Lender’s prior
consent.
Section
9.14 Governing
Law.
This
Agreement shall be governed by and construed, interpreted and enforced in
accordance with the laws of the State.
Section
9.15 Time
of Essence.
Time
shall be of the essence for each and every provision of this Agreement of which
time is an element.
Section
9.16 Electronic
Transmission of Data.
Lender
and Borrower agree that certain data related to the Loan (including confidential
information, documents, applications and reports) may be transmitted
electronically, including transmission over the Internet. This data
may be transmitted to, received from or circulated among agents and
representatives of Borrower and/or Lender and their affiliates and other Persons
involved with the subject matter of this Agreement. Borrower
acknowledges and agrees that (a) there are risks associated with the use of
electronic transmission and that Lender does not control the method of
transmittal or service providers, (b) Lender has no obligation or responsibility
whatsoever and assumes no duty or obligation for the security, receipt or third
party interception of any such transmission, and (c) Borrower will release, hold
harmless and indemnify Lender from any claim, damage or loss, including that
arising in whole or part from Lender’s strict liability or sole, comparative or
contributory negligence, which is related to the electronic transmission of
data.
Section
9.17 Consent
to Share Information.
The
Borrower agrees that the Lender may exchange or disclose information pertaining
to the Loan, the Loan Documents, any Bond and any Project (including, without
limitation, financial information, copies of appraisals, environmental reports,
physical needs assessments, inspection
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reports,
engineering reports, copies of Bond documents and participation documents, if
applicable, and any other information in the possession of the Lender) and
financial information about the Borrower, any of its partners or any affiliate
with or to any Bank of America Corporation affiliates or other related entities,
to any regulatory body having jurisdiction over the Lender, with professional
service providers engaged by the Lender or its affiliates or other related
entities or by any such prospective purchaser, and with any other persons who
require or request such information as necessary or appropriate in the Lender’s
reasonable judgment, and the Lender may disclose all legally required or
customary information regarding the Borrower, the Bonds, the Loan and each
Project to all purchasers or prospective purchasers of the Loan and the Bonds;
provided, that the
Lender agrees not to publicly disclose any confidential financial information
regarding the Borrower that is specifically designated as confidential by the
Borrower, except as such information is required to be disclosed by the Lender
to any regulatory body having jurisdiction over the Lender or to professional
service providers engaged by the Lender or its affiliates or other related
entities, which shall also agree to maintain the confidentiality of such
information. The Borrower agrees to update this information at such
times as may be reasonably requested by the Lender, and if so requested by the
Lender, to provide summary disclosure information about each Project and each
Bond for which no current disclosure is available.
Section
9.18 Dispute
Resolution.
(a) Arbitration. Except
to the extent expressly provided below, any Dispute shall, upon the request of
either party, be determined by binding arbitration in accordance with the
Federal Arbitration Act, Title 9, United States Code (or if not applicable, the
applicable state law), the then-current rules for arbitration of financial
services disputes of AAA and the “Special Rules” set forth below. In
the event of any inconsistency, the Special Rules shall control. The
filing of a court action is not intended to constitute a waiver of the right of
Borrower or Lender, including the suing party, thereafter to require submittal
of the Dispute to arbitration. Any party to this Agreement may bring
an action, including a summary or expedited proceeding, to compel arbitration of
any Dispute in any court having jurisdiction over such action. For
the purposes of this Dispute Resolution Section only, the terms “party” and
“parties” shall include any parent corporation,
subsidiary or Affiliate of Lender involved in the servicing, management or
administration of any obligation described in or evidenced by this Agreement,
together with the officers, employees, successors and assigns of each of the
foregoing.
(b) Special
Rules.
(i) The
arbitration shall be conducted in any U.S. state where real or tangible personal
property collateral is located, or if there is no such collateral, in the City
and County where Lender is located pursuant to its address for notice purposes
in this Agreement.
(ii) The
arbitration shall be administered by AAA, who will appoint an
arbitrator. If AAA is unwilling or unable to administer the
arbitration, or if AAA is unwilling or unable to enforce or legally precluded
from enforcing any and all provisions of this Dispute Resolution Section, then
any party to this Agreement may substitute another arbitration organization that
has similar procedures to AAA and that will observe and enforce any and all
provisions of this Dispute Resolution Section. All Disputes shall be
determined by one arbitrator; however, if the amount in controversy in a Dispute
exceeds Five Million Dollars ($5,000,000), upon the request of any party, the
Dispute shall be decided by three arbitrators (for purposes of this Agreement,
referred to collectively as the “arbitrator”).
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(iii) All
arbitration hearings will be commenced within ninety (90) days of the demand for
arbitration and completed within ninety (90) days from the date of commencement;
provided, however, that upon a showing of good cause, the arbitrator shall be
permitted to extend the commencement of such hearing for up to an additional
sixty (60) days.
(iv) The
judgment and the award, if any, of the arbitrator shall be issued within thirty
(30) days of the close of the hearing. The arbitrator shall provide a
concise written statement setting forth the reasons for the judgment and for the
award, if any. The arbitration award, if any, may be submitted to any
court having jurisdiction to be confirmed and enforced, and such confirmation
and enforcement shall not be subject to arbitration.
