MC REF COPS 2015 - TRUST AGREEMENT_380698354_3.DOC

SQUIRE DRAFT
03/24/15
When recorded return to:
Timothy E. Pickrell, Esq. Affidavit and Fee Exemption Claimed:
Squire Patton Boggs (US) LLP A.R.S. Section 11-1134.A.2
1 E. Washington St., Suite 2700
Phoenix, Arizona 85004 Property Tax Exemption:
A.R.S. Section 42-11102.A.2
TRUST AGREEMENT
Dated as of ___________, 2015
between
__________________________, as Trustee
and
MARICOPA COUNTY, ARIZONA
relating to
$__________
Maricopa County, Arizona
Certificates of Participation
Series 2015
Squire Patton Boggs (US) LLP
Bond Counsel
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions ........................................................................................................3
Section 1.2 Authorization....................................................................................................9
Section 1.3 Interpretation.....................................................................................................9
ARTICLE II
THE 2015 CERTIFICATES; ADDITIONAL CERTIFICATES
Section 2.1 Authorization....................................................................................................9
Section 2.2 General Terms of 2015 Certificates................................................................10
Section 2.3 Maturity; Interest Rates ..................................................................................11
Section 2.4 Form of the 2015 Certificates.........................................................................11
Section 2.5 Execution........................................................................................................12
Section 2.6 Application of Proceeds and Other Moneys...................................................12
Section 2.7 Registration, Transfer and Exchange of 2015 Certificates.............................12
Section 2.8 Mutilated, Lost, Destroyed and Stolen Certificates........................................13
Section 2.9 Execution of Documents and Proof of Ownership.........................................13
Section 2.10 Certificate Register.........................................................................................14
Section 2.11 Execution and Delivery of Additional Certificates ........................................14
Section 2.12 Book-Entry-Only System ...............................................................................15
ARTICLE III
ACQUISITION FUND AND DELIVERY COSTS FUND
Section 3.1 Acquisition Fund ............................................................................................17
Section 3.2 Delivery Costs Fund .......................................................................................17
ARTICLE IV
REDEMPTION OF 2015 CERTIFICATES
Section 4.1 Right to Redeem .............................................................................................17
Section 4.2 Redemption.....................................................................................................18
Section 4.3 Selection of Certificates to be Redeemed.......................................................18
Section 4.4 Partial Redemption of Certificates..................................................................19
Section 4.5 Effect of Call for Redemption ........................................................................19
Section 4.6 Notice of Redemption.....................................................................................19
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Page
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
Section 5.1 Holding Rights in Lease .................................................................................19
Section 5.2 Establishment of Lease Payment Fund...........................................................20
Section 5.3 Deposits ..........................................................................................................20
Section 5.4 Application of Moneys ...................................................................................20
Section 5.5 Transfers of Investment Earnings to Lease Payment Fund ............................20
Section 5.6 Surplus............................................................................................................20
ARTICLE VI
[RESERVED]
ARTICLE VII
INSURANCE AND CONDEMNATION FUND; INSURANCE; EMINENT DOMAIN
Section 7.1 Establishment of Insurance and Condemnation Fund; Application of
Net Deeds of Insurance Award.......................................................................21
Section 7.2 Application of Net Proceeds of Eminent Domain Award ..............................21
Section 7.3 Cooperation.....................................................................................................22
ARTICLE VIII
MONEYS IN FUNDS; INVESTMENT
Section 8.1 Held in Trust...................................................................................................22
Section 8.2 Investments Authorized..................................................................................22
Section 8.3 Accounting......................................................................................................22
Section 8.4 Allocation of Earnings....................................................................................23
Section 8.5 Valuation and Disposition of Investment .......................................................23
Section 8.6 Deposit and Investment of Moneys in Funds .................................................23
Section 8.7 Liability of Trustee for Investments ...............................................................24
Section 8.8 Tax Compliance Certificate; Creation of Rebate Fund ..................................24
ARTICLE IX
THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities................................................................24
Section 9.2 Certain Rights of Trustee................................................................................26
Section 9.3 Employment of Experts..................................................................................27
Section 9.4 Enforcement of Performance by Others .........................................................27
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(continued)
Page
Section 9.5 Right to Deal in Certificates and Take Other Actions....................................27
Section 9.6 Removal and Resignation of the Trustee........................................................27
Section 9.7 Proof of Claim ................................................................................................28
Section 9.8 Trustee’s Fees and Expenses ..........................................................................28
Section 9.9 Intervention by Trustee...................................................................................29
Section 9.10 Destruction of Certificates..............................................................................29
Section 9.11 Reports............................................................................................................29
Section 9.12 Separate or Co-Trustee ...................................................................................29
Section 9.13 Recitals and Representations..........................................................................31
ARTICLE X
MODIFICATION OR AMENDMENT OF AGREEMENTS
Section 10.1 Amendments Permitted ..................................................................................32
Section 10.2 Procedure for Amendment with Written Consent of Certificate Owners.......32
Section 10.3 Disqualified Certificates.................................................................................33
Section 10.4 Effect of Supplemental Agreement ................................................................33
Section 10.5 Endorsement or Replacement of Certificates Delivered After
Amendments...................................................................................................34
Section 10.6 Amendatory Endorsement of Certificates ......................................................34
ARTICLE XI
COVENANTS
Section 11.1 Compliance With and Enforcement of Lease.................................................34
Section 11.2 Observance of Laws and Regulations.............................................................34
Section 11.3 Prosecution and Defense of Suits ...................................................................35
Section 11.4 Recordation and Filing ...................................................................................35
Section 11.5 Further Assurances .........................................................................................35
Section 11.6 Action Upon Termination of Lease................................................................35
ARTICLE XII
LIMITATION OF LIABILITY
Section 12.1 Limited Liability of Lessee.............................................................................35
Section 12.2 No Liability of the Lessee for Trustee Performance ......................................35
Section 12.3 Indemnification...............................................................................................36
Section 12.4 Opinion of Counsel.........................................................................................36
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(continued)
Page
Section 12.5 Limitation of Rights to Parties and Certificate Owners..................................36
Section 12.6 No Liability of the Trustee for Payment of Lease Payments by Lessee.........36
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE OWNERS
Section 13.1 Rights Under the Lease...................................................................................36
Section 13.2 Remedies.........................................................................................................37
Section 13.3 Application of Funds ......................................................................................37
Section 13.4 Institution of Legal Proceedings.....................................................................37
Section 13.5 Non-waiver .....................................................................................................38
Section 13.6 Remedies Not Exclusive.................................................................................38
Section 13.7 Power of Trustee to Control Proceedings.......................................................38
Section 13.8 Limitation on Certificate Owners’ Right to Sue.............................................38
Section 13.9 Notice of Default ............................................................................................39
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Defeasance......................................................................................................39
Section 14.2 Records ...........................................................................................................41
Section 14.3 Notices............................................................................................................41
Section 14.4 Governing Law...............................................................................................41
Section 14.5 Binding Effect; Successors.............................................................................41
Section 14.6 Execution in Counterparts ..............................................................................42
Section 14.7 Destruction of Cancelled Certificates.............................................................42
Section 14.8 Headings .........................................................................................................42
Section 14.9 Waiver of Notice.............................................................................................42
Section 14.10 Severability of Invalid Provisions ..................................................................42
Section 14.11 Cancellation of Contracts ...............................................................................42
EXHIBIT A FORM OF 2015 CERTIFICATE OF PARTICIPATION
EXHIBIT B DESCRIPTION OF LEASED PROPERTY
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TRUST AGREEMENT
THIS TRUST AGREEMENT (this “Trust Agreement”), is dated as of _____________,
2015, between ___________________________, as trustee (together with its successors in that
capacity, the “Trustee” or “Lessor”), and MARICOPA COUNTY, ARIZONA (the “Lessee” or
the “County”).
WITNESSETH:
WHEREAS, pursuant to a Ground Lease (as defined herein), the County has leased to the
Trustee the South Court Tower located in the City of Phoenix, Maricopa County, Arizona, as
more fully described in Exhibit B hereto (the “Leased Property”); and
WHEREAS, the County and the Trustee are executing this Trust Agreement, pursuant to
which the Trustee is executing and delivering Certificates of Participation (the “Certificates”)
evidencing proportionate ownership interests in the lease payments to be made by the County
pursuant to the Lease (hereinafter defined), and in all other rights of the Owners of Certificates
under the Lease, the Ground Lease and this Trust Agreement and the Trustee will cause the
proceeds of the sale of the Certificates to be applied as provided in this Trust Agreement; and
WHEREAS, concurrently with the execution of this Trust Agreement, the Trustee, as
lessor, and the County, as lessee, will enter into a Lease-Purchase Agreement (the “Lease”),
pursuant to which the Trustee will lease to the County the Leased Property; and
WHEREAS, in order to pay or to reimburse costs of the acquisition, construction,
improvement and equipping of various County sites, buildings and facilities and for other capital
purposes, the Trustee is willing to execute and deliver Certificates in a principal amount of
$_______ to be denominated “Certificates of Participation, Series 2015” (the “2015
Certificates”); and
WHEREAS, the County deems it prudent and advisable to authorize the execution and
delivery of the 2015 Certificates in a principal amount of $____________;
GRANTING CLAUSES
NOW, THEREFORE, in order to secure (i) all payments on all Certificates executed and
delivered and outstanding under this Trust Agreement, (ii) the rights of the Owners of the
Certificates and the performance and observance of the covenants and conditions contained in
the Certificates, the Lease and this Trust Agreement, the County directs the Trustee to acquire, to
receive and to hold as security for the Owners of the Certificates, and the Trustee does hereby
declare an irrevocable trust and acknowledge its acceptance of all right, title and interest in and
to, the following described property:
GRANTING CLAUSE FIRST
All right, title and interest of the Lessor in and to the Leased Property pursuant to the
Ground Lease; subject, however, to the rights of the Lessee under the Lease.
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GRANTING CLAUSE SECOND
All right, title and interest of the Lessor in and to the Ground Lease and the Lease and the
present and continuing right to (i) make claim for, collect or cause to be collected, receive or
cause to be received all revenues, receipts and other sums of money payable or receivable
thereunder, (ii) bring actions and proceedings thereunder or for the enforcement thereof, and (iii)
do any and all things which the Lessor is or may become entitled to do thereunder; provided that
this clause shall not transfer, impair or diminish any right of the Lessor under any of the assigned
instruments for indemnification, reimbursement of fees, costs and expenses or to receive notices
or approve amendments.
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GRANTING CLAUSE THIRD
All right, title and interest of the Lessor in and to amounts on deposit from time to time in
the funds and accounts created under this Trust Agreement (other than the Rebate Fund), subject
to the provisions of this Trust Agreement permitting their application for the purposes and on the
terms and conditions set forth herein.
GRANTING CLAUSE FOURTH
All rights held by the Trustee hereunder shall be administered according to the provisions
of this Trust Agreement and for the equal and proportionate benefit of the Owners of
Certificates.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Trust Agreement, the following
definitions apply. Capitalized terms not defined in this Trust Agreement but defined in the
Lease are used as defined in the Lease.
“Acquisition Fund” means the fund by that name established and held by the Trustee
pursuant to Section 3.1.
“Additional Certificates” means any certificates executed and delivered pursuant to
Section 2.11.
“Additional Rent” means any payments to be made pursuant to Section 4.7 of the Lease
in addition to Lease Payments.
“Affiliate” means, with respect to a specified entity, another entity that directly or
indirectly through one or more intermediaries, controls, or is controlled by or is under common
control with, the entity specified.
“Aggregate Value” means the Outstanding principal amount of all Certificates.
“Beneficial Owner” shall have the meaning provided in Section 2.12.
“Board” means the Board of Supervisors of the County.
“Bond Counsel” means a nationally recognized bond counsel firm whose opinion is given
with respect to the Certificates when issued, or its successors, or other nationally recognized
bond counsel appointed by the County.
“Business Day” means a day of the year other than (a) a Saturday or Sunday or (b) a day
on which banking institutions located in the city designated by the Trustee for the presentation
and payment of Certificates are required or authorized to remain closed.
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“Certificates” means, collectively, the 2015 Certificates and any Additional Certificates
executed and delivered under this Trust Agreement.
“Closing Date” means, with respect to the 2015 Certificates, the day when the 2015
Certificates, duly executed by the Trustee, are delivered to the Original Purchaser, and with
respect to any other series of Certificates, the day on which the Certificates of that series, duly
executed by the Trustee, are delivered to the initial purchasers thereof.
“Code” means the Internal Revenue Code of 1986, as amended and supplemented from
time to time, and any applicable regulations thereunder.
“Corporation” means the Maricopa County Public Finance Corporation.
“County” means Maricopa County, Arizona.
“Defeasance Obligations” means (i) cash (insured at all times by the Federal Deposit
Insurance Corporation or otherwise collateralized with obligations described in the following
clause) and (ii) obligations of, or obligations guaranteed as to principal and interest by, the
United Stated of America or any agency or instrumentality thereof, when such obligations are
backed by the full faith and credit of the United States of America, including (A) United States
Treasury obligations, including State and Local Government Series, and (B) all direct or fully
guaranteed obligations of the Farmers Home Administration, General Services Administration,
Guaranteed title XI financing, and Government National Mortgage Association (GNMA). Any
security used for defeasance must provide for the timely payment of principal and interest and
cannot be callable or prepayable prior to maturity or earlier redemption of the rated debt
(excluding securities that do not have a fixed par value and/or whose terms do not promise a
fixed dollar amount at maturity or call date).
“Delivery Costs” means all items of expense directly or indirectly payable by or
reimbursable to the Lessee or the Lessor relating to the execution, sale and delivery of the Lease,
the Ground Lease, this Trust Agreement or the Certificates, including but not limited to filing
and recording costs, settlement costs, printing costs, reproduction and binding costs, initial fees
and charges of the Trustee and the Lessor, legal fees and charges, accountants’ verification fees,
insurance fees and charges, premiums for title insurance, financial and other professional
consultant fees, costs of rating agencies for credit ratings, fees for execution, transportation and
safekeeping of the Certificates and any other costs, expenses, fees and charges in connection
with the foregoing.
“Delivery Costs Fund” means the fund by that name established and held by the Trustee
pursuant to Section 3.2.
“DTC” means The Depository Trust Company, New York, New York, and any successor
corporation.
“DTC Participant” means those broker dealers, banks and other financial institutions
reflected on the books of DTC as holding beneficial interests in the Certificates.
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“Electronically” or “Electronic” notice means notice transmitted through a time sharing
terminal, computer network or facsimile machine, if operative, as between any two parties, or if
not operative, by telephone (promptly confirmed in writing).
“Event of Bankruptcy” means the commencement of a case by or against the Lessee
under the Bankruptcy Code or under any other domestic bankruptcy act or any similar act which
hereafter may be enacted (other than such proceedings initiated by the Lessee against third
parties other than the Lessee), unless such case shall have been dismissed and such dismissal
shall be final and not subject to appeal.
