HomeMy WebLinkAbout3938 Resolution - Sec 108 ClosingRESOLUTION NO. 3938
A RESOLUTION OF THE PASCO CITY COUNCIL AUTHORIZING
THE CITY MANAGER TO EXECUTE LOAN CONTRACT DOCUMENTS
REQUIRED BY THE UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT FOR FUNDING FROM THE SECTION 108 LOAN
GUARANTEE PROGRAM, AND TO TAKE ALL OTHER ACTIONS
NECESSARY FOR THE COMPLETION OF THE PROJECT.
WHEREAS, the City of Pasco has identified opportunities for redevelopment consistent
with the CDBG Entitlement and Section 108 Loan Guarantee programs of the U.S. Department of
Housing and Urban Development (HUD); and
WHEREAS, public hearings were held on December 21, 2017 and January 16, 2018 to
discuss community and economic development and housing needs, and
WHEREAS, the City Council authorized an application to HUD for Section 108 funding
with Resolution 3814, and amended the application to increase the total amount $3,781,000 by
passage of Resolution 3855;
WHEREAS, Section 108 loan funds will be used for the redevelopment of the Pasco
Farmers Market, Peanuts Park and related infrastructure.; and
WHEREAS, the application for Section 108 funds was reviewed and approved by HUD
on March 18, 2019; and
WHEREAS, the City Manager is the designated Certifying Official, authorized to sign
and submit applications, certifications and funding agreements with the U.S. Department of
Housing and Urban Development on behalf of the City of Pasco and to act on behalf of the City
of Pasco with regard to the applications, and to provide such additional information as may be
required, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DOES
RESOLVE AS FOLLOWS:
Section 1. The City Manager is hereby authorized and directed to execute loan contract
documents for $3,781,000 in Section 108 loan funds from the U.S. Department of Housing and
Urban Development. The City Manager is further authorized to execute any documents related to
the completion of this project, including, but not limited to:
1. Variable/Fixed Rate Note
2. Contracts for Loan Guarantee Assistance
3. Custodial Agreement
Resolution - 1
4. Request for Advance Letter
5. Mortgage as to real property legally described as the SE 1/4, Sec. 11, Twn. 9 N, R.
30 E.W.M., Franklin County, WA.
PASSED by the City Council of the City of Pasco, Washington, this 21" day of January,
2020.
Saul Martinez
Mayor
ATTEST:
APPROVED AS TO FORM:
Debra arham, CMC Kerr guson Law, PLLC
City Clerk ' Attorney
Resolution - 2
o`Q'PtYEN rOoryG
i N U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
* IIIA II * o WASHINGTON, D.C. 20410-70W
G
'I I
�B�N �EVE7
OFFICE OF COMMUNITY PLANNING
AND DEVELOPMENT
Mr. Dave Zabell
City Manager
City of Pasco
525 N. Third Avenue
Pasco, WA 99301
Dear Mr. Zabell:
MAR 18 2019
Congratulations! I am pleased to inform you that the City of Pasco's (hereafter, the
"City") request for loan guarantee assistance under Section 108 of the Housing and Community
Development Act of 1974, as amended, has been approved. Such assistance is to consist of the
guarantee of notes or other obligations in the principal amount of $3,781,000, plus interest
thereon, which shall be issued to finance activities described in the City's application (B -18 -MC -
53 -0009) for the Pasco Market Redevelopment Project.
This offer of commitment ("Commitment") is subject, however, to the conditions
specified in Item 8 of the Funding Approval (Form HUD -7082).
The first condition provides that in the event the City fails to submit notes or other
obligations for inspection and guarantee by the Secretary of Housing and Urban Development
(HUD) before March 31, 2020, the Commitment will expire as of such date.
The second condition provides that the repayment schedule for the indebtedness
evidenced by the notes or other obligations (the "Guaranteed Loan") must be acceptable to HUD.
The third condition provides that the City shall provide additional security for the
Guaranteed Loan and such additional security must be acceptable to HUD. The additional
security shall be identified in the Contract for Loan Guarantee Assistance ("Contract"), specified
by 24 CFR 570.705(b)(1), which will be executed at the time the guaranteed obligations are
issued. The City's application and other supporting material identify the City's pledge of real
property as additional security for the Guaranteed Loan. Note that any property offered as
security shall be subject to loan to value ratios to be identified in the Contract.
In addition, the Contract shall provide that HUD may use existing pledged grants to
prepay (or defease) the Guaranteed Loan if HUD determines that the standard pledge of future
Community Development Block Grant ("CDBG") funds is insufficient to assure payment of
amounts due thereunder. HUD reserves the right to require further security upon evaluation of
the foregoing security arrangements and the City may substitute other collateral security for such
arrangements, subject to HUD's approval of such substitution.
The fourth condition provides that prior to submitting notes or other obligations for
inspection and guarantee by HUD, the City shall submit information required under Section
102(b) of the Department of Housing and Urban Development Reform Act of 1989 (42 U.S.C.
3545). This information shall be submitted on Form HUD -2880 to HUD's Seattle Regional
Office. A copy of Form HUD -2880 is enclosed for this purpose.
The fifth condition provides that the City is required to pay a fee of 2.23% of the
principal amount of loan guaranteed under this Commitment to cover the credit subsidy costs as
announced in the Federal Register on October 5, 2018 (83 FR 50257). This fee applies to all
Section 108 guaranteed loan commitments issued in Fiscal Year 2019. The fee is applied only at
the time of loan disbursements. The amount to be paid at that time is equal to 2.23% of the
principal amount of the requested Guaranteed Loan advance. The fee may be paid directly by
the City or, alternatively, it may be deducted from the Guaranteed Loan advance(s). If the fee is
paid directly by the City, it may be paid from CDBG grant funds drawn down under the CDBG
line of credit or with another source.
In addition to the special conditions cited above, the release of funds for the project to be
carried out with loan guarantee assistance is conditioned upon compliance by the City with all
applicable provisions of the HUD Environmental Review Procedures (24 CFR Part 58). The
City is reminded that these Procedures include limitations on the commitment of HUD and non -
HUD funds on an activity or project prior to HUD's approval of the request for release of funds
and related certification of compliance with environmental requirements. Please refer to 24 CFR
58.22 for a description of the limitations and the entities to whom they apply.
Please furnish us, at the address specified below, your timetable for execution of the
activities described in your application. These activities will be financed through a public
offering of Section 108 obligations. If you need funds prior to the next public offering, please
notify HUD at the address below and instructions for obtaining interim financing will be
provided.
Please execute the three enclosed copies of the Funding Approval (Form HUD -7082) and
return two copies to the Department of Housing and Urban Development, Financial Management
Division, Room 7282, 451 Seventh Street, S.W., Washington, D.C. 20410. One copy should be
retained for your files. The Funding Approval amends the Grant Agreement authorized by HUD
on August 7, 2018, under the Funding Approval for grant number B -18 -MC -53-0009 to include
loan guarantee assistance. The Grant Agreement thereby incorporates this Funding Approval,
the loan guarantee application, and Subpart M of the block grant regulations governing loan
guarantees, as well as such agreements, schedules, and other documentation required for
submission or execution in connection therewith.
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Please do not hesitate to reach out if we can support you in the use of your Section 108
funds. Please contact Paul D. Webster, Director, Financial Management Division at (202) 402-
4563, if you need assistance.
Enclosures (2)
Sincerely,
Stanley Gim t
Deputy Assistant Secretary
for Grant Programs
3
LEGAL OPINION LETTER
opinion -WR entitlement 3-26-13
Secretary of Housing and Urban Development
451 7th Street, SW
Washington, DC 20410
Dear Sir or Madam:
The undersigned, being duly licensed and in good standing
to practice law in the State of Washington, is legal counsel to
the City of Pasco ("Borrower"). As such, I have represented
Borrower regarding that certain Variable/Fixed Rate Note,
referred to as Note No. B -18 -MC -53-0009 in the Maximum
Commitment Amount of
$3,781,000(the "Note"), to be executed by Borrower payable to
the order of the Registered Holder thereof, and to be guaranteed
by the Secretary of Housing and Urban Development ("HUD") under
section 108 of the Housing and Community Development Act of
1974, as amended, 42 U.S.C. 5308 ("Section 108"). The Note will
initially be issued to the interim lender, which will make
advances to the Borrower in the amount requested by the Borrower
under the Note. HUD's guarantee of the Note will be governed by
the Contract for Loan Guarantee Assistance under Section 108
between the Borrower and HUD (the "Contract"), in which the
Borrower pledges Community Development Block Grants pursuant to
24 CFR 570.705(b)(2), as well as any other security specified
therein, as security for HUD's guarantee. It is anticipated
that the Note, as authorized by the Contract, will be included
in a future trust created by HUD (together with other Section
108 Notes issued by other borrowers), and participation
certificates based on the trust will ultimately be sold in a
future public offering by the underwriters selected by HUD.
In my capacity as legal counsel, I have made an examination
and investigation of all such matters of fact and questions of
law as I consider necessary or advisable to enable me to render
the opinion hereafter set forth. Specifically, and without
limiting the generality of the foregoing, I have examined:
1. Authority granted by State of Washington
A. Washington State Constitution:
Article 8, Section 6 - Limitations on Municipal
Indebtedness.
B. Washington State Statutes (Revised of Washington):
RCW 35.22.280 - Specific powers enumerated
(2) to provide for payment of debts;
(4) To borrow money for corporate purposes on the
credit of the corporation
RCW 35.21.735 - Use of HUD 108 funds to secure HUD
loan.
RCW 39.36.020. Limitation of indebtedness prescribed.
2. City of Pasco Municipal Code: Ordinance 4073, 2012;
Ordinance 3557 § 58, 2002; Ordinance 1773 § 3, 1976;
Code 1970 § 3.90.030.
3. Resolution No. 3855 of the governing body of Borrower,
dated August 18, 2018, authorizing Borrower to enter
into this transaction, and authorizing Dave Zabell,
City Manager to execute on behalf of Borrower all
documents necessary or desirable to accomplish the
transaction.
4. The Contract.
5. The Note.
6. The Amended and Restated Master Fiscal Agency
Agreement dated as of May 17, 2000, the Trust
Agreement dated as of January 1, 1995, together with
Amendment No. 1 thereto, dated as of June 30, 2004,
and the form of Supplement to the Trust Agreement.
Based on the foregoing investigation and authorities, I am
of the opinion that:
2
1. Borrower has authorized in accordance with applicable
State and local law, the transaction, including issuance of the
Note, the pledge of grant funds, and the execution of all
documents necessary or desirable to accomplish the transaction.
2. Borrower has authorized Dave Zabell, in his capacity as
City Manager, to execute the Contract, the Note and all other
documents necessary or desirable to accomplish the transaction.
3. The Note and the Contract have been duly executed by
the aforementioned authorized representative of the Borrower,
and upon delivery thereof, due execution of the Contract and the
Guarantee on behalf of HUD, and receipt of the loan proceeds on
behalf of the Borrower, the Note and the Contract, including the
provisions for compensation of the Fiscal Agent/Trustee from
funds pledged under the Contract (as incorporated therein),
shall be valid, binding and enforceable obligations of the
Borrower.
4. The pledge of present and future Community Development
Block Grants by the Borrower pursuant to 24 CFR 570.705(b)(2)
and the Contract is valid and binding.
5. There is no outstanding, or to my knowledge threatened,
action, suit, proceeding, investigation or litigation by or
against the Borrower which will affect the validity of the Note
or the security therefor.
Sincerely,
3
SECTION 108 LOAN CONTRACT
VFR Contract - Entitlement 7-2-07
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER
SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT
OF 1974, AS AMENDED, 42 U.S.C. §5308
Date of Contract
This Contract for Loan Guarantee Assistance ("Contract") is
entered into between City of Pasco, Washington, as Borrower (the
"Borrower"), and the Secretary of Housing and Urban Development
("Secretary"), as guarantor for the Guarantee made pursuant to
section 108 ("Section 108") of title I of the Housing and
Community Development Act of 1974, as amended (the "Act") and 24
CFR Part 570, Subpart M, of the promissory note executed
contemporaneously herewith and numbered B -18 -MC -53-0009 [Pasco
Market Redevelopment Project], in the Maximum Commitment Amount
of $3,781,000, and any amended note or note issued in
substitution for such note and having the same note number (the
"Note"). This is the first Contract under the Funding Approval
("Commitment") of the same number, which was approved by the
Secretary on March 18, 2019. The funds paid or credited to the
account of the Borrower pursuant to the Note are referred to
herein as the "Guaranteed Loan Funds." The Note (including the
Fiscal Agency Agreement and the Trust Agreement as defined in
Section I.A. of the Note and incorporated therein) is hereby
incorporated into the Contract. Terms used in the Contract with
initial capital letters and not otherwise defined in the text
hereof shall have the respective meanings given thereto in the
Note. The Fiscal Agency Agreement and the Trust Agreement are
sometimes collectively referred to herein as the "Fiscal
Agency/Trust Agreements," and the Fiscal Agent and the Trustee
respectively are sometimes collectively referred to as the
"Fiscal Agent/Trustee."
PART I
A. The Note: Advances and Records. The Note provides that
Advances and Conversion Date Advances shall be made
thereunder upon the written request of the Borrower and the
approval of the Secretary, pursuant to this Contract and the
Fiscal Agency Agreement. The Commitment Schedule attached
to the Note represents the principal repayment schedule for
the Maximum Commitment Amount of the Note. At all times,
the total amount of all Advances and Conversion Date
Advances under the Note for all Principal Due Dates shall
not exceed the Maximum Commitment Amount of the Note. Prior
to the Conversion Date (as defined in the Note, Section
I.A.), the total amount of Advances made by the Holder for
each Principal Due Date under the Note shall not exceed the
applicable Commitment Amount for such Principal Due Date set
forth in the Commitment Schedule of the Note. Prior to the
Conversion Date, the Borrower agrees that the Fiscal Agent
pursuant to the Fiscal Agency Agreement shall record the
date and amount of each payment and Advance under the Note
and shall maintain the books and records of all Advances and
Conversion Date Advances for each Principal Due Date,
interest rates on Advances, payments, and Principal Amounts
outstanding for each Principal Due Date. On and after the
Conversion Date, the Borrower agrees that the Trustee
pursuant to the Trust Agreement will maintain the books and
records of all payments on the Note and all Principal
Amounts and interest rates on such Principal Amounts (each
as to be set forth on Schedule P&I to the Note). No
advances of any kind may be made on the Note after its
Conversion Date.
B. Borrower's Requests for Advances. All requests for Advances
or Conversion Date Advances by the Borrower under the Note
shall: be in writing; specify the amount of the Advance
requested; identify the Note by Borrower, number and Maximum
Commitment Amount; be addressed to the Secretary at the
address for notices specified in paragraph 12(f) of this
Contract; be signed by an authorized official of the
Borrower; and otherwise be in the form prescribed by the
Secretary. Advances and Conversion Date Advances shall be
requested and will only be approved and made in increments
of not less than $1,000 for any Principal Due Date. A
request for an initial Advance under a Note, or a request
for a Conversion Date Advance, shall be received by the
Secretary at least ten Business Days prior to the Borrower's
proposed Funding Date or Conversion Date, as applicable.
All other requests for Advances shall be received by the
Secretary not less than five Business Days prior to the
proposed Funding Date. The Borrower may not deliver a Note
or a request for an Advance or Conversion Date Advance to
the Secretary more than two calendar months prior to the
Borrower's proposed Funding Date. At least two Business
Days prior to the proposed Funding Date or Conversion Date
if the Borrower's request was timely received, or the next
available Funding Date for which the request was timely
received, the Secretary shall, except as otherwise provided
in paragraph 11(c) or 12 hereof, deliver a corresponding
Authorization Order or Advance Order (as applicable) to the
Fiscal Agent in accordance with Section 2.03 or 2.04 of the
Fiscal Agency Agreement for the applicable Funding Date or
Conversion Date. If the Borrower requests an Advance or
Conversion Date Advance of less than the outstanding Maximum
Commitment Amount under the Note, the Borrower may also
specify in its written request the amount of the Advance or
Conversion Date Advance to be allocated to each Commitment
Amount or Principal Amount per Principal Due Date under the
Note. If the Borrower does not specify how the Advance or
Conversion Date Advance should be allocated among Commitment
Amounts/Principal Due Dates, the Borrower hereby authorizes
the Secretary to direct the Fiscal Agent to allocate the
3
Advance to the respective Commitment Amounts or Principal
Amounts in order of the earliest Principal Due Date(s).
C. Guarantee Fee. The Borrower shall pay to the Secretary a
fee equal to 2.230 of each Advance to offset the credit
subsidy cost of the guaranteed loan. This fee, which was
announced on October 5, 2018, 83 Fed. Reg. 50257, for
Section 108 loan guarantee disbursements under loan
guarantee commitments awarded in FY 2019 is due to the
Secretary no later than the time of the disbursement of each
Advance to the Borrower. The fee is payable from
allocations or grants which have been made to Borrower under
Section 106 of the Act (including program income derived
therefrom) or from other sources, but is only payable from
Guaranteed Loan Funds if the fee is deducted from the
Advance.
D. Conversion; Public Offering. On the Conversion Date (if
any), trust certificates backed by the Note (and similar
notes issued by other Section 108 borrowers) will be
purchased for a purchase price of the full principal amount
thereof by underwriters selected by the Secretary (the
"Underwriters") pursuant to an Underwriting Agreement
between the Underwriters and the Secretary, at a closing on
such Conversion Date as determined by the Secretary and the
Underwriters. The Borrower agrees that the interest rate at
which the trust certificate of a specified maturity is sold
to the Underwriters shall govern the interest rate inserted
on the Conversion Date in Schedule P&I of the Note for the
Principal Amount of corresponding maturity.
E. Consents. By execution of this Contract, the Borrower
ratifies and consents to the Secretary's selection of the
Underwriters and authorizes the Secretary to negotiate with
the Underwriters the terms of the Underwriting Agreement and
of the public offering of interests in the trust
certificates to investors (including the applicable interest
rates). In addition, by execution hereof the Borrower
ratifies and consents to the Secretary's selection of the
Fiscal Agent/Trustee and agrees to the respective terms of
the Fiscal Agency/Trust Agreements. If Advances have been
made in the Maximum Commitment Amount of the Note not less
than ten Business Days prior to the proposed Conversion
Date, or if the Borrower requests a Conversion Date Advance,
the Borrower authorizes the Secretary to deliver Schedule
P&I to the Note completed in accordance herewith to the
Fiscal Agent/Trustee on the Conversion Date in accordance
with the Fiscal Agency/Trust Agreements, concurrent with
delivery of the Secretary's Guarantee of the trust
certificates at the closing on the Conversion Date, and
thereafter the Note shall be enforceable in accordance with
its terms including Schedule P&I. In addition, the
Secretary reserves the right to notify the Borrower not less
than one calendar month in advance of a specified Conversion
4
Date that the Note will be sold to the Underwriters on such
date, if the Secretary in his sole discretion determines
that market conditions or program needs require the
participation in the proposed public offering of all or
substantially all Borrowers with outstanding Advances.
[Rest of Page Intentionally Left Blank]
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PART II
1. Receipt, Deposit and Use of Guaranteed Loan Funds.
(a) Except for funds deducted on the Conversion Date
pursuant to paragraph 4(b) and fees and charges deducted by
the Fiscal Agent/Trustee pursuant to paragraph 4(a), the
Guaranteed Loan Funds shall be electronically transferred in
accordance with the Borrower's instructions for deposit in a
separate, identifiable account (the "Guaranteed Loan Funds
Account") with a financial institution whose deposits or
accounts are Federally insured. The Guaranteed Loan Funds
Account shall be established and designated as prescribed in
the attached form document entitled "Letter Agreement for
Section 108 Loan Guarantee Program Deposit Account"
(Attachment 1) and shall be continuously maintained for the
Guaranteed Loan Funds. Such Letter Agreement must be
executed when the Guaranteed Loan Funds Account is
established, and an original of this Letter Agreement,
signed by the Borrower and the financial institution shall
be submitted by the Borrower to the Secretary with this
signed Contract.
The Borrower shall make withdrawals from said account only
for payment of the costs of approved Section 108 activities,
for transfer to the Loan Repayment Account or for the
temporary investment of funds pursuant to this paragraph
1(a). Such temporary investment of funds into the
Guaranteed Loan Funds Investment Account shall be required
within three Business Days after the balance of deposited
funds exceeds the amount of the Federal deposit insurance on
the Guaranteed Loan Funds Account. At that time, any
balance of funds in the Guaranteed Loan Funds Account
exceeding such insurance coverage shall be fully (100%) and
continuously invested in Government Obligations, as defined
in paragraph 10 hereof, held in the Guaranteed Loan Funds
Investment Account.
All temporary investments, whether or not required as above,
shall be limited to Government Obligations having maturities
that are consistent with the cash requirements of the
approved activities. In no event shall the investments
mature on or after June 30, 2021 or have maturities which
exceed one year. All such investments shall be held in
trust for the benefit of the Secretary by the above
financial institution in an account (the "Guaranteed Loan
Funds Investment Account") established and designated as
prescribed in the attached form document entitled "Letter
Agreement for Section 108 Loan Guarantee Program Investment
Account" (Attachment 2), which account shall be maintained
for all Government Obligations purchased with funds from the
Guaranteed Loan Funds Account. The Guaranteed Loan Funds
Investment Account need only be established if and when the
Borrower is required to invest, or otherwise invests, the
C.�
Guaranteed Loan Funds in Government Obligations. Such
Letter Agreement must be executed when the Guaranteed Loan
Funds Investment Account is established. (All proceeds and
income derived from such investments shall be returned to
the Guaranteed Loan Funds Account.
All funds in the Guaranteed Loan Funds Account or the
Guaranteed Loan Funds Investment Account must be withdrawn
and disbursed by the Borrower for approved activities by
June 30, 2021. Any funds remaining in either Account after
this date shall be immediately transferred to the Loan
Repayment Account established pursuant to paragraph 6 of
this Contract.
(b) The Borrower shall by the fifteenth day of each month
provide the Secretary with an electronic copy of a statement
showing the balance of funds in the Guaranteed Loan Funds
Account and the withdrawals from such account during the
preceding calendar month, and an electronic copy of a
statement identifying the obligations and their assignments
in the Guaranteed Loan Funds Investment Account. Borrower
shall e-mail the electronic copies to 108reports@hud.gov.
(c) Upon the Secretary giving notice that the Borrower is
in Default under this Contract or the Note, all right,
title, and interest of the Borrower in and to the Guaranteed
Loan Funds and Guaranteed Loan Funds Investment Accounts
shall immediately vest in the Secretary for use in making
payment on the Note, purchase of Government Obligations in
accordance with paragraph 10, or payment of any other
obligations of the Borrower under this Contract or the
Fiscal Agency/Trust Agreements.
2. Payments Due on Note; Final Payment and Discharge. The
Borrower shall pay to the Fiscal Agent/Trustee, as
collection agent for the Note, all amounts due pursuant to
the terms of the Note. In accordance with the Note and the
Fiscal Agency/Trust Agreements, payment shall be made by
3:00 P.M. (New York City time) on the seventh Business Day
(the "Note Payment Date") preceding the relevant Interest
Due Date or Principal Due Date (each as defined in the
Note). If any Note Payment Date falls on a day that is not
a Business Day, then the required payment shall be made on
the next Business Day. Payment may be made by check or wire
transfer.