(v) The
arbitrator will give effect to statutes of limitations and any waivers thereof
in determining the disposition of any Dispute and may dismiss one or more claims
in the arbitration on the basis that such claim or claims is or are
barred. For purposes of the application of the statute of
limitations, the service on AAA under applicable AAA rules of a notice of
Dispute is the equivalent of the filing of a lawsuit.
(vi) Any
dispute concerning this arbitration provision, including any such dispute as to
the validity or enforceability of this provision, or whether a Dispute is
arbitrable, shall be determined by the arbitrator; provided, however, that the
arbitrator shall not be permitted to vary the express provisions of these
Special Rules or the Reservation of Rights in subsection (c) below.
(vii) The
arbitrator shall have the power to award legal fees and costs pursuant to the
terms of this Agreement.
(viii) The
arbitration will take place on an individual basis without reference to, resort
to, or consideration of any form of class or class action.
(c) Reservations of
Rights. Nothing in this Agreement shall be deemed to (i) limit
the applicability of any otherwise applicable statutes of limitation and any
waivers contained in this Agreement, or (ii) apply to or limit the right of
Lender (A) to exercise self help remedies such as (but not limited to) setoff,
or (B) to foreclose judicially or nonjudicially against any real or personal
property collateral, or to exercise judicial or nonjudicial power of sale
rights, (C) to obtain from a court provisional or ancillary remedies such as
(but not limited to) injunctive relief, writ of possession, prejudgment
attachment, or the appointment of a receiver, or (D) to pursue rights against a
party to this Agreement in a third-party proceeding in any action brought
against Lender in a state, federal or international court, tribunal or hearing
body (including actions in specialty courts, such as bankruptcy and patent
courts). Lender may exercise the rights set forth in clauses (A)
through (D), inclusive, before, during or after the pendency of any arbitration
proceeding brought pursuant to this Agreement. Neither the exercise
of self help remedies nor the institution or maintenance of an action for
foreclosure or provisional or ancillary remedies shall constitute a waiver of
the right of any party, including the claimant in any such action, to arbitrate
the merits of the Dispute occasioning resort to such remedies. No
provision in the Loan Documents regarding submission to jurisdiction and/or
venue in any court is intended or shall be construed to be in derogation of the
provisions in any Loan Document for arbitration of any Dispute.
(d) Conflicting Provisions for
Dispute Resolution. If there is any conflict between the
terms, conditions and provisions of this Section and those of any other
provision or agreement for arbitration or dispute resolution, the terms,
conditions and provisions of this Section shall prevail as to any Dispute
arising out of or relating to (i) this Agreement, (ii) any other Loan Document,
(iii) any related agreements or instruments, or (iv) the transaction
contemplated herein or therein (including any claim based on or arising from an
alleged personal injury or business tort). In any other situation, if
the resolution of a given Dispute is specifically governed by another provision
or agreement for arbitration or dispute resolution, the other provision or
agreement shall prevail with respect to said Dispute.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
(e) Jury Trial Waiver in
Arbitration. By agreeing to this Section, the parties
irrevocably and voluntarily waive any right they may have to a trial by jury in
respect of any Dispute.
Section
9.19 Forum.
Borrower
hereby irrevocably submits generally and unconditionally for itself and in
respect of its property to the jurisdiction of any state court or any United
States federal court sitting in the State specified in the governing law section
of this Agreement and to the jurisdiction of any state court or any United
States federal court sitting in the State, over any Dispute. Borrower
hereby irrevocably waives, to the fullest extent permitted by Law, any objection
that Borrower may now or hereafter have to the laying of venue in any such court
and any claim that any such court is an inconvenient forum. Borrower
hereby agrees and consents that, in addition to any methods of service of
process provided for under applicable law, all service of process in any such
suit, action or proceeding in any state court or any United States federal court
sitting in the state specified in the governing law section of this Agreement
may be made by certified or registered mail, return receipt requested, directed
to Borrower at its address for notice set forth in this Agreement, or at a
subsequent address of which Lender received actual notice from Borrower in
accordance with the notice section of this Agreement, and service so made shall
be complete five (5) days after the same shall have been so
mailed. Nothing herein shall affect the right of Lender to serve
process in any manner permitted by Law or limit the right of Lender to bring
proceedings against Borrower in any other court or jurisdiction.
Section
9.20 WAIVER OF JURY
TRIAL.
WITHOUT
INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO ARBITRATE ANY “DISPUTE”
(FOR PURPOSES OF THIS SECTION, AS DEFINED IN SCHEDULE 1) AS SET
FORTH IN THIS AGREEMENT, TO THE EXTENT ANY “DISPUTE” IS NOT SUBMITTED TO
ARBITRATION OR IS DEEMED BY THE ARBITRATOR OR BY ANY COURT WITH JURISDICTION TO
BE NOT ARBITRABLE OR NOT REQUIRED TO BE ARBITRATED, BORROWER AND LENDER WAIVE
TRIAL BY JURY IN RESPECT OF ANY SUCH “DISPUTE” AND ANY ACTION ON SUCH
“DISPUTE.” THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE
BY BORROWER AND LENDER, AND BORROWER AND LENDER HEREBY REPRESENT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON OR ENTITY TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
ENTERING INTO THE LOAN DOCUMENTS. BORROWER AND LENDER ARE EACH HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER OF JURY TRIAL. BORROWER FURTHER REPRESENTS
AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
Section
9.21 USA
Patriot Act Notice.