“Event of Default” means (i) an event of default under the Lease, as defined in Section
9.1 thereof, (ii) if the Lease has terminated pursuant to subsection (b) of Section 4.2 thereof and
not been reinstated pursuant to subsection (c) of Section 4.2 thereof, or (iii) the failure of the
Trustee to receive from Lessee an amount sufficient to pay principal of or interest on the
Certificates on any date payment thereof is due.
“Fiscal Period” means a period of 12 consecutive months commencing on the first day of
July and ending on the last day of June, or any other consecutive 12-month period which may be
established hereafter as the fiscal year of the Lessee for budgeting and appropriation purposes.
“Ground Lease” means the Ground Lease, dated as of _______, 2015, between the
County and the Trustee, as lessee.
“Independent Counsel” means an attorney duly admitted to the practice of law before the
highest court of the state in which such attorney maintains an office and who is not an employee
of the Lessor or the Lessee.
“Insurance and Condemnation Fund” means the fund by that name established and held
by the Trustee pursuant to Article VII hereof.
“Interest Payment Date” means each of the dates mentioned in Section 2.3 on which
interest is due and payable with respect to the Certificates or the next succeeding Business Day if
such date is not a Business Day.
“Lease” means the Lease-Purchase Agreement, dated as of the same date as this Trust
Agreement, between the Lessee and the Lessor, together with any amendments.
“Lease Payment” means all payments required to be paid by the Lessee on any date
pursuant to Section 4.4(a) of the Lease and as set forth in Exhibit C to the Lease.
“Lease Payment Fund” means the fund by that name established and held by the Trustee
pursuant to Article V.
“Leased Property” means the real property described in Exhibit B hereto.
“Lessee” means the County.
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“Lessee Representative” means Chairman, Vice Chairman or Acting Chairman of the
Board, the County Administrator of the County or the Director of Finance of the County or the
designee of any of them, or any other person authorized by resolution of the Lessee to act on
behalf of the Lessee under or with respect to this Trust Agreement and the Lease.
“Lessor” means ___________________, as Trustee, and its successors and assigns under
the Lease and this Trust Agreement.
“Moody’s” means Moody’s Investors Service or any successor nationally recognized
securities rating agency.
“Net Proceeds” means any insurance proceeds (other than proceeds of any insurance
policy maintained pursuant to Section 5.3 of the Lease or proceeds of any condemnation award
in excess of $100,000, paid with respect to the Leased Property, or any proceeds resulting from
the sale of the Leased Property pursuant to Section 9.2(b) of the Lease remaining after payment
therefrom of all expenses incurred in the collection thereof.
“Original Purchaser” means __________________, as original purchaser of the 2015
Certificates.
“Outstanding,” when used with reference to the Certificates, means, as of any date of
determination, all Certificates executed and delivered except:
(a) Certificates cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Certificates which are deemed paid and no longer Outstanding as provided
herein;
(c) Certificates in lieu of which other Certificates of the same series shall have been
executed and delivered pursuant to the provisions hereof relating to Certificates destroyed,
stolen or lost, unless evidence satisfactory to the Trustee has been received that any such
Certificate is held by a bona fide purchaser; and
(d) For the purposes described in Section 10.3 hereof, the Certificates described in
Section 10.3.
“Owner” or “Certificate Owner” or “Owner of a Certificate,” or any similar term, when
used with respect to a Certificate means the person in whose name such Certificate is registered.
“Paying Agent” means the Trustee.
“Permitted Encumbrances” means, as of any particular time: (i) liens for general ad
valorem taxes and assessments, if any, not then delinquent, or which the Lessee may, pursuant to
provisions of Article V of the Lease, permit to remain unpaid; (ii) the Lease; (iii) the Ground
Lease; (iv) the Trust Agreement; (v) easements, leases, encumbrances, rights of way, mineral
rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which
exist as of the Closing Date and which the County represents in the Lease will not materially
impair the use of the Leased Property for purposes of the Lease or the security granted to the
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Trustee under this Trust Agreement; and (vi) easements, leases, encumbrances, rights of way,
mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions
to which the Lessor and the Lessee consent in writing.
“Permitted Investments” means and include (to the extent permitted by law):
(a) Defeasance Obligations.
(b) Obligations of any of the following federal agencies, which obligations
represent the full faith and credit of the United States of America: (A) the Export Import Bank
of the United States, (B) the Rural Economic Community Development Administration
(formerly the Farmers Home Administration), (C) the U.S. Maritime Administration, (D) the
Small Business Administration, (E) the U.S. Department of Housing and Urban Development
(PHA's), (F) the Federal Housing Administration, and (G) the Federal Financing Bank.
(c) Direct obligations of any of the following federal agencies which are not fully
guaranteed by the full faith and credit of the United States of America: (A) senior debt
obligations rated “Aaa” by Moody's and “AAA” by S&P issued by Fannie Mae or the Freddie
Mac, (B) obligations of the Resolution Funding Corporation (REFCORP), and (C) senior debt
obligations of the Federal Home Loan Bank System.
(d) U.S. dollar denominated deposit accounts, federal funds and bankers'
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit on the date of purchase of “A-1” or “A-1+” by S&P and “P-1” by
Moody's and maturing no more than 360 days after the date of purchase. (Ratings on holding
companies are not considered as the rating of the bank.)
(e) Commercial paper which is rated at the time of purchase in the single highest
classification, “A-1+” by S&P and “P-1” by Moody's, and which matures not more than 270
days after the date of purchase.
(f) Investments in a money market fund rated “AAAm” or “AAAm-G” or better by
S&P.
(g) Any bonds or other obligations of any state of the United States of America or
of any agency, instrumentality or local government unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable instructions
have been given by the obligor to call on the date specified in the notice.
(h) which are rated, based on an irrevocable escrow account or fund (the “escrow”),
in the highest rating category of S&P or Moody's or any successors thereto.
(i) (1) which are fully secured as to principal and interest and redemption
premium, if any, by an escrow consisting only of obligations described in clause (B) of the
definition of Defeasance Obligations, which escrow may be applied only to the payment of such
principal of and interest and redemption premium, if any, on such bonds or other obligations on
the maturity date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as appropriate, and (2) which escrow is sufficient, as verified by a
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nationally-recognized independent certified public accountant or firm of such accountants, to pay
principal of and interest and redemption premium, if any, on the bonds or other obligations
described in this clause (vii) on the maturity or redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate.
(j) General obligations of any state of the United States of America rated at least
“A2/A” or higher by both S&P and Moody's.
(k) Investment agreements and other forms of investments, including repurchase
agreements (in the case of investment agreements, with appropriate opinions of counsel) with
notice to S&P.
“Prepayment” means any payment applied towards the prepayment of the Lease
Payments, in whole or in part, pursuant to Article X of the Lease.
“Rebate Fund” means the fund created by Section 8.8(b) hereof.
“Register” means the registration books maintained by the Trustee pursuant to Section
2.10.
“Regular Record Date” means the close of business on the 15th day of the month
preceding an Interest Payment Date, whether or not such 15th day is a Business Day.
“S&P” means Standard & Poor’s Ratings Services or any successor nationally recognized
securities rating agency.
“Special Interest Payment Date” means the Business Day established by the Trustee for
the payment of overdue interest on the 2015 Certificates pursuant to the third paragraph of
Section 2.2.
“Special Record Date” means the Business Day established by the Trustee for
determination of the registered Owners entitled to receive overdue interest on the 2015
Certificates pursuant to the third paragraph of Section 2.2.
“State” means the State of Arizona.
“Tax Compliance Certificate” means any agreement or certificate of the Lessee which the
Lessee may execute in order to establish and maintain the exclusion from gross income for
federal income tax purposes of the interest component of the Lease Payments payable with
respect to the 2015 Certificates.
“Term of the Lease” means the time during which the Lease is in effect, as provided in
Section 4.2 of the Lease.
“Trust Agreement” means this Trust Agreement, together with any duly authorized and
executed amendments or supplements.
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“Trustee” means ______________________, or any successor acting as Trustee under
this Trust Agreement.
“2015 Certificates” means the $______________ aggregate principal amount of
Certificates of Participation, Series 2015, to be executed and delivered pursuant to this Trust
Agreement.
Section 1.2 Authorization. Each of the parties hereby represents and warrants that it
has full legal authority and is duly empowered to enter into this Trust Agreement and has taken
all actions necessary to authorize the execution of this Trust Agreement by the officers and
persons signing it.
Section 1.3 Interpretation.
(a) Any reference to the Lessor, Trustee or Lessee or any officer shall include those
succeeding to their functions, duties or responsibilities pursuant to or by operation of law or
who are lawfully performing their functions.
(b) Unless the context otherwise indicates, words importing the singular shall
include the plural and vice versa and the use of the neuter, masculine or feminine gender is for
convenience only and shall be deemed to mean and include the neuter, masculine or feminine
gender.
(c) Any terms not defined herein but defined in the Lease shall have the same
meaning herein.
(d) Headings of articles and sections herein and the table of contents hereof are
solely for convenience of reference, do not constitute a part hereof and shall not affect the
meaning, construction or effect hereof.
(e) Words importing the redemption of a Certificate or the calling of a Certificate
for redemption do not mean or include the payment of a Certificate at its stated maturity or the
purchase of a Certificate.
ARTICLE II
THE 2015 CERTIFICATES; ADDITIONAL CERTIFICATES
Section 2.1 Authorization.
(a) The Trustee is hereby authorized and directed to prepare, execute and deliver, to
the Original Purchaser, 2015 Certificates in an aggregate principal amount of
$______________, evidencing proportionate ownership interests in the Lease Payments and
the Prepayments and all other rights of Owners of Certificates under this Trust Agreement and
the Lease.
(b) Except as provided in Section 2.11, the Trustee shall not at any time while the
Certificates are Outstanding execute and deliver additional certificates payable from the Lease
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Payments and secured by a lien and charge upon the Leased Property on a parity with or prior
to the lien and charge securing the Outstanding Certificates.
Section 2.2 General Terms of 2015 Certificates.
(a) The 2015 Certificates shall be executed and delivered only in fully registered
form, without coupons, and shall be numbered from one upwards, in the order of their
execution, with any other designation as the Trustee deems appropriate. The 2015 Certificates
shall be subject to redemption prior to their specified principal payment dates as provided in
Article IV.
(b) Each 2015 Certificate shall bear the dated date of the date of the initial delivery,
and shall also bear the date of its execution and interest shall be payable from the Interest
Payment Date next preceding the date of execution, unless (i) it is executed prior to the Closing
Date, in which event interest shall be payable from the Closing Date, (ii) it is executed as of an
Interest Payment Date, in which event interest shall be payable from such date of execution, or
(iii) it is executed after a Regular Record Date and before the following Interest Payment Date,
in which event interest shall be payable from such Interest Payment Date; provided, however,
that if, as of the date of execution of any 2015 Certificate, interest is in default with respect to
any Outstanding 2015 Certificates, interest with respect to such 2015 Certificate shall be
payable from the Interest Payment Date to which interest has previously been paid or made
available for payment with respect to the Outstanding 2015 Certificates, or, if prior to the first
Interest Payment Date, interest shall be payable from the Closing Date, unless it is executed
after a Special Record Date and before the following Special Interest Payment Date, in which
event interest shall be payable from the scheduled Interest Payment Date next preceding such
date of execution.
(c) Payment of interest on any 2015 Certificate on any Interest Payment Date or
any Special Interest Payment Date shall be made to the person appearing on the Register as the
Owner as of the Regular Record Date immediately preceding such Interest Payment Date or, if
applicable, the Special Record Date immediately preceding such Special Interest Payment
Date. Such interest shall be paid by (i) check or draft mailed to such Owner at his address as it
appears on the Register or at such other address as he may have filed with the Trustee for that
purpose, or (ii) to any Owner of $1,000,000 or more in aggregate principal amount of 2015
Certificates, as of the close of business of the Trustee on the Regular Record Date for a
particular Interest Payment Date or, if applicable, the Special Record Date for a Special
Interest Payment Date, by wire transfer in immediately available funds sent on the Interest
Payment Date or Special Interest Payment Date, as the case may be, to any bank or trust
company in the continental United States, in accordance with written notice from such Owner
containing the wire transfer address, which written notice is received not later than five days
before the Regular Record Date with respect to such Interest Payment Date or, if applicable,
the Special Record Date for any Special Interest Payment Date, it being understood that such
notice may refer to multiple interest payments.
(d) In the event there are insufficient funds available on any Interest Payment Date
to pay the interest then due on the 2015 Certificates, the Regular Record Date shall no longer
be applicable with respect to the 2015 Certificates. If sufficient funds for the payment of such
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interest thereafter become available, the Trustee shall immediately establish a Special Interest
Payment Date for the payment of the overdue interest and a Special Record Date for
determining the Owners entitled to such payments. Notice of the establishment of any such
Special Interest Payment Date and Special Record Date shall be mailed by the Trustee to each
Owner not less than 10 days prior to the Special Record Date nor more than 30 days prior to
the Special Interest Payment Date. Such overdue interest shall be paid on the Special Interest
Payment Date to the Owners of the 2015 Certificates as of the Special Record Date.
Section 2.3 Maturity; Interest Rates.
(a) The 2015 Certificates shall be in the denomination of $5,000 or any integral
multiple thereof (except that no 2015 Certificate may have principal maturing in more than one
year) and shall mature on the dates and in the principal amounts, and interest with respect
thereto shall be computed at the rates, as shown below:
Maturity Date
( 1) Amount Interest Rate
$ %
(b) Interest with respect to the 2015 Certificates shall be payable on __________,
and thereafter semiannually on __________ 1 and __________ 1 of each year to and including
the date of maturity or redemption, whichever is earlier. Said interest shall represent the
portion of Lease Payments designated as interest and coming due during the six (6) month
period preceding each Interest Payment Date with respect to the 2015 Certificates or in the case
of the first Lease Payment, the period since the dated date of the 2015 Certificates. The
proportionate share of the portion of Lease Payments designated as interest with respect to any
2015 Certificate shall be computed by multiplying the portion of Lease Payments designated as
principal with respect to such 2015 Certificate by the rate of interest applicable to such 2015
Certificate (on the basis of a 360-day year of twelve 30 day months).
Section 2.4 Form of the 2015 Certificates. The 2015 Certificates shall be in fully
registered form without coupons. The fully registered form of the 2015 Certificates and the
assignment to appear thereon shall be substantially in the forms set forth in Exhibit A, with any
necessary or appropriate variations, omissions and insertions.