Upon final payment of all amounts due to Holders under the
Note, including any payment made by the Secretary pursuant
to the Guarantee, the Fiscal Agent/Trustee is required by
the Fiscal Agency/Trust Agreements to return the Note to the
Secretary. Upon final payment to the Secretary of any
amounts due as a result of Guarantee Payments or otherwise
due under this Contract, the Secretary will cancel and
return the Note to the Borrower in discharge of the
7
Borrower's obligations under the Note.
3. Selection of New Fiscal Agent or Trustee. The Secretary
shall select a new Fiscal Agent or Trustee if the Fiscal
Agent or Trustee resigns or is removed by the Secretary.
The Borrower hereby consents in advance to any such
selection and to any changes in the Fiscal Agency/Trust
Agreements agreed to by any Fiscal Agent or Trustee and the
Secretary, subject to paragraph 4(e) of this Contract.
4. Payments Due Fiscal Agent or Trustee; Documents to the
Secretary.
(a) The Borrower agrees to pay the fees of the Fiscal Agent
as required by Exhibit G to the Fiscal Agency Agreement, and
any additional amounts that may be due pursuant to Section
6.01 of the Fiscal Agency Agreement. If not paid by the
Borrower by any other means prior thereto, the Borrower
agrees that any such fees or additional amounts that have
been incurred prior to an Advance or a Conversion Date
Advance may be deducted by the Fiscal Agent/Trustee from the
proceeds of the Advance or Conversion Date Advance, as
applicable.
(b) The Borrower agrees to pay the Borrower's share, as
determined by the Secretary, of the customary and usual
issuance, underwriting, and other costs related to the
public offering and future administration of the Note and
the trust certificates, as approved by the Secretary,
including the cost of reimbursement and/or compensation of
the Trustee pursuant to the Trust Agreement, including
Sections 3.11 and 7.01 thereof. In connection with the
public offering on the Conversion Date, such payment shall
either be made by wire transfer to the Trustee on the day
prior to the Conversion Date or shall be deducted from the
Guaranteed Loan Funds on the Conversion Date.
(c) The Borrower shall submit to the Secretary not later than
ten Business Days prior to the Funding Date for the initial
Advance hereunder, or if not submitted earlier, prior to any
Conversion Date or Public Offering Date applicable to the
Note, this executed Contract, the executed Note, a request
for an Advance or a Conversion Date Advance (as applicable)
in proper form, and an opinion acceptable to the Secretary
from the Borrower's counsel to the effect that: (i) the
governing body of the Borrower has authorized by resolution
or ordinance, in.accordance with applicable State and local
law, the issuance of the Note and the execution of this
Contract; (ii) the Note and this Contract are valid, binding,
and enforceable obligations of the Borrower; (iii) the pledge
of funds pursuant to 24 CFR 570.705(b)(2) and paragraph 5(a)
of this Contract is valid and binding; and (iv) there is no
outstanding litigation that will affect the validity of the
Note or this Contract. In addition, the Borrower shall submit
3
any other additional documents or opinions specifically
required by this Contract (e.g., paragraph 5(c), or paragraph
15, et seq.), at the time required thereby.
(d) The Borrower agrees to reimburse the Underwriters upon
demand by the Secretary for the Borrower's share, as
determined by the Secretary, of all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of
counsel) incurred in connection with a proposed public
offering, if the Underwriters incur such additional costs for
the public offering because of any refusal, inability, or
failure on the part of the Borrower timely to submit in
acceptable form any document required by this Contract
(including paragraph 4(c)), or because of any withdrawal by
the Borrower from the public offering, after the Borrower has
submitted a request for a Conversion Date Advance hereunder.
By execution and delivery of this Contract to the Secretary,
the Borrower hereby expressly authorizes the Secretary to pay
amounts due under this paragraph from funds pledged under
paragraph 5(a) of this Contract.
(e) The undertakings in paragraphs 3 and 4 of this Contract
are expressly subject to the requirement that the Fiscal
Agency/Trust Agreements shall in no event require payment of
fees or charges, reimbursement of expenses, or any
indemnification by the Borrower from any source other than
funds pledged pursuant to paragraphs 5 or 15 et seq. of this
Contract.
5. Security. The Borrower hereby pledges as security for
repayment of the Note, and such other charges as may be
authorized in this Contract, the following:
(a) All allocations or grants which have been made or for
which the Borrower may become eligible under Section 106 of
the Act, as well as any grants which are or may become
available to the Borrower pursuant to Section 108(q).
(b) Program income, as defined at 24 CFR 570.500(a)(or any
successor regulation), directly generated from the use of
the Guaranteed Loan Funds.
(c) Other security as described in paragraph 15, et seq.
(d) All proceeds (including insurance and condemnation
proceeds) from any of the foregoing.
(e) All funds or investments in the accounts established
pursuant to paragraphs 1 and 6 of this Contract.
6. Loan Repayment Account.
(a) All amounts pledged pursuant to paragraphs 5(b), 5(c),
and 5(d) of this Contract shall be deposited immediately on
receipt in a separate identifiable account (the "Loan
Repayment Account") with a financial institution whose
deposits or accounts are Federally insured. The Loan
Repayment Account shall be established and designated as
prescribed in the attached form document entitled "Letter
Agreement for Section 108 Loan Guarantee Program Deposit
Account" (Attachment 1) and shall be maintained for such
pledged funds. The Loan Repayment Account need only be
established if and when the Borrower receives amounts
pledged pursuant to paragraph 5(b), 5(c) or 5(d). Such
Letter Agreement must be executed when the Loan Repayment
Account is established, and an original of this Letter
Agreement, signed by the Borrower and the financial
institution shall be submitted by the Borrower to the
Secretary with this signed Contract. Borrower shall make
withdrawals from said account only for the purpose of paying
interest and principal due on the Note (including the
purchase of Government Obligations in accordance with
paragraph 10 hereof), for payment of any other obligation of
the Borrower under this Contract or the Fiscal Agency/Trust
Agreements, or for the temporary investment of funds
pursuant to this paragraph, until final payment and
discharge of the indebtedness evidenced by the Note, unless
otherwise expressly authorized by the Secretary in writing.
Such temporary investment of funds shall be required within
three Business Days after the balance of deposited funds
exceeds the amount of the Federal deposit insurance on the
Loan Repayment Account. At that time, the balance of funds
in the Loan Repayment Account exceeding such insurance
coverage shall be fully (1000) and continuously invested in
Government Obligations, as defined in paragraph 10 hereof.
All temporary investments, whether or not required as above,
shall be limited to Government Obligations having maturities
that are consistent with cash requirements for payment of
principal and interest as required under the Note. In no
event shall the maturities of such investments exceed one
year. All such investments shall be held in trust for the
benefit of the Secretary by the above financial institution
in an account (the "Loan Repayment Investment Account")
established and designated as prescribed in the attached
form document entitled "Letter Agreement for Section 108
Loan Guarantee Program Investment Account" (Attachment 2),
which account shall be maintained for all Government
Obligations purchased with funds from the Loan Repayment
Account. Such Letter Agreement must be executed when the
Loan Repayment Investment Account is established. (A fully
executed copy of such Letter Agreement shall be submitted to
the Secretary within thirty days of its execution.) All
proceeds and income derived from such investments shall be
returned to the Loan Repayment Account.
(b) Borrower shall by the fifteenth day of each month,
provide the Secretary with an electronic copy of a statement
10
showing the balance of funds in the Loan Repayment Account
and the deposits and withdrawals of all funds in such
account during the preceding calendar month and an
electronic copy of a statement identifying the obligations
and their assignments in the Loan Repayment Investment
Account. Borrower shall e-mail the electronic copies to
108re2orts@hud.gov.
(c) Upon the Secretary giving notice that the Borrower is
in Default under this Contract or the Note, all right,
title, and interest of the Borrower in and to the Loan
Repayment and Loan Repayment Investment Accounts shall
immediately vest in the Secretary for use in making payment
on the Note, purchase of Government Obligations in
accordance with paragraph 10, or payment of any other
obligation of the Borrower under this Contract or the Fiscal
Agency/Trust Agreements.
7. Use of CDBG, EDI or BEDI Funds for Repayment. Any funds
available to the Borrower under Section 106 of the Act
(including program income derived therefrom) are authorized to
be used by the Borrower for payments due on the Note, Optional
Redemption (as defined in the Note), payment of any other
obligation of the Borrower under this Contract or the Fiscal
Agency/Trust Agreements, or the purchase of Government
Obligations in accordance with paragraph 10. Any funds
specifically available to the Borrower for such payments or as
a debt service reserve under an EDI or BEDI Grant Agreement
pursuant to Section 108(q) of the Act which supports the
eligible project(s) and activities financed by the Note may
also be used therefor; any other use of Section 108(q) funds
for such purposes shall require the prior written approval of
the Secretary. Unless otherwise specifically provided herein
or unless otherwise expressly authorized by the Secretary in
writing, the Borrower shall substantially disburse funds
available in the Loan Repayment or the Loan Repayment
Investment Accounts before funds from grants under Section 106
of the Act are withdrawn from the U.S. Treasury for such
purposes.
8. Secretary's Right to Restrict Use of CDBG Funds to Repayment.
Upon a determination by the Secretary that payments required by
paragraph 2 and/or paragraph 4 of this Contract are unlikely to
be made as specified, the Secretary may give the Borrower
notice that the availability to the Borrower of funds pledged
under paragraph 5(a) of this Contract for purposes other than
satisfaction of the pledge is being restricted. This
restriction shall be in an amount estimated by the Secretary to
be sufficient to ensure that the payments referred to in
paragraph 2 and/or paragraph 4 hereof are made when due. This
restriction may be given effect by conditioning the restricted
amounts to prohibit disbursement for purposes other than
satisfaction of the pledge at the time such restricted funds
are approved as grants, by limiting the Borrower's ability to
11
draw down or expend the restricted funds for other purposes,
and by disapproving payment requests submitted with respect to
such grants for purposes other than satisfaction of the pledge.
9. Secretary's Right to Use Pledged Funds for Repayment. The
Secretary may use funds pledged under paragraph 5(a) of this
Contract or funds restricted under grants pursuant to paragraph
8 of this Contract to make any payment required of the Borrower
under paragraph 2 and/or paragraph 4, if such payment has not
been timely made by the Borrower.
10. Defeasance. For purposes of this Contract, after the
Conversion Date the Note shall be deemed to have been paid
(defeased) if there shall have been deposited with the Trustee
either moneys or Government Obligations (as defined below),
which in the sole determination of the Secretary, mature and
bear interest at times and in amounts sufficient, together with
any other moneys on deposit with the Trustee for such purpose,
to pay when due the principal and interest to become due on the
Note. The Aggregate Principal Amount of the Note or any unpaid
Principal Amount may be so defeased, in whole or in part, as of
any Interest Due Date, or any other Business Day acceptable to
both HUD and the Borrower. In accordance with the Note and the
Trust Agreement, the Borrower shall give timely notice and
written instructions to the Secretary and the Trustee
concerning any principal amounts proposed to be defeased,
including any Optional Redemptions proposed, which instructions
shall be approved by the Secretary. If the unpaid Aggregate
Principal Amount of the Note guaranteed pursuant to this
Contract shall be defeased and deemed to have been paid in
full, then the Borrower shall be released from all agreements,
covenants, and further obligations under the Note.
"Government Obligation" means a direct obligation of, or any
obligation for which the full and timely payment of principal
and interest is guaranteed by, the United States of America,
including but not limited to, United States Treasury
Certificates of Indebtedness, Notes and Bonds - State and Local
Government Series or certificates of ownership of the principal
of or interest on direct obligations of, or obligations
unconditionally guaranteed by, the United States of America,
which obligations are held in trust by a commercial bank which
is a member of the Federal Reserve System and has capital and
surplus (exclusive of undivided profits) in excess of
$100,000,000.
11. Default. (a) A Default under the Note and this Contract
shall occur upon failure by the Borrower to:
(i) pay when due an installment of principal or
interest on the Note; or (ii) punctually and properly
perform, observe, and comply with any covenant,
agreement, or condition contained in: (A) this
Contract, (B) any security agreement, deed of trust,
12
mortgage, assignment, guarantee, or other contract
securing payment of indebtedness evidenced by the Note,
or (C) any future amendments, modifications,
restatements, renewals, or extensions of any such
documents.
(b) The Borrower waives notice of Default and opportunity
for hearing with respect to a Default under paragraph 11(a).
(c) In addition to Defaults under paragraph 11(a), the
Secretary may declare the Note in Default if the Secretary
makes a final decision in accordance with the provisions of
section 111 of the Act and 24 CFR 570.913 (or any successor
provisions), including requirements for reasonable notice
and opportunity for hearing, that the Borrower has failed to
comply substantially with title I of the Act.
Notwithstanding any other provision, following the giving of
such reasonable notice, the Secretary may, in the
Secretary's sole discretion pending the Secretary's final
decision, withhold the guarantee of any or all obligations
not yet guaranteed on behalf of the Borrower under
outstanding commitments, suspend approval of any further
Advances or Conversion Date Advances under the Note, and/or
direct the Borrower's financial institution to: refuse to
honor any instruments drawn upon, or withdrawals from, the
Guaranteed Loan Funds Account or the Loan Repayment Account
initiated by the Borrower, and/or refuse to release
obligations and assignments by the Borrower from the
Guaranteed Loan Funds Investment Account or the Loan
Repayment Investment Account.
12. Remedial Actions. Upon a Default or declaration of Default
under this Contract, the Secretary may, in the Secretary's sole
discretion, take any or all of the following remedial actions:
(a) With any funds or security pledged under this Contract,
the Secretary may: (i) continue to make payments due on the
Note, (ii) make a prepayment under Section I.D. of the Note or
make an acceleration payment with respect to the principal
amount of the Note subject to Optional Redemption as provided
in Section III of the Note, (iii) purchase Government
Obligations in accordance with paragraph 10 of this Contract,
(iv) pay any interest due for late payment as provided in the
Note, this Contract, or the Fiscal Agency/Trust Agreements, (v)
pay any other obligation of the Borrower under this Contract or
the Fiscal Agency/Trust Agreements, and/or (vi) pay any
reasonable expenses incurred by the Secretary or the Fiscal
Agent/Trustee as result of the Borrower's Default.
(b) The Secretary may withhold the guarantee of any or all
obligations not yet guaranteed or the disbursement of any or
all grants not yet disbursed in full under outstanding
guarantee commitments or grant approvals for the Borrower under
Sections 108 and/or 106 of the Act.
13
(c) The Secretary may withhold approval of any or all further
Advances or Conversion Date Advances under the Note (if
applicable); direct the Borrower's financial institution to
refuse to: honor any instruments drawn upon, or withdrawals
from, the Guaranteed Loan Funds Account or the Loan Repayment
Account by the Borrower, and/or to release obligations and
assignments by the Borrower from the Guaranteed Loan Funds
Investment Account or the Loan Repayment Investment Account;
and/or direct the Borrower and/or the Borrower's financial
institution to transfer remaining balances from the Guaranteed
Loan Funds Account to the Loan Repayment Account.
(d) Until the Conversion Date, or with respect to amounts
subject to Optional Redemption, the Secretary may accelerate
the Note.
(e) The Secretary may exercise any other appropriate remedies
or sanctions available by law or regulation applicable to the
assistance provided under this Contract, or may institute any
other action available under law to recover Guaranteed Loan
Funds or to reimburse the Secretary for any payment under the
Secretary's Guarantee or any reasonable expenses incurred by
the Secretary as a result of the Default.
(f) All notices and submissions provided for hereunder shall
be in writing (including by telex, telecopier or any other form
of facsimile communication) and mailed or sent or delivered, as
to each party hereto, at its address set forth below or at such
other address as shall be designated by such party in a written
notice to the other party hereto. All such notices and other
communications shall be effective when received as follows:
(i) if sent by hand delivery, upon delivery; (ii) if sent by
mail, upon the earlier of the date of receipt or five Business
Days after deposit in the mail, postage prepaid; (iii) if sent
by telex, upon receipt by the sender of an answer back; and
(iv) if sent by telecopier, upon receipt.
The Secretarv:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster, Director
Financial Management Division
451 7th Street SW, Room 7282
Washinaton, DC 20410
Borrower:
City of Pasco
Attention: Michael Morales, Deputy Director
Community & Economic Development Department
525 N. 3rd Avenue
Pasco, WA 99301
14
13. Limited Liability. Notwithstanding any other provision of this
Contract, the Fiscal Agency/Trust Agreements or the Note, any
recovery against the Borrower for any liability for amounts due
pursuant to the Note, the Fiscal Agency/Trust Agreements or
this Contract shall be limited to the sources of security
pledged in paragraph 5 or any Special Conditions of this
Contract. Neither the general credit nor the taxing power of
the Borrower, or of the State in which the Borrower is located,
is pledged for any payment due under the Note, the Contract, or
the Fiscal Agency/Trust Agreements.
14. Incorporated Grant Agreement. The Contract and the Note are
hereby incorporated in and made a part of the Grant Agreement
authorized by the Secretary on August 7, 2018 under the Funding
Approval for grant number B -18 -MC -53-0009 to the Borrower. In
carrying out activities with the Guaranteed Loan Funds
hereunder, the Borrower agrees to comply with the Act and 24
CFR Part 570, as provided in Subpart M thereof.
15. Special Conditions and Modifications:
(a) As provided for in paragraph 5(c) and (d) of this
Contract, the Borrower pledges the following security
(including insurance and condemnation proceeds
therefrom) to secure the repayment of the Note and all
other charges authorized in this Contract and in all
related future contracts or amendments between
Borrower and the Secretary pertaining to the Note:
(i) A sole first priority lien in the name of the
Secretary on the real property described in
Attachment 3 hereof, including all air rights,
water rights, and other real property interests
(the "Property");
(ii) A collateral assignment to the Secretary of all
rights, titles, and interests in and to any
leases covering the Property and any rents
derived from the Property;
(iii) A collateral assignment to the Secretary of all
rights, titles, and interests, whether now owned
or hereafter acquired, in and to any fixtures
located on the Property and any personal property
affixed to, installed in, or attached to the
Property; and
(iv) A collateral assignment to the Secretary of all
rights, titles, and interests in and to permits,
licenses, agreements, and other intangible
personal property rights covering the Property,
including but not limited to utility connection
rights, or insurance policies held by the
Borrower with respect to the Property, whether
15
now owned or hereafter acquired, and which are
used in connection with the maintenance, use,
occupancy or enjoyment of the Property.
The Borrower shall pledge and assign this security in
one more appropriate instruments (collectively, the
"Mortgage, Assignment, Security Agreement, and Fixture
Filing"), which shall contain any provisions the
Secretary deems necessary.
The Borrower shall take all steps necessary to attach,
perfect, and maintain the perfection and priority of
the Secretary's lien, assignment, and security
interests, including proper recordation and filing and
re -filing UCC financing statements.
(b) Guaranteed Loan Funds shall be used by the Borrower to
carry out the following activities in connection with
the Pasco Market Redevelopment Project (the
"Project"):
(i) Construction of public facilities, pursuant to 24
CFR 570.703(1);
(ii) Payment of issuance and other costs pursuant to
24 CFR 570.703(g); and
(iii) Payment of fees charged by HUD pursuant to 24 CFR
570.712.
(c) Unless otherwise agreed to by the Secretary in
writing, the Borrower shall select a financial
institution acceptable to the Secretary (the
"Custodian") to act as custodian for the documents
specified in (d) below (hereinafter referred to as the
"Security Documents"). The Borrower and the Custodian
shall enter into a written agreement containing such
provisions as the Secretary deems necessary. An
original of the agreement, signed by the Borrower and
the Custodian, shall be submitted by the Borrower to
the Secretary with this signed Contract. The Borrower
shall consult with the Secretary before amending this
agreement with the Custodian for any reason, and
amendments shall contain provisions the Secretary
deems necessary. The Borrower shall provide the
Secretary with original signed amendments within five
business days after they are signed.
(d) Not later than five business days after receipt by the
Borrower of the Guaranteed Loan Funds, or as otherwise
agreed to by the Secretary, the Borrower shall deliver
to the Custodian, the following:
(i) The original recorded Mortgage, Assignment,
16
Security Agreement, and Fixture Filing signed by
the Borrower as mortgagor and securing repayment
of the indebtedness evidenced by the Note, and
containing all assignments described in paragraph
15(a) and any other provisions the Secretary
deems necessary.
(ii) A mortgagee title policy, issued by a company and
in a form acceptable to the Secretary, naming the
Secretary as the insured party.
(iii) A certified survey of the Property with a legal
description conforming to the title policy and
the Mortgage, Assignment, Security Agreement, and
Fixture Filing.
(iv) An appraisal of the fee simple ownership interest
in the Property specifying an estimate of the
fair market value of not less than $4,726,250
($3,781,000 x 1.25). The appraisal shall be
completed by an appraiser who is certified by the
state and shall conform to the standards of the
Financial Institutions Reform, Recovery and
Enforcement Act of 1989 ("FIRREA").
(v) Copies of all financing statement filings made by
the Borrower pursuant to the Uniform Commercial
Code to maintain the Secretary's security
interest in all personal property described in
paragraph 15(a).
(vi) An opinion of Borrower's counsel on its
letterhead, addressed and satisfactory to the
Secretary, that the Mortgage, Assignment,
Security Agreement, and Fixture Filing, and any
financing statements covering other personal
property described in paragraph 15(a), are valid
and legally binding obligations, enforceable in
accordance with their terms, which are properly
recorded and together secure all obligations
under the Note and this Contract and under any
related future contracts or amendments between
Borrower and the Secretary pertaining to the
Note.
(e) Borrower shall deliver to the Custodian all re -filings
of UCC financing statements or filings of continuation
statements filed to continue the effectiveness of the
financing statements made by the Borrower to secure
its obligations under the Note and this Contract,
within five business days of such filings.
(f) Paragraph 12 is amended by adding at the end thereof
the following language:
17
"(g) The Secretary may exercise any appropriate
remedies to enforce the lien on the Property and any
collaterally assigned interests in leases, rents,
licenses, permits, other agreements, fixtures and
other personal property referred to in paragraph
15 (a) ."
(g) If any one or more of the covenants, agreements,
provisions, or terms of this Contract shall be for any
reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements,
provisions or terms of this Contract and shall in no
way affect the validity or enforceability of the other
provisions of this Contract or of the Note or the
rights of the Holder thereof.
(h) Additional Grounds for Default. Notice of Default.
Restriction of Pledged Grants. Availability of Other
Remedial Actions.
(i) The Borrower acknowledges and agrees that the
Secretary's guarantee of the Note is made in
reliance upon the availability of grants pledged
pursuant to paragraph 5(a) (individually, a
"Pledged Grant" and, collectively, the "Pledged
Grants") in any Federal fiscal year subsequent to
the Federal fiscal year ending September 30, 2019
to: (A) pay when due the payments to become due
on the Note, or (B) defease (or, if permitted,
prepay) the full amount outstanding on the Note.
The Borrower further acknowledges and agrees
that if the Secretary (in the Secretary's sole
discretion) determines that Pledged Grants are
unlikely to be available for either of such
purposes, such determination shall be a
permissible basis for any of the actions
specified in paragraphs (ii) and (iii) below
(without notice or hearing, which the Borrower
expressly waives).