Lender hereby notifies Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), Lender is
required to obtain, verify and record information that identifies Borrower,
which information includes the name and address of Borrower and other
information that will allow Lender to identify Borrower in accordance with the
Act.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620
Section
9.22 Entire
Agreement.
The Loan
Documents constitute the entire understanding and agreement between Borrower and
Lender with respect to the transactions arising in connection with the Loan, and
supersede all prior written or oral understandings and agreements between
Borrower and Lender with respect to the matters addressed in the Loan
Documents. In particular, and without limitation, the terms of any
commitment by Lender to make the Loan are merged into the Loan
Documents. Except as incorporated in writing into the Loan Documents,
there are no representations, understandings, stipulations, agreements or
promises, oral or written, with respect to the matters addressed in the Loan
Documents. If there is any conflict between the terms, conditions and
provisions of this Agreement and those of any other instrument or agreement,
including any other Loan Document, the terms, conditions and provisions of this
Agreement shall prevail.
[Signatures
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ATAX Loan
Agreement
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Signature
Page 1 to
Loan
and Security Agreement
IN
WITNESS WHEREOF, Borrower, Lender and Collateral Agent have caused this
Agreement to be executed under
seal as of the date first above written.
BORROWER:
AMERICA
FIRST TAX EXEMPT INVESTORS, L.P.,
a
Delaware limited partnership
By: America
First Capital Associates
Limited Partnership
Two,
a
Delaware limited partnership,
its
General Partner
|
|
By:
|
The
Burlington Capital Group LLC,
|
|
|
a
Delaware limited liability company,
|
By: /s/
Michael J. Draper
_____________________________ [SEAL]
Michael
J. Draper
Chief
Financial Officer
[Signatures
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ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Signature
Page 2 to
Loan
and Security Agreement
LENDER:
BANK OF
AMERICA, N.A.
By: /s/
Laura E. Sheehan
_____________________________
[SEAL]
Laura E. Sheehan
Vice President
[Signatures
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ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Signature
Page 3 to
Loan
and Security Agreement
COLLATERAL
AGENT:
DEUTSCHE
BANK TRUST COMPANY AMERICAS
By: /s/
Safet Kalaba
_____________________________
[SEAL]
Safet Kalaba
Vice President
By: /s/
Tai Bill Lee
_____________________________
[SEAL]
Tai Bill Lee
Vice President
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Schedule
1
Definitions
Unless
the context otherwise specifies or requires, the following terms shall have the
meanings herein specified, such definitions to be applicable equally to the
singular and the plural forms of such terms and to all genders:
“AAA” means the
American Arbitration Association, or any successor thereof.
“Act” means the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)).
“Affiliate” means,
with respect to any Person, another Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Banking Day” means
any day that is not a Saturday, Sunday or banking holiday in the
State.
“Bond Collateral”
means all of Borrower’s rights, title and interest with respect to the Bonds
described on Schedule
2 attached hereto, including, without limitation, all direct and indirect
ownership interests and all participation interests in such Bonds, the Bond
Documents, the Projects described on Schedule 3 attached
hereto and all mortgages, security interests, promissory notes and other
instruments, agreements and documents evidencing and securing the Project Loans
for each of the Projects to the extent of Borrower’s interests therein, and all
Proceeds of the foregoing, however and whenever acquired and in whatever form,
including, without limitation, all certificates or instruments representing or
evidencing such Bond Collateral, and all principal, interest and payments and
distributions of cash or other property and proceeds from time to time received,
receivable or otherwise distributed in respect of, or in exchange therefor
(whether such proceeds arise before or after the commencement of any proceeding
under any applicable bankruptcy, insolvency or other similar law, by or against
the Borrower), all powers and rights of the Borrower now or hereafter acquired
by the Borrower, including rights of enforcement, with respect to all Bonds, the
Bond Documents, the Project Loans and the Projects.
“Bond Documents”
means, collectively, all trust indentures, agreements and other documents
evidencing, executed in connection with or relating to the Bonds, including,
without limitation, all trust indentures relating to the Bonds.
“Bond Issuer” means
the respective issuer of each of the Bonds as identified on Schedule 2 attached
hereto and incorporated herein.
“Bond Portfolio” has
the meaning given to such term in the Recitals to this Agreement.
“Bond Release Price”
has the meaning given to such term in Section 3.10 of this
Agreement
“Bond Trustee” means
the respective trustee under each of the Bond indentures as identified on Schedule 5 attached
hereto and incorporated herein.
“Bonds” means,
collectively, those certain tax-exempt bonds described on Schedule 2 attached
hereto owned by the Borrower and any and all additions thereto, substitutions
thereof and exchanges therefore, and “Bond” means any one
of the Bonds individually.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
“Cash Collateral” has
the meaning give to such term in Section
3.9.
“Cash Collateral
Account” means the account established with Lender pursuant to the terms
of Section
3.9.