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Section 2.5 Execution. The 2015 Certificates shall be executed by and in the name
of the Trustee by the manual signature of an authorized representative of the Trustee. If any
officer whose signature appears on any 2015 Certificate ceases to be such officer before the
date of delivery thereof, such signature shall nevertheless be as effective as if the officer had
remained in office until such date of delivery. Any 2015 Certificate may be executed on behalf
of the Trustee by such person as at the actual date of the execution of such 2015 Certificate
shall be the proper officer of the Trustee although at the nominal date of such 2015 Certificate
such person shall not have been such officer of the Trustee.
Section 2.6 Application of Proceeds and Other Moneys. The proceeds received by
the Trustee from the sale of the 2015 Certificates shall be set aside by the Trustee in the
following respective funds and accounts and in the following order of priority:
(a) The Trustee shall deposit into the Delivery Costs Fund, an amount equal
to $___________.
(b) The Trustee shall deposit in the Acquisition Fund, an amount equal to $
.
Section 2.7 Registration, Transfer and Exchange of 2015 Certificates.
(a) The 2015 Certificates shall be negotiable, subject to the provisions for
registration and transfer contained herein or in the 2015 Certificates.
(b) So long as any 2015 Certificates are Outstanding, the Trustee shall maintain at
its designated office books for the registration and transfer of 2015 Certificates, and shall
provide for the registration and transfer of any 2015 Certificate under such reasonable
regulations as the Trustee may prescribe. The Trustee shall act as registrar for purposes of
exchanging and registering 2015 Certificates.
(c) Subject to the provisions of this Section, each 2015 Certificate shall be
transferable only upon the Register by the Owner in person or by his attorney duly authorized
in writing, upon surrender together with a written instrument of transfer satisfactory to the
Trustee duly executed by the Owner or his duly authorized attorney. Upon surrender for
transfer of any 2015 Certificate, the Trustee shall execute and deliver, in the name of the
transferee, one or more new 2015 Certificates, of the same aggregate principal amount and
maturity as the surrendered 2015 Certificate.
(d) Subject to the provisions of this Section, any 2015 Certificate, upon surrender to
the Trustee together with written instructions satisfactory to the Trustee, duly executed by the
Owner or his attorney duly authorized in writing, may, at the option of the Owner, be
exchanged for an equal aggregate principal amount of 2015 Certificates with the same maturity
of any other authorized denominations.
(e) All 2015 Certificates surrendered in any exchange or transfer of 2015
Certificates shall be cancelled by the Trustee.
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(f) In connection with any exchange or transfer of 2015 Certificates, the Owner
requesting the exchange or transfer shall as a condition precedent to the exercise of the
privilege of making the exchange or transfer, remit to the Trustee an amount sufficient to pay
any tax or other governmental charge required to be paid with respect to the exchange or
transfer.
(g) The Trustee may but shall not be obligated to exchange or register the transfer
of any 2015 Certificate (i) which has been called or selected for call for redemption in whole or
in part, or (ii) during a period of 15 days preceding the giving of a notice of redemption. If the
transfer of any 2015 Certificate which has been called or selected for call for redemption in
whole or in part is registered, any notice of redemption which has been given to the transferor
shall be binding upon the transferee and a copy of the notice of redemption shall be delivered
by the Trustee to the transferee along with the 2015 Certificate or 2015 Certificates.
Section 2.8 Mutilated, Lost, Destroyed and Stolen Certificates. If (i) any mutilated
2015 Certificate is surrendered to the Trustee, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any 2015 Certificate, and (ii) there is delivered to
the Trustee such security or indemnity as may be required by the Trustee to hold it harmless,
then, in the absence of written notice to the Trustee that such 2015 Certificate has been
acquired by a bona fide purchaser and upon the Owner paying the reasonable expenses of the
Trustee, the Trustee shall cause to be executed and shall deliver, in exchange for such
mutilated 2015 Certificate or in lieu of such destroyed, lost or stolen 2015 Certificate, a new
2015 Certificate of like principal amount, date and tenor. If the principal of any such
mutilated, destroyed, lost or stolen 2015 Certificate has become, or will on or before the next
Interest Payment Date become, due and payable, the Trustee may, in its discretion, pay such
2015 Certificate when due instead of delivering a new 2015 Certificate.
Section 2.9 Execution of Documents and Proof of Ownership.
(a) Any request, direction, consent, revocation of consent, or other instrument in
writing required or permitted by this Trust Agreement to be signed or executed by 2015
Certificate Owners may be in any number of concurrent instruments of similar tenor, and may
be signed or executed by such Owners in person or by their attorneys or agents appointed by an
instrument in writing for that purpose, or by any bank, trust company or other depository for
2015 Certificates. Proof of the execution of any such instrument, or of any instrument
appointing any such attorney or agent, and of the ownership of 2015 Certificates shall be
sufficient for any purpose of this Trust Agreement (except as otherwise herein provided), if
made in the following manner:
(i) The fact and date of the execution by any Owner or his attorney or agent
of any such instrument and of any instrument appointing any such attorney or agent, may
be proved by a certificate of an officer of any bank or trust company located within the
United States of America, which need not be acknowledged or verified. Where any such
instrument is executed by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, such certificate
shall also constitute sufficient proof of his authority.
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(ii) The fact of the ownership of 2015 Certificates by any person and the
amount, the maturity and the numbers of such 2015 Certificates and the date of his
holding the same shall be proved by the Register maintained pursuant to Section 2.10.
(b) Nothing contained in this Article II shall be construed as limiting the Trustee to
the proof described in (a) above, it being intended that the Trustee may accept any other
evidence of the matters herein stated which the Trustee may deem sufficient. Any request or
consent of the Owner of any 2015 Certificate shall bind every future Owner of the same 2015
Certificate in respect of anything done or suffered to be done by the Trustee in pursuance of
such request or consent.
Section 2.10 Certificate Register. The Trustee will keep or cause to be kept, at its
designated office, sufficient books for the registration and transfer of the 2015 Certificates
which shall at all times be open to inspection by the Lessee and the Lessor during normal
business hours with reasonable prior notice; and, upon presentation for such purpose, the
Trustee shall, under such reasonable regulations as it may prescribe, register or transfer 2015
Certificates on said books.
Section 2.11 Execution and Delivery of Additional Certificates.
(a) So long as the Lease remains in effect and no Event of Default under this Trust
Agreement has occurred and is continuing, the Trustee may execute and deliver, at the
direction of the Lessee, Additional Certificates from time to time to provide funds to pay any
one or more of (i) the costs of refunding Outstanding Certificates, (ii) the costs of refunding
outstanding certificates of participation executed and delivered for the benefit of the County, or
(iii) the costs of making any modifications or improvements to the Leased Property as the
Lessee may deem necessary or desirable.
(b) Before the Trustee shall deliver any Additional Certificates executed pursuant to
a supplement authorized by Article X, the following items shall have been received by the
Trustee:
(i) Original executed counterparts of any amendments or supplements to the
Lease and of this Trust Agreement entered into in connection with the execution and
delivery of the Additional Certificates, which are necessary or advisable, in the opinion
of Bond Counsel, to provide that the Additional Certificates will be executed and
delivered in compliance with the provisions of this Trust Agreement.
(ii) A written opinion of Bond Counsel to the effect that (A) the documents
submitted to the Trustee in connection with the request then being made comply with the
requirements of this Trust Agreement, (B) any filings required to be made under Section
11.4 of this Trust Agreement have been made, and (C) all conditions precedent to the
delivery of the Additional Certificates have been fulfilled.
(iii) A written opinion of Bond Counsel (who also may be the counsel to which
reference is made in clause (ii) above), to the effect that (A) when executed and delivered
by the Trustee, those Additional Certificates will be valid and binding in accordance with
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their terms and will be secured hereunder equally and on a parity with all other
Certificates at the time Outstanding hereunder as to the assignment to the Trustee of the
amounts pledged hereunder, and (B) the execution and delivery of the Additional
Certificates will not result in the portion of the Lease Payments designated as interest
evidenced by the Certificates Outstanding immediately prior to that execution and
delivery of such Additional Certificates becoming includable in gross income for
purposes of federal income taxation.
(iv) A written opinion of Bond Counsel (who also may be the counsel to which
reference is made in clause (ii) above) to the effect that any amendments or supplements
to the Lease entered into in connection with the execution and delivery of the Additional
Certificates have been duly authorized, executed and delivered by the Lessee, and that the
Lease, as amended or supplemented, constitutes a legal, valid and binding obligation of
the Lessee, enforceable in accordance with its terms, subject to exceptions reasonably
satisfactory to the Trustee for bankruptcy laws and other laws affecting creditors’ rights
and the exercise of judicial discretion.
(v) Written confirmation from Moody’s, if the Certificates are then rated by
Moody’s, and from S&P, if the Certificates are then rated by S&P, that the issuance of
the Additional Certificates will not cause the then-assigned rating assigned to the
Certificates to be reduced or withdrawn.
(c) When the documents listed above have been received by the Trustee, the
Trustee shall execute and deliver the Additional Certificates to or on the order of the original
purchaser thereof, but only upon payment of the agreed-upon purchase price for the Additional
Certificates.
(d) Prior to the issuance of any Additional Certificates, the Lessee shall inform the
Trustee of the names of all entities which have rated the Outstanding Certificates.
Section 2.12 Book-Entry-Only System.
The 2015 Certificates shall be initially issued in the form of a single fully registered
certificates for each scheduled principal payment date for each series of 2015 Certificates.
Upon initial execution and delivery, the ownership of such 2015 Certificates shall be registered
in the Register in the name of Cede & Co., as nominee of DTC, and, except as hereinafter
otherwise provided, all of the Outstanding 2015 Certificates shall be registered in the name of
Cede & Co., as nominee of DTC.
With respect to the 2015 Certificates registered in the Register in the name of Cede &
Co., as nominee of DTC, the Trustee shall have no responsibility or obligation to any DTC
Participant or to any person on behalf of whom such a DTC Participant holds an interest in the
2008 Certificates (a “Beneficial Owner”), nor any responsibility or obligation to any DTC
Participant, any Beneficial Owner or any other person claiming a beneficial ownership interest
in the 2015 Certificates under or through DTC or any DTC Participant, or any other person
with respect to (i) the accuracy of any records maintained by DTC or any DTC Participant, (ii)
the payment by DTC or any DTC Participant of any amount in respect of the 2015 Certificates,
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(iii) the giving of any notice that is permitted or required to be given to Owners under this
Trust Agreement, or (iv) any consent given or other action taken by DTC as an Owner.
Notwithstanding any other provision of this Trust Agreement to the contrary, the
Trustee shall be entitled to treat and consider the person in whose name each 2015 Certificate
is registered in the Register as an absolute Owner of such 2015 Certificate for the purpose of
payment, for the purpose of giving notices of prepayment with respect to any 2015 Certificate,
for the purpose of registering transfers with respect to such 2015 Certificate, and for all other
purposes whatsoever. The Trustee shall pay all principal, premium, if any, and interest
evidenced by any 2015 Certificate only to or upon the order of the respective 2015 Certificate
Owners, as shown in the Register, as provided in this Trust Agreement, or their respective
attorneys duly authorized in writing, and all such payments shall be valid and effective to fully
satisfy and discharge the obligations with respect to payment of principal, premium, if any, and
interest evidenced by the 2015 Certificates to the extent of the sum or sums so paid. No person
other than a 2015 Certificate Owner, as shown in the Register, shall receive a 2015 Certificate
evidencing the obligation to make payments of principal, premium, if any, and interest
pursuant to this Trust Agreement.
Notwithstanding any other provision of this Trust Agreement or the 2015 Certificates,
so long as the 2015 Certificates are held in book-entry form and registered in the name of Cede
& Co., as nominee or DTC, or registered in the name of any successor securities depository, or
its nominee, the following provisions shall apply:
(a) Presentation. Presentation of 2015 Certificates to the Paying Agent at their
scheduled payment dates or upon prepayment prior thereto shall be deemed made to the Paying
Agent when the right to exercise ownership rights in the 2015 Certificates through DTC or a
DTC Participant is transferred by DTC on its books.
(b) Fractionalized Representation. DTC may present notices, approvals, waivers,
votes or other communications required or permitted to be made by Owners under this Trust
Agreement on a fractionalized basis on behalf of some or all of those persons entitled to
exercise ownership rights in the 2015 Certificates through DTC or DTC Participants.
The 2015 Certificate Owners have no right to a depository for the 2015 Certificates.
The Lessee or the Trustee may remove DTC or any successor thereto for any reason at any
time. In such event, the Trustee shall (i) appoint a successor securities depository qualified to
act as such under Section 17(i) of the Securities Exchange Act of 1934, as amended, notify
DTC of the appointment of such successor securities depository and transfer one or more
separate 2015 Certificates to such successor securities depository, or (ii) notify DTC of the
availability through DTC of 2015 Certificates and transfer one or more separate 2015
Certificates to DTC Participants having 2015 Certificates credited to their DTC accounts as
directed by DTC. In such event, the 2015 Certificates shall no longer be restricted to being
registered in the Register in the name of Cede & Co., as nominee of DTC, but may be
registered in the name of the successor securities depository, or its nominee, or in whatever
name or names the DTC Participants receiving 2015 Certificates shall designate, in accordance
with the provisions of this Trust Agreement.
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The Trustee and the Lessee may execute the letter of representation in connection with
the execution and delivery of the 2015 Certificates. The letter of representation is for the
purpose of effectuating the book-entry-only system only and shall not be deemed to amend,
supersede or supplement the terms of this Trust Agreement that are intended to be complete
without reference to the letter of representation. In the event of any conflict between the terms
of the letter of representation and the terms of this Trust Agreement, the terms of the Trust
Agreement shall control. DTC may exercise the rights of a 2015 Certificate Owner hereunder
only in accordance with the terms hereof applicable to the exercise of such rights.
ARTICLE III
ACQUISITION FUND AND DELIVERY COSTS FUND
Section 3.1 Acquisition Fund. The Trustee shall establish a special fund designated
as the “Acquisition Fund”. There shall be deposited in the Acquisition Fund the proceeds of
the sale of the 2015 Certificates required to be deposited therein pursuant to Section 2.6, if any.
The Trustee shall immediately release and disburse the amounts in the Acquisition Fund to the
County as consideration for the County executing and delivering the Ground Lease and the
Lease.
Section 3.2 Delivery Costs Fund.
(a) The Trustee shall establish a special fund designated as the “Delivery Costs
Fund.” The Trustee shall keep such fund separate and apart from all other funds and moneys
held by it and shall administer such fund as provided herein and in the Lease. There shall be
deposited in the Delivery Costs Fund the proceeds of sale of the 2015 Certificates required to
be deposited therein pursuant to Section 2.6(a).
(b) The Trustee shall disburse moneys in the Delivery Costs Fund only upon a
requisition signed by a Lessee Representative setting forth the amounts to be disbursed for
payment or reimbursement of Delivery Costs and the person or persons to whom said amounts
are to be disbursed, stating that the amounts to be disbursed are for Delivery Costs properly
chargeable to the Delivery Costs Fund. Amounts remaining in the Delivery Costs Fund six
months after the Closing Date, shall be transferred to the Lease Payment Fund.