(ii) Upon written notice from the Secretary to the
Borrower at the address specified in paragraph
12(f) above that the Secretary (in the
Secretary's sole discretion) has determined that
Pledged Grants are unlikely to be available for
either of the purposes specified in (A) and (B)
of paragraph (i) above (such notice being
hereinafter referred to as the "Notice of
Impaired Security"), the Secretary may limit the
availability of Pledged Grants by withholding
amounts at the time a Pledged Grant is approved
or by disapproving payment requests (drawdowns)
F-:3
submitted with respect to Pledged Grants.
(iv) If after 60 days from the Notice of Impaired
Security the Secretary (in the Secretary's sole
discretion) determines that Pledged Grants are
still unlikely to be available for either of the
purposes specified in (A) and (B) of paragraph
(i) above, the Secretary may declare the Note in
Default and exercise any and all remedies
available under paragraph 12. This paragraph
(iii) shall not affect the right of the Secretary
to declare the Note and/or this Contract in
Default pursuant to paragraph 11 and to exercise
in connection therewith any and all remedies
available under paragraph 12.
(v) All notices and submissions provided for
hereunder shall be submitted as directed in
paragraph 12(f) above.
[Rest of Page Intentionally Left Blank]
19
THE UNDERSIGNED, as authorized officials on behalf of the
Borrower or the Secretary, have executed this Contract for Loan
Guarantee Assistance, which shall be effective as of the date of
execution hereof on behalf of the Secretary.
City of Pasco, Washington
BORROWER
BY:
(Signature)
(Name)
(Title)
Date
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT
BY:
(Signature
inia Sardone
(Name)
Acting Deputy Assistant Secretary
for Grant Programs
(Title)
(Date)
20
Note No. B -18 -MC -53-0009 Attachment 1
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
LETTER AGREEMENT FOR
SECTION 108 LOAN GUARANTEE PROGRAM
DEPOSIT ACCOUNT
Name of Institution (and Branch)
Street
City, State, Zip Code
[ ] This account is established for funds received by the Borrower under Note(s) guaranteed by
the United States Department of Housing and Urban Development (HUD) under the Section 108
Loan Guarantee Program (Guaranteed Loan Funds Account).
[ ] This account is established for repayment of the Note(s) guaranteed by HUD under the
Section 108 Loan Guarantee Program (Loan Repayment Account)._
[ ] This account is established as a debt service reserve under the Section 108 Loan Guarantee
Program (Debt Service Reserve Account).
You are hereby authorized and requested to establish a deposit account to be specifically
designated:
"The City of Pasco. Washington , as
Trustee of United States Department of Housing and Urban Development." All deposits made
into such account shall be subject to withdrawal therefrom by the Borrower named below, unless
and until HUD provides you with a notice that it is assuming control over the account.
Thereafter withdrawals may not be made by the Borrower. Within a reasonable period of time,
not to exceed two business days, after your receipt of such notice from HUD, you shall so
prevent such Borrower withdrawals and, if requested by HUD in writing, shall thereafter forward
monthly to HUD, to an account it specifies in its notice, the collected and available balance in
such account.
You are further authorized, after receipt of the notice from HUD, to refuse to honor any
instrument drawn upon or withdrawals from such account by parties other than HUD. In no
instance shall the funds in the deposit account be used to offset funds which may have been
advanced to, or on behalf of, the Borrower by you. You are permitted, however, to debit from
21
the account your customary fees and charges for maintaining the account and the amount of any
deposits that are made to the account and returned unpaid for any reason.
Such account shall also be subject to your standard agreement and documents relating to
the opening and maintenance of bank accounts with you. In the event of any conflict between
this Letter Agreement and such agreements and documents, this Letter Agreement shall control.
This letter is submitted to you in duplicate. Please execute the duplicate copy of the
certificate below, acknowledging the existence of such account, so that we may present the copy
signed by you to HUD.
Name of Borrower: City of Pasco. Washington
[Signature]
Name and Title:
The undersigned institution certifies to the United States Department of Housing and Urban
Development (HUD) that the account identified is in existence in this institution under account
number: , and agrees with the Borrower named above and HUD to
promptly comply with HUD's notice in the manner provided in the above letter, but in no event
to exceed two business days. The undersigned institution further agrees, after receipt of the
HUD notice as set forth above, to refuse to honor any instruments drawn upon or withdrawals
from such account by parties other than HUD. In no instance shall the funds in the deposit
account be used to offset funds which may have been advanced to, or on behalf of, the Borrower
by the institution, except as set forth above. Deposits in this institution are insured by the
Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or
the National Credit Union Administration up to statutory limits.
Name of Institution:
By: Date:
(Signature)
Name and Title:
S -2s-08
Note No. B -18 -MC -53-0009
22
Attachment 2
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
LETTER AGREEMENT FOR
SECTION 108 LOAN GUARANTEE PROGRAM
INVESTMENT ACCOUNT
Name of Institution (and Branch)
Street
City, State, Zip Code
[ ] This account is established to hold obligations and their assignments, such obligations having
been purchased with funds from the Guaranteed Loan Funds Account (Guaranteed Loan
Funds Investment Account).
[ ] This account is established to hold obligations and their assignments, such obligations having
been purchased with funds from the Loan Repayment Account (Loan Repayment Investment
Account).
[ ] This account is established to hold obligations and their assignments, such obligations having
been purchased with funds from the Debt Service Reserve Account (Debt Service Reserve
Investment Account).
You are hereby authorized and requested to hold obligations and assignments of those
obligations in trust for the United States Department of Housing and Urban Development (HUD)
in an account specifically designated:
"The City of Pasco. Washington , as
Trustee of United States Department of Housing and Urban Development." All obligations and
assignments shall be subject to release to the Borrower named below, unless and until HUD
provides you with a notice that it is assuming control over the account. Thereafter, releases may
not be made by the Borrower. Within a reasonable period of time, not to exceed two business
days, after your receipt of such notice from HUD, you shall so prevent such Borrower releases
and, if requested by HUD in writing, shall thereafter forward monthly to HUD, to an account it
specifies in its notice, the collected and available balance in such account.
23
You are further authorized, after receipt of the notice from HUD, to refuse to honor any
request for release of the obligations and assignments from such account by parties other than
HUD. In no instance shall the obligations in this account be used to offset funds which may
have been advanced to, or on behalf of, the Borrower by you. You are permitted, however, to
debit from the account your customary fees and charges for maintaining the account and the
amount of any deposits that are made to the account and returned unpaid for any reason.
Such account shall also be subject to your standard agreement and documents relating to
the opening and maintenance of bank accounts with you. In the event of any conflict between
this Letter Agreement and such agreements and documents, this Letter Agreement shall control.
This letter is submitted to you in duplicate. Please execute the duplicate copy of the
certificate below, acknowledging the existence of such account, so that we may present the copy
signed by you to HUD.
Name of Borrower: City of Pasco. Washington _
By: Date:
[Signature]
Name and Title:
The undersigned institution certifies to the United States Department of Housing and Urban
Development (HUD) that the account identified is in existence in this institution under account
number: , and agrees with the Borrower named above and HUD to
promptly comply with HUD's notice in the manner provided in the above letter, but in no event
to exceed two business days. The undersigned institution further agrees, after receipt of the
HUD notice as set forth above, to refuse to honor any request for release of the obligations and
assignments from such account by parties other than HUD. In no instance shall the obligations
in the account be used to offset funds which may have been advanced to, or on behalf of, the
Borrower by the financial institution, except as set forth above. Deposits in this institution are
insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance
Corporation, or the National Credit Union Administration up to the statutory limits.
Name of Institution:
By:
(Signature)
Name and Title:
8-28-08
24
ATTACHMENT 3
[Description of Real Property]
SECTION 108 LOAN NOTE
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
SECTION 108 LOAN GUARANTEE PROGRAM
VARIABLE/FIXED RATE NOTE
NOTE NUMBER: B -18 -MC -53-0009 DATE OF NOTE:
BORROWER: City of Pasco, Washington
[Pasco Market Redevelopment Project]
MAXIMUM COMMITMENT
AMOUNT: $3,781,000
COMMITMENT AMOUNTS: See
Commitment Schedule attached hereto.
PRINCIPAL DUE DATES AND PRINCIPAL
AMOUNT: Before the Conversion Date, the
aggregate of Advances made for each
applicable Principal Due Date specified in the
Commitment Schedule to this Note; on or after
the Conversion Date, the Principal Amount (if
any) listed for each Principal Due Date in
Schedule P & I hereto.
VARIABLE INTEREST RATE: As set forth below.
REGISTERED HOLDER: Daedalus & Co
As Nominee for
Money Market Obligations Trust
on behalf of its Government Obligations Fund
I. Terms Applicable Before the Conversion Date
A. Advances
For value received, the undersigned, the City of Pasco (the 'Borrower"), which term includes any
successors and assigns, a public entity organized and existing under the laws of the State (or
Commonwealth as applicable) of Washington, promises to pay to the Registered Holder (the
"Holder," which term includes any successors or assigns), at the time, in the manner, and with
interest at the rate or rates hereinafter provided, such amounts as may be advanced under this
Note from time to time by the Holder for disbursement to, or on behalf of, the Borrower
(individually, an "Advance", and collectively, "Advances"). The Holder shall make Advances
upon the written request of the Borrower and the approval of the Secretary of Housing and Urban
Development or his designee (the "Secretary"), pursuant to the Contract for Loan Guarantee
Assistance (as further defined in Section W.A. of this Note, the "Contract"), and the Amended
and Restated Master Fiscal Agency Agreement (the "Fiscal Agency Agreement") dated as of
May 17, 2000, between The Bank of New York Mellon (successor to The Chase Manhattan
Bank and JPMorgan Chase Bank, N.A.), as Fiscal Agent (the "Fiscal Agent"), and the Secretary.
The total amount of Advances made for each Principal Due Date under this Note shall not
exceed the applicable Commitment Amount for such Principal Due Date set forth on the
Commitment Schedule attached hereto. The aggregate of all Advances under this Note for all
Principal Due Dates shall not exceed the Maximum Commitment Amount specified on the
attached Commitment Schedule. The Fiscal Agent shall record the date and amount of all
payments and Advances on this Note and maintain the books and records of all such Advances
and Commitment Amounts for each corresponding Principal Due Date, and all payments. No
Advances shall be made on this Note after its Conversion Date.
As used herein, "Conversion Date" means the date (if any) upon which this Note is (i)
delivered by the Holder to the Fiscal Agent against payment therefore by the purchasers selected
by the Secretary to make such payment; and (ii) assigned to Bank of New York Mellon (or any
successor thereto) acting in its capacity as Trustee (the "Trustee") pursuant to a Trust Agreement
between the Secretary and the Trustee, dated as of January 1, 1995, as such agreement may be
amended or supplemented (the "Trust Agreement"). Upon the occurrence of both (i) and (ii) in
the previous sentence, Section III of this Note applies, thereby converting this Note to a fixed
rate obligation.
B. Variable Rate of Interest
From and including the date of each Advance to but excluding the earlier of (i) the
Conversion Date, and (ii) the date of redemption or prepayment of such Advance pursuant to
Section I.D. below (each such date of redemption or prepayment, a "Prepayment Date") interest
shall be paid quarterly at a variable interest rate (as set forth below) on the unpaid principal
balance of each Advance on the first day of each February, May, August and November (each,
an "Interim Payment Date"), commencing on the first Interim Payment Date after the initial
Advance is made under this Note. Interest also shall be paid on each applicable Conversion
Date, Prepayment Date or Principal Due Date. The amount of interest payable on each Interim
Payment Date will represent interest accrued during the three-month period ending immediately
prior to such Interim Payment Date, or in the case of the first Interim Payment Date following
each Advance that is not made on an Interim Payment Date, the period from and including the
date of such Advance to but excluding the first Interim Payment Date following such Advance.
The amount of interest payable on this Note's Conversion Date, Prepayment Date, or on any
Principal Due Date that precedes such Conversion Date will represent interest accrued during the
period from the last Interim Payment Date to such Conversion Date, Prepayment Date, or
Principal Due Date, respectively.
2
The initial variable interest rate for each Advance will be set on the date of such Advance
and will be equal to 20 basis points (0.2%) above the Applicable LIBO Rate (as hereinafter
defined) and thereafter will be adjusted monthly on the first day of each month (each, a "Reset
Date") to a variable interest rate equal to 20 basis points (0.2%) above the Applicable LIBO Rate
(such interest rate, as reset from time to time, the "Standard Note Rate"). If the Conversion Date
for this Note has not occurred by the March I following the initial Advance under this Note, then
the terms of Appendix A shall be used to set the variable interest rate. If the Fiscal Agent does
not receive notice of either a Negotiated Special Interest Rate or Holder Determined Special
Interest Rate (as defined in Appendix A attached hereto) from the Secretary or Holder,
respectively, by the times specified in Appendix A to this Note, then the Standard Note Rate
shall apply for the period to which such Negotiated Special Interest Rate or Holder Determined
Special Interest Rate would otherwise apply. The Fiscal Agent may conclusively rely on any
such notice as to the correctness of any matters set forth therein. Appendix A shall be
inapplicable to this Note on or after the Conversion Date.
"LIBO Rate" for any given Business Day means, except in the case of manifest error, the
interest rate per annum published on that day in the Eastern Edition of The Wall Street Journal or
any successor publication ("WSJ"), published by Dow Jones & Company, Inc., in the section
titled "Money Rates" (or any successor section) and opposite the caption "London Interbank
Offered Rates (LIBOR) -- three months" (or any successor caption). If such rate does not appear
in WSJ on a given Business Day, for each interest period, the LIBO Rate shall be the interest
rate, converted to a bond -equivalent yield basis, for deposits in U.S. dollars for three months
which appears on Telerate Page 3750 or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying such rate (together, "Telerate Page 3750") as of 11:00
a.m., London time, on the day (the "Determination Date") that is two London Banking Days
preceding the relevant Reset Date or Advance. If such rate does not appear on Telerate Page
3750 on such Determination Date, such rate shall be obtained from the Reuters Screen ISDA
Page as of 11:00 a.m., London time, on such Determination Date. If, in turn, such rate does not
appear on the Reuters Screen ISDA Page on such Determination Date, the offered quotation
from each of four reference banks (expressed as a percentage per annum) as of approximately
11:00 a.m., London time, on such Determination Date for deposits in U.S. dollars to prime banks
on the London interbank market for a 3 -month period, commencing on the Reset Date or date of
such Advance, shall be obtained. If at least two such quotations are provided, the LIBO Rate for
such Reset Date or date of such Advance will be the arithmetic mean of the quotations, rounded
to five decimal places. If fewer than two such quotations are provided as requested, the LIBO
Rate for that Determination Date shall be the rate for the most recent day preceding such
Determination Date for which the LIBO Rate shall have been displayed on Telerate Page 3750.
The LIBO Rate for any interest period shall be converted to a bond -equivalent yield basis by
multiplying such rate by the actual number of days in such interest period and dividing that
number by 180.
"Applicable LIBO Rate" means: (l) with respect to the initial interest rate for the first
Advance hereunder, the LIBO Rate two London Banking Days before the date of such first
Advance; (2) with respect to the initial interest rate for any subsequent Advance made before the
first Reset Date, the interest rate borne by the first Advance; (3) with respect to the initial interest
rate for any subsequent Advance made after the first Reset Date, the LIBO Rate two London
Banking Days before the immediately preceding Reset Date; and (4) with respect to the
subsequent interest rate at any Reset Date for any Advance, the LIBO Rate two London Banking
Days before such Reset Date.
"London Banking Day" means any day in which dealings in deposits in United States
dollars are transacted in the London interbank market. Interest payable on or before the
Conversion Date shall be calculated on the basis of a 360 -day year and the actual number of days
lapsed.
C. Principal Amount
Prior to the Conversion Date, the aggregate amount of Advances under this Note for each
specified Principal Due Date shall be the Principal Amount paid by the Borrower on such
Principal Due Date (as assigned to such Advances by the Secretary's instructions to the Fiscal
Agent in accordance with the Contract and the Fiscal Agency Agreement), except to the extent
such Principal Amount shall have been reduced by redemption before such Principal Due Date as
provided below.
D. Redemption before Conversion Date
At any time on or before the Conversion Date, the Borrower, with the consent of the
Secretary, may redeem this Note, in whole or in part, upon fourteen calendar days notice to the
Fiscal Agent and the Secretary, at the purchase price of one hundred percent (100%) of the
unpaid Principal Amount to be redeemed, plus accrued interest thereon to the date of redemption.
Partial redemptions shall be credited against the applicable Principal Amount(s). The related
Commitment Amounts and the Maximum Commitment Amount shall be adjusted concurrently
with any such redemptions in accordance with the Secretary's instructions to the Fiscal Agent
pursuant to the Contract and the Fiscal Agency Agreement.
II. Conversion
The following events shall occur on the Conversion Date:
H
A. Schedule P&I
On the Conversion Date all Advances owed by the Borrower under this Note with the
same Principal Due Date shall be aggregated into a single Principal Amount which will accrue
interest at the fixed rate applicable to such Principal Due Date. Such Principal Amount may be
adjusted by the Fiscal Agent in accordance with the following paragraph or paragraph IV.H, as
applicable. Whether or not adjusted, each Principal Amount, the fixed rate applicable to each
Principal Amount, and the applicable Principal Due Date, shall be listed by the Secretary in
Schedule P&I. Schedule P&I will be provided by the Secretary to the Fiscal Agent and attached
to this Note by the Fiscal Agent upon the Fiscal Agent's receipt of this Note on the Conversion
Date.
B. Conversion Date Advances
If, on or prior to the Conversion Date, the Borrower has not utilized the entire
Commitment Amount indicated on the Commitment Schedule attached hereto for a given
Principal Due Date, the Borrower may, in accordance with the Fiscal Agency Agreement and the
Contract, and with the approval of the Secretary, utilize such Commitment Amount on the
Conversion Date to obtain a Conversion Date Advance. A "Conversion Date Advance" shall
mean any amount by which the Secretary instructs the Fiscal Agent to increase a Principal
Amount on Schedule P&I for a given Principal Due Date, effective as of the Conversion Date of
this Note. Conversion Date Advances shall be funded by the sale of this Note to the purchaser
selected by the Secretary. The proceeds of a Conversion Date Advance (net of any applicable
fees) shall be distributed to or on behalf of the Borrower on the Conversion Date. The total
amount of Conversion Date Advances hereunder shall not exceed the sum of any unused
Commitment Amounts for all Principal Due Dates.
III. Terms Applicable Upon Conversion
The following terms shall apply to this Note from the Conversion Date (if any) until this
Note is canceled, or matured and paid in full:
Commencing on the Conversion Date, the Borrower promises to pay to the Holder on the
applicable Principal Due Date each Principal Amount set forth on the attached Schedule P&I,
together with interest on each such Principal Amount at the rate applicable thereto specified on
the Schedule P&I. Interest shall be calculated and payments shall be made in the manner set
forth below.
Interest on each scheduled Principal Amount of this Note due as of a given date specified
on Schedule P&I hereto shall accrue at the related per annum rate specified on Schedule P&I
from (and including) the Conversion Date to (but excluding) such Principal Due Date or, if
applicable, to the applicable Interest Due Date on which an Optional Redemption (as defined
below) occurs. Each interest amount accrued on each unpaid Principal Amount of this Note shall
be due semiannually as of February 1 and August 1 of each year (each such February 1 and
August 1, an "Interest Due Date") commencing on the first such date after the Conversion Date,
5
until each Principal Amount listed on Schedule P&I to this Note is paid in full. Interest shall be
calculated on the basis of a 360 -day year consisting of twelve 30 -day months.
Certain Principal Amounts that are indicated as being eligible for Optional Redemption
on Schedule P&I may be paid, in whole or in part, at the option of the Borrower as of any
Interest Due Date on or after the date specified in such schedule (an "Optional Redemption"). In
order to elect an Optional Redemption of such a Principal Amount, the Borrower shall give
notice of its intention to prepay a Principal Amount to the Trustee and the Secretary not less than
60 days and not more than 90 days prior to the Interest Due Date as of which the Borrower
intends to prepay the Principal Amount. The Trustee shall apply any payments received in
respect of Optional Redemptions in accordance with written instructions of the Borrower, as
approved by the Secretary. Principal Amounts that are not indicated as being eligible for
Optional Redemption on Schedule P&I may not be prepaid.
IV. General Terms
A. Additional Definitions
For purposes of this Note, the following terms shall be defined as follows:
"Business Day" shall mean a day on which banking institutions in New York City are not
required or authorized to remain closed and on which the Federal Reserve Bank and the New
York Stock Exchange are not closed. If any payment (including a payment by the Secretary) is
required to be made on a day that is not a Business Day, then payment shall be made on the next
Business Day.
"Contract" shall mean the Contract for Loan Guarantee Assistance, and any amendments
thereto, among the Secretary and the Borrower, the designated public entity named therein (if
applicable), and the State named therein (if applicable), that refers to and incorporates this Note
by the number hereof.
"Principal Amount" shall mean: (i) before the Conversion Date for this Note, the
aggregate amount of Advances made for each Principal Due Date specified in the Commitment
Schedule attached to this Note, less the amount of any redemptions pursuant to Section I.D.
hereof, and any principal repayment; and (ii) on or after the Conversion Date, the principal
amount (if any) stated for each Principal Due Date in Schedule P&I attached hereto, less the
amount of any principal repayment and any Optional Redemptions made pursuant to Section III
hereof and the Trust Agreement.
0
B. Timely Payment to Fiscal Agent or Trustee
Notwithstanding anything contained in Section I, Section lI, or Section I1I, the Borrower,
in accordance with the Contract, shall be required to make all payments of interest and principal,
including any Optional Redemption payment, directly to the Fiscal Agent or the Trustee (as
applicable) on the seventh Business Day prior to the appropriate Interim Payment Date, Interest
Due Date, Principal Due Date, Prepayment Date, or date of Optional Redemption, as applicable.
C. Interest on Late Pa ments
If a payment of principal or interest herein provided for shall not be made by either (i)
2:30 p.m. on an Interest Due Date or Principal Due Date; or (ii) 2:30 p.m. on the second Business
Day (as herein defined) next succeeding an Interim Payment Date, then interest shall accrue on
the amount of such payment at the then applicable interest rate or rates payable on this Note,
from the relevant due date, as the case may be, until the date such payment is made. Nothing in
the immediately preceding sentence shall be construed as permitting or implying that the
Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter
or affect in any manner whatsoever the right of the Holder timely to receive any and all
payments of principal and interest specified in this Note.
D. Applicability of Fiscal Agencv Agreement or Trust Agreement
Prior to the Conversion Date, this Note and Advances and payments made hereunder
shall be administered pursuant to the terms of the Fiscal Agency Agreement and are subject to
such agreement. On or after the Conversion Date, this Note and Advances and payments made
hereunder shall be administered pursuant to the Trust Agreement and are subject to such
agreement. The terms and provisions of the Fiscal Agency Agreement or the Trust Agreement,
insofar as they affect the rights, duties and obligations of the Holder and/or the Borrower, are
hereby incorporated herein and form a part of this Note. The Borrower hereby agrees to be
bound by all obligations of the Borrower to the Fiscal Agent set forth in the Fiscal Agency
Agreement. Capitalized terms not defined in this Note shall have the meanings ascribed to them
in the Fiscal Agency Agreement or Trust Agreement, as applicable. The Fiscal Agency
Agreement provides for the Fiscal Agent to perform certain duties, including the duties of (i)
paying agent and calculation agent for this Note until its Conversion Date, and (ii) registrar for
this Note until this Note is canceled or a new registrar appointed, each in accordance with the
Fiscal Agency Agreement. The Trust Agreement provides for the Trustee to perform certain
duties, including the duties of collection agent for this Note after its Conversion Date until a new
Trustee is appointed in accordance with the Trust Agreement. This Note may be surrendered to
the Fiscal Agent for registration of transfer or exchange, as provided in the Fiscal Agency
Agreement. The Fiscal Agent and Trustee each shall permit reasonable inspection to be made of
a copy of the Fiscal Agency Agreement or Trust Agreement kept on file at its respective
corporate trust office. Neither the Fiscal Agency Agreement nor the Trust Agreement shall
change the Borrower's payment obligations under this Note.