“Casualty” means any
act or occurrence of any kind or nature that results in material damage, loss or
destruction to any Project.
“Claim” means any
liability, suit, action, claim, demand, loss, expense, penalty, fine, judgment
or other cost of any kind or nature whatsoever, including fees, costs and
expenses of attorneys, consultants, contractors and experts.
“Closing Checklist”
means that certain Closing Requirements and Checklist setting forth the
conditions for closing the Loan.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Collateral” means,
collectively, the Bond Collateral, the Cash Collateral and all other assets and
property of the Borrower subject from time to time to the Liens of this
Agreement and/or any of the other Loan Documents, together with any and all cash
and non-cash proceeds and products thereof.
“Collateral Agent
Administration Fee” means a fee in the annual aggregate amount of $20,000
payable by the Borrower to the Collateral Agent for certain administrative
functions of the Collateral Agent, as further described in the Collateral Agent
Fee Proposal and as such fee may be adjusted from time to time in accordance
with the Collateral Agent Fee Proposal. The Collateral Agent
Administration Fee shall be paid quarterly in installments of $5,000 each with
the first installment being paid on the date of this Agreement and subsequent
installments being paid on each October 5, January 5, April 5 and July 5 until
this Agreement and the Collateral Agent Fee Proposal are no longer in
effect.
“Collateral Agent
Fees” means the collective reference to the Collateral Agent
Administrative Fee and the Collateral Agent Loan Paying Fee.
“Collateral Agent Fee
Proposal” means that certain Deutsche Bank Trust & Securities
Services Fee Proposal dated as of May 20, 2009, and accepted by the Borrower on
June 18, 2009.
“Collateral Agent Loan Paying
Fee” means a fee in the annual aggregate amount of $15,000 payable by the
Borrower to the Collateral Agent for the maintenance of certain accounts and
related administrative functions, as further described in the Collateral Agent
Fee Proposal and as such fee may be adjusted from time to time in accordance
with the Collateral Agent Fee Proposal. The Collateral Agent Loan
Paying Fee shall be paid quarterly in installments of $3,750 each with the first
installment being paid on the date of this Agreement and subsequent installments
being paid on each October 5, January 5, April 5 and July 5 until this Agreement
and the Collateral Agent Fee Proposal are no longer in effect.
“Commitment Letter”
means that certain Commitment Letter dated May 11, 2009, from the Lender and
accepted by the Borrower.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise, “Controlling” or
“Controlled” have meanings correlative thereto.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
“Debt Service Coverage
Ratio” shall mean for any date of determination and period specified, a
fraction, expressed as a decimal, the numerator of which is an amount equal to
the Net Operating Income and the denominator of which is an amount equal to the
aggregate amount of interest and principal payments that became due and payable
with respect to each of the underlying Project Loans and all other indebtedness
for borrowed money of the Project Owners with respect to the respective Projects
during the specified period prior to the date of determination.
“Default” means an
event or circumstance that, with the giving of Notice or lapse of time, or both,
would constitute an Event of Default under the provisions of this
Agreement.
“Dispute” means any
controversy, claim or dispute between or among the parties to this Agreement,
including any such controversy, claim or dispute arising out of or relating to
(a) this Agreement, (b) any other Loan Document, (c) any related agreements or
instruments, or (d) the transaction contemplated herein or therein (including
any claim based on or arising from an alleged personal injury or business
tort).
“Environmental Claim”
means any complaint, action, notice, order, claim, investigation, judicial or
administrative proceeding or action, or similar claims or communications from
any Person involving or alleging any non-compliance with any Environmental
Requirement or the existence of any unsafe or hazardous condition resulting from
or related to the Release of any Hazardous Material.
“Environmental Law”
means any and all applicable federal, state or local laws, statutes, ordinances,
rules, regulations, orders, principals of common law, judgments, permits,
licenses or other determinations of any judicial or regulatory authority, now or
hereafter in effect, imposing liability, establishing standards of conduct or
otherwise relating to protection of the environment (including natural
resources, surface water, groundwater, soils and indoor and ambient air), health
and safety, land use matters or the presence, generation, treatment, storage,
disposal, Release or threatened Release, transport or handling of any Hazardous
Material.
“Environmental
Requirement” means any Environmental Law, or any other applicable
agreement or restriction (including any condition or requirement imposed by any
third party or insurance or surety company), now or hereafter in effect, which
relates to any matters addressed by any Environmental Law, Hazardous Material or
the prevention of any unsafe or hazardous condition resulting from or related to
the Release of any Hazardous Material.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.
“Event of Default”
means any event or circumstance specified in Article VII and the
continuance of such event or circumstance beyond the applicable grace and/or
cure periods therefor, if any, set forth in Article
VII.
“Expenses” means all
fees, charges, costs and expenses of any nature whatsoever incurred at any time
and from time to time (whether before or after an Event of Default) by Lender in
making, funding, administering or modifying the Loan, in negotiating or entering
into any “workout” of the Loan, or in exercising or enforcing any rights, powers
and remedies provided in this Agreement or any of the other Loan Documents,
including attorneys’ fees, court costs, receiver’s fees, management fees and
costs incurred in taking possession of, or selling, the Collateral.