(c) The Trustee shall be responsible for the safekeeping and investment, upon the
written direction of the Lessee Representative, of the moneys held in the Delivery Costs Fund
in Permitted Investments and the payment thereof in accordance with this Section.
Notwithstanding the foregoing, the Trustee shall be entitled to rely conclusively on the
requisitions and written orders supplied to it by the Lessee Representative in connection with
disbursements made pursuant to this Section.
ARTICLE IV
REDEMPTION OF 2015 CERTIFICATES
Section 4.1 Right to Redeem. The 2015 Certificates shall be subject to redemption
prior to maturity at such times, to the extent and in the manner provided herein and with
respect to any Additional Certificates, as set forth in a supplement to this Trust Agreement.
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Section 4.2 Redemption.
(a) Optional Redemption. The 2015 Certificates maturing on or after __________
are subject to redemption, in whole or in part, on any date on or after __________, in
increments of $5,000 of principal amount due on a specific maturity date, in any order of
maturity, all as directed by the County, and by lot within a maturity, by payment of the
principal amount of each 2015 Certificate to be redeemed, plus interest accrued to the date
fixed for redemption, without premium.
(b) Redemption from Net Proceeds of Insurance and Condemnation. The 2015
Certificates are subject to redemption on any Interest Payment Date, in whole or in part, from
the Net Proceeds of insurance or condemnation, which Net Proceeds are deposited in the Lease
Payment Fund and credited towards the Prepayment made by the Lessee pursuant to Section
10.4 of the Lease, in any order of maturity designated by the Lessee (or by the Trustee by lot in
the event that no such designation is received by the Trustee at the time such Net Proceeds are
deposited with the Trustee), and by lot within a maturity at a redemption price equal to the
principal amount of the 2015 Certificates to be redeemed, plus interest accrued to the date
fixed for redemption, without premium.
(c) Mandatory Sinking Fund Redemption. The 2015 Certificates are subject to
mandatory redemption and shall be redeemed on ______ of the years set forth below and in
the amounts set forth below, by payment of a redemption price equal to the principal amount of
the 2015 Certificates then called for redemption plus the interest accrued to the date fixed for
redemption, but without premium, as follows:
Year Principal Amount
*
_____________________
*Maturity
Whenever 2015 Certificates subject to mandatory redemption are purchased, redeemed (other
than pursuant to mandatory redemption) or delivered by the Lessee to the Trustee for
cancellation, the principal amount of the 2015 Certificates so retired shall satisfy and be credited
against the mandatory redemption requirements for such 2015 Certificates in inverse order of
payment dates.
Section 4.3 Selection of Certificates to be Redeemed. If less than all of the 2015
Certificates of the same maturity are to be redeemed upon a redemption of 2015 Certificates,
the Trustee shall select the 2015 Certificates to be redeemed by lot or in such other manner as
the Trustee shall deem fair. In making such selection, the Trustee shall treat each 2015
Certificate as representing that number of 2015 Certificates of $5,000 denomination as is
obtained by dividing the principal amount of such 2015 Certificate by $5,000.
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Section 4.4 Partial Redemption of Certificates. Upon the selection and call for
redemption of, and the surrender of, any 2015 Certificate for redemption in part only, the
Trustee shall cause to be executed and delivered to or upon the written order of the Owner
thereof, at the expense of the Lessee, a new 2015 Certificate or 2015 Certificates of authorized
denominations in an aggregate principal amount equal to the unredeemed portion of the 2015
Certificate surrendered, in accordance with instructions received from the Owner thereof, with
one 2015 Certificate being delivered in the absence of such instructions.
Section 4.5 Effect of Call for Redemption. On the date designated for redemption by
notice given as herein provided, the 2015 Certificates so called for redemption shall become
and be due and payable at the redemption price provided for redemption of such 2015
Certificates on such date. If on the date fixed for redemption moneys for payment of the
redemption price and accrued interest are held by the Trustee as provided herein, interest on
the 2015 Certificates so called for redemption shall cease to accrue, such 2015 Certificates
shall cease to be entitled to any benefit or security hereunder except the right to receive
payment from the moneys held by the Trustee and the amount of such 2015 Certificates so
called for redemption shall be deemed paid and no longer Outstanding.
Section 4.6 Notice of Redemption.
(a) Whenever redemption of 2015 Certificates is to be made, the Trustee shall give
notice of the redemption of such 2015 Certificates, which notice shall specify the redemption
date, the redemption price and the place or places where such redemption price will be payable
and, if less than all of the 2015 Certificates are to be redeemed, the numbers or other
distinguishing marks of such 2015 Certificates so to be redeemed, and, in the case of 2015
Certificates to be redeemed in part only, such notice shall also specify the respective portions
of the principal amounts thereof to be redeemed. Such notice shall further state that on such
date there shall become due and payable upon each 2015 Certificate to be redeemed the
redemption price of such 2015 Certificate or the specified portion thereof in the case of a 2015
Certificate to be redeemed in part only, together with interest accrued to the redemption date,
and that from and after such date interest thereon shall cease to accrue and be payable on such
2015 Certificate or portion thereof so to be redeemed.
(b) Such notice shall be given by mailing a copy of such notice, first class United
States mail postage prepaid, not less than 30 days nor more than 60 days before the redemption
date, to all Owners of any 2015 Certificates or portions of 2015 Certificates which are to be
redeemed at their last addresses appearing upon the Register, but failure to mail any such
notice, or a defect in such notice, as to any 2015 Certificate shall not affect the validity of the
proceedings for the redemption of any other 2015 Certificate.
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
Section 5.1 Holding Rights in Lease.
(a) The Trustee, as Lessor under the Lease, holds certain rights and interest in the
Lease, including but not limited to all of the Lessor’s rights to receive and collect all of the Lease
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Payments, Additional Rent, the Prepayments and all other amounts required to be deposited in
the Lease Payment Fund pursuant to the Lease or this Trust Agreement. All Lease Payments and
Prepayments to which the Lessor may at any time be entitled shall be paid directly to the Trustee.
(b) If the Lessee exercises its right to release Leased Property under the Lease, the
Trustee shall, upon all conditions contained in Section 8.3 of the Lease having been complied
with and being satisfied, release the lien of the Trust Agreement from any portion of the Leased
Property being conveyed in connection with such release. The Trustee shall take any and all
steps and execute and record any and all documents reasonably required by the Lessee to
consummate the transfer of title in connection with such release.
Section 5.2 Establishment of Lease Payment Fund. The Trustee shall establish a
special fund designated as the “Lease Payment Fund.” All moneys at any time deposited by the
Trustee in the Lease Payment Fund shall be held by the Trustee in trust for the benefit of the
Owners of the Certificates. So long as any Certificates are Outstanding, neither the Lessee nor
the Lessor shall have any beneficial right or interest in the Lease Payment Fund or the moneys
deposited therein, except only as provided in this Trust Agreement.
Section 5.3 Deposits. There shall be deposited in the Lease Payment Fund all Lease
Payments and Prepayments received by the Trustee, including any moneys received by the
Trustee for deposit therein pursuant to Section 4.4(a) or Articles VI or X of the Lease and any
other moneys required to be deposited therein pursuant to the Lease or pursuant to this Trust
Agreement.
Section 5.4 Application of Moneys. All amounts in the Lease Payment Fund shall
be used and withdrawn by the Trustee solely for the purpose of paying the principal of and
interest and redemption premiums (if any) with respect to the Certificates as the same shall
become due and payable, in accordance with the provisions of Article II and Article IV.
Section 5.5 Transfers of Investment Earnings to Lease Payment Fund. Except as
otherwise provided in the Tax Compliance Certificate, the Trustee shall, on each December 15
and June 15, or the next succeeding Business Day if such date is not a Business Day, transfer
any income or profit on the investment of moneys in the funds hereunder (except the Rebate
Fund) to the Lease Payment Fund.
Section 5.6 Surplus. Any surplus remaining in the Lease Payment Fund, after
redemption and payment of all Certificates, including premiums and accrued interest (if any)
and payment of any Additional Rent, or provision for such redemption or payment having been
made to the satisfaction of the Trustee, shall be withdrawn by the Trustee and remitted to the
Lessee.
ARTICLE VI
[RESERVED]
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ARTICLE VII
INSURANCE AND CONDEMNATION FUND;
INSURANCE; EMINENT DOMAIN
Section 7.1 Establishment of Insurance and Condemnation Fund; Application of Net
Deeds of Insurance Award. Any Net Proceeds of insurance against accident to or destruction
of any structure constituting any part of the Leased Property collected by the Lessee in the
event of any such accident or destruction shall be transferred to the Trustee pursuant to Section
6.2 of the Lease and deposited by the Trustee in a special fund designated as the “Insurance
and Condemnation Fund” to be applied and disbursed by the Trustee as provided in Section
6.2(a) of the Lease.
Section 7.2 Application of Net Proceeds of Eminent Domain Award. If all or any
part of the Leased Property shall be taken by eminent domain proceedings (or sold to a
government threatening to exercise the power of eminent domain) the Net Proceeds therefrom
shall be deposited with the Trustee in the Insurance and Condemnation Fund pursuant to
Section 6.2(b) of the Lease and shall be applied and disbursed by the Trustee as follows:
(i) If the Lessee determines, based upon a report of an independent engineer
or other independent professional, that (A) such eminent domain proceedings have not
materially affected the operation of any of the Leased Property or the ability of the
Lessee to meet any of its obligations under the Lease, and (B) that such proceeds are not
needed for repair or rehabilitation of the Leased Property, the Trustee shall transfer such
proceeds to the Lease Payment Fund to be credited towards the Prepayments required to
be paid pursuant to Section 10.4 of the Lease and applied to the redemption of
Certificates in the manner provided in Article IV hereof.
(ii) If the Lessee determines, based upon a report of an independent engineer
or other independent professional, that (A) such eminent domain proceedings have not
materially affected the operation of any of the Leased Property or the ability of the
Lessee to meet any of its obligations under the Lease, and (B) such proceeds are needed
for repair, rehabilitation or replacement of the Leased Property, the Trustee shall pay to
the Lessee, or to its order, from said proceeds such amounts as the Lessee may expend for
such repair, rehabilitation or replacement, upon the filing of requisitions of the Lessee
Representative, certificates of architects or engineers and other documents as the Trustee
may at its discretion request.
(iii) If (A) less than all of the Leased Property shall have been taken in such
eminent domain proceedings or sold to a government threatening the use of eminent
domain powers, and if the Lessee determines, based upon a report of am independent
engineer or other independent professional, that such eminent domain proceedings have
materially affected the operation of any of the Leased Property or the ability of the
Lessee to meet any of its obligations under the Lease, or (B) all of the Leased Property
shall have been taken in such eminent domain proceedings, then the Trustee shall transfer
such proceeds to the Lease Payment Fund to be credited toward the Prepayment required
to be paid pursuant to Section 10.4 of the Lease and applied to the redemption of
Certificates in the manner provided in Article IV hereof.
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The Lessee shall be required to obtain, at its own expense, and provide to the Trustee
the report of an independent engineer or other independent professional consultant prior to the
Lessee making any determination under this Section 7.2. Any such determination by the
Lessee shall be final.
Section 7.3 Cooperation. The Trustee shall cooperate fully with the Lessee at the
request and expense of the Lessee in filing any proof of loss with respect to any insurance
policy maintained pursuant to Article V of the Lease and in the prosecution or defense of any
prospective or pending condemnation proceeding with respect to the Leased Property or any
part thereof.
Notwithstanding the foregoing provisions of this Section 7.2, the Lessee agrees, to the
extent permitted by law, that in the event it brings an eminent domain or condemnation
proceeding with respect to the Leased Property, it will offer to pay the Trustee an amount at
least equal to all principal and accrued interest on all outstanding Certificates and all fees and
expenses owed by the Lessee hereunder.
ARTICLE VIII
MONEYS IN FUNDS; INVESTMENT
Section 8.1 Held in Trust. The moneys and investments held by the Trustee under
this Trust Agreement (other than those held in the Rebate Fund) are irrevocably held in trust
for the benefit of the Owners of the Certificates, and for the purposes specified in this Trust
Agreement, and such moneys, and any income or interest earned, shall be expended only as
provided in this Trust Agreement, and shall not be subject to levy or attachment or lien by or
for the benefit of any creditor of the Lessor, the Trustee or the Lessee or any Owner of
Certificates.
Section 8.2 Investments Authorized. Permitted Investments acquired, if registrable,
shall be registered in the name of the Trustee and shall be held by the Trustee. The Trustee
may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by
this Section. Such investments and reinvestments shall be made giving full consideration to
the time at which funds are required to be available. The Trustee may act as purchaser or agent
in the making or disposing of any investment.
Section 8.3 Accounting.
(a) The Trustee shall quarterly, or at such other intervals as the Trustee and the
Lessee shall from time to time agree upon (but in no event less frequently than semiannually or
more frequently than monthly), furnish to the Lessee an accounting of all investments made by
the Trustee. The Trustee shall not be responsible or liable for any loss suffered in connection
with any investment of funds made by it in accordance with Sections 8.2 and 8.6 hereof.
(b) The Lessee acknowledges that, to the extent regulations of the Comptroller of the
Currency or any other regulatory entity grants the Lessee the right to receive brokerage
confirmations of security transactions made by the Trustee as they occur, the Lessee will not
receive such confirmations to the extent permitted by law. The Trustee will furnish the Lessee
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with periodic account transaction statements that will include the detail for all investment
transactions made by the Trustee hereunder.
Section 8.4 Allocation of Earnings. Any loss on investments shall be charged to the
respective funds from which such investments were made, and any interest, income or profit on
any deposit of funds shall be deposited and transferred as provided in Section 5.5 hereof.
Section 8.5 Valuation and Disposition of Investment. For the purpose of
determining the amount in any fund, all Permitted Investments credited to such fund shall be
valued on the basis of fair market value. The Trustee shall determine the fair market value
based on accepted industry standards and from accepted industry providers. Accepted industry
providers shall include, but are not limited to, pricing services provided by Financial Times
Interactive Data Corporation, Merrill Lynch, Citigroup Global Markets Inc., Bear Stearns, or
Lehman Brothers. Certificates of deposit and bankers’ acceptances shall be valued at the face
amount thereof, plus accrued interest thereon. The value of Permitted Investments which
cannot be determined as described above shall be established by prior agreement between the
County and the Trustee.
Section 8.6 Deposit and Investment of Moneys in Funds.