7
E. Applicability of Contract and Secretary's Guarantee
This Note evidences indebtedness incurred pursuant to and in accordance with the
Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act
of 1974, as amended (42 U.S.C. § 5308) (the "HCD Act"). This Note is subject to the terms and
provisions of the Contract, to which Contract reference is hereby made for a statement of said
terms and provisions and for a description of the collateral security for this Note. The payment
of principal on the applicable Principal Due Dates and interest on the applicable Interim Payment
Dates or Interest Due Dates under this Note is unconditionally guaranteed by the Secretary to the
Holder through a guarantee (the "Guarantee"). Execution of the Secretary's Guarantee is
required before this Note is effective, and such Guarantee shall be issued pursuant to and in
accordance with the terms of the Contract and Section 108 of the HCD Act.
F. Default
A default under this Note shall occur upon failure by the Borrower to pay principal or
interest on this Note when due hereunder. If a Borrower defaults on the payment of any interest
or Principal Amounts when due, or if the Secretary gives notice of a final decision to declare the
Borrower in default pursuant to the following paragraph of this Section IVY, the Secretary may,
but is not obligated to, make on any date on or prior to the Conversion Date with fourteen
calendar days prior notice to the Fiscal Agent, or on the seventh Business Day preceding any
Interest Due Date on or after the first permissible Optional Redemption date with seven Business
Days prior notice to the Trustee, an acceleration payment to the Fiscal Agent or the Trustee, as
applicable, equal to the unpaid Aggregate Principal Amount of the Note, together with accrued
and unpaid interest thereon to such acceleration payment date or Interest Due Date, as applicable.
In the event that any such acceleration payment is made from sources other than funds pledged
by the Borrower as security under the Contract (or other Borrower funds), the amounts paid on
behalf of the Borrower shall be deemed to be immediately due and payable to the Secretary.
Nothing in this paragraph shall be construed as permitting or implying that the Borrower may,
without the written consent of the Holder and the Secretary, modify, extend, alter or affect in any
manner whatsoever the right of the Holder timely to receive any and all payments of principal
and interest specified in this Note.
In addition, the Secretary may declare the Borrower in default under this Note if the
Secretary makes a final decision in accordance with the provisions of 24 C.F.R. § 570.913 (or
any successor regulation thereof), including requirements for reasonable notice and opportunity
for hearing, that the Borrower has failed to comply substantially with Title I of the HCD Act.
Following the giving of such reasonable notice, the Secretary may take the remedial actions
specified as available in the relevant provisions of the Contract pending the Secretary's final
decision.
G. Holder's Reliance on Guarantee
Following a default by the Borrower under the terms of this Note, the Holder agrees to
rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of
any instruments or agreements securing or otherwise related to this Note shall be the sole
responsibility of the Secretary, and the Holder shall not be responsible for the preparation,
contents or administration of such instruments and agreements, or for any actions taken in
connection with such instruments and agreement. The Holder, to the extent it is legally able to
do so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon
the Holder by this Note.
H. Amendment
This Note may only be amended with the prior written consent of the Secretary and the
Borrower. No such amendment shall reduce, without the prior written consent of the Holder of
this Note, in any manner the amount of, or delay the timing of, payments required to be received
on this Note by the Holder, Fiscal Agent or Trustee, including Guarantee Payments; provided
that prior to the Conversion Date, the Commitment Amounts on the Commitment Schedule
attached hereto, and the Principal Amounts due on the corresponding Principal Due Dates may
be rescheduled pursuant to written instructions given to the Fiscal Agent by the Secretary with
the written agreement of the Borrower and the Secretary absent the consent of the Holder.
I. Waivers
The Borrower hereby waives any requirement for presentment, protest or other demand
or notice with respect to this Note. The Borrower hereby waives notice of default and
opportunity for hearing for any failure to make a payment when due.
J. Delivery and Effective Date
This Note is deemed issued, executed, and delivered on behalf of the Borrower by its
authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the
HCD Act, effective as of the date of the Secretary's Guarantee.
V. Borrower -Specific Provisions
[This space intentionally left blank]
6
THE UNDERSIGNED, as an authorized official of the Borrower, has executed and
delivered this Note.
Cite of Pasco Washin ton
BORROWER
By:
(Signature)
(Name)
(Title)
10
ASSIGNMENT AND TRANSFER
For value received, the undersigned assigns and transfers this Note to
(Name and Address of Assignee)
(Social Security or Other Identifying Number of Assignee)
and irrevocably appoints
attorney-in-fact to transfer it on the books kept for registration of the Note,
substitution.
Dated:
Signature Guaranteed:
Qualified Financial Institution
By:
Authorized Signature
with full power of
Note: The signature to this assignment
must correspond with the name as written on
the face of the Note without alteration or
enlargement or other change.
[This page to be completed by the Fiscal Agent for transfer of the Note by the Holder as of the
Conversion Date pursuant to the last paragraph of Section I.A. of this Note.]
11
APPENDIX A
Special Pre -Conversion Interest Rates.
(a) The Holder and the Secretary contemplate that the majority of the outstanding
Variable/Fixed Rate Notes will be purchased by underwriters selected by the
Secretary for sale in public offerings to occur each year. If a public offering
including this Note has not occurred by each March 1 following the initial
Advance under this Note, the Secretary shall, upon request, advise the Holder as
to when a public offering including this Note is expected to occur, and the Holder
and the Secretary agree to consult with each other as to what the interest rate on
this Note will be after May 1 of that year if a public offering has not occurred by
such May 1. The Holder shall notify the Secretary if such consultation has not
occurred by April 1 of that year. If no public offering including this Note has
occurred on or before such May 1, the applicable interest rate on this Note from
such May 1 shall be the rate (if any) negotiated and agreed upon by the Secretary
and the Holder. Such rate may be the Standard Note Rate or some other rate
agreed upon by the Holder and the Secretary at least two Business Days before
such May 1 (such other rate, the "Negotiated Special Interest Rate"). The
Secretary shall notify the Fiscal Agent and the Holder in writing of any
Negotiated Special Interest Rate within two Business Days of the determination
thereof.
(b) If the Secretary and the Holder do not, by the April 15th preceding such May 1,
negotiate and agree under Section (a) of this Appendix on an interest rate
applicable to this Note, then the Holder may, on or before the April 20th
preceding such May 1, give written notice to the Secretary of its intent to change
the interest rate on this Note and, if such notice was given during such period, the
Holder may, on such May 1, unilaterally determine (subject to the terms of this
paragraph) the interest rate that this Note will bear (such rate, the "Holder
Determined Interest Rate") from and including such May 1 to but excluding the
earliest of. (i) the Conversion Date; (ii) the date that this Note is purchased by a
new Holder (as described in Section (c) below) or (iii) a Monthly Special Reset
Date (as defined below). Interest from and including such May 1 to but excluding
the Public Offering Date shall be paid on the unpaid principal balance of all
outstanding Advances under this Note at the rate(s) to be determined by the
Holder which, based upon then prevailing market conditions and taking into
account all the circumstances, will enable the Holder to sell this Note at one
hundred percent (100%) of the aggregate amount of all Advances hereunder prior
to the date of such sale. Such interest rate shall be determined as of such May 1
and shall be determined again on the foregoing basis on the first of each month
thereafter (the first of each month after such May 1, a "Monthly Special Reset
Date"). The Holder shall notify the Fiscal Agent and the Secretary in writing
within two Business Days following such dates of the determination of the Holder
Determined Interest Rate and each applicable interest rate determined on a
Monthly Special Reset Date.
(c) If the Secretary and the Holder have failed to agree upon an interest rate pursuant
to Section (a) of this Appendix A, the Secretary, upon seven calendar days notice
to the Holder, may arrange for the purchase of this Note in full by another entity
on the following May 1 or any Business Day thereafter. If such a purchase
occurs, the Holder shall sell and assign this Note to the purchaser thereof without
recourse to the Holder and deliver this Note and its Guarantee to the Fiscal Agent
for registration in the name of the purchaser thereof in accordance with the
Secretary's written instructions. The purchase price for this Note shall be 100%
of the aggregate amount of all Advances owing hereunder plus accrued interest to
the date of purchase. Payment to the Holder of the purchase price for this Note
shall be made by the purchaser thereof in Federal funds at the offices of the
Holder, or at such other place as shall be agreed upon by the Holder and the
Secretary, at 10:00 a.m., New York time, on the date of purchase. After such
purchase date this Note shall bear a rate of interest negotiated between the
Secretary and the new interim Holder (the "New Purchaser Special Interest
Rate"). The Secretary shall notify the Fiscal Agent and the new purchaser in
writing of any New Purchaser Special Interest Rate within two Business Days
following the date of determination thereof.
(d) Notwithstanding Sections (a) through (c) (inclusive) of this Appendix, no
Borrower is obligated to pay interest at a variable rate exceeding the maximum
rate permitted by generally applicable law of the Borrower's state (such rate, the
"Maximum Rate"). If the Borrower receives notice of a variable interest payment
that exceeds the Maximum Rate, then the Borrower shall timely pay such amount
as does not exceed the Maximum Rate, and concurrently shall notify the Secretary
and the Fiscal Agent of the reason for any interest non-payment.
Principal Due Date
August 1, 2020
August 1, 2021
August 1, 2022
August 1, 2023
August 1, 2024
August 1, 2025
August 1, 2026
August 1, 2027
August 1, 2028
August 1, 2029
August 1, 2030
August 1, 2031
August 1, 2032
August 1, 2033
August 1, 2034
August 1, 2035
August 1, 2036
August 1, 2037
August 1, 2038
August 1, 2039
COMMITMENT SCHEDULE
Note No. B -18 -MC -53-0009
Commitment Amount
$190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
190,000
171,000
Maximum Commitment Amount = $3,781,000
SCHEDULE P&I*
Note No. B -18 -MC -53-0009
Principal Amount Principal Interest Rate**
Optional Redemption Available
Due Date
YES
NO
August 1, 2020
X
August 1, 2021
X
August 1, 2022
X
August 1, 2023
X
August 1, 2024
X
August 1, 2025
X
August 1, 2026
X
August 1, 2027
X
August 1, 2028
X
August 1, 2029
X
August 1, 2030
X
August 1, 2031
X
August 1, 2032
X
August 1, 2033
X
August 1, 2034
X
August 1, 2035
X
August 1, 2036
X
August 1, 2037
X
August 1, 2038
X
August 1, 2039
X
S = Aggregate Principal Amount
Principal Amounts due on or after August 1, 2030, may be redeemed, subject to the terms
contained herein and in the Trust Agreement, on any Interest Due Date on or after
August 1, 2029.
*This schedule will not be completed when initially executed and delivered by the
Borrower for Guarantee for interim, variable-rate financing. It will be completed when
assigned by the Holder at the request of the Borrower for conversion to Fixed Rates on
the Conversion Date. The first date shown above on which Optional Redemption is
available is expected to be the same when this schedule is completed, if the Borrower
participates in the initial Section 108 public offering after receiving an interim financing
Advance hereunder. If the Borrower participates in a later public offering, the first date
on which Optional Redemption is available is expected to be correspondingly later.
** The fixed rate applicable to each Principal Amount shall be listed by the Secretary.
COLLATERAL MORTGAGE CONTRACT
FILED FOR RECORD AT REQUEST OF:
Donald A. Boyd
Hummer Boyd, PLLC
6 South 2nd Street, Suite 1016
Yakima, WA 98901
Grantor(s):
MORTGAGE
CITY OF PASCO, a Washington municipal corporation.
Grantee(s):
1. U.S. Department of Housing and Urban Development, a governmental
entity of the United States of America.
Legal Description:
1. The SE 1/4, Sec. 11, Twn. 9 N, R. 30 E.W.M., Franklin County, WA.
2. Additional [full] legal description on page 1 of document.
Assessor's Property Tax Parcel Number(s): 113160017
MORTGAGOR: CITY OF PASCO, a Washington municipal corporation.
MORTGAGEE: U.S. Department of Housing and Urban Development, a
governmental entity of the United States of America.
MORTGAGE: Mortgagor hereby mortgages to Mortgagee, to secure the payment
and performance of the secured obligation described below, the following described
real property situate in the County of Yakima, State of Washington, to -wit:
The SE 1/4, Section 11, Township 9 North, Range 30 East, W.M., Franklin
County, WA.
SECURED OBLIGATION: This Mortgage is given to secure the payment and
performance of that certain Promissory Note executed contemporaneously herewith
and numbered B -18 -MC -53-0009 [Pasco Market Redevelopment Project], in the
Maximum Commitment Amount of $ 3,781,000.00, and any amended note or note
issued in substitution for such note and having the same note number (the
"Note"), including interest thereon.
GENERAL TERMS OF MORTGAGE:
1. Mortgagor covenants that she is lawfully seized of the property in fee
simple and has good right to mortgage and convey it.
2. This Mortgage not only covers the real property described above, but
also all improvements and appurtenances thereto, including all water,
water rights, shares of water stock or water memberships appertaining
thereto.
3. Mortgagor agrees to pay before delinquency all taxes, special
assessments, and other public charges levied, assessed or charged
against the mortgaged.
4. Should Mortgagor default in any of the foregoing agreements or
covenants, then Mortgagee may perform the same and may pay any
part or all of the principal and interest of any charges against the
property, and any amount so paid, with interest thereon at the highest
legal rate from date of payment, shall be repayable by Mortgagor on
demand, and shall also be secured by this Mortgage without waiver of
any right or other remedy arising from the breach of the agreements or
covenants.
5. In the event of the sale of all or any part of Mortgagor's interest in the
mortgaged property, whether voluntarily or involuntarily, or by
operation of law, Mortgagee may, at its option, treat such transfers a
default by Mortgagor and may resort to the remedies as provided for in
this Mortgage or as provided for by law.
6. In the event of default by Mortgagor with respect to any of the
obligations secured hereby, Mortgagee shall have, in addition to all
other remedies and rights at law or in equity, the following rights and
remedies: (a) to declare any and all indebtedness secured by this
Mortgage to be immediately due and payable; (b) to apply for, with or
without notice to Mortgagor upon filing, a suit to enforce or preserve
its rights under this Mortgage; (c) to cause the foreclosure of this
Mortgage as a Mortgage under the real property or personal property
laws of this state; and (d) all other rights and remedies as provided for
in this Mortgage.
2
7. All rights and remedies of Mortgagee provided for in this Mortgage are
intended to be cumulative and not in substitution for any other right or
remedy otherwise available to Mortgagee.
8. Mortgagor agrees to pay to Mortgagee any and all costs and expenses,
including attorney's fees, incurred or paid by Mortgagee in protecting
or enforcing its rights under the terms of this Mortgage, whether or not
a lawsuit is commenced. "Attorney's fees" shall include services
rendered before trial, at trial, and on appeal, as well as services
rendered subsequent to judgment and obtaining execution thereof.
The award of such fees, costs, and expenses shall bear interest at the
highest lawful rate until paid in full.
DATED this _ day of , 2020.
CITY OF PASCO, a Washington
LO -A
Title:
STATE OF WASHINGTON )
) ss:
County of Franklin )
I certify that I know or have satisfactory evidence that
personally appeared before me and signed this instrument and acknowledged it as
the of the CITY OF PASCO, a Washington, a Washington
municipal corporation, to be the free and voluntary act for the uses and purposes of
said company mentioned in the instrument.
DATED: , 2020.
NOTARY PUBLIC in and for the
State of Washington
Residing at:
My Commission Expires:
3
FILED FOR RECORD AT REQUEST OF:
Donald A. Boyd
Hummer Boyd, PLLC
6 South 2nd Street, Suite 1016
Yakima, WA 98901
Grantor(s):
Grantee(s):
MORTGAGE
CITY OF PASCO, a Washington municipal corporation.
U.S. Department of Housing and Urban Development, a governmental
entity of the United States of America.
Legal Description:
1. The SE 1/4, Sec. 11, Twn. 9 N, R. 30 E.W.M., Franklin County, WA.
2. Additional [full] legal description on page 1 of document.
Assessor's Property Tax Parcel Number(s): 113160017
MORTGAGOR: CITY OF PASCO, a Washington municipal corporation.
MORTGAGEE: U.S. Department of Housing and Urban Development, a
governmental entity of the United States of America.
MORTGAGE: Mortgagor hereby mortgages to Mortgagee, to secure the payment
and performance of the secured obligation described below, the following described
real property situate in the County of Yakima, State of Washington, to -wit:
The SE 1/4, Section 11, Township 9 North, Range 30 East, W.M., Franklin
County, WA.
SECURED OBLIGATION: This Mortgage is given to secure the payment and
performance of that certain Promissory Note executed contemporaneously herewith
and numbered B -18 -MC -53-0009 [Pasco Market Redevelopment Project], in the
Maximum Commitment Amount of $ 3,781,000.00, and any amended note or note
issued in substitution for such note and having the same note number (the
"Note"), including interest thereon.
GENERAL TERMS OF MORTGAGE:
1. Mortgagor covenants that she is lawfully seized of the property in fee
simple and has good right to mortgage and convey it.
2. This Mortgage not only covers the real property described above, but
also all improvements and appurtenances thereto, including all water,
water rights, shares of water stock or water memberships appertaining
thereto.
3. Mortgagor agrees to pay before delinquency all taxes, special
assessments, and other public charges levied, assessed or charged
against the mortgaged.
4. Should Mortgagor default in any of the foregoing agreements or
covenants, then Mortgagee may perform the same and may pay any
part or all of the principal and interest of any charges against the
property, and any amount so paid, with interest thereon at the highest
legal rate from date of payment, shall be repayable by Mortgagor on
demand, and shall also be secured by this Mortgage without waiver of
any right or other remedy arising from the breach of the agreements or
covenants.
5. In the event of the sale of all or any part of Mortgagor's interest in the
mortgaged property, whether voluntarily or involuntarily, or by
operation of law, Mortgagee may, at its option, treat such transfers a
default by Mortgagor and may resort to the remedies as provided for in
this Mortgage or as provided for by law.
6. In the event of default by Mortgagor with respect to any of the
obligations secured hereby, Mortgagee shall have, in addition to all
other remedies and rights at law or in equity, the following rights and
remedies: (a) to declare any and all indebtedness secured by this
Mortgage to be immediately due and payable; (b) to apply for, with or
without notice to Mortgagor upon filing, a suit to enforce or preserve
its rights under this Mortgage; (c) to cause the foreclosure of this
Mortgage as a Mortgage under the real property or personal property
laws of this state; and (d) all other rights and remedies as provided for
in this Mortgage.
2
7. All rights and remedies of Mortgagee provided for in this Mortgage are
intended to be cumulative and not in substitution for any other right or
remedy otherwise available to Mortgagee.
8. Mortgagor agrees to pay to Mortgagee any and all costs and expenses,
including attorney's fees, incurred or paid by Mortgagee in protecting
or enforcing its rights under the terms of this Mortgage, whether or not
a lawsuit is commenced. "Attorney's fees" shall include services
rendered before trial, at trial, and on appeal, as well as services
rendered subsequent to judgment and obtaining execution thereof.
The award of such fees, costs, and expenses shall bear interest at the
highest lawful rate until paid in full.
DATED this _ day of , 2020.
CITY OF PASCO, a Washington
In
Title:
STATE OF WASHINGTON )
) ss:
County of Franklin )
I certify that I know or have satisfactory evidence that
personally appeared before me and signed this instrument and acknowledged it as
the of the CITY OF PASCO, a Washington, a Washington
municipal corporation, to be the free and voluntary act for the uses and purposes of
said company mentioned in the instrument.
DATED: , 2020.
NOTARY PUBLIC in and for the
State of Washington
Residing at:
My Commission Expires:
3
CUSTODIAL AGREEMENT
SECTION 108 GUARANTEED LOAN CUSTODIAL AGREEMENT
THIS AGREEMENT dated as of this day of , 20_, by and between
the , a organized and
existing under the laws of the State (or Commonwealth as applicable)
having an office for the conduct of business at
a
laws of
and
("Borrower''), and
organized and existing under the
and having an office for the conduct of business at
WITNESSETH:
("Custodian"),
WHEREAS, the Borrower will enter into a Contract for Loan Guarantee Assistance Under
Section 108 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C.
§5308 ("Section 108 Contract") with the Secretary of Housing and Urban Development ("HUD")
under the authority of section 108 of title I of the Housing and Community Development Act of
1974, as amended (the "Act"); and
WHEREAS, the Custodian is a
; and
institution regulated by the
WHEREAS, the parties to this agreement desire to set forth the terms and conditions for the
deposit and custodianship of the documents evidencing and relating to the loan to be originated
under section 108 of the Act, and 24 CFR part 570, subpart M; and
WHEREAS, HUD will guarantee one or more promissory notes issued by the Borrower and
numbered that together do not exceed the principal amount of $
(the "Section 108 Guaranteed Note").
NOW THEREFORE, in consideration of the mutual undertakings expressed in this
agreement, the parties agree as follows:
I . The Borrower shall from time to time deliver for deposit with the Custodian certain
Security Documents as required under the Section 108 Contract (collectively the "Security
Documents"). For each such delivery, the Borrower shall furnish the Custodian with a listing of the
Security Documents to be deposited, which listing shall be in the form set forth in the attached
Security Document List & Custodial Receipt (the "Receipt" or "Receipt(s)"). In receiving
Security Documents, and in maintaining any listing or providing any report or communication
with respect to the Security Documents, the Custodian shall be required only to review the face
of each document received to determine whether it appears regular on its face, appears to relate
to the Section 108 Guaranteed Note, and appears to be a Security Document identified in the
Receipt. The Custodian shall complete the Receipt(s) by inserting the date received next to each
delivered Security Document. Once signed by the Custodian, the Receipt(s) shall document the
Custodian's receipt(s) of the Security Documents required by the Section 108 Contract to be
deposited with the Custodian. The Custodian shall maintain each original Receipt together with the
Security Documents it identifies, in accordance with the storage requirements in paragraph 3.
2. Borrower's delivery of the Security Documents will be acknowledged by the
Custodian through execution and electronic delivery of a copy of the Receipt(s) to HUD at
108Reports@hud.gov. The Custodian shall also provide copies of Receipt(s) to the Borrower.
By its delivery of the Security Documents and Receipt(s) to the Custodian, the Borrower certifies
to the Custodian that each Security Document listed in that Receipt is in form and substance
acceptable to HUD, as required by the Section 108 Contract. Except for Custodian's obligations
under this paragraph and paragraph l and 2 of this Agreement, the Custodian shall not otherwise
be under any duty to review, inspect, examine or certify the Security Documents; and without
limiting the foregoing, the Custodian shall be entitled to assume the genuineness of each such
document and the genuineness and due authority of any signatures appearing thereon, and shall
be entitled to assume that each such document is what it purports to be. The Custodian shall
have no liability for or obligation with respect to, and shall not be construed or obliged to make
any representation or warranty as to: (i) the validity, sufficiency, marketability, genuineness,
value, contents or enforceability of any Security Document; (ii) the validity, adequacy or
perfection of any lien upon or security interest purported to be evidenced or created thereby; or
(iii) to determine that the contents of any Security Document are appropriate for the represented
purpose or that any Security Document has actually been recorded or fled, as maybe applicable,
or that any Security Document is other than what it purports on its face to be.