“General Partner”
means America First Capital Associates Limited Partnership Two, a Delaware
limited partnership.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
“Governmental
Authority” means any governmental or quasi-governmental entity, including
any court, department, commission, board, bureau, agency, administration,
service, district or other instrumentality of any governmental
entity.
“Hazardous Material”
means any substance, material, element, compound, waste or chemical, whether
solid, liquid or gaseous, which is defined, listed, classified or otherwise
regulated in any way under any Environmental Laws, or any other such substances
or conditions (including mold and other mycotoxins or fungi) which may create
any unsafe or hazardous condition or pose any threat to health and
safety.
“Initial Cash Collateral”
means cash collateral in an amount not less than $1,500,000 which is to be
deposited by Borrower with Lender at or prior to closing.
“Laws” means all
federal, state and local laws, statutes, rules, ordinances, regulations, codes,
licenses, authorizations, decisions, injunctions, interpretations, orders or
decrees of any court or other Governmental Authority having jurisdiction as may
be in effect from time to time.
“Letter of Credit
Facility” has the meaning given to such term in the Recitals to this
Agreement.
“Leverage Ratio” shall
mean the ratio of Borrower’s total liabilities divided by its total assets, as
determined in accordance with generally accepted accounting principles,
consistently applied.
“Lien” means any
mortgage, deed of trust, pledge, security interest, pledge, assignment,
judgment, lien or charge of any kind, including any conditional sale or other
title retention agreement, any lease in the nature thereof, and the filing of,
or agreement to give, any financing statement under the Uniform Commercial Code
of any jurisdiction.
“Loan” has the meaning
given to such term in the Recitals to this Agreement, the repayment obligations
in connection with which are evidenced by the Note.
“Loan Amount” means
Fifty Million and No/100 Dollars ($50,000,000).
“Loan Documents” means
this Agreement, the Note and any and all other documents which Borrower or any
other party or parties have executed and delivered, or may hereafter execute and
deliver, to evidence, secure or guarantee the Obligations, or any part thereof,
as the same may from time to time be extended, amended, restated, supplemented
or otherwise modified.
“Losses” means claims,
demands, liabilities, damages, losses, costs, charges, taxes and governmental
penalties or charges and expenses (including reasonable attorneys’ fees and
expenses) and, solely with respect to the environmental indemnity of Section 9.1
hereof, including strict liabilities and Environmental Claims.
“Minimum Liquidity”
shall mean the amount of Borrower’s unencumbered, unrestricted cash, cash
equivalents and marketable securities. Amounts included in the
calculation of Minimum Liquidity must be available to Borrower to fund
day-to-day operating expenses incurred in the ordinary course of Borrower’s
business and shall not be held in any restricted account or other account which
would prevent or preclude Borrower from so using such funds as and when
needed.
“Net Operating Income”
shall mean, (i) with respect underlying Projects that have reached
“stabilization” (i.e. ninety percent (90%) occupancy for three (3) consecutive
months) and/or have not been under construction or in rehabilitation during the
immediately preceding twelve (12) month period,
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
the
aggregate amount of all actual cash income
received from such Projects during a calendar quarter less the actual operating
expenses, including, without limitation funded reserves and escrows for taxes
and insurance, if applicable, incurred for or attributable to the applicable
Projects and (ii) with respect underlying Projects that are under construction
for any date of determination, the aggregate amount of projected cash income
received from such Projects during a calendar quarter less the projected operating
expenses, including, without limitation funded reserves and escrows for taxes
and insurance, if applicable, incurred for or attributable to the applicable
Projects.
“Note” means the
Promissory Note of even date herewith, in an amount equal to the Loan Amount,
made by Borrower to the order of Lender, as the same may from time to time be
extended, amended, restated, supplemented or otherwise modified.
“Notice” means a
notice, request, consent, demand or other communication given in accordance with
the provisions of Section 9.7 of this
Agreement.
“Obligations” means
all present and future debts, obligations and liabilities of Borrower to Lender
arising pursuant to, or on account of, the provisions of this Agreement, the
Note or any of the other Loan Documents, including the obligations: (a) to pay
all principal, interest, late charges, prepayment premiums (if any) and other
amounts due at any time under the Note; (b) to pay all Expenses, indemnification
payments, fees and other amounts due at any time under any of the Loan
Documents, together with interest thereon as provided in such Loan Document; and
(c) to perform, observe and comply with all of the terms, covenants and
conditions, expressed or implied, which Borrower is required to perform, observe
or comply with pursuant to the terms of this Agreement or any of the other Loan
Documents.
“Permitted Lien”
means: (a) Liens for Taxes that are not delinquent or that the Lender
has determined in the exercise of its sole and absolute discretion (i) are being
diligently contested in good faith and by appropriate proceedings, and such
contest operates to suspend collection of the contested Taxes and enforcement of
a Lien, (ii) the Borrower has the financial ability to pay, with all penalties
and interest, at all times without materially and adversely affecting the
Borrower, and (iii) are not, and will not be with appropriate filing, the giving
of notice and/or the passage of time, entitled to priority over any Lien of
Lender; (b) Liens in favor of or for the benefit of the Lender securing the
Obligations; and (c) judgment Liens to the extent the entry of such judgment
does not constitute a Default or an Event of Default under the terms of this
Agreement or result in the sale or levy of, or execution on, any of the
Collateral.