(a) Moneys in all funds and accounts held by the Trustee shall be invested by the
Trustee, as soon as possible upon receipt of immediately available funds at its designated
office, to the fullest amount possible in Permitted Investments as directed, in writing or by
telephonic or other reasonable means, by the Lessee or, in the absence of direction by the
Lessee, the Trustee shall invest in item (f) of the definition of Permitted Investments; provided
that the maturity date or the date on which such Permitted Investments may be redeemed at the
option of the holder thereof shall coincide as nearly as practicable with (but in no event shall be
later than) the date or dates on which moneys in the funds or accounts for which the
investments were made will be required for the purposes thereof.
(b) Amounts credited to a fund or account may be invested, together with amounts
credited to one or more other funds or accounts, in the same Permitted Investment, provided
that (i) each such investment complies in all respects with the provisions of subsection (a) of
this Section as they apply to each fund or account for which the joint investment is made, and
(ii) the Trustee maintains separate records for each fund and account and such investments are
accurately reflected therein.
(c) The Trustee may make any investment permitted by this Section, through or
with its own commercial banking or investment departments unless otherwise directed by the
Lessee.
(d) The Trustee shall sell at the best price obtainable, or present for redemption, any
Permitted Investment purchased by it as an investment whenever it shall be necessary in order
to provide moneys to meet any payment or transfer from the fund or account for which such
investment was made.
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Section 8.7 Liability of Trustee for Investments. The Trustee shall not be liable for
any loss resulting from the making of any investment made in accordance with the provisions
hereof, except for its own negligence, willful misconduct or breach of trust.
Section 8.8 Tax Compliance Certificate; Creation of Rebate Fund.
(a) The Lessee hereby agrees to abide by each of its covenants contained in Section
2.3 of the Lease and in any Tax Compliance Certificate as required by Bond Counsel and to
perform in accordance with this Section 8.8.
(b) There is hereby created, at the direction of the Lessee, and ordered established
with the Trustee an irrevocable trust fund to be designated the “Rebate Fund,” which shall be
administered in accordance with the provisions of this Section 8.8 and the Tax Compliance
Certificate.
(c) The foregoing provisions of this Section 8.8 notwithstanding, (i) the Rebate
Fund shall not be considered a part of the Trust Estate created hereunder, and (ii) the Trustee
shall be permitted to transfer moneys on deposit in any of the trust funds established under this
Trust Agreement to the Rebate Fund in accordance with the provisions of the Tax Compliance
Certificate. The Trustee shall hold moneys delivered or held in the Rebate Fund as a trust fund
separate from any other fund or account established hereunder, and shall apply such moneys
only in accordance with the provisions of the Tax Compliance Certificate.
ARTICLE IX
THE TRUSTEE
Section 9.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Trust Agreement and no implied covenants or obligations
shall be read into this Trust Agreement against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the requirements
of this Trust Agreement; but in the case of any such certificates or opinions which are
required by any provision hereof or thereof the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Trust
Agreement.
(b) In case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Trust Agreement including those
described in (a) above, and use the same degree of care and skill in their exercise, as a prudent
corporate indenture trustee would exercise or use under the circumstances.
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(c) No provision of this Trust Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct or breach of trust, except that:
(i) This subsection shall not be construed to limit the effect of subsection (a)
of this Section;
(ii) The Trustee shall not be liable for any error of judgment made in good
faith and without negligence by a chairman or vice-chairman of the board of directors,
the chairman or vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller and any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the particular subject;
(iii) The Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith and without negligence in accordance with the direction of
the Owners of the Outstanding Certificates as provided herein relating to the time,
method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Trust Agreement;
and
(iv) Except for the obligation (A) Owners of any Event of Default pursuant to
Section 13.9 hereof, (B) to notify the Owners of a declaration of acceleration pursuant to
Section 13.2 hereof, or (C) to take action to exclude the Lessee from possession of the
Leased Property, no provision of this Trust Agreement or the Agreements shall require
the Trustee to expend or risk its own funds or otherwise incur any financial liability
(including, without limitation, any and all environmental liability) in the performance of
any of its duties hereunder or thereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity or other assurance against such risk or liability is not reasonably assured to it.
Without limiting the generality of the foregoing, such other assurance may include, but
shall not be limited to, environmental audits or other evidence satisfactory to the Trustee
that it will not incur liability by reason of any remedial action taken pursuant hereto. The
Trustee may, nevertheless, begin suit, or appear in and defend suit, or do anything else in
its judgment properly to be done by it as the Trustee, without prior assurance of
indemnity, and in such case shall be entitled to reimbursement by the Lessee for all
reasonable costs, expenses, attorneys, and other fees, and all other reasonable
disbursements, including its own fees, and for all liability and damages suffered by the
Trustee in connection therewith except for the Trustee’s negligence, willful misconduct
or breach of trust.
(d) Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
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(e) The County authorizes and directs Trustee to execute the Ground Lease and
Lease.
(f) The Trustee is not responsible for any official statement or any offering or
disclosure materials prepared in connection with the Certificates.
Section 9.2 Certain Rights of Trustee. Except as otherwise provided in Section 9.1
hereof:
(a) The Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) Any request or direction of the Lessee mentioned herein shall be sufficiently
evidenced by a certificate of a Lessee Representative, and any action of the governing board of
the Lessee may be sufficiently evidenced by a copy of a resolution certified by the secretary or
an assistant secretary of the Lessee to have been duly adopted by the governing board of the
Lessee and to be in full force and effect on the date of such certification and delivered to the
Trustee.
(c) Whenever in the administration of this Trust Agreement the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon a certificate of a Lessee Representative.
(d) The Trustee may consult with counsel and the written advice of such counsel or
any opinion of counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Trust Agreement at the request or direction of any of the Certificate Owners
pursuant to this Trust Agreement, unless such Certificate Owners shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may
see fit.
(g) The Trustee may engage agents and attorneys to assist it in executing any of the
trusts or powers hereunder or performing any duties hereunder and shall not be liable for the
negligence or misconduct of such agents and attorneys so long as the Trustee exercises due
care in the selection thereof.
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Section 9.3 Employment of Experts. The Trustee is hereby authorized to employ as
its agents such attorneys at law, certified public accountants and recognized authorities in their
fields (who are not employees of the Trustee), as it reasonably may deem necessary to assist it
to carry out any of its obligations hereunder, and shall be reimbursed by the Lessee for all
reasonable expenses and charges in so doing.
Section 9.4 Enforcement of Performance by Others. It shall not be the duty of the
Trustee, except as herein provided, to see that any duties and obligations imposed upon the
Lessee are performed.
Section 9.5 Right to Deal in Certificates and Take Other Actions. The Trustee may
in good faith buy, sell or hold and deal in any Certificates with like effect as if it were not such
Trustee and may commence or join in any action which an Owner is entitled to take with like
effect as if the Trustee were not the Trustee. It is understood and agreed that the Trustee
engages in a general banking business and no provision hereof is to be construed to limit or
restrict the right of the Trustee or any affiliate of the Trustee to engage in such business with
the Lessee or any Owner. So engaging in such business shall not constitute a breach of trust on
the part of the Trustee, but neither shall engaging in such business abrogate, alter or diminish
any duty or obligation of the Trustee as Trustee hereunder.
Section 9.6 Removal and Resignation of the Trustee.
(a) The Trustee may resign at any time. The County may remove the Trustee at
any time unless an Event of Default has occurred and is then continuing. The County shall
remove the Trustee at the request of the Owners of a majority in Aggregate Value of Outstanding
Certificates, or may be removed at any time for any breach of its duties hereunder by an
instrument or instruments in writing signed by the Owners of not less than a majority in
Aggregate Value of Certificates then Outstanding. Written notice of such resignation or removal
shall be given by the Trustee to the Lessee and such resignation or removal shall take effect only
upon the appointment and qualification of a successor Trustee. In the event a successor Trustee
has not been appointed and qualified within 60 days of the date notice of resignation is given, the
Trustee or the Lessee may apply to any court of competent jurisdiction for the appointment of a
successor Trustee to act until such time as a successor is appointed as provided in this Section.
(b) In the event of the resignation or removal of the Trustee or in the event the
Trustee is dissolved or otherwise becomes incapable to act as the Trustee, the Lessee shall be
entitled to appoint a successor Trustee, unless an Event of Default has occurred and is
continuing.
(c) Unless otherwise ordered by a court or regulatory body having competent
jurisdiction, or unless required by law, any successor Trustee shall (i) be a trust company or bank
in good standing and duly authorized to exercise trust powers within the State, (ii) be subject to
examination by a federal or state authority, and (iii) maintain a reported surplus of not less than
$50,000,000.
(d) Every successor Trustee howsoever appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the Lessee an instrument in writing,
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accepting such appointment hereunder, and thereupon such successor Trustee, without further
action, shall become fully vested with all the rights, immunities, powers, trusts, duties and
obligations of its predecessor, and such predecessor shall execute and deliver an instrument
transferring to such successor Trustee all the rights, power and trusts of such predecessor. The
predecessor Trustee shall execute any and all documents necessary or appropriate to convey all
interest it may have to the successor Trustee. The predecessor Trustee shall promptly deliver all
records relating to the trust or copies thereof and communicate all material information it may
have obtained concerning the trust to the successor Trustee.
(e) Each successor Trustee, not later than ten days after its assumption of the duties
hereunder, shall mail a notice of such assumption to each Owner of a Certificate.
(f) Any company into which the Trustee may be merged or converted or with
which it may be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Trustee may sell or
transfer all or substantially all of its corporate trust business, provided such company shall be
eligible as a successor Trustee under Section 9.6 hereof in the case of the Trustee, shall be the
successor to such Trustee, without the execution or filing of any paper or any further act,
anything herein to the contrary notwithstanding.
Section 9.7 Proof of Claim. The Trustee shall have the right and power to take
actions in the name and place of the Lessee or Owners to make proof of claim in any
proceeding, bankruptcy, reorganization or otherwise where proof of claim may be required.
Any amount recovered as a result of any such claim, after payment of all fees (including
reasonable attorneys’ fees), costs, expenses and advances incurred by the Trustee or its agents
in pursuing such claim, shall be for the equal benefit of all of the Owners.
Section 9.8 Trustee’s Fees and Expenses.
(a) The Lessee hereby covenants and agrees (i) to pay as Additional Rent to the
Trustee reasonable compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a trustee of an
express trust), (ii) to reimburse as Additional Rent the Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any
provision of this Trust Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and its agents), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith or willful misconduct or breach of trust, and
(iii) to indemnify and hold the Trustee harmless for, from and against any loss, liability or
expense, arising out of or in connection with the acceptance or administration of this trust or its
duties hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder;
provided, however, that such indemnification shall not extend to claims successfully brought
against the Trustee for, or losses, liabilities or expenses incurred as a result, of the Trustee’s
negligence, bad faith, willful misconduct or breach of trust. The Trustee’s rights to
compensation, reimbursement and indemnity while serving as Trustee hereunder shall survive
resignation or removal of the Trustee or discharge of the Trust Agreement.
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(b) Any provision hereof to the contrary notwithstanding, if the Lessee fails to
make any payment properly due the Trustee for its reasonable fees, costs, expenses and fees of
attorneys, certified public accountants, recognized authorities in their field and agents (not
employees of the Trustee) incurred in performance of its duties or for which the Trustee is
entitled to indemnity, the Trustee may reimburse itself from any surplus moneys on hand in any
fund or account created pursuant hereto, provided that application of funds upon an Event of
Default shall be governed by Section 13.3 hereof.
Section 9.9 Intervention by Trustee. The Trustee may intervene on behalf of the
Owners, and shall intervene if requested by an instrument or instruments in writing signed by
the Owners of not less than a majority in Aggregate Value of the Certificates Outstanding, in
any judicial proceeding to which the Lessee is a party and which in the opinion of the Trustee
and its counsel has a substantial bearing on the interest of Owners of the Certificates. The
rights and obligations of the Trustee under this Section are subject to the approval of that
intervention by a court of competent jurisdiction. The Trustee may require that a satisfactory
indemnity bond be provided to it in accordance with Section 9.1 hereof before it takes action
hereunder.
Section 9.10 Destruction of Certificates. Upon payment of or surrender to the Trustee
for cancellation of any Certificate, the Trustee shall destroy such Certificate.
Section 9.11 Reports. The Trustee shall quarterly, or at such other intervals as the
Trustee and the Lessee shall from time to time agree upon (but in no event less frequently than
semiannually or more frequently than monthly), prepare and submit to the Lessee reports
covering all moneys received and all payments, expenditures and investments made as the
Trustee hereunder since the last previous such report.
Section 9.12 Separate or Co-Trustee.
(a) At any time or times, solely for the purpose of meeting the legal requirements of
any jurisdiction, the Lessee and the Trustee shall have power to appoint, and, upon the request
of the Trustee or the Owners of at least a majority in aggregate principal amount of Certificates
then Outstanding, the Lessee shall for such purpose join with the Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper to appoint,
one or more persons, approved by the Trustee and, unless an Event of Default has occurred and
is continuing by the Lessee, either to act as co-trustee or co-trustees, jointly with the Trustee of
all or any part of the pledged property, or to act as separate trustee or separate trustees of all or
any part of the pledged property, and to vest in such person or persons, in such capacity, such
title to the pledged property or any part thereof, and such rights, powers, duties, trusts or
obligations as the Lessee and the Trustee may consider necessary or desirable, subject to the
remaining provisions of this Section.
(b) If the Lessee shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, or in case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have power to make such appointment.
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(c) The Lessee shall execute, acknowledge and deliver all such instruments as may
reasonably be required by any such co-trustee or separate trustee for more fully and certainly
vesting in such co-trustee or separate trustee the property, rights, powers and duties intended to
be vested in such co-trustee or separate trustee. The Lessee shall be under no obligation to
prepare any such instruments.
(d) Every co-trustee or separate trustee shall, to the extent permitted by law but to
such extent only, be appointed subject to the following terms, namely:
(i) The Certificates shall be authenticated and delivered, and all rights,
powers, trusts, duties and obligations hereby conferred upon the trustee in respect to the
custody, control and management of moneys, papers, securities and other personal
property shall be exercised solely by the trustee.
(ii) All rights, powers, trusts, duties and obligations conferred or imposed
upon the trustees shall be conferred or imposed upon and exercised or performed by the
Trustee, or by the Trustee and such co-trustee or co-trustees or separate trustee or
separate trustees jointly, as shall be provided in the instrument appointing such co-
trustee or co-trustees or separate trustee or separate trustees, except to the extent that,
under the law of any jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or acts, in which
event such act or acts shall be performed by such co-trustee or co-trustees or separate
trustee or separate trustees.
(iii) Any request in writing by the Trustee to any co-trustee or separate trustee
to take or to refrain from taking any action hereunder shall be sufficient warrant for the
taking, or the refraining from taking, of such action by such co-trustee or separate trustee
and such co-trustee or separate trustee shall abide by such request.
(iv) Any co-trustee or separate trustee may, to the extent permitted by law,
delegate to the Trustee the exercise of any right, power, trust, duty or obligation,
discretionary or otherwise.