3. The Custodian shall segregate and maintain continuous custody and control of all
Security Documents on behalf of HUD until the Section 108 Guaranteed Note is paid in full. The
Custodian shall hold the Security Documents in secure and fireproof facilities in accordance with
customary standards for such storage. The Custodian shall only rely on information pertaining to
the payment of the Section 108 Guaranteed Note that is received from or confirmed by the Director
of the Financial Management Division of HUD in Washington, DC ("FMD Director"), or another
HUD official as may be authorized by HUD in writing ("Other HUD Designee").
4. At any reasonable time, the Custodian shall make all Security Documents available
for examination and audit by representative of the Borrower or HUD.
5. (A) Upon notification to the Custodian by the FMD Director or Other HUD
Designee that a default has occurred under the Section 108 Contract, the Custodian shall comply
with any request HUD shall make for the delivery to HUD of all Security Documents, and within
five business days of any such request by HUD, shall send the Security Documents via courier
service to the address identified in paragraph 6 and contemporaneously provide HUD with the
tracking information for the package containing the Security Documents.
(B) If, following HUD's notification to Custodian of Borrower's default under
the Section 108 Contract, HUD elects to assume or transfer the duties and obligations of the
Borrower and elects to continue the custodial relationship, the Custodian agrees to continue its
obligations herein for HUD for a reasonable period, not to exceed 90 days, on the same terms and
conditions as set forth in this agreement until it receives instructions for disposition of the Security
Documents from the FMD Director or Other HUD Designee, provided, however, that in no event
2
shall HUD be obligated to pay compensation or a fee for the holding or release of any Security
Documents during such reasonable period. If, however, HUD elects to terminate this agreement,
Custodian shall comply with the provisions of this election by HUD.
6. Except for termination or cancellation of this Agreement pursuant to paragraph 5, if
during the term of the Section 108 Guaranteed Note the Custodian's duties under this Agreement are
discharged or this Agreement is terminated or cancelled, Custodian may release Security
Documents to Borrower or to a successor custodian designated in writing by HUD upon
presentation by the Borrower of written approval of the FMD Director or Other HUD Designee
for the release of Security Documents to the Borrower. Provided, however, if no written
approval is presented, the Custodian shall return to all Security Documents to HUD within 5
business days at the following address:
Attention: Paul Webster, Director
Financial Management Division
U.S. Department of Housing and Urban Development
451 7t" Street SW — Room 7180
Washington, DC 20410
7. Consideration for services to be performed by the Custodian under this agreement
shall be: INSERT AMOUNT OR IF NECESSARY, INCORPORATE FEE�SCI�tD Lf AS AN
ATTACHMENT TO THIS AGREEMENT'].
8. This Agreement confers rights and remedies upon HUD, and HUD shall be an
intended third -party beneficiary of this Agreement. The parties may not amend or terminate this
Agreement without the prior written consent of HUD provided, however, that the Custodian may
at any time resign under this Agreement by giving not less than sixty (60) days advance written
notice thereof to the Borrower and HUD. Prior to the effective date of the resignation, the
Borrower shall give written instruction to the Custodian designating a successor Custodian, if
applicable.
9. The Custodian shall be entitled to rely on any written instructions or certifications
delivered to the Custodian by the Borrower or HUD pursuant to this Agreement, in each case
without any independent verification or investigation of the matters set forth therein.
10. Custodian shall not be liable to anyone for anything which it may do or refrain
from doing in connection with this agreement, unless such action constitutes negligence in
accordance with customary standards for document storage, gross negligence, willful misconduct,
or bad faith on its part.
11. To the extent permitted by applicable law, the Borrower shall indemnify the
Custodian and any director, officer, agent or employee of the Custodian from all liability,
obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including
reasonable attorneys' fees, arising out of, connected with, or resulting, directly or indirectly,
from the execution, delivery and performance of this Agreement.
12. The Custodian shall be without liability to the Borrower for any damage or loss
resulting from or caused by events or circumstances beyond the Custodian's reasonable control
including nationalization, expropriation, currency restrictions, the interruption, disruption or
suspension of the normal procedures and practices of any securities market, power, mechanical,
communications or other technological failures or interruptions, computer viruses or the like,
fires, floods, earthquakes or other natural disasters, civil and military disturbance, acts of war or
terrorism, riots, revolution, acts of God, work stoppages, strikes, national disasters of any kind,
or other similar events or acts; errors by any party in its instructions to the Custodian; or changes
in applicable law, regulation or orders.
13. This Agreement may be executed in any number of counterparts and all
counterparts taken together shall constitute one and the same instrument. The exchange of
copies of this Agreement and of signature pages by facsimile transmission or pdf shall constitute
effective execution and delivery of this Agreement as to the parties and may be used in lieu of
the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or pdf
shall be deemed to be their original signatures for all purposes.
14. The terms of this Agreement are hereby declared to be severable, such that if any
term hereof is determined to be invalid or unenforceable, such determination shall not affect the
remaining terms.
15. The covenants and agreements set forth herein shall be binding upon and inure to
the benefit of each of the parties and their respective successors and permitted assigns. No party
shall be permitted to assign their rights under this Agreement without the written consent of the
parties and the FMD Director or Other HUD Designee, except that any corporation or association
into which the Custodian may be merged or converted or with which it may be consolidated, or
any corporation or association resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, or any corporation or association to which the Custodian transfers
all or substantially all of its corporate trust business, shall be the successor of the Custodian
hereunder, and shall succeed to all of the rights, powers and duties of the Custodian hereunder,
without the execution or filing of any paper or any further act on the part of any of the parties
hereto.
16. This Agreement constitutes the complete and exclusive agreement of the parties
with regard to the matters addressed herein and supersedes and terminates as of the date hereof,
all prior agreements, agreements or understandings, oral or written between the parties to this
Agreement relating to such matters.
[Remainder of Page Intentionally Left Blank — Signature Page Follows]
4
THIS AGREEMENT is hereby executed on behalf of the parties as follows:
Borrower:
By:
Name:
Title:
Date:
Custodian:
By:
Name:
Title:
Date:
(Signature)
(Signature)
Note to Borrowers: the form below is a. form of Security Document List & Custodial Receipt that must
be completed by the Borrower and submitted to the Custodian for use as a receipt whenever Borrower is
required by the Section 108 Contract to submit additional Security Documents (identified in the Section
108 Contract as "Security Documents').
SECURITY DOCUMENT LIST & CUSTODIAL RECEIPT
The following documents were delivered in accordance with the agreement dated
, between the undersigned ("Custodian"), and ("Borrower"),
and which is known as the "Section 108 Guaranteed Loan Custodial Agreement":
Mark with
"X" if
received by
Name of Security Document
_
[HUD to COPY DOCUMINT$ FROM PARAGRAPH 15a
insert, one in each line
Date Received
Custodian
This is the [Borrower to insert 'first, " "second, " "third, " etc. as
appropriate] Security Document List & Custodial Receipt under the Section 108 Guaranteed
Loan Custodial Agreement between Custodian and Borrower dated the day of
20l.
[Remainder of Page Intentionally Left Blank — Signature Page Follows]
The undersigned hereby acknowledges receipt of the documents indicated with an
`X' in the table above, on the dates acknowledged in the table:
Custodian:
By:
Name:
Title:
Date:
(Signature)
FISCAL AGENCY AGREEMENT
ExEC&TIO"v
AMENDED AND RESTATED
MASTER FISCAL AGENCY AGREEMENT
among
the
SECRETARY OF HOUSING
AND URBAN DEVELOPMENT
and
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank)
as Fiscal Agent
Dated as of May 17, 2000
Table of Contents
Page
ARTICLE I
DEFINITIONS
ARTICLE II
DELIVERY A -ND REGISTRATION OF NOTES
Section 2.01. Details of Notes.......... 8
Section 2.02_ Acceptance by Fiscal Agent...................................................................................... 8
Section 2.03. Authorization Order.................................................................................................. 9
Section 2.04. Advances and Conversion Date Advances under Var%able/Fixed Rate
Notes.......................................................................................:............................... 10
ARTICLE III
ADMINISTRATION OF NOTES
Section 3.01. Modification of Notes............................................................................................. 13
Section 3.02. Redemption of Notes.............................................................................................. 13
Section 3.03. Collection on Guarantees........................................................................................ 14
Section 3.04. Notification of Amounts Due.................................................................................. 14
Section 3.05. Collection of Payments; Note Account................................................................... 15
Section 3.06. Fiscal Agent to Act as Paying Agent and Calculation Agent........... ...................... 16
Section 3.07. Permitted Charges Against Note Account.............................................................. 18
Section 3.08. Fiscal Agent to Cooperate; Release of Notes......................................................... 18
Section 3.09. Replacement Notes................................................................................................. 18
ARTICLE IV
PAYMENTS
Section 4.01. Payments...................................................................
ARTICLE V
REGISTRATION OF NOTES
Section 5.01. Registration of Transfers and Exchanges of Notes ...............
Section 5.02. Persons Deemed Holders ......................................................
Section 5.03. Maintenance of Office or Agency .........................................
ARTICLE VI
RIGHTS AND DUTIES OF BORROWERS
Section 6.01. Compensation and Indemnification of Fiscal Agent .............
ARTICLE VII
RIGHTS AND DUTIES OF FISCAL AGENT
Section 7.01. Duties of Fiscal Agent ...............................................
Section 7.02. Certain Matters Affecting Fiscal Agent .....................
Section 7.03. Fiscal .Agent Not Liable for Notes .............................
Section 7.04. Eligibility Requirements for Fiscal Agent .................
Section 7.05. Resignation and Removal of Fiscal Agent .................
_ins= 19
o5
............. I................ 20
.............................. 21
.............................. 22
Section 7.06. Merger or Consolidation of Fiscal Agent............................................................... 29
Section 7.07. Fiscal Agent May Own the Notes........................................................................... 29
Section 7.08. Fidelity Bond or Insurance...................................................................................... 29
Section 7.09. Fiscal Agent Not Liable for Investments................................................................ 30
ARTICLE VIII
TERMINATION
Section8.01. Termination .............................................................................................. ............... 30
ARTICLE IX
MISCELLANEOliS PROVISIONS
Section9.01. Amendment.........................................................................•---•----........................... 31
Section 9.02. Inspection of Documents by HoIders...................................................................... 3 I
Section9.03. Governing Law.......................................................................................•-.............. 31
Section9.04. Notices.................................................................................................................... 32
Section 9.05. Severability of Provision...........................................................................•-••-......... 32
Section 9.06. Counterparts ..............
Exhibit A-1. Form of Variable/Fixed Rate Note
Exhibit A-2. Form of Fixed Rate Note
Exhibit B. Form of Guarantee
Exhibit C. Form of Authorization Order
Exhibit D. Form of Advance Order
Exhibit E. Form of Notice of Missed Borrower Payment from
Fiscal Agent to Secretary
Exhibit F. Form of Notice for Guarantee Payment from Fiscal
Agent to Secretary
Exhibit G. Schedule of Fiscal Agent Fees for Variable/Fixed Rate Note Services
31183il4
11
AINNiENDED AND RESTATED
MASTER FISCAL AGENCY AGREEMENT
This MASTER FISCAL AGENCY AGREEMENT (the "Agreement") dated as of May
17, 2000 is made and entered into by and between the Secretary of Housing and Urban
Development on behalf of certain Borrowers, as hereinafter defined and The Chase Manhattan
Bank (formerly known as Chemical Bank), a banking corporation organized and existing under
the laws of the State of New York, as Fiscal Agent (the "Fiscal Agent").
This Agreement amends and restates the Master Fiscal Agency Agreement dated as of
November 28, 1995 among the Borrowers (as defined therein) and Chemical Bank, a bank
organized and existing under the laws of the state of New York, as Fiscal Agent. This
Agreement is effective only with respect to those Notes delivered to the Fiscal Agent on or after
the date first referenced above.
In consideration of the premises and of the mutual agreements herein contained, the
parties agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Act: The Housing and Community Development Act of 1974, as amended, 42 U.S.C. §§
5301 et seq.
31183;19 r
Advances: Such amounts as may be advanced to or on behalf of a Borrower under a
Variable/Fixed Rate Note from time to time by the Holder of such Variable.,`Fixed Rate Note
pursuant to an interim financing agreement. Unless expressly stated, the term "Advance" does
not include "Conversion Date Advances."
Advance Order: The written order of the Secretary delivered to the Fiscal Agent pursuant
to Section 2.04(b) hereto, in substantially the form set forth in Exhibit D hereto.
Agreement: This Amended and Restated Master Fiscal Agency Agreement and all
amendments and supplements hereto.
Aggregate Princi-pal Amount: For each Variable/Fixed Rate Note, the sum of all
Advances and, if applicable, Conversion Date Advances, under such Variable/Fixed Rate Note.
Authorization Order: The written order of the Secretary delivered to the Fiscal Agent
pursuant to Section 2.03 and Section 2.04(a) or (c) hereto, in substantially the form set forth in
Exhibit C hereto.
Authorized Officer: When used with respect to the Fiscal Agent, means the chairman or
any vice chairman of the board of directors, the chairman or any vice chairman of the executive
committee of the board of directors, the chairman of the trust committee, 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 or any assistant
controller or any other officer of the Fiscal Agent customarily performing functions similar to
those performed by any of the above designated officers and also means, with respect to a
133.19
2
particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
Authorized Official: When used with respect to the united States Department of
Housing and Urban Development; the Secretary and any other official of such department who at
the time shall have been duly authorized to act on behalf of the Secretary.
Borrowers: Eligible public entities, or public agencies designated by such eligible public
entities, which have issued debt obligations guaranteed by the Secretary pursuant to Section 108.
Business Dav: A day on which banking institutions in New York City are not required or
authorized to remain closed and on which the Federal Reserve Bank of New York and the New
York Stock Exchange are not closed.
Commitment Amount: The commitment amounts stated on the Commitment Schedule
for a Variable/Fixed Rate Note for each related Principal Due Date. The aggregate of all
Advances for each Principal Due Date shall not exceed the related Commitment Amount for any
Variable/Fixed Rate Note.
Contract: Any Contract for Loan Guarantee Assistance, including any amendments,
entered into between a Borrower and the Secretary providing for the issuance of Notes and their
related Guarantees by such Borrower and the Secretary, respectively.
Conversion Date: The date (if any) upon which a VariablelFixed Rate Note is (i)
delivered by its Holder to the Fiscal Agent against payment therefor by the purchasers selected
by the Secretary to make such payment and (ii) assigned to The Chase Manhattan Bank (or any
successor thereto) actino in its capacity as Trustee (the "Trustee") pursuant to a Trust Agreement
3fIS3.l9
among the Secretary and the Trustee, dated as of January 1, 1995, as such agreement may be
amended or supplemented. Upon the occurrence of (i) and (ii) in the previous sentence such
Variable/Fixed Rate Note converts to a fixed rate obligation, in accordance with its terms_
Conversion Date Advances: Amounts funded on the Conversion Date of a Variable/
Fixed Rate Note pursuant to Paragraph 2.04(c).
Corporate Trust Office: The Chase Manhattan Bank's Structured Finance Operations
Department, which, at the date of the execution of this Agreement, is located at 450 West 33rd
Street, 8 I Floor, New York, New York 10001, or any subsequent office of The Chase Manhattan
Bank of which the Secretary is notified or the office of a successor fiscal agent.
Date of Note: The date of note stated on any Note.
Director, Financial Management Division: The Director of the Financial Management
Division, Office of the Assistant Secretary for Community Planning and Development, U.S.
Department of Housing and Urban Development, and any other official of such department who
at the time shall have been duly authorized to act on behalf of such Director.
Fiscal Agent: The Chase Manhattan Bank (formerly known as Chemical Bank), a
banking corporation organized and existing under the laws of the State of New York, or its
successor in interest, or any successor fiscal agent appointed as herein provided.
Fixed Rate Notes: Notes issued by Borrowers with scheduled fixed interest rates from
the date of issuance, substantially in the form of Exhibit A-2 hereof.
3! is -Ii f9
4
Funding Date: In the case of a Variable!'Fixed Rate Note, the date of an Advance under
such Note, which shall be the Wednesday of any week as requested by a Borrower pursuant to
Section 2.04, unless otherwise agreed upon by the initial Holder of such Note and the Secretary.
If Wednesday is not a Business Day, then the Funding Date shall be the next succeeding
Business Day. Notwithstanding the foregoing, no Funding Date shall occur during the seven day
period immediately preceding either (i) a Public Offering Date, or (ii) a Payment Date.
GovernmentObligation: A direct obligation of, or any obligation for which the full and
timely payment of principal and interest is guaranteed by, the United States of America,
including but not limited to, United States Treasury Certificates of Indebtedness, Notes and
Bonds - State and Local Government Series, or certificates of ownership of the principal of or
interest on direct obligations of, or obligations unconditionally guaranteed by, the United States
of America, which obligations are held in trust by the Fiscal Agent.
Guarantee: With respect to any Note, the related Guarantee made by the Secretary
pursuant to Section 108 by which the Secretary guarantees the timely payment of the principal of
and interest on such Note.
Guarantee Payment: Any payment made by the Secretary pursuant to a Guarantee.
Holder: The Person in whose name a Note is registered in the Note Register.
Maximum Commitment Amount: The sum of the Commitment Amounts stated on the
Commitment Schedule attached to a Variable/Fixed Rate Note. The aggregate of all Advances
under a VariableiFixed Rate Note shall not exceed the Maximum Commitment Amount for such
Note.
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Note: Any note issued by a Borrower and guaranteed by the Secretary pursuant to
Section 108, substantially in the form set forth in Exhibit A-1 or A-2 hereto, that is subject to this
Agreement.
Note Account: The account created and maintained pursuant to section 3.05.
Note Register: The Register maintained by the Fiscal Agent pursuant to Section 5.01.
Opinion of Counsel: A written opinion of counsel for the Secretary, who may be, but
does not have to be, an employee of the Department of Housing and Urban Development.
Payment Date: With respect to all payments due for a Fixed Rate Note or a
Variable/Fixed Rate Note after the Conversion Date, each February 1 and August 1. With
respect to all payments due for a Variable/Fixed Rate Note on or before the Conversion Date,
each February 1, May 1, August 1 and November 1 and the Conversion Date or any other date
specified in the applicable Note, on which interest or principal is due and payable. If any
Payment Date is not a Business Day, then payments payable on such Payment Date shall be
made on the next Business Day.
Person: Any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any agency or political
subdivision thereof.
Principal Amount: In the case of a Variable/Fixed Rate Note (i) before the Conversion
Date for such Note, the aggregate amount of Advances made for each Principal Due Date
specified in the related Commitment Schedule thereunder, less the amount of any redemption or
principal repayment; and (ii) on or after the Conversion Date, the principal amount stated for
:1183-,;9
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each Principal Due Date in Schedule P&I thereto less the amount of any Optional Redemption
(as defined in the dote) or principal repayment. In the case of a Fixed Rate Note, the principal
amount stated for each Principal Due Date in Schedule P&I thereto less the amount of any
Optional Redemption (as defined in the Note) or principal repayment.
Princi al Due Date: The stated- due date of a Principal Amount outstanding under a Note.
If any Principal Due Date is not a Business Day, then payments payable on such Principal Due
Date shall be made on the next Business Day.
Public Offerinz Date: The date of the sale of specified Notes to the underwriters selected
by the Secretary in connection with the pooling and public offering of the related series of
participation certificates backed by such specified Notes.
Record Date: With respect to any Note, the close of business on the fifteenth calendar
day of the month next preceding the month in which a Payment Date occurs.
Secretarv: The Secretary of Housing and urban Development.
Section 108: Section 108 of Title 1 of the Act.
Trustee: The Chase Manhattan Bank, acting in its capacity as Trustee pursuant to the
Trust Acreement.
Trust A2reement: The Trust Agreement dated as of January 1, 1995, among the
Secretary and The Chase Manhattan Bank, as such agreement may be amended or supplemented
from time to time.
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Variable/Fixed Rate Notes: Notes issued by Borrowers with a variable interest rate,
which converts to scheduled fixed interest rates on the Conversion Date, in substantially the form
of Exhibit A-1 hereto.
ARTICLE E
DELIVERY AND REGISTRATION OF NOTES
Section 2.01. Details of Notes. From time to time following the execution and delivery
hereof and in accordance with the procedures described herein, the Secretary shall deliver to the
Fiscal Agent one or more Notes of one or more Borrowers. Each Note shall be in the form of a
fully registered note. The Aggregate Principal Amount of a Variable/Fixed Rate Note shall not
exceed such Variable,'Fixed Rate Note's Maximum Commitment Amount_ Each Note shall be
registered in the Note Register pursuant to instructions to be furnished by the Secretary to the
Fiscal Agent in accordance with Sections 2.03 and 2.04. Pursuant to the Contract related to each
Borrower's Note, each Borrower will have authorized the Secretary to list its Note in the
Authorization Order delivered by the Secretary pursuant to Sections 2.03 or 2.04(a) or (c) or any
Advance Order delivered by the Secretary pursuant to Section 2.04(b). The Fiscal Agent shall
have no responsibility in respect of the authorizations of any Borrower under the relevant
Contract or with respect to the information supplied by the Secretary in the Authorization Order
from the Secretary pursuant to Section 2.03 or 2.04(a) or (c) or the Advance Order from the .
Secretary pursuant to Section 2.04(b). Pursuant to such Contract, each Borrower designates and
appoints the Fiscal Agent as the paying agent and calculation agent for its Variable.,'Fixed Rate
Notes prior to the Conversion Date, and registrar for all of such Borrower's Notes.
Section 2.02. Acce tance by Fiscal Agent. Upon its receipt of any Notes and their
related Guarantees. the Fiscal Agent will acknow-ledse receipt of such Notes and related
31:33;19
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Guarantees delivered by the Secretary to the Fiscal Agent, as paying agent and calculation agent
for the Variable/Fixed Rate Notes prior to the Conversion Date; and as registrar for all of the
Borrowers` Notes.
Section 2.03. Authorization Order. (a) Not less than two (2) Business Days (or such
shorter period as the Secretary and the Fiscal Agent shall agree upon) before (i) the time of any
delivery of any Notes to Holders under this Agreement and (ii) any Conversion Date, the
Secretary shall deliver to the Fiscal Agent an Authorization Order substantially in the form of
Exhibit C hereto, which Authorization Order shall direct the Fiscal Agent to: (i) for Fixed Rate
Notes, register such Notes, including Schedule P&I thereto; or (ii) for Variable/Fixed Rate
Notes, either register the Notes before an initial Advance thereunder, or, on the related
Conversion Date, attach the original or revised Schedule P&I to the specified Notes, as
applicable. Following such actions, the Fiscal Agent shall deliver the Notes and their related
Guarantees in accordance with the terms set forth in the related Authorized Order(s).