“Person” means an
individual, a corporation, a partnership, a joint venture, a limited liability
company, a trust, an unincorporated association, any Governmental Authority or
any other entity.
“Proceeds means all
proceeds as such term is defined in the Uniform Commercial Code in effect on the
date hereof.
“Project” and “Projects” have the
meanings given to such terms in the Recitals to this Agreement.
“Project Loans” has
the meaning given to such term in the Recitals to this Agreement.
“Project Owner” and
“Project
Owners” have the meanings given to such terms in the Recitals to this
Agreement.
“Release” means the
presence of or any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, seeping, migrating, dumping or
disposing of any Hazardous
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Material
(including the abandonment or discarding of barrels, drums, tanks and other
similar containers, including any Hazardous Material) into the indoor or outdoor
environment.
“Released Bond” has
the meaning given to such term in Section 3.10 of this
Agreement
“State” means the
State of Maryland.
“Taxes” means all
taxes and assessments whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, which at any time may be assessed, levied, confirmed or
imposed by any Governmental Authority or any communities facilities or other
private district on Borrower or on any of its properties or assets or any part
thereof or in respect of any of its franchises, businesses, income or
profits.
“TOB Documents” has
the meaning given to such term in Section 1.1 of this
Agreement.
“TOB Facility” has the
meaning given to such term in the Recitals to this Agreement.
“TOB Liquidity
Facility” has the meaning given to such term in the Recitals to this
Agreement.
“TOB Trust Agreements”
has the meaning given to such term in Section 1.1 of this
Agreement.
“TOB Variable
Certificates” has the meaning given to such term in Section 1.1 of this
Agreement.
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Schedule
2
BONDS
|
|
Bond
Issue
|
Issuer
|
Principal
Amount
|
Bond
CUSIP
|
Stated
Maturity
|
|
1
|
Multifamily
Housing Revenue Bonds (Bella Vista) Series 2006
|
Texas
Department of Housing and Community Affairs
|
$6,740,000
|
88275BNB0
|
April
1, 2046
|
|
2
|
Multifamily
Mortgage Revenue Refunding Bonds 2003 Series I (Fairmont Oaks
Apartments)
|
Florida
Housing Finance Corporation
|
$7,680,000
|
34073JHD4
|
April
1, 2033
|
|
3
|
Multifamily
Mortgage Revenue Refunding Bonds 2000 Series B (Iona Lakes
Project)
|
Florida
Housing Finance Corporation
|
$16,135,000
|
34073JAF6
|
April
1, 2030
|
|
4
|
Multifamily
Housing Revenue Bonds (Runnymede Apartments Project) Series
2007
|
Austin
Housing Finance Corporation
|
$10,825,000
|
052425HJ7
|
October
1, 2042
|
|
5
|
Revenue
Bond, Series 2004 (Clarkson College Project)
|
Nebraska
Educational Finance Authority
|
$5,978,333
|
63966PQW7
|
Nov.
1, 2035
|
|
6
|
Multifamily
Housing Revenue Bonds (Gardens of DeCordova Apartments) Series
2007
|
Northwest
Central Texas Housing Finance Corporation
|
$4,853,000
|
667411AE2
|
May
1, 2047
|
|
7
|
Multifamily
Housing Revenue Bonds (Gardens of Weatherford Apartments) Series
2007
|
Northwest
Central Texas Housing Finance Corporation
|
$4,686,000
|
667411AF9
|
May
1, 2047
|
|
8
|
Multifamily
Housing Revenue Bonds (Woodland Park Apartments) Series
2007G-1
|
Kansas
Development Finance Authority
|
$15,065,000
|
48542TAF7
|
Nov.
1, 2047
|
|
9
|
Multifamily
Housing Revenue Bonds (Woodlynn Village Project) Series
2007
|
City
of Maplewood, Minnesota
|
$4,550,000
|
565577HF3
|
Nov.
1, 2042
|
|
10
|
Multifamily
Rental Housing Revenue Bonds (Bridle Ridge Apartments) Series
2008
|
South
Carolina State Housing Finance and Development
Authority
|
$7,885,000
|
83712EFH2
|
Jan.
1, 2043
|
|
11
|
Multifamily
Housing Revenue Refunding Bonds 2001 Series G (Lake Forest
Apartments)
|
Florida
Housing Finance Corporation
|
$10,075,000
|
34073JAP4
|
Dec.
1, 2031
|
|
12
|
Multifamily
Mortgage Revenue Refunding Bond (The Mill Apartments Project) Series
1999A
[Ashley
Square]
|
Iowa
Finance Authority
|
$6,500,000
|
46246JLS2
|
Dec.
1, 2025
|
|
13
|
Multifamily
Rental Housing Revenue Refunding Bonds (Bent Tree Apartments Project)
Series 2000H-1 and Interest-Only Series 2000H-2
|
South
Carolina State Housing Finance and Development Authority
|
$11,130,000
|
83712EDE1
|
Dec.