(v) The Trustee may at any time, by any instrument in writing, with the
concurrence of the Lessee, accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Event of Default shall have
occurred and be continuing, the Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the concurrence of the Lessee.
Upon the request of the Trustee, the Lessee shall join with the Trustee in the execution,
delivery and performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. The Lessee shall be under no obligation to
prepare, record or file any such instruments or agreements.
(vi) No Trustee hereunder shall be personally liable by reason of any act or
omission of any other Trustee hereunder, nor will the act or omission of any Trustee
hereunder be imputed to any other Trustee.
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(vii) Any demand, request, direction, appointment, removal, notice, consent,
waiver or other action in writing delivered to the Trustee shall be deemed to have been
delivered to each such co-trustee or separate trustee.
(viii) Any moneys, papers, securities or other items of personal property
received by any such co-trustee or separate trustee hereunder shall forthwith, so far as
may be permitted by law, be turned over to the Trustee.
(e) Upon the acceptance in writing of such appointment by any such co-trustee or
separate trustee, it or he shall be vested jointly with the Trustee (except insofar as local law
makes it necessary for any such co-trustee or separate trustee to act alone) with such title to the
pledged property or any part thereof, and with such rights, powers, duties or obligations, as
shall be specified in the instrument of appointment subject to all the terms hereof. Every such
acceptance shall be filed with the Trustee. To the extent permitted by law, any co-trustee or
separate trustee may, at any time by an instrument in writing, constitute the Trustee, its or his
attorney-in-fact and agent, with full power and authority to do all acts and things and to
exercise all discretion on its or his behalf and in its or his name.
(f) In case any co-trustee or separate trustee shall die, become incapable of acting,
resign or be removed, the title to the pledged property, and all rights, powers, trusts, duties and
obligations of said co-trustee or separate trustee shall, so far as permitted by law, vest in and be
exercised by the trustee unless and until a successor co-trustee or separate trustee shall be
appointed in the manner herein provided.
Section 9.13 Recitals and Representations.
(a) The recitals, statements and representations contained herein or in the Lease, or
in any certificate (excluding the Trustee’s execution of the Certificates or any recitals or
representations concerning the Trustee or its powers) shall not be taken or construed as made
by the Trustee, and the Trustee neither assumes nor shall be under any responsibility for the
correctness of the same.
(b) The Trustee makes no representation as to, and is not responsible for, the
validity or sufficiency hereof, of the Certificates, or the validity or sufficiency of insurance to
be provided or, except as herein required, the filing or recording or registering of any
document. The Trustee shall be deemed not to have made representations as to the security
afforded hereby or hereunder or as to the validity or sufficiency of such security. The Trustee
shall not be concerned with or accountable to anyone for the use or application of any moneys
which shall be released or withdrawn in accordance with the provisions hereof. The Trustee
shall have no duty of inquiry with respect to any default or Events of Default described herein
without actual knowledge of or receipt by the Trustee of written notice of a default or an Event
of Default from the Lessee, any Owner.
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ARTICLE X
MODIFICATION OR AMENDMENT OF AGREEMENTS
Section 10.1 Amendments Permitted.
(a) This Trust Agreement, the rights and obligations of the Owners of the
Certificates, and the Ground Lease and the Lease and the rights and obligations of the parties
thereto, may be modified or amended at any time by a supplemental agreement which shall
become effective when the written consent of the Owners of a majority in Aggregate Value of
the Certificates then Outstanding, exclusive of Certificates disqualified as provided in Section
10.3 hereof, shall have been filed with the Trustee, provided, however, that no such
modification or amendment shall (i) extend or have the effect of extending the fixed maturity
of any Certificate or reducing the interest rate with respect thereto or extending the time of
payment of interest, reducing the amount of principal thereof or reducing any premium payable
upon the redemption thereof, without the express consent of the Owner of such Certificate, (ii)
reduce or have the effect of reducing the percentage of Certificates required for the affirmative
vote or written consent to an amendment or modification of the Ground Lease, the Lease or
this Trust Agreement, or (iii) modify any of the rights or obligations of the Trustee without its
written assent thereto. Any such supplemental agreement shall become effective as provided
in Section 10.2 hereof.
(b) This Trust Agreement, the rights and obligations of the Owners of the
Certificates, and the Ground Lease and the Lease and the rights and obligations of the parties
thereto, may be modified or amended at any time by a supplemental agreement, without the
consent of any Owners of the Certificates, but only to the extent permitted by law and only (i)
to add to the covenants and agreements of any party other covenants to be observed or to
surrender any right or power herein reserved to the Lessor or the Lessee, (ii) to cure, correct or
supplement any ambiguous or defective provision contained herein or therein, (iii) in regard to
questions arising hereunder or thereunder, as the parties hereto or thereto may deem necessary
or desirable and which shall not, in the judgment of the Trustee, materially adversely affect the
interests of the Owners of the Certificates, or (iv) to provide additional terms and conditions in
connection with the issuance of Additional Certificates in accordance with Section 2.11 hereof
and which shall not, in the judgment of the Trustee, materially adversely affect the interests of
the Owners of the Certificates. Any such supplemental agreement shall become effective upon
execution and delivery by the parties hereto or thereto as the case may be.
Section 10.2 Procedure for Amendment with Written Consent of Certificate Owners.
(a) This Trust Agreement, the Ground Lease and the Lease may be amended by
supplemental agreement as provided in this Section 10.2 in the event the consent of the Owners
of the Certificates is required pursuant to Section 10.1 hereof. A copy of such supplemental
agreement, together with a request to the Certificate Owners for their consent thereto, shall be
mailed by first class United States mail postage prepaid by the Trustee to each Owner of a
Certificate at his address as set forth on the Certificate Register maintained pursuant to Section
2.10 hereof, but failure to mail copies of such supplemental agreement and request shall not
affect the validity of the supplemental agreement when assented to as in this Section provided.
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(b) Such supplemental agreement shall not become effective unless there shall be
filed with the Trustee the written consents of the Owners of a majority in Aggregate Value of
the Certificates then Outstanding (exclusive of Certificates disqualified as provided in Section
10.3 hereof) and a notice shall have been mailed as hereinafter in this Section provided. The
consent of an Owner of a Certificate shall be effective only if ownership of the Certificates for
which such consent is given is proved in accordance with Section 2.9 hereof. Any such
consent shall be binding upon the Owner of the Certificate giving such consent and on any
subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such
consent is revoked in writing by the Owner giving such consent or a subsequent Owner by
filing such revocation with the Trustee prior to the date when the notice hereinafter in this
Section provided for has been mailed.
(c) After the Owners of the required percentage of Certificates shall have filed their
consents to such supplemental agreement, the Trustee shall mail a notice to the Owners of the
Certificates in the manner hereinbefore provided in this Section for the mailing of such
supplemental agreement of the notice of adoption thereof, stating in substance that such
supplemental agreement has been consented to by the Owners of the required percentage of
Certificates and will be effective as provided in this Section (but failure to mail copies of said
notice shall not affect the validity of such supplemental agreement or consents thereto). A
record, consisting of the papers required by this Section to be filed with the Trustee, shall be
conclusive proof of the matters therein stated. Such supplemental agreement shall become
effective upon the mailing of such last-mentioned notice, and such supplemental agreement
shall be deemed conclusively binding upon the parties hereto and the Owners of all Certificates
at the expiration of sixty (60) days after the filing of the papers required by this Section, except
in the event of a final decree of a court of competent jurisdiction setting aside such consent in a
legal action or equitable proceeding for such purpose commenced within such sixty (60) day
period.
Section 10.3 Disqualified Certificates. Certificates owned or held by or for the
account of the Lessee or by any person directly or indirectly controlled by, or under direct or
indirect common control with, the Lessee (except any Certificates held in any pension or
retirement fund) shall not be deemed Outstanding for the purpose of any vote, consent, waiver
or other action or any calculation of Outstanding Certificates provided for in this Trust
Agreement and shall not be entitled to vote upon, consent to or take any other action provided
for in this Trust Agreement.
Section 10.4 Effect of Supplemental Agreement.
(a) From and after the time any supplemental agreement becomes effective
pursuant to this Article X, this Trust Agreement, the Ground Lease or the Lease, as the case
may be, shall be deemed to be modified and amended in accordance therewith, the respective
rights, duties and obligations of the parties hereto or thereto and all Owners of Certificates
Outstanding, as the case may be, shall thereafter be determined, exercised and enforced
hereunder, subject in all respects to such modification and amendment, and all the terms and
conditions of any supplemental agreement shall be deemed to be part of the terms and
conditions of this Trust Agreement, the Ground Lease or the Lease, as the case may be, for any
and all purposes.
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(b) The Trustee may require each Certificate Owner, before his consent provided
for in this Article X shall be deemed effective, to certify that the Certificates as to which such
consent is given are not disqualified as provided in Section 10.3 hereof.
Section 10.5 Endorsement or Replacement of Certificates Delivered After
Amendments. The Trustee may determine that Certificates delivered after the effective date of
any action taken as provided in this Article X shall bear a notation, by endorsement or
otherwise, in form approved by the Trustee, as to such action. No such notation shall be made
by the Trustee unless the Trustee shall have received an opinion of Bond Counsel to the effect
that such modification of the Certificate form will not adversely effect the exclusion from gross
income for federal income tax purposes of the interest component of Lease Payments paid with
respect to the Certificates. In that case, upon demand of the Owner of any Certificate
Outstanding at such effective date and presentation of his Certificate for such purpose at the
principal corporate trust office of the Trustee, a suitable notation shall be made on such
Certificate. The Trustee may determine that the delivery of substitute Certificates, so modified
as in the opinion of the Trustee is necessary to conform to such Certificate Owners’ action, is
necessary and such substitute Certificates shall thereupon be prepared, executed and delivered.
In that case, upon demand of the Owner of any Certificate then Outstanding, such substitute
Certificate shall be exchanged at the principal corporate trust office of the Trustee, without cost
to such Owner, for a Certificate of the same character then Outstanding, upon surrender of such
Outstanding Certificate.
Section 10.6 Amendatory Endorsement of Certificates. The provisions of this Article
X shall not prevent any Certificate Owner from accepting any amendment as to the particular
Certificates held by him, provided that proper notation thereof is made on such Certificates.
ARTICLE XI
COVENANTS
Section 11.1 Compliance With and Enforcement of Lease. The Lessee covenants and
agrees with the Owners of the Certificates to perform all obligations and duties imposed on it
under the Lease. Subject to Section 4.2(b) of the Lease, the Lessee will not do or permit
anything to be done, or omit or refrain from doing anything, in any case where any such act
done or permitted to be done, or any such omission of or refraining from action, would or
might be a ground for cancellation or termination of the Lease by the Lessor thereunder. The
Lessor and the Lessee, immediately upon receiving or giving any notice, communication or
other document in any way relating to or affecting their respective estates, or either of them, in
the Leased Property, which may or can in any manner affect such estate of the Lessee, will
deliver the same, or a copy thereof, to the Trustee.
Section 11.2 Observance of Laws and Regulations. The Lessee will well and truly
keep, observe and perform all valid and lawful obligations or regulations now or hereafter
imposed on it by contract or prescribed by any law of the United States, of the State or by any
officer, board or commission having jurisdiction or control, as a condition of the continued
enjoyment of any and every right, privilege or franchise now owned or hereafter acquired by
the Lessee, including its right to exist as a body corporate under the laws of the State, to the
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end that such rights, privileges and franchises shall be maintained and preserved and shall not
become abandoned, forfeited or in any manner impaired.
Section 11.3 Prosecution and Defense of Suits. The Lessee shall promptly, upon
request of the Trustee or any Certificate Owner, from time to time take such action as may be
necessary or proper to remedy or cure any defect in or cloud upon the title to the Leased
Property, whether now existing or hereafter developing and shall prosecute all such suits,
actions and other proceedings as may be appropriate for such purpose and, to the extent
permitted by law, shall indemnify and save the Trustee and every Certificate Owner harmless
for, from and against all loss, cost, damage and expense, including attorneys’ fees, which they
or any of them may incur by reason of any such defect, cloud, suit, action or proceeding.
Section 11.4 Recordation and Filing. The Lessee shall record and file the Lease, and
all such documents as may be required by law (and shall take all further actions which may be
necessary or be reasonably required by the Trustee), all in such manner, at such times and in
such places as may be required by law in order fully to preserve, protect and perfect the
security of the Trustee and the Certificate Owners.
Section 11.5 Further Assurances. The Lessor and the Lessee will make, execute and
deliver any and all such further resolutions, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance of this Trust
Agreement and the Lease, and for the better assuring and confirming unto the Owners of the
Certificates the rights and benefits provided herein.
Section 11.6 Action Upon Termination of Lease. In the event the Lease is terminated
pursuant to Section 4.2(b) thereof, the Trustee shall take possession of the Leased Property on
the day following the forty-five (45) day reinstatement period provided in Section 4.2(c) of the
Lease or seek a judicial order excluding, or take other action preventing, the Lessee from using
the Leased Property and use its best efforts to re-let or sell the same. This covenant shall be
enforceable by the Owners (subject to the requirements set forth in Section 13.8 hereof).
ARTICLE XII
LIMITATION OF LIABILITY
Section 12.1 Limited Liability of Lessee. Except for the payment of Lease Payments
and Prepayments when due in accordance with the Lease and the payment of Additional Rent
and the performance of the other covenants and agreements of the Lessee contained in said
Lease, including the payment of fees and expenses and indemnities of the Trustee, the Lessee
shall have no pecuniary obligation or liability to any of the other parties or to the Owners of the
Certificates with respect to this Trust Agreement or the terms, execution, delivery or transfer of
the Certificates, or the distribution of Lease Payments to the Owners by the Trustee.
Section 12.2 No Liability of the Lessee for Trustee Performance. The Lessee shall
have no obligation or liability to any of the other parties or to the Owners of the Certificates
with respect to the performance by the Trustee of any duty imposed upon it under this Trust
Agreement.
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Section 12.3 Indemnification. To the extent permitted by law, the Lessee agrees to
indemnify and save the Trustee harmless for, from and against (i) all claims, suits and actions
brought against it, or to which it is made a party, and from all losses and damages and
expenses, including attorneys’ fees, suffered or incurred by it as a result thereof, where and to
the extent such claim, suit or action arises out of the actions of any other party to this Trust
Agreement including but not limited to the ownership, operation or use of the Leased Property
by the Lessee, and (ii) any taxes required to be paid by the Trustee as a result of the receipt of
any amounts under the Lease. Such indemnification shall not extend to claims, suits and
actions successfully brought against the Trustee for failure to perform and carry out the duties
specifically imposed upon and to be performed by it pursuant to this Trust Agreement. In the
event the Lessee is required to indemnify the Trustee as herein provided, the Lessee shall be
subrogated to the rights of the Trustee to recover such losses or damages from any other person
or entity.