(b) Each such order shall set forth the following information, (if necessary):
(1) the Note number(s) and Borrower name(s)
(2) the name and address of the Holder;
(3) whether each Note is Fixed Rate or a Variable/Fixed Rate Note;
(4) in the case of any Variable/Fixed Rate Note, the aggregate amount of any
initial Advance, and the allocation of such Advance to each related Commitment Amount
and Principal Due Date;
?IIS��i9
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(5) the Principal Amount and Principal Due Date (or dates) in the case of a Fixed
Rate Note;
(6) whether the Notes and their related Guarantees are to be held physically by
the Fiscal Agent or transferred to the Holder (or its nominee) of the Notes; and the date
such delivery or transfer is to occur;
(7) whether the Notes or certain Principal Amounts due under the Notes are
subject to redemption or acceleration prior to their Principal Due Dates and if so, the
terms and conditions relating to any redemption or acceleration; and
(8) any additional information, directions or Schedules from the Secretary
regarding the issuance of the Notes.
(c) the Fiscal Agent agrees that following its receipt of. (1) the Notes and their related
Guarantees from the Secretary on behalf of the Borrowers; (2) an Authorization Order from the
Secretary covering such Note or Notes; and (3) such Opinion of Counsel and other documents as
the Fiscal Agent may reasonably request, the Fiscal Agent will register and deliver the Notes and
their related Guarantees in accordance with, and upon the direction of, the Secretary as specified
in such Authorization Order.
Section 2.04. Advances and Conversion Date Advances under Variable/Fixed Rate
Notes. (a) Initial Advances. Each Variable/Fixed Rate Note provides that the initial Holder
thereof shall make an initial Advance under the Variable/Fixed Rate Note on any applicable
Funding Date upon the written request of the Borrower and the approval of the Secretary. The
Borrower shall deliver its request for an initial Advance to the Secretary at least ten Business
3, 1830»
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Days in advance of the requested Funding Date. Such request shall include the name of the
Borrower, each Principal Due Date for which an Advance is requested, and the amount of each
related initial Advance. The Secretary shall deliver to the Fiscal Agent an Authorization Order
evidencing such approval for all initial Advances requested for each relevant Funding Date,
either together with the related Variable/Fixed Rate Notes, Guarantees and such Opinions of
Counsel and such other documents as the Fiscal Agent has requested, or as otherwise agreed. If
the initial amount funded under a Variable/Fixed Rate Note is a Conversion Date Advance, then
the procedures set forth in Section 2.04(c) below apply instead of this paragraph or paragraph
2.04(b). The Fiscal Agent shall (i) disburse initial Advances in accordance with Section 2.04(d)
and the relevant Authorization Order; and (ii) reflect any such initial Advances on its books and
records.
(b) Subsequent Non -Conversion Date Advances. A Borrower may request additional
Advances under a Variable/Fixed Rate Note from time to time for any Funding Date following
the date of such Note's initial Advance in accordance with the Contract. The Borrower shall
deliver its request for such an Advance to the Secretary at least five Business Days in advance of
the requested Funding Date. Such request shall include the name of the Borrower, the Note
number and Maximum Commitment Amount of the Note, the aggregate of funds requested under
the Advance, and the amount of the Advance allocated to each Principal Due Date and each
Commitment Amount, as applicable. The Secretary shall deliver an Advance Order,
substantially in the form of Exhibit D hereto, to the Fiscal Agent with respect to all Advances
approved by the Secretary for each Funding Date following the date of an initial Advance under
a Variable -Fixed Rate Note. The Fiscal Agent shall (i) disburse such Advances in accordance
,I 18"i19
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with Section 2.04(d) and the relevant Advance Order; and (ii) reflect any such Advances on its
books and records.
(c) Conversion Date Advances. A Borrower may request a Conversion Date Advance
under a Variable/Fixed Rate Note. The Borrower shall deliver its request for such Conversion
Date Advance to the Secretary at least ten Business days in advance of the relevant Conversion
Date. Such request shall include the name of the Borrower, each Principal Due Date for which a
Conversion Date Advance is requested and the amount of any such Conversion Date Advances,
together with the Schedule P&I approved by the Secretary for the applicable Borrower's Note.
The Secretary shall deliver to the Fiscal Agent an Authorization Order and a revised Schedule
P&I including such Conversion Date Advances for each Variable/Fixed Rate Note for which a
Conversion Date Advance is made. The Fiscal Agent shall reflect any such Conversion Date
Advances on its books and records. The proceeds of each Conversion Date Advance, net of any
fees due from the Borrower pursuant to Section 6.01(a) hereof or Section 7.01 of the Trust
Agreement shall be disbursed to the Borrower by the Trustee on the Conversion Date.
(d) Procedures. Unless otherwise agreed, all documents required to be delivered to the
Fiscal Agent must be received by the Fiscal Agent two Business Days before the related Funding
Date or Conversion Date, as applicable. The Fiscal Agent shall notify the Holder of each
Variable/Fixed Rate Note of a requested Advance and payment instructions therefor no later than
10:00 a.m. on the Business Day before the Funding Date. The Holder of each Variable/Fixed
Rate Note shall remit to the Fiscal Agent Federal funds representing the aggregate amount of all
Advances for such Funding Date, which shall not be less than $23,000 (unless otherwise agreed
by the Holder and the Secretary) no later than 2:00 p.m_ on such Funding Date. The Fiscal
Agent shall remit the proceeds of each Advance in accordance with the instructions provided to
3 t 183rt 9'
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I
the Fiscal Agent by the Secretary to the respective Borrower thereof, net of any fees due the
Fiscal Agent pursuant to Section 6.01(a) hereof.
(e) Recordkeeping. The Fiscal Agent shall keep a record of (i) all Advances and
Conversion Date Advances; (ii) the related Commitment Amounts and the Maximum
Commitment Amount and any changes to the same relating to a redemption prior to a
Conversion Date or any changes for which the Secretary has provided written notice; (iii) any
payments (including prepayments) received in each case for any relevant Principal Due Date;
and (iv) any fees paid by the Borrower to the Fiscal Agent with respect to each Variable/Fixed
Rate Note (including any amounts withheld by the Fiscal Agent from disbursements to the
Borrower). By the fifth Business Day of each month, the Fiscal Agent shall provide the
Secretary and the Holder of the related Variable/Fixed Rate Notes with a report of the
information contained in the previous sentence for each Variable/Fixed Rate Note as of the last
day of the preceding month.
ARTICLE III
ADMINISTRATION OF NOTES
Section 3.01. Modification of Notes. To the extent permitted by the Note, any term of
any Note may be modified by such amendments as may be agreed upon from time to time by the
Secretary and the Borrower under such Note, with the consent of the Holder (if required). No
such change in the terms of any Note shall alter or affect the terms of the Secretary's guarantee.
Section 3.02. Redemption of Notes. If so provided in the applicable Note (subject to
the provisions set forth herein and subject to the provisions set forth in such Notes), the
Variable.,Tixed Rate ?Votes may be redeemable prior to the Conversion Date in whole or in part at
3 1183119
13
the option of the Borrower. In order to redeem or prepay such a redeemable Note, the Borrower
shall Give notice of its intention to redeem such Note to the Secretary and the Fiscal Agent not
less than fourteen calendar days prior to the date on which the Borrower intends to redeem the
Note. Such notice shall specify the Principal Amount with respect to each Principal Due Date
that is to be redeemed. The Fiscal Agent shall give such notice to the Holder of such Note not
less than ten calendar days prior to the desired redemption date. After the Conversion Date, any
Optional Redemption (as defined in the Note) of a Variable/Fixed Rate -Note shall be in
accordance with the terms of such Note and the Trust Agreement. The Holders of Notes will
have no rights to demand prepayment or redemption of a Note.
Section 3.03. Collection on Guarantees. Pursuant to each Guarantee, the Secretary
will unconditionally guarantee the payment of all principal and interest on the Note to which
such Guarantee relates when and as due in accordance with the terms of the Notes.
Section 3.04. Notification of Amounts Due. The Fiscal Agent, acting as Calculation
Agent, shall prepare and provide to each Borrower, with a copy to the Secretary and the Holder
thereof as of the relevant Record Date, a written schedule of total interest, fees (if applicable) and
any principal due on the Variable/Fixed Rate Notes of such Borrower fifteen days in advance of
the related Payment Date. In addition, if the Fiscal Agent receives a notice (i) from the Secretary
specifying the Conversion Date for specified Variable!Fixed Rate Notes, or (ii) from a Borrower,
specifying the date of a permissible prepayment or redemption prior to the Conversion Date, then
the Fiscal Aaent acting as Calculation Agent shall promptly give notice (but in any event no later
than two Business Days after receipt of such notice) to the Holder as of the relevant Record Date
and the Secretary of the respective amounts (or its best estimate of the respective amounts if the
actual amounts cannot be determined on the date of such notice) of interest, fees (if applicable)
31183i 19 14
and principal (if any), payable by the Borrowers on either (i) the Public Offering Date for all
Variable/Fixed Rate Notes to be included in such public offering, or (ii) the date of such
prepayment or redemption, as applicable. Thereafter the Secretary shall promptly give notice to
each such Borrower of the amount (or the best estimate of such amount provided by the Fiscal
Agent) of interest, fees (if applicable) and principal (if any), that such Borrower shall be required
zn
to pay on the Public Offering Date or date of such redemption. Such notice shall include written
payment instructions with respect to such payment.
Section 3.05. Collection of Pavments: Note :account. The Fiscal Agent shall establish
and maintain a separate, non-interest bearing trust account (the "Note Account") into which the
Fiscal Arent shall deposit the following:
(a) All interest payments on each Variable/Fixed Rate Note made on or before the
Conversion Date of such Note, including those made by the Borrower and those made by the
Secretary pursuant to a Guarantee; and
(b) All principal payments on each Variable/Fixed Rate Note made on or before the
Conversion Date of such Note, including those made by the Borrower on a Principal Due Date,
those made by the Borrower as a prepayment or redemption, and those made by the Secretary
pursuant to a Guarantee.
(c) Any fee payments made by the Borrower on each Variable/Fixed Rate Note on or
before the Conversion Date of such Note.
Guarantee Payments made by the Secretary in accordance with the terms of Section 3.06
herein shall be deposited by the Fiscal Agent in the Note Account. The moneys paid pursuant to
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Section 3.05(a) and (b) above and held as part of the Note Account shall be held in trust for the
benefit of the Holders of the related Notes and shall be applied by the Fiscal Agent in accordance
with the provisions of Section 3.07 herein. Moneys paid pursuant to Section 3.05(c) above and
held as part of the Note Account shall be held solely for the benefit of the Fiscal Agent in its
individual capacity.
Section 3.06. Fiscal Anent to Act as Paving Agent and Calculation Agent. (a) The
Fiscal Agent shall receive the payments due on the Variable/Fixed Rate Notes made on or before
the Conversion Date of such Note and deposit such payments in the Note Account as provided in
Section 3.05. Each Borrower shall make such payments directly to the Fiscal Agent by 3:00 p.m.
(New York City time) on the seventh Business Day next preceding the relevant Payment Date.
No later than 1:00 p.m. (New York City time) on the sixth Business Day next preceding each
Payment Date, the Fiscal Agent shall determine whether all payments required to be made on
such Notes have been duly received from each Borrower. If such payments have not been
received, the Fiscal Agent shall notify the Secretary by a telephone call to the Director, Financial
Management Division, confirmed in writing by telex or telecopy in the form attached hereto as
Exhibit E, that the Secretary may be required to make a Guarantee Payment, and shall provide
notice of the amount of such payment. If a payment (other than a fee payment) required to be
made by a Borrower on a Note has not been duly received by the Fiscal Agent by the close of
N
business on the third Business Day next preceding the Payment Date, then by no later than 10:00
a. m. (New York City time) on the Business Day next succeeding the relevant Payment Date, the
Fiscal Agent shall notify the Secretary, by a telephone call to the Director, Financial
Management Division, confirmed in writing by telex or telecopy, in the form attached hereto as
Exhibit F, that the Secretary is required to make a Guarantee Payment and shall provide notice of
16
the amount of such payment. The Secretary shall make any required Guarantee Payment by wire
transfer to the Fiscal Agent in Federal funds, for subsequent payment by the Fiscal Agent to the
Holder in accordance with the terms of Section 4.01 herein. If a payment required to be made on
a Note has not been duly received from either the Borrower or the Secretary by 2:30 p.m. on the
second Business Day next succeeding the Payment Date, pursuant to the terms of the Borrower's
Note, interest shall accrue on the amount of such payment at the variable rate in effect for such
Note from the applicable Payment Date until the date of payment to the Fiscal Agent. The
Secretary shall use its best efforts to obtain for the Fiscal Agent payment of any unpaid fees due
from a Borrower. Any such payment shall be from the assets pledged by the Borrower to the
Secretary as security for the repayment of the Notes and related costs authorized by the
Secretary.
(b) The Fiscal Agent shall act also as calculation agent in respect of the Variable/Fixed
Rate Notes. The Fiscal Agent shall calculate the amount of interest and principal, if any, due on
each Variable/Fixed Rate Note on any Payment Date on or before the related Conversion Date at
least fifteen days in advance of such Payment Date in accordance with the terms and conditions
of such Variable/Fixed Rate Note. Pursuant to Section 3.04, the Fiscal Agent shall notify the
Borrower, the Secretary and the Holder of the Variable/Fixed Rate Note of the applicable
variable interest rates and amounts due (including any fees) with respect to the Variable/Fixed
Rate dotes, determined in accordance with this Section. The determination by the Fiscal Agent
of the variable interest rate for, and the calculation of the interest due on, the Variable/Fixed Rate
Notes pursuant to this Section shall (in the absence of manifest error) be final and binding.
The Fiscal Agent will keep records of all determinations under this Section, including,
but not limited to, a copy of the relevant page of the Wall Street Journal or similar publication or
? 1831,! 4
17
a print-out of any Telerate Page or similar computer screen or a copy of any communications
stating the applicable interest rate from the Holder that the Fiscal Agent used to calculate the
applicable interest rate for any Reset Date defined in the Note, and shall permit the Secretary or
any Holder of a Variable/Fixed Rate Note at any reasonable time to examine such records, and
will furnish such other information in respect of the determination of the interest rate as the
Secretary or any Holder of a Variable/Fixed Rate Note shall reasonably request.
Section 3.07. Permitted Charges Against Note Account. The Fiscal Agent shall, from
time to time, withdraw funds from the Note Account for the following purposes:
(a) First, to make payments to the Holders m the amounts and in the manner provided for
in Section 4.01;
(b) Second, to reimburse the Secretary for any Guarantee Payment made with respect to
the Notes to which the Note Account relates, provided that such reimbursement shall be limited
to amounts received on a Note by the Fiscal Agent that represent late recoveries of payments of
principal and/or interest respecting such Note for which any Guarantee Payment was made; and
(c) Third, to pay any fees owed to the Fiscal Agent, provided that such payment shall be
. limited to amounts received by the Fiscal Agent that represent actual fees due and paid by a
Borrower on its Note; and
(d) Fourth, to clear and terminate the Account pursuant to Section 8.01 (if applicable).
Section 3.08. Fiscal Agent to Cooperate. Release of Notes, upon payment in full to
the Holder of any Variable,Fixed Rate Note (including pursuant to the related Guarantee), the
Fiscal Agent shall obtain from the Holder and release the Note to the Secretary.
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Section 3.09. Replacement Notes. If (i) any mutilated Note is surrendered to the Fiscal
Agent, or the Fiscal Agent receives evidence to its satisfaction of the destruction, loss or theft of
any Note, and (ii) there is delivered to the Fiscal Agent such security or indemnity as may be
required by it to hold it, the Borrower and the Secretary harmless, then, in the absence of notice
to the Fiscal Aaent that such Note has been acquired by a bona fide purchaser and upon the
Holder's paying the reasonable expenses of the Fiscal Agent, the Borrower under such Note shall
execute and the Fiscal Agent shall deliver, in exchange for such mutilated Note or in lieu of such
destroyed, lost or stolen Note, a new Note of like date, tenor and principal amounts, as
appropriate.
ARTICLE IV
PAYMENTS
Section 4.01. Payments. On each Payment Date that occurs on or before the
Conversion Date relating to a particular Variable/Fixed Rate Note, the Fiscal Agent, as paying
agent for the Borrower under such Note, shall pay to the corresponding Holder determined as of
the close of business on the next preceding Record Date (other than as provided in Section 8.01
respecting the final payment) all amounts credited to the Note Account in respect of principal
and interest on the related Notes as of 10:00 a.m. (New York City time) on the applicable
Payment Date, other than amounts, if any, which represent late recoveries of principal andlor
interest in respect of which any Guarantee Payment was made. Interest and principal payments
on a Variablei'Fixed Rate Note and, upon presentation and surrender of such Note at redemption
in full, or at the final Principal Due Date, the Aggregate Principal Amount then outstanding, are
payable (i) by mailing a check payable in New York clearing house funds to such Holder at the
address of such Holder on the Note Register or (ii) at the request of the Holder, by wire transfer
3i 183.19
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to such commercial bank located in the continental United States having appropriate facilities
therefor as such Holder may designate in writing to the Fiscal Agent (provided that the Holder
shall have given the Fiscal Agent appropriate written wire transfer instructions not later than the
Record Date with respect to such payment). Payments on Fixed Rate motes and on
Variable/Fixed Rate Notes after the Conversion Date shall be made in accordance with the Trust
Agreement.
ARTICLE V
REGISTRATION OF NOTES
Section 5.01. Registration of Transfers and Exchanges of Notes. The Fiscal Agent
shall be the registrar of the :Notes for the purposes of registering the Notes and maintaining a
record of any transfers and exchanges of Notes as herein provided. The Fiscal Agent shall cause
to be kept at the office to be maintained in accordance with the provisions of Section 5.03 hereof,
a Note Resister in which it shall record for each Note, the name and address of the registered
Holder, Commitment Amounts, the Principal Amounts and the Principal Due Dates thereof and
such other information as may be required by this Agreement or applicable law or regulation.
Registration of transfer shall be subject to such reasonable regulations as the Fiscal Agent
may prescribe. No registration of transfer or exchange of any Note may be made unless all
information required to be provided by the Holder has been given as provided in the
"Assignment and Transfer" portion of the form of Note. Lipon surrender for registration or
transfer of any Note at the office that the Fiscal Agent maintains for such purpose pursuant to
Section 5.03, the Fiscal Agent shall cause the Borrower under such Note to execute and deliver
in the name of the designated transferee or transferees, one or more new Notes of like Aggregate
Principal Amount.
3I 183119
20
At the option of the Holder, a Note may be exchanged for Notes of like Agareaate
Principal Amount, upon surrender at the office that the Fiscal Agent maintains for such purpose
pursuant to Section 5.03.
Every dote presented or surrendered for registration of transfer or for exchange shall be
duly endorsed by, or be accompanied by a written instrument of transfer or authorization for
exchanae in form satisfactory to the Fiscal Agent duly executed by the Holder thereof or by its
attorney duly authorized in writing.
Exchanses and transfers will be without charge to the Person presenting the Note for
transfer or exchange, except that the Fiscal Agent may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any transfer or
exchange of a Note.
All Notes surrendered for registration of transfer or exchange shall be cancelled by the
Fiscal Agent in accordance with its standard procedures. All such cancelled Notes shall be
forwarded to the Secretary by the Fiscal Agent from time to time.
Section 5.02. Persons Deemed Holders. Prior to due presentation of a Note for
registration of transfer, the Borrower under such Note, the Secretary, the Fiscal Agent and any of
their agents may treat the Person in whose name any Note is registered as the holder of such
Note for the purpose of receiving payments pursuant to Section 4.01 hereof and for all other
purposes whatsoever. ';either the Borrower, the Secretary, the Fiscal Agent nor any of their
agents shall be affected by notice to the contrary. Notwithstanding the foregoing, the Borrower
under a VariablerFixed Rate Note, the Secretary, the Fiscal Agent and any of their agents shall,
on and after the Conversion Date, treat the Trustee as the holder of such Note for the purpose of
1iis.n9
21
receiving payments pursuant to Section 4.01 and for all other purposes whatsoever. Neither the
Borrower, the Secretary, the Fiscal Agent nor any of their agents shall be affected by any notice
to the contrary.
Section 5.03. Maintenance of Office or Aaencv. The Fiscal Agent shall maintain a
designated office or agency where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Borrowers or the Fiscal Agent in
respect of the Notes and this Agreement may be served. The Fiscal Agent designates its
Corporate Trust Office as such office for said purposes.
ARTICLE VI
RIGHTS AND DUTIES OF BORROWERS
Section 6.01. Compensation and Indemnification of Fiscal Agent. (a) Pursuant to
the related Contract, each Borrower under a Variable/Fixed Rate Note agrees to pay the Fiscal
Agent fees as provided in this Section for the services the Fiscal Agent provides in respect of
such Variable/Fixed Rate Note. Such fees shall be as set forth in Exhibit G hereof and shall be
either deducted by the Fiscal Agent directly from the proceeds of any Advance in respect of a
Variable/Fixed Rate Note, or included in the quarterly notification of amounts due that the Fiscal
Agent provides under Section 3.04, each in accordance with Exhibit G. Each Borrower also
shall pay the Fiscal Agent any additional compensation agreed to be paid to the Fiscal Agent.
The Borrowers will pay all out-of-pocket expenses, including fees and disbursements of counsel
incurred by the Fiscal Agent in the performance of its duties hereunder; provided, however, that
(1) the Fiscal Agent shall in no event acquire any lien upon any Notes administered pursuant to
this Agreement, or any moneys received with respect thereto (other than fee payments pursuant
to this Section 6.01(a) and Section 3.05(c)), or any claim against the Holders of the Notes, by
31 s_no
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reason of the failure of the Borrowers to pay any of such charges or expenses. and (2) the
Borrowers shall not be required to pay any out-of-pocket expenses incurred by the Fiscal Agent
to the extent that the expenses are chargeable under Section 5.01 hereof to persons requesting the
transfer or exchange of Notes.
The terms of this Section 6.01 with respect to claims arising in connection with the Fiscal
Agent's duties while acting as such shall survive the termination of this Agreement or the
resignation or removal of the Fiscal Agent.
(b) The Secretary hereby agrees:
(1) to reimburse the Fiscal Agent upon its request for all reasonable, otherwise
uncompensated out-of-pocket expenses, disbursements and advances incurred or made by
the Fiscal Agent in accordance with any provision of this Agreement (including the
reasonable compensation and expenses and disbursements of its agents, attorneys and
counsel and of all persons not regularly in its employ), except any such expense,
disbursement or advance that either was paid by Borrowers pursuant to Section 6.01(a),
or is attributable to its gross negligence, willful misconduct or bad faith; and
(2) to indemnify the Fiscal Agent for, and to hold it harmless against, any
loss, liability or expense incurred without bad faith, willful misconduct or gross
negligence on its part arising out of or in connection with the acceptance or
administration of this Agreement or the Notes, including the costs and expenses of
defending itself against anv claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder_ The Fiscal Agent shall notify the
Secretary promptly of any claim for which it may seek indemnitN, under this Clause (2).
�St3=:i4
23
The Secretary shall defend the claim and the Fiscal Agent shall cooperate in the defense.
The Fiscal Agent may have separate counsel with the consent of the Secretary and the
Secretary will pay the reasonable fees and expenses of such counsel. The Secretary need
not pay for any settlement made without its consent.