15, 2030
|
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Schedule
3
PROJECTS
AND PROJECT OWNERS
|
|
Property
Name and Address
|
Property
Owner
|
Bond
CUSIP
|
Additional
Description
|
|
1
|
Bella
Vista
202
South Dixon Street Gainesville, TX 76240
|
UHF
Gainesville
Housing,
L.P.
|
88275BNB0
|
Two
and three-story garden style complex containing 5 buildings, totaling 144
units
|
|
2
|
Fairmont
Oaks
3160
SW 62nd
Blvd. Gainesville, FL 32607
|
Fairmont
Oaks
Limited
Partnership
|
34073JHD4
|
Garden
style complex containing 16 three-story buildings; totaling 178
units
|
|
3
|
Iona
Lakes
15000
Iona Lakes Drive Fort Myers, FL 33908
|
Iona
Lakes
Acquisition
Corporation
|
34073
JAF6
|
Two-story
garden style complex containing 350-unit apartments in 51
buildings
|
|
4
|
Runnymede
1101
Rutland Drive Austin, TX 78758
|
Runnymede
Associates
|
052425HJ7
|
Two-story
garden style property containing 23 buildings, totaling 252
units
|
|
5
|
Clarkson
College
101
South 42nd
Street Omaha, NE 68131
|
Clarkson
College
|
63966PQW7
|
Four-story
36-unit housing facility, totaling 142 bed count.
|
|
6
|
Gardens
of DeCordova
5230
N. Gate Road
Granbury,
TX 76049
|
The
Gardens of
DeCordova,
L.P.
|
667411AE2
|
76-unit
garden-style, age and
income
restricted complex
comprised
of 31 one-story buildings
|
|
7
|
Gardens
of Weatherford 1900 Old Dicey
Road
Weatherford,
TX 76086
|
The
Gardens of
Weatherford,
LP
|
667411AF9
|
76-unit
garden-style age and
income
restricted complex
comprised
of 20 two-story buildings
|
|
8
|
Woodland
Park at Soldier Creek
3030
NW Topeka Blvd.
Topeka,
KS 66617
|
Woodland
Park
at
Soldier
Creek,
L.L.C.
|
48542TAF7
|
236-unit
garden-style age and income restricted complex
comprised
of 31 one-story buildings
|
|
9
|
Woodlynn
Village
2122
Woodlynn Avenue Maplewood, MN 55109
|
Woodlynn
Properties
Limited
Partnership
|
565577HF3
|
59
unit one-story townhome style apartment property containing 10
buildings
|
|
10
|
Bridle
Ridge
310
Chandler Road
Greer,
SC 29651
|
Companion
at
Bridle
Ridge,
LP
|
83712EFH2
|
Two
and three-story garden style complex containing 11 buildings; totaling 152
units
|
|
11
|
Lake
Forest
600
Jimmy Ann Drive Daytona Beach, FL 32114
|
Lake
Forest
Acquisition
Corporation
|
34073JAP4
|
Two
and three-story garden style complex containing 16 buildings, totaling 240
units
|
|
12
|
Ashley
Square
5501
Aurora Avenue
Des
Moines, IA 50310
|
Ashley
Square Housing Cooperative
|
46246JLS2
|
6
three-story buildings containing a total of 144 units
|
|
13
|
Bent
Tree
1000
Bent Tree Lane
Columbia,
SC 29210
|
Bent
Tree Acquisition Corporation
|
83712EDE1
|
16
three-story buildings containing a total of 232
units
|
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Schedule
5
BOND
TRUSTEES
|
|
Bond
Issue
|
Trustee
Name and Address
|
Bond
CUSIP
|
|
1
|
Multifamily
Housing Revenue Bonds (Bella Vista) Series 2006
|
Wells
Fargo
201
Main Street, Suite 301
Fort
Worth, Texas 76102
Contact:
Mark A. Dunn
|
88275BNB0
|
|
2
|
Multifamily
Mortgage Revenue Refunding Bonds 2003 Series I (Fairmont Oaks
Apartments)
|
US
Bank
225
E. Robinson Street, Suite 250
Orlando,
Florida 32801
Contact:
Beth Driggs
|
34073JHD4
|
|
3
|
Multifamily
Mortgage Revenue Refunding Bonds 2000 Series B (Iona Lakes
Project)
|
US
Bank
225
E. Robinson Street, Suite 250
Orlando,
Florida 32801
Contact:
Christina Rhodebeck
|
34073JAF6
|
|
4
|
Multifamily
Housing Revenue Bonds (Runnymede Apartments Project) Series
2007
|
American
National Bank
3033
East First Avenue
Denver,
Colorado 80206
Contact:
Tammy Dixon
|
052425HJ7
|
|
5
|
Revenue
Bond, Series 2004 (Clarkson College Project)
|
Union
Bank & Trust
P.O.