Section 12.4 Opinion of Counsel. Before being required to take any action, the
Trustee may require an opinion of Independent Counsel acceptable to the Trustee, which
opinion shall be made available to the other parties hereto upon request, which counsel may be
counsel to any of the parties hereto, or a verified certificate of any party hereto, or both,
concerning the proposed action. If it does so in good faith, Trustee shall be absolutely
protected in relying thereon.
Section 12.5 Limitation of Rights to Parties and Certificate Owners. Nothing in this
Trust Agreement or in the Certificates expressed or implied is intended or shall be construed to
give any person other than the Lessee, the Lessor, the Trustee and the Owners of the
Certificates, any legal or equitable right, remedy or claim under or in respect of this Trust
Agreement or any covenant, condition or provision hereof, and all such covenants, conditions
and provisions are and shall be for the sole and exclusive benefit of the Lessee, the Lessor, the
Trustee and said Owners.
Section 12.6 No Liability of the Trustee for Payment of Lease Payments by Lessee.
Except as expressly provided herein, the Trustee shall have no obligation or liability to the
Owners of the Certificates with respect to the payment of the Lease Payments by the Lessee
when due, or with respect to the performance by the Lessee of any other covenant made by it in
the Lease.
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES
OF CERTIFICATE OWNERS
Section 13.1 Rights Under the Lease. The Trustee has the right to exercise such rights
and remedies conferred on the Lessor pursuant to the Lease as may be necessary or convenient
(i) to enforce payment of the Lease Payments, Additional Rent, Prepayments and any other
amounts required to be deposited in the Lease Payment Fund, the Rebate Fund or the Insurance
and Condemnation Fund, and (ii) to otherwise exercise the Lessor’s rights and take any action
to protect the interests of the Trustee or the Certificate Owners in an Event of Default.
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Section 13.2 Remedies. If an Event of Default shall happen, then and in each and
every such case during the continuance of such Event of Default, the Trustee (i) shall take
action to exclude the Lessee from the Leased Property, and (ii) may with the prior written
consent of the Owners of not less than five percent in aggregate principal amount of
Certificates then Outstanding, shall exercise any and all other remedies available pursuant to
law or granted pursuant to the Lease including the option to re-rent or re-lease all or any
portion of the Leased Property pursuant to Article IX thereof. Upon the occurrence and
continuance of any Event of Default, the Trustee may with the prior written consent of the
Owners of not less than five percent in aggregate principal amount of Certificates then
Outstanding, shall, declare the principal amount of the Certificates then Outstanding to be
immediately due and payable, whereupon such principal amount shall, without further action,
become and be immediately due and payable, anything in this Trust Agreement or in the
Certificates to the contrary notwithstanding; provided, however, that no such acceleration shall
change or otherwise affect the Lessee’s obligation under the Lease to pay Lease Payments and
Additional Rent only during the term of the Lease and in the amounts and at the times as
provided in the Lease. The Trustee shall give notice of such declaration of acceleration to the
Lessee and shall give notice thereof by first-class mail to Owners of all Certificates then
Outstanding.
Section 13.3 Application of Funds. Upon an Event of Default, all moneys received by
the Trustee pursuant to any right given or action taken under the provisions of this Article XIII
or Article IX of the Lease shall be applied by the Trustee in the order following upon
presentation of the Certificates, and the stamping thereon of the payment if only partially paid,
or upon the surrender thereof if fully paid:
First, to the payment of the ordinary and extraordinary fees and the costs and
expenses of the Trustee in declaring and pursuing remedies in connection with such
Event of Default, including reasonable compensation to its or their agents, attorneys and
counsel;
Second, to the payment of amounts, if any, payable pursuant to the Tax
Compliance Certificate;
Third, to the payment of the whole amount then owing and unpaid with respect to
the Certificates, whether by acceleration or otherwise, for principal and interest, with
interest on the overdue principal and, to the extent lawful, installments of interest at the
rate of ten percent per annum (but such interest on overdue installments of interest shall
be paid only to the extent funds are available therefor following payment of principal and
interest and interest on overdue principal), and in case such moneys shall be insufficient
to pay in full the whole amount so owing and unpaid with respect to the Certificates, then
to the payment of such principal and interest without preference or priority of principal
over interest, or of interest over principal, or of any installment of interest over any other
installment of interest, ratably to the aggregate of such principal and interest.
Section 13.4 Institution of Legal Proceedings. If one or more Events of Default shall
happen and be continuing, the Trustee in its discretion may with the prior written consent of
the Owners of a majority in Aggregate Value of the Certificates shall proceed to protect or
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enforce its rights or the rights of the Owners of Certificates by a suit in equity or action at law,
either for the specific performance of any covenant or agreement contained herein, the
foreclosure of any lien granted herein, or in aid of the execution of any power herein granted,
or by mandamus or other appropriate proceeding for the enforcement of any other legal or
equitable remedy as the Trustee shall deem most effectual in support of any of its rights or
duties hereunder.
Section 13.5 Non-waiver. Nothing in this Article XIII or in any other provision of
this Trust Agreement or in the Certificates, shall affect or impair the obligation of the Lessee,
which is absolute and unconditional, to pay or prepay the Lease Payments and Additional Rent
as provided in the Lease, or affect or impair the right of action, which is also absolute and
unconditional, of the Certificate Owners to institute suit to enforce and collect such payment.
No delay or omission of the Trustee or of any Owner of any of the Certificates to exercise any
right or power arising upon the happening of any Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default or an acquiescence
therein, and every power and remedy given by this Article XIII to the Trustee or the Owners of
Certificates may be exercised from time to time and as often as shall be deemed expedient by
the Trustee or the Certificate Owners.
Section 13.6 Remedies Not Exclusive. No remedy herein conferred upon or reserved
to the Trustee or to the Certificate Owners is intended to be exclusive of any other remedy, and
every such remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing, at law or in equity or by statute or otherwise.
Section 13.7 Power of Trustee to Control Proceedings. In the event that the Trustee,
upon the happening of an Event of Default, shall have taken any action, by judicial proceedings
or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the
request of the Owners of a majority in Aggregate Value of the Certificates then Outstanding, it
shall have full power, in the exercise of its discretion for the best interests of the Owners of the
Certificates, with respect to the continuance, discontinuance, withdrawal, compromise,
settlement or other disposal of such action; provided, however, that the Trustee shall not
discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at
law or in equity, without the consent of the Owners of a majority in Aggregate Value of the
Certificates.
Section 13.8 Limitation on Certificate Owners’ Right to Sue.
(a) No Owner of any Certificate issued hereunder shall have the right to institute
any suit, action or proceeding at law or in equity, for any remedy under or upon this Trust
Agreement, unless (i) such Owner shall have previously given to the Trustee written notice of
the occurrence of an Event of Default hereunder, (ii) the Owners of at least a majority in
Aggregate Value of all the Certificates then Outstanding shall have made written request upon
the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name, (iii) said Owners shall have tendered to the Trustee reasonable
indemnity against the costs, expenses, and liabilities to be incurred in compliance with such
request, and (iv) the Trustee shall have refused or omitted to comply with such request for a
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period of sixty (60) days after such written request shall have been received by, and said tender
of indemnity shall have been made to, the Trustee.
(b) Such notification, request, tender of indemnity and refusal or omission are
hereby declared, in every case, to be conditions precedent to the exercise by any Owner of
Certificates of any remedy hereunder; it being understood and intended that no one or more
Owners of Certificates shall have any right in any manner whatever by his or their action to
enforce any right under this Trust Agreement, except in the manner herein provided, and that
all proceedings at law or in equity with respect to an Event of Default shall be instituted, had
and maintained in the manner herein provided and for the equal benefit of all Owners of the
Outstanding Certificates.
(c) The right of any Owner of any Certificate to receive payment of said Owner’s
proportionate interest in the Lease Payments as the same become due or to institute suit for the
enforcement of such payment, shall not be impaired or affected without the consent of such
Owner, notwithstanding the foregoing provisions of this Section or any other provision of this
Trust Agreement.
Section 13.9 Notice of Default.
(a) Within 30 days after (i) the occurrence of an Event of Default under clause (iii)
of the definition thereof in the Lease, or (ii) receipt, in writing or otherwise, by the Trustee of
actual knowledge or notice of an Event of Default under clauses (i) or (ii) of the definition
thereof, the Trustee shall give written notice thereof by first-class mail to each Owner of a
Certificate then Outstanding, unless such Event of Default shall have theretofore been cured;
provided that, except in the case of a default in the payment of principal or the redemption
price of or interest on any of the Certificates, the Trustee may withhold such notice if, in its
sole judgment, it determines that the withholding of such notice is in the best interests of the
Owners.
(b) The Trustee shall immediately notify the Lessee of (i) the occurrence of an
Event of Default under clause (iii) of the definition thereof, and (ii) when the Trustee has
received actual knowledge or notice, in writing or otherwise, of an Event of Default under
clause (i) or (ii) of the definition thereof.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Defeasance.
(a) If and when any Outstanding Certificates shall be paid and discharged in any
one or more of the following ways:
(i) By well and truly paying or causing to be paid the principal of and interest
and redemption premiums (if any) with respect to such Certificates Outstanding, as and
when the same become due and payable;
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(ii) By making an irrevocable deposit with the Trustee, in trust, at or before
maturity, of money which, together with the amounts then on deposit in the Lease
Payment Fund is fully sufficient to pay such Certificates Outstanding, including all
principal of and interest and premium, if any;
(iii) By making an irrevocable deposit with the Trustee, in trust, of Defeasance
Obligations, together with other money, if required, in such amount as will, in the
opinion of an independent certified public accountant acceptable to the Trustee, together
with the interest to accrue thereon, but without reinvestment thereof, and amounts then
on deposit in the Lease Payment Fund together with the interest to accrue thereon, but
without reinvestment, be fully sufficient to pay and discharge such Certificates
(including all principal, interest and redemption premiums) at or before their respective
maturity dates and pay all unpaid Additional Rent; or
(iv) By making an irrevocable deposit with the Trustee, under an escrow
deposit and trust agreement, of security for the payment of Lease Payments and
Additional Rent as more particularly described in Section 10.1 of the Lease, said security
to be held by the Trustee as agent for the Lessee to be applied by the Trustee to pay the
Lease Payments and Additional Rent as the same become due and payable and make a
Prepayment in full on any Prepayment Date, pursuant to Section 10.1 of the Lease;
notwithstanding that any Certificates shall not have been surrendered for payment, all
obligations of the Lessor, the Trustee and the Lessee with respect to such Outstanding
Certificates shall cease and terminate, except only the obligation of the Trustee to pay or cause
to be paid, from Lease Payments paid by or on behalf of the Lessee from funds deposited
pursuant to subsection (a) of this Section, to the Owners of the Certificates not so surrendered
and paid all sums due with respect thereto, and in the event of deposits pursuant to subsection
(a), the Certificates shall continue to represent direct and proportionate interests of the Owners
thereof in Lease Payments under the Lease.
(b) Other than as required by the Tax Compliance Certificate, any funds held by the
Trustee, at the time of one of the events described in subsection (a), of this Section, which are
not required for the payment to be made to Owners, shall first be applied to the payment of
Additional Rent and, thereafter, be paid over to the Lessee, subject to Section 9.8 hereof.
(c) Any Certificate or portion thereof in authorized denominations may be paid and
discharged as provided in this Section; provided, however, that if any such Certificate or
portion thereof is to be redeemed, notice of such redemption shall have been given in
accordance with the provisions hereof or the Lessee shall have submitted to the Trustee
instructions expressed to be irrevocable as to the date upon which such Certificate or portion
thereof is to be redeemed and as to the giving of notice of such redemption; provided further,
that if any such Certificate or portion thereof will not mature or be redeemed within sixty (60)
days of the deposit referred to in subsection (a) of this Section, the Trustee shall give notice of
such deposit by first class mail to the Owners.
(d) If the Lessee prepays the Lease Payments and Additional Rent in full pursuant
to Article X of the Lease, makes the advance deposit required by Section 10.1 of the Lease or
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pays all Lease Payments and Additional Rent during the term of the Lease as the same become
due and payable, all right, title and interest of the Trustee and the Lessor in and to each element
of the Leased Property shall be transferred to and vested in the Lessee. Title shall be
transferred to and vested in the Lessee hereunder without the necessity for any further
instrument of transfer; but the Trustee and the Lessor agree to take any and all steps and
execute and record any and all documents reasonably required by the Lessee to consummate
such transfer of title.
Section 14.2 Records. The Trustee shall keep complete and accurate records of all
moneys received and disbursed under this Trust Agreement, which shall be available for
inspection by the Lessee and any Owner, or the agent of any of them, at any time during
regular business hours of the corporate trust department of the Trustee.
Section 14.3 Notices. Except as expressly provided otherwise in this Trust
Agreement, all notices or other communications required or permitted under this Trust
Agreement must be in writing and will be deemed sufficiently given if sent (i) by facsimile or
electronic mail with prompt telephonic confirmation of receipt; or (ii) personally by hand
(whether by messenger, telegram or otherwise); by overnight delivery service; or by first class
mail, postage prepaid and addressed as shown below or at such address as the party may
provide to the other party in writing from time to time, and shall be deemed to have been
received except that notice to the Lessor or the Trustee shall be effective only upon receipt by
an officer responsible for the performance of duties and obligations under this Trust
Agreement.
If to the Lessee:
Maricopa County, Arizona
301 W. Jefferson, Suite 960
Phoenix, AZ 85003-2906
Attention: Chief Financial Officer
Fax: (602) 506-3439
If to Trustee:
___________________________
___________________________
___________________________
Attention: Corporate Trust
Fax: (___) __________________
Section 14.4 Governing Law. This Trust Agreement shall be construed and governed
in accordance with the laws of the State.
Section 14.5 Binding Effect; Successors. This Trust Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and assigns. Whenever in
this Trust Agreement either the Lessor, the Lessee or the Trustee is named or referred to, such
reference shall be deemed to include successors or assigns thereof, and all the covenants and
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agreements in this Trust Agreement contained by or on behalf of the Lessor, the Lessee or the
Trustee shall bind and inure to the benefit of the respective successors and assigns thereof
whether so expressed or not.
Section 14.6 Execution in Counterparts. This Trust Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute but one
and the same agreement.
Section 14.7 Destruction of Cancelled Certificates. Whenever in this Trust
Agreement provision is made for the surrender to or cancellation by the Trustee and the
delivery to the Lessee of any Certificates, the Trustee may, upon the request of the Lessee
Representative, in lieu of such cancellation and delivery, destroy such Certificates and deliver a
certificate of such destruction to the Lessee.
Section 14.8 Headings. The headings or titles of the several Articles and Sections
hereof, and any table of contents appended to copies hereof, shall be solely for convenience of
reference and shall not affect the meaning, construction or effect of this Trust Agreement. All
references herein to “Articles,” “Sections,” and other subdivisions are to the corresponding
Articles, Sections or subdivisions of this Trust Agreement, and the words “herein,” “hereof,”
“hereunder” and other words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or subdivision hereof.