(c) The unpaid obligations of the Borrowers under Section 6.01(a) and the Secretary
under Section 6.01 (b) shall be payable solely out of grants or other assets pledged by the
applicable Borrowers to the Secretary as security for repayment of the Notes (and related costs
authorized by the Secretary) pursuant to the applicable Contracts. The obligations of the
Secretary under Section 6.01 (b) shall survive the termination or expiration of this Agreement or
the resignation or removal of the Fiscal Agent.
ARTICLE VII
RIGHTS AND DUTIES OF FISCAL AGENT
Section 7.01. Duties of Fiscal Aim . The Fiscal Agent undertakes to perform only
such duties as are specifically set forth in this Agreement. With respect to each Variable/Fixed
Rate Note and the related Guarantee that are delivered to the Fiscal Agent, the Fiscal Agent shall
act as paying agent and calculation agent on or prior to the Conversion Date. The Fiscal Agent
shall act as registrar for all Notes for the duration of this Agreement. Except upon compliance
with the provisions of Sections 2.03, 2.04, 3.08 or 3.09, none of the Notes, their related
Guarantees or any other related instruments or documents shall be delivered by the Fiscal Agent
to the Holders or to the Secretary, or otherwise released from the possession of the Fiscal Agent.
31183/19
24 '■��'''��/r
No provision of this Agreement shall be construed to relieve the Fiscal Agent from
liability to any Borrowers or the Secretary for its bad faith, willful misconduct or gross
negligence; provided, however, that:
(a) The duties and obligations of the Fiscal Agent shall be determined solely by the
express provisions of this Agreement; the Fiscal Agent shall not be liable except for gross
negligence or willful misconduct in the performance of such duties and obligations as are
specifically set forth in this Agreement; no implied covenants or obligations shall be read into
this Agreement against the Fiscal Agent and, in the absence of bad faith on the part of the Fiscal
Agent, the Fiscal Agent may rely conclusively, as to the truth and accuracy of the statements and
contents and the correctness of the opinions expressed therein, upon any certificates, opinions,
resolutions, statements, reports, documents, orders or other instruments fumished to the Fiscal
Agent and conforming to the requirements of this Agreement;
(b) The Fiscal Agent shall not be personally liable for an error of judgment made in good
faith by an Authorized Officer or Authorized Officers of the Fiscal Agent, unless it shall be
proved that the Fiscal Agent was grossly negligent in ascertaining the pertinent facts; and
(c) In no event shall the Fiscal Agent be liable hereunder for special, indirect or
consequential loss or damage of any kind whatsoever.
Section 7.02. Certain Matters Affectin Fiscal Agent. Except as otherwise provided
in Section 7.01.
(a) The Fiscal Agent may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate of an Authorized Official, certificate of auditors or anv other
311R3: 19
25
certificate; statement; instrument, opinion (including an oral opinion or advice of counsel),
report, notice, request, consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) The Fiscal Agent may consult with counsel who may be, but does not have to be, an
employee of the Fiscal Agent and any opinion of such counsel, whether oral or written, 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 accordance with such opinion of counsel, and the Fiscal
Agent shall not be required to take any action in violation of law or any action that would, in its
reasonable determination, expose it to any fine or penalty imposed by law;
(c) The Fiscal Agent shall not be personally liable for any action taken, suffered or
omitted to be taken by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(d) The Fiscal Agent may exercise any of the powers hereunder or perform any duties
hereunder either directly or by or though agents or attorneys and the Fiscal Agent shall not be
responsible for any misconduct or negligence on the part of any agent, attorney or securities —
depository appointed with due care by it; and
(e) The Fiscal Agent shall not be obligated to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument; opinion, report, notice,
consent, order, approval or other paper or document.
Section 7.03. Fiscal Agent Not Liable for Notes. The recitals contained in the Notes
shall be taken as statements of each Borrower, and the Fiscal Agent assumes no responsibility for
31133,19
26
3
their correctness. The Fiscal Agent makes no representation as to the validity or sufficiency of
this Agreement or of anv Note, guarantee or related document or any defeasance and shall not be
held liable for any defect in any portion thereof The Fiscal Agent shall not be accountable for
the use or application by the Secretary or any Borrower of any of the Notes or of the proceeds of
such Notes.
Section 7.04. Eligibility Requirements for Fiscal Anent. The Fiscal Agent hereunder
shall at all times be a corporation having its principal office in the State of New York and
organized and doing business under the laws of such State of the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $100,000,000 and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually, pursuant to law or
the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section 7.04, the combined capital and the surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published.
In case at any time the Fiscal Agent shall cease to be eligible in accordance with the provisions
of this Section 7.04. the Fiscal Agent shall resign immediately in the manner and with the effect
specified in Section 7.05.
Section 7.05. Resignation and Removal of Fiscal Anent. Subject to the further
provisions of this Section 7.05, the Fiscal Agent may resign at any time and be discharged from
its duties as the Fiscal Agent hereunder by giving at least sixty (60) days' prior written notice of
such resignation to the Secretary and the Borrowers and specifying the date on which such
resignation is to take effect, and the Fiscal Agent may be removed by the Secretary as the Fiscal
Agent at any time, with or without cause, by giving at least five (5) Business Days' prior written
_!183:19
27
notice of such removal delivered to the Fiscal Agent and specifying the date on which removal is
to take effect. Upon any such resignation or removal, pursuant to the terms of each Borrower's
Contract, the Secretary may, without other formality than appointment and designation in writing
(a copy of which written instrument shall be promptly provided to the resigning or removed
Fiscal Agent), appoint a successor fiscal agent, provided that such successor fiscal agent shall be
eligible under the provisions of Section 7.04. Any successor fiscal agent appointed as provided
herein shall execute, acknowledge and deliver to the Secretary, the Borrowers and its
predecessor fiscal agent an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor fiscal agent shall become effective and such successor
fiscal agent, without any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like effect as if
originally named as fiscal agent herein. Upon acceptance by such successor fiscal agent of its
appointment hereunder or in the absence of such an appointment upon the effective date of the
resignation or removal as specified in the applicable notice referred to above (or, if the notice
does not so specify, the expiration of the sixty (60) or five (5) day period referred to above), the
Fiscal Agent shall deliver to such successor fiscal agent or the Secretary, as the case may be: (i)
all of the Notes and their related Guarantees (if then held by the Fiscal Agent) and other property
relating to the Notes then in its custody; and (ii) all funds in or otherwise to the credit of the Note
Account other than any funds then held pursuant to Section 3.05(c). The Fiscal Agent shall
otherwise release, assign and deliver to such successor fiscal agent or the Secretary, as the case
may be, against receipt by such successor fiscal agent or the Secretary, as the case may be,
including without limitation, by transmitting to such successor fiscal agent or the Secretary, as
the case may be, for deposit in successor accounts, established by the successor fiscal agent or
3118: 19
28
the Secretary, as the case may be, all other property relating to the dotes in its possession, and
effect a transfer of such property in such manner and pursuant to such instruments as the
Secretary shall reasonably request. The Fiscal Agent shall likewise deliver at such time to such
successor fiscal agent or the Secretary, as the case may be, all of the Note Registers and all
related records and documents in its possession. The Fiscal Agent shall not be discharged from
its duties or obligations hereunder following its resignation or removal until such property has
been delivered to such successor or the Secretary, as the case may be, and transferred, as
provided above.
Section 7.06. Merger or Consolidation of Fiscal Agent. Any corporation into which
the Fiscal Agent may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Fiscal Agent
shall be a party, or any corporation succeeding to all or substantially all of the corporate trust
business of the Fiscal Agent, shall be successor of the Fiscal Agent hereunder, provided such
corporation shall be eligible under the provisions of Section 7.04, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.07. Fiscal Agent May Own the Notes. The Fiscal Agent in its individual or
any other capacity may become owner or pledgee of the Fixed Rate Notes or the Variablei'Fixed
Rate Notes (after the Conversion Date) with the same rights it would have if it were not the
Fiscal Agent.
Section 7.08. Fidelitv Bond or Insurance. So long as any Note is administered
hereunder, the Fiscal Agent shall at all times maintain a fidelity bond or such insurance coverage
3118x:9
29
in respect of its fiscal agent capacity hereunder as it ordinarily maintains when acting in such
capacity.
Section 7.09. Fiscal Agent Not Liable for Investments. The Fiscal Agent shall have
no liability for any loss sustained as a result of any investments made pursuant to the instructions
of any of the parties hereto.
ARTICLE VIII
TERMINATION
Section 8.01. Termination. The respective obligations and responsibilities of the
Borrowers and the Fiscal Agent created hereby with respect to any Note administered by the
Fiscal Agent (other than the obligations of the Borrowers and the Fiscal Agent to make payments
to Holders as hereafter set forth) shall terminate upon the final payment of the last Note
administered by the Fiscal Agent at its final Principal Due Date. No notice need be given and
final payment will be made from the corresponding Note Account on the next following Payment
Date upon presentment and surrender of the Note at the office maintained pursuant to Section
5.03.
With respect to each Borrower, upon the final payment of principal of and interest on
each Note, for which a separate Note Account has been established pursuant to Section 3.05, the
Fiscal Agent shall notify the Secretary of any moneys deposited in such Note Account that have
remained unclaimed by any Holder entitled to receive the same for at least two (2) years after the
date upon which such final payTnent should have been made. The Fiscal Agent may, and upon
receipt of a written request of the Secretary shall, pay over to the Secretary the unclaimed
amount so deposited and the Holder shall thereafter look only to the Secretary for payment of
Miss;tq
30
such unclaimed amount, and all liability of the Fiscal Agent with respect to such unclaimed
amount shall thereon cease.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment. No amendment, modification, termination or waiver of anv
provision of this Agreement, nor any consent to any departure by any party from any provision
hereof binding upon such party, shall be effective unless the same shall be in writing and signed
by the parties hereto. No such amendments, modification, waiver or consent shall adversely
affect the rights of the Holder or Holders of any Note issued in accordance with the terms of this
Agreement and outstanding at the time of such amendment, modification, waiver or consent
absent agreement by such Holder or Holders. The Fiscal Agent may, but shall not be obligated
to, enter into any amendments that affect its rights, duties and immunities under this Agreement.
Section 9.02. Inspection of Documents by Holders. The Fiscal Agent shall keep a
fully executed or conformed copy of this Agreement (together with all amendments,
supplements, waivers and consents hereto) on file at its Corporate Trust Office, and shall permit
reasonable inspection (and limited copying) to be made of this Agreement during normal
business hours by any Holder or by its designee, at such Person's expense, provided that the
Person purporting to be such Holder or designee establishes his identity and capacity to the
Fiscal Agent's satisfaction.
Section 9.03. Governing Law. This Agreement and the Notes and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made and to be
31Mlis
31
performed therein, and the obligations, rights and remedies of the parties hereunder and
thereunder shall be determined in accordance with such laws.
Section 9.04. Notices. All demands, notices and communications hereunder and under
the Exhibits hereto shall be in writing and shall be deemed to have been duly given when and if
personally delivered at or mailed by registered mail, postage prepaid, (a) in the case of the
Secretary, to the United States Department of Housing and Urban Development, 451 Seventh
Street, S.W., Washington, D.C. 20410, Attention: Director, Financial Management Division,
Office of the Assistant Secretary for Community Planning and Development, or such other
address as may hereafter be furnished to the Fiscal Agent in writing by the Secretary, and (b) in
the case of the Fiscal Agent, to The Chase Manhattan Bank, 450 West 33rd Street, 81h Floor, New
York, New York 10001, Attention: Structured Finance Operations, or such other address as
may hereafter be furnished to the Borrowers and to the Secretary, in writing, by the Fiscal Agent.
The Secretary shall provide the Fiscal Agent with Notice information for each Borrower in the
related Authorization Order. The Fiscal Agent is entitled to a copy of any notice given to any
Borrower or to the Secretary by any Holder. Any notice requested or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at the address of such Holder as shown
in the Note Register. Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder receives such notice.
Section 9.05. Severability of Provision. If any one or more of the covenants,
agreements, provisions, or terms of this Agreement shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions or terns shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way
3:IB3•19
32
affect the validity or enforceability of the other provisions of this Agreement or of the Notes or
the rights of the Holders thereof.
Section 9.06. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which together constitute one and the same
instrument.
31183,19
[Signature Page Followsi
33)
f 4;k
IN WITNESS WHEREOF, the Secretary and the Fiscal Agent have duly approved the
terms and provisions hereof by causing the names of their respective officers duly authorized to
be executed on this Agreement.
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT
Name:
Title:
THE CHASE MANHATTAN BANK, as Fiscal
Agent
By:
%
Y
Name: �UCz,
Title: e ,phi g,vl
_E;3=:19
34
Iti `i'ITNESS WHEREOF. the Secretary and the Fiscal Agent have duly approved the
terms and provisions hereof by causing the names of their respective officers duly authorized to
be executed on this Agreement.
SECRETARY OF HOUSING AND LR-BAN
DEVELOPMENT
By: ,.
Name:
Tit
THE CHASE MANHATTAN BANK, as Fiscal
Agent
Lo
Name:
Title:
31;33'19
34
EXHIBIT A-1
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
SECTIOI\ 108 LOAN GUARANTEE PROGRAM
[FORM OF VARIABLE/FIXED RATE NOTE (For Interim/Long-Term Financing)]
NOTE NUMBER:
NLAXIMUM COMMITMENT
AMOUNT: S
COMMITMENT AMOUNTS: See
Commitment Schedule attached hereto
VARIABLE INTEREST
RATE: As set forth below.
REGISTERED
HOLDER:
DATE OF NOTE:
PRLNCIP AL DUE DATES AND PRINCIPAL
AMOUNT: Before the Conversion Date, the
aggregate of Advances made for each
applicable Principal Due Date specified in the
Commitment Schedule to this Note; on or after
the Conversion Date, the Principal Amount (if
any) listed for each Principal Due Date in
Schedule P & I hereto_
I. Terms Applicable Before the Conversion Date
A. Advances
For value received, the undersigned, (the
"Borrower", which term includes any successors and assigns), a public entity organized and
existing under the laws of the State (or Commonwealth, if applicable) of
promises to pay to the Registered Holder (the "Holder", which term includes any successors or
assigns); at the time, in the manner, and with interest at the rate or rates hereinafter provided,
such amounts as may be advanced under this Note from time to time by the Holder for
disbursement to, or on behalf of the Borrower (individually, an ".Advance", and collectively,
"Advances"). The Holder shall make Advances upon the written request of the Borrower and the
approval of the Secretary of Housing and urban Development or his designee (the "Secretary"),
pursuant to the Contract for Loan Guarantee Assistance (as further defined in Section W.A. of
this':Vote.the "Contract"), and the Amended and Restated Master Fiscal Agency Agreement (the
"Fiscal Agencv Agreement") dated as of May 17, 2000, between The Chase 'Manhattan Bank
_�is5rt9
(formerly known as Chemical Bank), as Fiscal Agent (the "Fiscal Agent"), and the Secretary
The total amount of Advances ;Wade for each Principal Due Date under this Note shall not
exceed the applicable Commitment Amount for such Principal Due Date set forth on the
Commitment Schedule attached hereto. The aggregate of all Advances under this '_vote for all
Principal Due Dates shall not exceed the Maximum Commitment Amount specified on the
attached Commitment Schedule. The Fiscal Agent shall record the date and amount of all
payments and Advances on this ':Note and maintain the books and records of all such Advances
and Commitment Amounts for each corresponding Principal Due Date, and all payments. No
Advances shall be made on thi s Note after its Conversion Date.
As used herein, "Conversion Date" means the date (if any) upon which this Note is (i.)
delivered by the Holder to the Fiscal Agent against payment therefor by the purchasers selected
by the Secretary to make such payment; and (ii) assigned to The Chase Manhattan Bank (or any
successor thereto) acting in its capacity as Trustee (the "Trustee") pursuant to a Trust Agreement
among the Secretary and the'Tiustee, dated as of January 1, 1995, as such agreement may be
amended or supplemented (the "Trust Agreement"). Upon the occurrence of both (i) and (ii) in
the previous sentence, Section III of this Note applies, thereby converting this Note to a fixed
rate obligation.
B. Variable Rate of Interest
From and including the date of each Advance to but excluding the earlier of (i) the
Conversion Date, and (ii) the .date of redemption or prepayment of such Advance pursuant to
Section I.D. below (each such date of redemption or prepayment, a "Prepayment Date") interest
shall be paid quarterly at a variable interest rate (as set forth below) on the unpaid principal
balance of each Advance on the first day of each February, May; August and November (each,
an "Interim Payment Date"), commencing on the first Interim Payment Date after the Initial
Advance is made under this Note. Interest also shall be paid on each applicable Conversion
Date, Prepayment Date or Principal Due Date. The amount of interest payable on each Interim
Payment Date will represent interest accrued during the three-month period ending immediately
prior to such Interim Payment Date. or in the case of the first Interim Payment Date'follow7ng
each Advance that is not made on an Interim Payment Date, the period from and including the
date of such Advance to but etcluding the first Interim Payment Date following such Advance.
The amount of interest payab Icon this Note's Conversion Date. Prepayment Date, or on any
Principal Due Date that precedes such Conversion Date will represent interest accrued during the
period from the last Interim Pa -y hent Date to such Conversion Date, Prepayment Date, or
Principal Due Date, respectively.
The initial variable interest rate for each Advance will be set on the date of such Advance
and will be equal to 20 basis points (0.2%) above the Applicable LIBO Rate (as hereinafter
defined) and thereafter will be adjusted monthly on the first day of each month (each, a "Reset
Date") to a variable interest rate equal to 20 basis points (0.2%) above the Applicable LIBO Rate
(such interest rate, as reset from time to time, the "Standard Note Rate"). If the Conversion Date
for this Note has not occurred by the March 1 following the initial Advance under this Note, then
32189%19
A-1-2
the terms of Appendix A shall be used to set the variable interest rate. If the Fiscal .Agent does
not receive notice of either a Negotiated Special Interest Rate or Holder Determined Special
Interest Rate (as defined in Appendix A attached hereto) from the Secretary or Holder,
respectively, by the times specified in Appendix A to this Note, then the Standard Note Rate
shall apply for the period to which such Negotiated Special Interest Rate or Holder Determined
Special Interest Rate would otherwise apply-. The Fiscal Agent may conclusively rely on any
such notice as to the correctness of any matters set forth therein. Appendix A shall be
inapplicable to this Note on or after the Conversion Date.
"LIBO Rate" for any given Business Day means, except in the case of manifest error, the
interest rate per annum published on that day in the Eastern Edition of The Wall Street Journal or
any successor publication ("WSJ"), published by Dow Jones & Company, Inc., in the section
titled "Money Rates" (or any successor section) and opposite the caption "London Interbank
Offered Rates (LIBOR) -- three months" (or any successor caption). If such rate does not appear
in WSJ, for each interest period, the LIBO Rate shall be the interest rate, converted to a bond -
equivalent yield basis, for deposits in U.S. dollars for three months which appears on Telerate
Page 3750 or such other page as may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers' Association for the purpose of displaying
such rate (together, "Telerate Page 3750") as of 11:00 a.m., London time, on the day (the
"Determination Date") that is two London banking days preceding the relevant Reset Date or
Advance. If such rate does not appear on Telerate Page 3750 on such Determination Date, such
rate shall be obtained from the Reuters Screen ISDA Page as of 11:00 a.m., London time, on
such Determination Date. If, in turn, such rate does not appear on the Reuters Screen ISDA Page
on such Determination Date, the offered quotation from each of four reference banks (expressed
as a percentage per annum) as of approximately 11:00 a.m., London time, on such Determination
Date for deposits in U.S. dollars to prime banks on the London interbank market for a 3 -month
period, commencing on the Reset Date or date of such Advance, shall be obtained. If at least two
such quotations are provided, the LIBO RATE for such Reset Date or date of such Advance will
be the arithmetic mean of the quotations, rounded to five decimal places. If fewer than two such
quotations are provided as requested, the LIBO RATE for that Determination Date shall be the
rate for the most recent day preceding such Determination Date for which the LIBO RATE shall
have been displayed on Telerate Page 37 50. The LIBO RATE for any interest period shall be
converted to a bond -equivalent yield basis by multiplying such rate by the actual number of days
in such interest period and dividing that number by 180.
"Applicable LIBO Rate" means: (1) with respect to the initial interest rate for the first
Advance hereunder_ the LIBO Rate two London Banking Days before the date of such first
Advance; (?) with respect to the initial interest rate for any subsequent Advance made before the
first Reset Date, the interest rate borne by the first Advance; (3) with respect to the initial interest
rate for any subsequent Advance made after the first Reset Date, the LIBO Rate two London
Banking Days before the immediately preceding Reset Date; and (4) with respect to the
subsequent interest rate at any Reset Date for any Advance, the LIBO Rate two London Banking
Days before such Reset Date.
A-1-3
"London Banking Day" means any day in which dealings in deposits in United States
dollars are transacted in the London interbank market. Interest payable on or before the
Conversion Date shall be calculated on the basis of a 360 -day year and the actual number of days
lapsed.
C. Principal Amount
Prior to the Conversion Date, the age'egate amount of Advances under this Note for each
specified Principal Due Date shall be paid by the Borrower on such Principal Due Date (as
assigned to such Advances by the Secretary's instructions to the Fiscal Agent in accordance with
the Contract and the Fiscal Agency Agreement), unless this Note is redeemed before such
Principal Due Date as provided below.
D. Redemption before Conversion Date
At any time on or before the Conversion Date, the Borrower, with the consent of the
'Secretary, may redeem this Note, in whole or in part, upon fourteen calendar days notice to the
Fiscal Agent and the Secretary, at the purchase price of one hundred percent (100%) of the
unpaid Principal Amount to be redeemed, plus accrued interest thereon to the date of redemption.
Partial redemptions shall be credited against the applicable Principal Amount(s). The related
Commitment Amounts and the Maximum Commitment Amount shall be adjusted concurrently
with any such redemptions in accordance with the Secretary's instru6tions to the Fiscal Agent
pursuant to the Contract and the Fiscal Agency Agreement.
II. Conversion
The following events shall occur on the Conversion Date:
A. Schedule P&I
On the Conversion Date all Advances owed by the Borrower under this Note with the
same Principal Due Date shall be aggregated into a single Principal Amount that will accrue
interest at the fixed rate applicable to such Principal Due Date. Such Principal Amount may be
adjusted by the Fiscal Agent in accordance with the following paragraph or paragraph IV.H, as
applicable. 'Whether or not adjusted, the fixed rate applicable to each Principal Amount, together
with the applicable Principal Due Date each shall be listed by the Secretary in Schedule P&I.
Schedule P&I will be provided by the Secretary to the Fiscal Agent and attached to this Note by
the Fiscal Agent upon the Fiscal Agent's receipt of this Note on the Conversion Date,
B_ Conversion Date Advances
If, on or prior to the Conversion Date, the Borrower has not utilized the entire
Commitment Amount indicated on the Commitment Schedule attached hereto for a given
Principal Due Date, the Borrower may, in accordance with the Fiscal Agency Agreement and the
Contract, and with the approval of the Secretary, utilize such Commitment Amount on the
32 ! 89f l 9
A-1-4
Conversion Date to obtain a Conversion Date Advance. A Conversion Date Advance" shall
mean any amount by which the Secretary instructs the Fiscal Agent to increase a Principal
Amount on Schedule P&I for a given Principal Due Date, effective as of the Conversion Date of
this Note, Conversion Date Advances shall be funded by the sale of this Note to the purchaser
selected by the Secretary. The proceeds of a Conversion Date Advance (net of any applicable
fees) shall be distributed to or on behalf of the Borrower on the Conversion Date. The total
amount of Conversion Date Advances shall not exceed the amount of any unused Commitment
Amounts for any Principal Due Date.