Box 82535
Lincoln,
Nebraska 68501
Contact:
Ralene Klostermeyer / Leslie Gibbens
|
63966PQW7
|
|
6
|
Multifamily
Housing Revenue Bonds (Gardens of DeCordova Apartments) Series
2007
|
Wells
Fargo
201
Main Street, Suite 301
Fort
Worth, Texas 76102
Contact:
Mark A. Dunn
|
667411AE2
|
|
7
|
Multifamily
Housing Revenue Bonds (Gardens of Weatherford Apartments) Series
2007
|
Wells
Fargo
201
Main Street, Suite 301
Fort
Worth, Texas 76102
Contact:
Mark A. Dunn
|
667411AF9
|
|
8
|
Multifamily
Housing Revenue Bonds (Woodland Park Apartments) Series
2007G-1
|
Wells
Fargo
1
Ward Parkway
Kansas,
Missouri 64112-2106
Contact:
Ken Dotson
|
48542TAF7
|
|
9
|
Multifamily
Housing Revenue Bonds (Woodlynn Village Project) Series
2007
|
Wells
Fargo
625
Marquette Avenue, 11th
Floor
Minneapolis,
Minnsesota 55479
Contact:
Jeffrey Carlson
|
565577HF3
|
|
10
|
Multifamily
Rental Housing Revenue Bonds (Bridle Ridge Apartments) Series
2008
|
Regions
Bank
1201
Main Street, Suite 1250
Columbia,
South Carolina 29201
Contact:
Beverly Miles
|
83712EFH2
|
|
11
|
Multifamily
Housing Revenue Refunding Bonds 2001 Series G (Lake Forest
Apartments)
|
US
Bank
225
E. Robinson Street, Suite 250
Orlando,
Florida 32801
Contact:
Beth Driggs
|
34073JAP4
|
|
12
|
Multifamily
Mortgage Revenue Refunding Bond (The Mill Apartments Project) Series
1999A
[Ashley
Square]
|
US
Bank Corporate Trust Services
1349
West Peachtree Street, NW
Suite
1050
Atlanta,
GA 30309
Contact:
Zack Buckner
|
46246JLS2
|
|
13
|
Multifamily
Rental Housing Revenue Refunding Bonds (Bent Tree Apartments Project)
Series 2000H-1 and Interest-Only Series 2000H-2
|
_________________
_________________
_________________
|
83712EDE1
|
ATAX Loan
Agreement
#4850-3191-8595|NB2-002620|
Schedule
6
BOND
PAYMENTS
|
|
Bond
Issue
|
Interest
Payment Dates
|
Sinking
Fund Payment Dates
|
Sinking
Fund Payment Amounts
|
|
1
|
Multifamily
Housing Revenue Bonds (Bella Vista) Series 2006
|
Semiannually
April
1 and October 1
|
Annually
April
1
|
$45,000
each
|
|
2
|
Multifamily
Mortgage Revenue Refunding Bonds 2003 Series I (Fairmont Oaks
Apartments)
|
Semiannually
April
1 and October 1
|
Semiannually
April
1 and October 1
|
$35,000
each
|
|
3
|
Multifamily
Mortgage Revenue Refunding Bonds 2000 Series B (Iona Lakes
Project)
|
Semiannually
April
1 and October 1
|
Semiannually
April
1 and October 1
|
$75,000
each
|
|
4
|
Multifamily
Housing Revenue Bonds (Runnymede Apartments Project) Series
2007
|
Semiannually
April
1 and October 1
|
Annually
April
1
|
$35,000
each
|
|
5
|
Revenue
Bond, Series 2004 (Clarkson College Project)
|
1st
day of each month
|
1st
day of each month
|
$6,667
each
|
|
6
|
Multifamily
Housing Revenue Bonds (Gardens of DeCordova Apartments) Series
2007
|
Semiannually
May
1 and Nov. 1
|
Annually
May
1
|
$17,000
each
|
|
7
|
Multifamily
Housing Revenue Bonds (Gardens of Weatherford Apartments) Series
2007
|
Semiannually
May
1 and Nov. 1
|
Annually
May
1
|
$17,000
each
|
|
8
|
Multifamily
Housing Revenue Bonds (Woodland Park Apartments) Series
2007G-1
|
Semiannually
May
1 and Nov. 1
|
Annually
Nov.
1
|
$52,000
each
|
|
9
|
Multifamily
Housing Revenue Bonds (Woodlynn Village Project) Series
2007
|
Semiannually
May
1 and Nov. 1
|
Annually
May
1
|
$14,000
each
|
|
10
|
Multifamily
Rental Housing Revenue Bonds (Bridle Ridge Apartments) Series
2008
|
Semiannually
Jan.
1 and July 1
|
Annually
July
1 (commencing 2010)
|
$20,000
each
|
|
11
|
Multifamily
Housing Revenue Refunding Bonds 2001 Series G (Lake Forest
Apartments)
|
Semiannually
June
1 and Dec. 1
|
Semiannually
June
1 and Dec. 1
|
$45,000
each
|
|
12
|
Multifamily
Mortgage Revenue Refunding Bond (The Mill Apartments Project) Series
1999A
[Ashley
Square]
|
15th
of each month
|
_________________
|
_________________
|
|
13
|
Multifamily
Rental Housing Revenue Refunding Bonds (Bent Tree Apartments Project)
Series 2000H-1 and Interest-Only Series 2000H-2
|
15th
of each month until 12/15/2012; thereafter, the 1st
of each month
|
_________________
|
_________________
|