Section 14.9 Waiver of Notice. Whenever in this Trust Agreement the giving of
notice by mail or otherwise is required, the giving of much notice may be waived in writing by
the person entitled to receive such notice and in any case the giving or receipt of such notice
shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 14.10 Severability of Invalid Provisions. In case any one or more of the
provisions contained in this Trust Agreement or in the Certificates shall for any reason be held
to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or
unenforceability shall not affect any other provision of this Trust Agreement, and this Trust
Agreement shall be construed as if such invalid or illegal or unenforceable provision had never
been contained herein. The parties hereto hereby declare that they would have entered into this
Trust Agreement and each and every other section, paragraph, sentence, clause or phrase
hereof and authorized the delivery of the Certificates pursuant thereto irrespective of the fact
that any one or more sections, paragraphs, sentences, clauses or phrases of this Trust
Agreement may be held illegal, invalid or unenforceable.
Section 14.11 Cancellation of Contracts. As required by the provisions of Arizona
Revised Statutes Section 38-511, as amended, notice is hereby given that the Lessee may
cancel any contract, without penalty or further obligation, made by the Lessee if any person
significantly involved in initiating, negotiating, securing, drafting or creating the contract on
behalf of the Lessee is, at any time while the contract or any extension of the contract is in
effect, an employee of any other party to the contract in any capacity or a consultant to any
other party of the contract with respect to the subject matter of the contract. The cancellation
shall be effective when written notice from the Lessee’s Board is received by all other parties
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to the contract unless the notice specifies a later time. All parties represent that to the best of
their knowledge, no basis exists for the Lessee to cancel this Trust Agreement pursuant to
Arizona Revised Statutes Section 38-511 as of the date hereof. The Trustee covenants not to
employ as an employee, an agent or, with respect to the subject matter of this Trust Agreement,
a consultant, any person significantly involved in initiating, negotiating, securing, drafting or
creating this Trust Agreement on behalf of the Lessee within 3 years from execution of this
Trust Agreement, unless a waiver of A.R.S. §38-511 is provided by the Lessee’s Board.
[Signature page follows]
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The parties are signing this Trust Agreement as of the date stated in the introductory
clause.
______________________________, as Trustee
By:
Authorized Officer
MARICOPA COUNTY, ARIZONA, as Lessee
By:
Title:
APPROVED AS TO FORM:
SQUIRE PATTON BOGGS (US) LLP,
Bond Counsel
By:
[Signature page to Trust Agreement]
003-8069-8354/3

STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ___ day of ____________, 2015 before me, the undersigned Notary Public,
personally appeared ___________________, who acknowledged himself to be a _____________
of ____________________ a national banking association organized and existing under the laws
of the United States of America, and that he, as such officer, being authorized so to do, executed
the foregoing Trust Agreement for the purposes therein contained by signing the name of the
association by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
____________________________________
Notary Public
My Commission Expires:
_____________________
[Trustee notarization page to Trust Agreement]
003-8069-8354/3

STATE OF ARIZONA )
) ss.
County of Maricopa )
On this, the ___ day of _____________, 2015 before me, the undersigned Notary Public,
personally appeared Steve Chucri, who acknowledged himself to be Chairman of the Board of
Supervisors of the Maricopa County, Arizona, and that he, as such officer, being authorized so to
do, executed the foregoing Trust Agreement for the purposes therein contained by signing the
name of said County by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
____________________________________
Notary Public
My Commission Expires:
_____________________
[County notarization page to Trust Agreement]
003-8069-8354/3

EXHIBIT A
FORM OF 2015 CERTIFICATE OF PARTICIPATION
CERTIFICATE OF PARTICIPATION, SERIES 2015
Evidencing a Proportionate Interest of the Owner
Hereof in Lease Payments to be Made by
MARICOPA COUNTY, ARIZONA
No. R- $
Interest Rate Maturity Date Dated Date CUSIP
% _________, 20__ ________ ___________
Registered Owner: Cede & Co.
Principal Amount:
THIS IS TO CERTIFY that the Registered Owner identified above, or registered assigns,
as the Registered Owner of this Certificate of Participation, Series 2015 (the “2015 Certificate”)
is the owner of an undivided proportionate interest in the right to receive certain Lease Payments
and Prepayments thereof under and defined in that certain Lease, dated as of ____________,
2015 (the “Lease”), between ___________________, as trustee (the “Lessor”) and MARICOPA
COUNTY, ARIZONA (the “Lessee”), which Lease Payments and Prepayments and certain other
rights and interests under the Lease are held by __________________, as trustee (the “Trustee”),
at its designated corporate trust office.
The Registered Owner of this 2015 Certificate is entitled to receive, subject to the terms
of the Lease, a portion of the Lease Payments designated as principal coming due during the
preceding twelve months, and to receive on ____________, 20__, and on the first Business Day
of each month thereafter, the Registered Owner’s proportionate share of the Lease Payments
designated as interest coming due preceding each of the Interest Payment Dates; provided that
interest with respect hereto shall be payable from the Interest Payment Date next preceding the
date of execution of this 2015 Certificate (unless (i) this 2015 Certificate is executed prior to
____________, 2015, in which event interest shall be payable from the Dated Date identified
above, (ii) this 2015 Certificate is executed on an Interest Payment Date, in which event interest
shall be payable from such Interest Payment Date, or (iii) this 2015 Certificate is executed after
the close of business on the fifteenth (15th) day of the month preceding an Interest Payment
Date, whether or not such fifteenth day is a Business Day, in which event interest shall be
payable from such Interest Payment Date). If, as of the date of execution hereof, interest is in
default with respect to any 2015 Certificates of the issue of which this is one, interest hereon
shall be payable from the Interest Payment Date to which interest has previously been paid or
made available for payment, or, if prior to ____________, 2015, interest shall be payable from
the Dated Date identified above, unless this 2015 Certificate is executed after a Special Record
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Date (as defined in the hereinafter-described Trust Agreement) and before the following Special
Interest Payment Date (as defined in the Trust Agreement), in which event interest shall be
payable from the scheduled Interest Payment Date next preceding such date of execution. Said
proportionate share of the portion of the Lease Payments designated as interest is the result of the
multiplication of the aforesaid portion of the Lease Payments designated as principal by the rate
per annum set forth above.
Said amounts representing the Registered Owner’s share of the Lease Payments
designated as interest are payable in lawful money of the United States of America, unless a wire
transfer is elected as described below, by check or draft mailed by the Trustee on each Interest
payment Date to the Registered Owner at the close of business on the fifteenth (15th) day of the
month preceding such Interest Payment Date (the “Record Date”), whether or not such fifteenth
day is a Business Day, at his address as it appears on the registration books of the Trustee or at
such other address as he may have filed with the Trustee for that purpose. Payment of portions
of overdue Lease Payments designated as interest shall be made on Special Interest Payment
Dates designated by the Trustee to the Registered Owner hereof as of the Special Record Date
designated by the Trustee. A Registered Owner of $1,000,000 or more in aggregate principal
amount of 2015 Certificates as of the close of business of the Trustee on the Record Date for a
particular Interest Payment Date or, if applicable, the Special Record Date for a particular
Special Interest Payment Date, may request interest to be paid by wire transfer in immediately
available funds sent (at the Registered Owner’s expense) on the Interest Payment Date or Special
Interest Payment Date to such Registered Owner in accordance with written notice from such
Registered Owner containing the wire transfer address (which shall be in the continental United
States) to which such Registered Owner wishes to have such wire transfer directed, which
written notice is received not later than five days prior to the Record Date with respect to such
Interest Payment Date or, if applicable, the Special Record Date for such Special Interest
Payment Date. Said amounts representing the Registered Owner’s share of the Lease Payments
designated as principal due at final maturity are payable when due upon surrender of this 2015
Certificate at the principal corporate trust office of the Trustee.
This 2015 Certificate has been executed and delivered by the Trustee pursuant to the
terms of a Trust Agreement between the Trustee and the Lessee, dated as of ____________,
2015 (the “Trust Agreement”), and is one of a series of certificates limited in aggregate principal
amount to $__________ (the 2015 Certificates, together with any additional certificates which
may hereafter be executed and delivered under the Trust Agreement being herein collectively
referred to as the “Certificates”). The Lessee is authorized to enter into the Lease and the Trust
Agreement under the laws of the State of Arizona. Reference is hereby made to the Lease and
the Trust Agreement (copies of which are on file at the office of the Trustee) for the definition of
certain capitalized terms used herein, a description of the terms on which the 2015 Certificates
are delivered, the rights thereunder of the Registered Owners of the 2015 Certificates, the rights,
duties and immunities of the Trustee and the rights and obligations of the Lessee under the
Lease, to all of the provisions of which Lease and Trust Agreement the Registered Owner of this
2015 Certificate, by acceptance hereof, assents and agrees.
The obligation of the Lessee to pay the Lease Payments does not constitute an obligation
of the Lessee for which the Lessee is obligated to levy or pledge any form of taxation or for
which the Lessee has levied or pledged any form of taxation. The obligation of the Lessee to pay
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Lease Payments does not constitute a debt of the Lessee, the State of Arizona or any of its
political subdivisions, and does not constitute an indebtedness within the meaning of any
constitutional or statutory debt limitation or restriction.
The term of the Lease is from the date thereof until the end of the Lessee’s then current
Fiscal Period, and thereafter for such additional Fiscal Periods as are necessary to complete the
anticipated total lease term, unless terminated prior thereto in accordance with the provisions of
the Lease. The continuation of the Lease and the obligation of the Lessee to make Lease
Payments after the end of the Lessee’s Fiscal Period during which the Lease commenced is
subject to and dependent upon the moneys necessary to make such payments being lawfully
budgeted by the Lessee. If the Lessee fails to obtain prior to the last date on which the Lessee is
required or permitted to adopt its budget for the next Fiscal Period a proper budgeting and final
appropriation of the Lessee’s Board of Directors of the full amount of funds necessary to make
all Lease Payments coming due during the next occurring Fiscal Period for which such budgeting
and appropriation are made, the Lease shall terminate effective on the last day of the last Fiscal
Period for which such budgeting and appropriation were properly obtained and for which such
funds were determined to be lawfully available and allocated, subject to reinstatement at the
option of the Lessee within 45 days thereafter.
Upon the occurrence and continuance of any event of default under the Trust Agreement,
the Trustee may, and at the written direction of the Owners of not less than five percent in
Aggregate Value (as defined in the Trust Agreement) of Certificates then outstanding shall,
declare the principal amount of the Certificates then outstanding to be immediately due and
payable; provided, however, that no such acceleration shall change or otherwise affect the
Lessee’s obligation under the Lease to pay Lease Payments only during the term of the Lease
and in the amounts and at the times as provided in the Lease.
To the extent and in the manner permitted by the terms of the Trust Agreement, the
provisions of the Trust Agreement may be amended by the parties thereto and the Owners of a
majority in Aggregate Value of the Certificates then outstanding, and may be amended without
notice to or the consent of such Owners under certain circumstances, provided that no such
amendment shall impair the right of any Owner to receive in any case such Owner’s
proportionate share of any Lease Payment or Prepayment thereof in accordance with such
Owner’s Certificate.
This 2015 Certificate is transferable by the Registered Owner hereof, in person or by his
attorney duly authorized in writing, at the office of the Trustee, but only in the manner, subject to
the limitations and upon payment of the charges provided in the Trust Agreement and upon
surrender and cancellation of this 2015 Certificate. Upon such transfer a new 2015 Certificate or
2015 Certificates, of authorized denomination or denominations, for the same aggregate
principal amount will be delivered to the transferee in exchange. The Lessee, the Lessor and the
Trustee may treat the Registered Owner hereof as the absolute Owner hereof for all purposes,
whether or not this 2015 Certificate shall be overdue, and the Lessee, the Lessor and the Trustee
shall not be affected by any notice to the contrary.
The 2015 Certificates maturing on or after __________ are subject to redemption, in
whole or in part, on any date on or after __________, in increments of $5,000 of principal
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amount due on a specific maturity date, in any order of maturity, all as directed by the County,
and by lot within a maturity by payment of the principal amount of each 2015 Certificate to be
redeemed, plus interest accrued to the date fixed for redemption, without premium.
The 2015 Certificates are subject to mandatory redemption and shall be redeemed on
___________ 1 of the years set forth below and in the amounts set forth below, by payment of a
redemption price equal to the principal amount of the 2015 Certificates then called for
redemption plus the interest accrued to the date fixed for redemption, but without premium, as
follows:
Year Principal Amount
(maturity)
The 2015 Certificates are subject to redemption on any Interest Payment Date, in whole,
or in part, in any order of maturity designated by the Lessee, or, under certain circumstances, by
lot by the Trustee, and by lot within a maturity from the net proceeds of insurance or
condemnation credited towards the prepayment of the Lease Payments by the Lessee pursuant to
Section 10.4 of the Lease, at a redemption price equal to the principal amount thereof to be
redeemed together with accrued interest, without premium.
Notice of redemption shall be mailed not less than thirty (30) days nor more than sixty
(60) days prior to the date set for redemption to each Registered Owner of a 2015 Certificate to
be so redeemed at the address shown on the books of the Trustee, but failure so to mail any such
notice or any defect in such notice as to any 2015 Certificate shall not affect the validity of the
proceedings for the redemption of any other 2015 Certificate. On the specified redemption date
all Certificates called for redemption shall cease to bear interest and shall no longer be secured
by the Trust Agreement provided funds for redemption are on deposit at the place of payment at
that time.
IN WITNESS WHEREOF, this 2015 Certificate has been executed and delivered by the
Trustee, acting pursuant to the Trust Agreement.
Date of Execution: _______________
______________________, as Trustee
By:
Its: Authorized Representative
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of the within
Certificate, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM -- as tenants in common UNIF GIFT/TRANS MIN ACT --
TEN ENT -- as tenants by the entireties __________ Custodian __________
JT TEN -- as joint tenants with right of (Cust) (Minor)
survivorship and not as Under Uniform Gifts/Transfers to
tenants in common Minors Act _______________
(State)
Additional abbreviations may also be used, though not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________________________________________________________
(Please Print or Typewrite Name, Address and Social Security Number or other Federal Tax
Identification Number of Transferee) the within certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________ attorney to transfer the within
certificate on the books kept for registration thereof, with full power of substitution in the
premises.
Dated _______________ _____________________________
Signature Guaranteed: Note: The signature(s) on this assignment
must correspond with the name(s) as
written on the face of the within registered
__________________________________ certificate in every particular without
(Signature guarantee should be made by a alteration or enlargement or any change
guarantor institution participating in the whatsoever.
securities transfer agents medallion
program or in such other guarantee
program acceptable to the Trustee.
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