III. Terms Anulicable Upon Conversion
The following terms shall apply to this Note from the Conversion Date (if any) until this
Note is cancelled, or matured and paid in full:
Commencing on the Conversion Date, the Borrower promises to pay to the Holder on the
applicable Principal Due Date each Principal Amount set forth on the attached Schedule P&I,
together With interest on each such Principal Amount at the rate applicable thereto specified on
the Schedule P&I. Interest shall be calculated and payments shall be made in the manner set
forth below.
Interest on each scheduled Principal Amount of this Note due as of a given date specified
on Schedule P&I hereto shall accrue at the related per annum rate specified on Schedule P&I
from (and including) the Conversion Date to (but excluding) such Principal Due Date or, if
applicable, to the applicable Interest Due Date on which an Optional Redemption (as defined
below) occurs. Each interest amount accrued on each unpaid Principal Amount of this Note shall
be due semiannually as of February 1 and August 1 of each year (each such February 1 and
August 1, an "Interest Due Date") commencing on the first such date after the Conversion Date,
until each Principal Amount listed on Schedule P&I to this Note is paid in full. Interest shall be
calculated on the basis of a 360 -day year consisting of twelve 30 -day months.
Certain Principal Amounts that are indicated as being eligible for Optional Redemption
on Schedule P&r.I may be paid, in whole or in part, at the option of the Borrower as of any
Interest Due Date after the date specified in such schedule (an "Optional Redemption"). In order
to elect an Optional Redemption of a prepayable Principal Amount, the Borrower shall give
notice of its intention to prepay a Principal Amount to the Trustee and the Secretary not less than
60 days nor more than 90 da -,,,s prior to the Interest Due Date as of which the Borrower intends to
prepay the Principal Amount. The Trustee shall apply any payments received in respect of
Optional Redemptions in accordance with written instructions of the Borrower, as approved by
the Secretary. Principal Amounts that are not indicated as being eligible for Optional
Redemption on Schedule P&I may not be prepaid.
-2189.19
A-1-5
IV. General Terms
A. Additional Definitions
For purposes of this Note, the following terms shall be -defined as follows:
"Business Day" shall mean a day on which banking institutions in New York City are not
required or authorized to remain closed and on which the Federal Reserve Bank and the New
York Stock Exchange are not closed. If any payment (including a payment by the Secretary) is
required to be made on a day that is not a Business Day, then payment shall be made on the next
Business Day.
"Contract" shall mean the Contract for Loan Guarantee Assistance, and any amendments
thereto, between the Secretary and the Borrower, the designated public entity named therein (if
applicable), or the State named therein (if applicable), which refers to and incorporates this Note
by the number hereof.
"Principal Amount" shall mean: (i) before the Conversion Date for this Note, the
aggregate amount of Advances made for each Principal Due Date specified in the Commitment
Schedule attached to this Note, less the amount of any redemptions pursuant to Section I.D.
hereof, and any principal repayment; and (ii) on or after the Conversion Date, the principal
amount (if any) stated for each Principal Due Date in Schedule P&I attached hereto, less the
amount of any principal repayment and any Optional Redemptions made pursuant to Section III
hereof and the Trust Agreement.
B. Timely Payment to Fiscal Agent or Trustee
Notwithstanding anything contained in Section I, Section II, or Section III, the Borrower,
in accordance with the Contract, shall be required to make all payments of interest and principal,
including any Optional Redemption payment, directly to the Fiscal Agent or the Trustee (as
applicable) on the seventh Business Day prior to the appropriate Interim Payment Date, Interest
Due Date, Principal Due Date, Prepayment Date, or date of Optional Redemption; as applicable.
C. Interest on Late Pa-Tnents
If a payment of principal or interest herein provided for shall not be made by either (i)
2:30 p.m. on an Interest Due Date or Principal Due Date: or (ii) 2:30 p.m. on the second Business
Day (as herein defined) next succeeding an Interim Payment Date, then interest shall accrue on
the amount of such payment at the then applicable interest rate or rates payable on this Note,
from the relevant due date, as the case may be, until the date such payment is made. Nothincr in
the immediately preceding sentence shall be construed as permitting or implying that the
Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter
or affect in any manner whatsoever the right of the Holder timely to receive any and all
payments of principal and interest specified in this Note.
A-1-6
D. Applicability of Fiscal Agency Agreement or Trust Agreement
Prior to the Conversion Date, this Note and Advances and payments made hereunder
shall be administered pursuant to the terms of the Fiscal Agency Agreement and are subject to
such agreement. On or after the Conversion Date, this Note and Advances and payments made
hereunder shall be administered pursuant to the Trust Agreement and are subject to such
agreement. The terms and provisions of the Fiscal Agency Agreement or the Trust Agreement,
insofar as they affect the rights, duties and obligations of the Holder and/or the Borrower, are
hereby incorporated herein and form a part of this Note. The Borrower hereby agrees to be
bound by all obligations of the Borrower to the Fiscal Agent set forth in the Fiscal Agency
Agreement. Capitalized terms not defined in this Note shall have the meanings ascribed to them
in the Fiscal Agency Agreement or Trust Agreement, as applicable. The Fiscal Agency
Agreement provides for the Fiscal Agent to perform certain duties, including the duties of (i)
paying agent and calculation agent for this Note until its Conversion Date, and (ii) registrar for
this Note until this Note is cancelled or a new registrar appointed, each in accordance with the
Fiscal Agency Agreement. The Trust Agreement provides for the Trustee to perform certain
duties, including the duties of collection agent for this Note after its Conversion Date until a new
Trustee is appointed in accordance with the Trust Agreement. This Note may be surrendered to
the Fiscal Agent for registration of transfer or exchange, as provided in the Fiscal Agency
Agreement. The Fiscal Agent and Trustee each shall permit reasonable inspection to be made of
a copy of the Fiscal Agency Agreement or Trust Agreement kept on file at its respective
corporate trust office. Neither the Fiscal Agency Agreement nor the Trust Agreement shall
change the Borrower's payment obligations under this Note.
E. -Applicability of Contract and Secretary's Guarantee -
This Note evidences indebtedness incurred pursuant to and in accordance with the
Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act
of 1974, as amended (42 L.S.C. § 5308) (the "HCD Act"). This Note is subject to the terms and
provisions of the Contract, to which Contract reference is hereby made for a statement of said
terms and provisions and for a description of the collateral security for this Note. The payment
of principal on the applicable Principal Due Dates and interest on the applicable Interim Payment
Dates or Interest Due Dates under this Note is unconditionally guaranteed by the Secretary to the
Holder through a guarantee (ihe "Guarantee"). Execution of the Secretary's Guarantee is
I ?vote is effective, and such Guarantee shall be issued pursuant to and in
required before this
accordance with the terms of the Contract and Section 108 of the HCD Act.
F. Default
A default under this Note shall occur upon failure by the Borrower to pay principal or
interest on this Note when due hereunder. If a Borrower defaults on the payment of any interest
or Principal Amounts when due. or if the Secretary gives notice of a final decision to declare the
Borrower in default pursuant to the following paragraph of this Section A, .F., the Secretary- may,
but is not obligated to. make on any date on or prior to the Conversion Date with fourteen
calendar days prior notice to the Fiscal Agent, or on the seventh Business Day preceding any
.�t89.19
A-1-7 I�
V
Interest Due Date on or after the first permissible Optional Redemption Date with seven
Business Days prior notice to the Trustee, an acceleration payment to the Fiscal Agent or the
Trustee, as applicable, equal to the Aggregate Principal Amount of the Note, together with
accrued and unpaid interest thereon to such acceleration payment date or Interest Due Date, as
applicable. In the event that any such acceleration payment is made from sources other than
funds pledged by the Borrower as security under the Contract (or other Borrower funds), the
amounts paid on behalf of the Borrower shall be deemed to be immediately due and payable to
the Secretary. Nothing in this paragraph shall be construed as permitting or implying that the
Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter
or affect in any manner whatsoever the right of the Holder timely to receive any and all
payments of principal and interest specified in this Note.
In addition, the Secretary may declare the Borrower in default under this Note if the
Secretary makes a final decision in accordance with the provisions of 24 C.F.R. § 570.913 (or
any successor regulation thereof), including requirements for reasonable notice and opportunity
for hearing, that the Borrower has failed to comply substantially with Title I of the HCD Act.
Following the giving of such reasonable notice, the Secretary may take the remedial actions
specified as available in the relevant provisions of the Contract pending the Secretary's final
decision.
G. Holder's Reliance on Guarantee
Following a default by the Borrower under the terms of this Note, the Holder agrees to
rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of
any instruments or agreements securing or otherwise related to this Note shall be the sole
responsibility of the Secretary, and the Holder shall not be responsible for the preparation,
contents or administration of such instruments and agreements, or for any actions taken in
connection with such instruments and agreement. The Holder, to the extent it is legally able to do
so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon the
Holder by this '_dote.
H. Amendment
This'N'ote may only be amended with the prior written consent of the Secretary and the
Borrower. No such amendment shall reduce, without the prior written consent of the Holder of
this Note, in any manner the amount of, or delay the timing of, payments required to be received
on this Note by the Holder. Fiscal Aaent or Trustee, including Guarantee Payments: provided
that prior to the Conversion Date, the Commitment Amounts on the Commitment Schedule
attached hereto, and the Principal Amounts due on the corresponding Principal Due Dates may
be rescheduled pursuant to written instructions given to the Fiscal Agent by the Secretary with
the written agreement of the Borrower and the Secretary absent the consent of the Holder.
��189'19
A-1-8
I. Waivers
The Borrower hereby waives any requirement for presentment, protest or other demand
or notice with respect to this Note. The Borrower hereby waives notice of default and
opportunity for hearing for any failure to make a payment when due.
J. Delivery and Effective Date
This Note is deemed issued, executed, and delivered on behalf of the Borrower by its
authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the
HCD Act, effective as of the date of the Secretary's Guarantee.
V. Borrower -Specific Provisions
[This space intentionally left blank]
189d P
A-1-9
UN WITNTSS WHEREOF, the undersigned, as an authorized official of the Borrower,
has executed and delivered this Note -
ATTEST:
By: /s/
(Signature)
(Name)
(Title)
'_159.19
BORROWER
Bv: /s/
(Signature)
(Name)
(Title)
ASSIGN7NIENT ANTI) TRANSFER
For value received, the undersigned assigns and transfers this Note to
(?Name and Address of Assignee)
(Social Security or Other Identifying Number of Assignee)
and irrevocably appoints
attorney-in-fact to transfer it on the books kept for registration of the Note, with full power of
substitution.
Dated:
Si2riature Guaranteed:
Qualified Financial Institution
By:
Authorized Sianature
3:189/'.9
Note: The signature to this
assignment must correspond with the
name as written on the face of the
Note without alteration or
enlargement or other change.
APPE'`!)IX A
Special Pre -Conversion Interest Rates.
(a) The Holder and the Secretary contemplate that the majority of the outstanding
Variable/Fixed Rate Notes will be purchased by underwriters selected by the
Secretary for sale in public offerings to occur each year. If a public offering
including this Note has not occurred by each March 1 following the initial
Advance under this Note, the Secretary shall, upon request, advise the Holder as
to when a public offering including this Note is expected to occur, and the Holder
and the Secretary agree to consult with each other as to what the interest rate on
this Note will be after May 1 of that year if a public offering has not occurred by
such May 1. The Holder shall notify the Secretary if such consultation has not
occurred by April 1 of that year. If no public offering including this Note has
occurred on or before such May 1, the applicable interest rate on this Note from
such May 1 shall be the rate (if any) negotiated and agreed upon by the Secretary
and the Holder. Such rate may be the Standard Note Rate or some other rate
agreed upon by the Holder and the Secretary at least two Business Days before
such May 1 (such other rate, the 'Negotiated Special Interest Rate"). The
Secretary shall notify the Fiscal Agent and the Holder in writing of any
Negotiated Special Interest Rate within two Business Days of the determination
thereof.
(b) If the Secretary and the Holder do not, by the April 15th preceding such May 1,
negotiate and agree under Section (a) of this Appendix on an interest rate
applicable to this Note, then the Holder may, on or before the April 20th
preceding such May 1, give written notice to the Secretary- of its intent to change
the interest rate on this Note and, if such notice was given during such period, the
Holder may, on such May 1, unilaterally determine (subject to the terms of this
paragraph) the interest rate that this Note will bear (such rate; the "Holder
Determined Interest Rate") from and including such May 1 to but excluding the
earliest of: (i) the Conversion Date; (ii) the date that this Note is purchased by a
new Holder (as described in Section (c) below) or (iii) a Monthly Special Reset
Date (as defined below-). Interest from and including such May 1 to but excluding
the Public Offering Date shall be paid on the unpaid principal balance of all
outstanding Advances under this Note at the rate(s) to be determined by the
Holder, which, based upon then prevailing market conditions and taking into
account all the circumstances, will enable the Holder to sell this Note at one
hundred percent (100%) of the aggregate amount of all Advances hereunder prior
to the date of such sale. Such interest rate shall be determined as of such Mav 1
and shall be determined again on the foregoing basis on the first of each month
thereafter (the first of each month after such May 1. a "Monthly Special Reset
Date"). The Holder shall notify the Fiscal Anent and the Secretary in writing
within two Business Days followring such dates of the determination of the Holder
3_18919
Deternined Interest Rate and each applicable interest rate determined on a
Monthly Special Reset Date.
(c) If the Secretary and the Holder have failed to agree upon an interest rate pursuant
to Section (a) of this Appendix A, the Secretary, upon seven calendar days notice
to the Holder, may arrange for the purchase of this Note in full by another entity
on the following May 1 or any Business Day thereafter. If such a purchase
hal
occurs, the Holder sl sell and assign this Note to the purchaser thereof without
recourse to the Holder and deliver this Note and its Guarantee to the Fiscal Agent
for registration in the name of the purchaser thereof in accordance with the
Secretary's written instructions. The purchase price for this Note shall be 100%
of the aggregate amount of all Advances owing hereunder plus accrued interest to
the date of purchase. Payment to the Holder of the purchase price for this Note
shall be made by the purchaser thereof in Federal funds at the offices of the
Holder, or at such other place as shall be agreed upon by the Holder and the
Secretary, at 10:00 a -m., New York time, on the date of purchase. After such
purchase date this Note shall bear a rate of interest negotiated between the
Secretary and the new interim Holder (the "Neve Purchaser Special Interest
Rate"). The Secretary shall notify the Fiscal Agent and the new purchaser in
v<7iting of any New Purchaser Special Interest Rate within two Business Days
following the date of determination thereof
(d) Notwithstanding Sections (a) through (c) (inclusive) of this Appendix, no
Borrower is obligated to pay interest at a variable rate exceeding the maximum
rate permitted by generally applicable law of the Borrower's state (such rate, the
"Maximum Rate"). If the Borrower receives notice of a variable interest payment
that exceeds the Maximum Rate, then the Borrower shall timely pay such amount
as does not exceed the Maximum Rate, and concurrently shall notify the Secretary
and the Fiscal Anent of the reason for any interest non-payment.
32189!!9
Principal Due Date
August 1, 2000
August 1, 2001
August 1, 2002
August 1, 2003
August 1, 2004
August 1, 2005
August 1, 2006
August 1, 2007
August 1, 2008
August 1, 2009
August 1, 2010
August 1, 2011
August 1, 2012
August 1, 2013
August 1, 2014
August 1, 2015
August 1, 2016
August 1, 2017
August 1, 2018
August 1, 2019
✓Maximum Commitment Amount = [[
3'_189'19
CONDJITMENT SCHEDULE
'Vote No.
Commitment Amount
Principal
Principal Amount Due Date
August 1, 2000
August 1. 2001
August 1. 2002
August 1. 2003
August 1, 2004
August 1, 2005
August 1, 2006
August 1, 2007
August 1, 2008
SCHEDULE M-1
Note No.
Interest Rate Optional Redemption Available
YES NO
August 1, 2009
August 1, 2010
August 1, 2011
August 1, 2012
August 1, 2013
August 1, 2014
August 1, 2015
August 1; 2016
August 1, 2017
August 1, 2018
Aueust 1, 2019
Aggregate Principal Amount
Principal Amounts for which Optional Redemption is available may be redeemed, subject to the terms
contained herein and in the Trust A2. -cement, on any Interest Due Date on or after
[ 1.20[ l
__189:'19
EXHIBIT A-3
[FORM OF FIXED RATE NOTE (IF NO INTERIM FINANCING USED)]
NOTE NO.
REGISTERED DATE:
HOLDER: THE CHASE M III RATTAN BANK
AGGREGATE PRINCIPAL
AMOUNT : S
For value received, the undersigned, (the "Borrower,"
which term includes any successors or assigns), a public entity or agency organized and existing
under the laws of the State (or Commonwealth, if applicable) of ,
promises to pay to the order of THE CHASE MANHATTAN BANK, as Registered Holder (the
"Holder," which tern includes any successors or assigns), the Principal Amounts set forth on the
attached Schedule P&I as of each applicable Principal Due Date set forth therein, together with
interest on such unpaid Principal Amounts at the rates applicable thereto as specified on such
attached Schedule P&I. Interest shall be calculated and payments shall be made in the manner
set forth below. The Holder is acting hereunder on behalf of a trust (the "Trust") created
pursuant to a Trust Agreement by and between the Secretary of Housing and Urban
Development (the "Secretary") and The Chase Manhattan Bank, as trustee (the "Trustee"), dated
as of January 1, 1995, as amended (the "Trust Agreement"), as supplemented by the applicable
Supplement to the Trust Agreement, by and between the Secretary and the Trustee.
A. Principal and Interest
Interest on a Principal Amount of this Note that is due as of a given date specified on the
Schedule P&I attached hereto (such date, the "Principal Due Date" for such Principal Amount)
shall accrue at the per annum rate specified on such Schedule P&I from (and including) the date
hereof to (but excluding) such Principal Due Date or, if applicable, to the applicable Interest Due
Date on which an Optional Redemption (as defined below) occurs. The aggregate of the interest
amounts accrued on the entire unpaid Principal Amount of this Note shall be due semiannually
as of February 1 and August 1 of each year (each, an "Interest Due Date") commencing on
(FebruaryiAugust] 1, (�J, until the Aggregate Principal Amount listed on the Schedule P&I
attached to this Note is paid in full. Interest shall be calculated on the basis of a 360 -day year
consisting of twelve 30 -day months.
32261 /9
B. Optional Redemption
Certain Principal Amounts indicated as being eligible for Optional Redemption on the
Schedule P&I hereto may be paid, in whole or in part, at the option of the Borrower as of any
Interest Due Date on or after the date specified in such Schedule (an "Optional Redemption"). In
order to elect an Optional Redemption of a redeemable Principal Amount, the Borrower shall
give notice of its intention to redeem a Principal Amount to the Trustee and the Secretary not
less than 60 days nor more than 90 days prior to the Interest Due Date as of which the Borrower
intends to redeem the Principal Amount. The Trustee shall apply any payments received in
respect of Optional Redemptions in accordance with written instructions of the Borrower, as
approved by the Secretary. Principal Amounts that are not indicated as being eligible for
Optional Redemption on such Schedule may not be prepaid.
C. Additional Definitions
For purposes of this Note, the following terms shall be defined as follows:
"Business Day" shall mean a day on which banking institutions in New York City are not
required or authorized to remain closed and on which the Federal Reserve Bank and the New
York Stock Exchange are not closed_ If any payment (including a payment by the Secretary) is
required to be made on a day that is not a Business Day, then payment shall be made on the next
Business Day.
"Contra;:t" shall mean the Contract for Loan Guarantee Assistance, and any amendments
thereto, between the Secretary and the Borrower, the designated public entity named therein (if
applicable), or the State named therein (if applicable), which refers to and incorporates this Note
by the number hereof.
D. Borrower's Timely Payment to Trustee
Notwithstanding anything contained in this Note, the Borrower, in accordance with the
Contract, shall be required to make all payments of interest and principal, including any Optional
Redemption payment, directly to the Trustee on the seventh Business Day prior to the
appropriate Interest Due Date, Principal Due Date or date of Optional Redemption, as applicable.
E. Interest on Late Payments
If a payment of principal or interest herein provided for has not been duly received by the
Holder from either the Borrower or the Secretary by the close of business on the applicable
Interest Due Date or Principal Due Date, interest shall accrue on the amount of such payment at
the applicable interest rate or rates payable on this Note, from the relevant due date until the date
such payment is made. Nothing in the immediately preceding sentence shall be construed as
permitting or implying that the Borrower may, without the written consent of the Holder and the
Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely
to receive any and all payments of principal and interest specified in this Note.
32261-'9
A-2-2
F. Applicability of Fiscal Agency Agreement and Trust Agreement
This Dote and payments made hereunder shall be administered pursuant to the terms of
the Trust Agreement and are subject to such agreement. The terms and provisions of the Trust
Agreement, insofar as they affect the rights, duties and obligations of the Holder and/or the
Borrower, are hereby incorporated herein and form a part of this Note. Capitalized terms not
defined in this Note shall have the meanings ascribed to them in Trust Agreement. The
Amended and Restated Master Fiscal Agency Agreement dated as of May 17, 2000 between the
Secretary and The Chase Manhattan Bank, as Fiscal Agent (the "Fiscal Agency Agreement")
provides for The Chase Manhattan Bank, acting as Fiscal Agent to perform certain duties,
including the duties of registrar for this Note until this Note is cancelled or a new registrar
appointed in accordance with the Fiscal Agency Agreement. The Trust Agreement provides for
the Trustee to perform certain duties, including the duties of paying agent and collection agent
for this Note until a new Trustee is appointed in accordance with the Trust Agreement. This
Note may be surrendered to the Fiscal Agent for registration of transfer or exchange, as provided
in the Fiscal Agency Agreement. The Fiscal Agent and the Trustee shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement or Trust Agreement kept. on file
at its corporate trust office. Neither the Fiscal Agency Agreement nor the Trust Agreement shall
change the Borrower's payment obligations under this Note_
G. Applicability of Contract and Secretary's Guarantee
This Note evidences indebtedness incurred pursuant to and in accordance with the
Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act
of 1974, as amended (42 U.S.C. § 5308) (the "HCD Act"). This Note is subject to the terms and
provisions of the Contract, to which Contract reference is hereby made for a statement of said
terms and provisions and for a description of the collateral security for this Note. The payment
of principal on the applicable Principal Due Dates and interest on the applicable Interest Due
Dates under this Note is unconditionally guaranteed by the Secretary to the Holder through a
guarantee (the "Guarantee"). Execution of the Secretary's Guarantee is required before this Note
is effective, and such Guarantee shall be issued pursuant to and in accordance with the terms of
the Contract and Section 108 of the HCD Act.
H. Default
A default under this Note shall occur upon failure by the Borrower to pay principal or
interest on this dote when due to the Trustee hereunder. If a Borrower defaults on the payment
of any interest or Principal Amount when due, or if the Secretary gives notice of a final decision
to declare the Borrower in default pursuant to the following paragraph, the Secretary may, but is
not obligated to, make on the seventh Business Day preceding any Interest Due Date on or after
the first permissible Optional Redemption Date, with seven Business Days prior notice to the
Trustee an acceleration payment to the Trustee equal to the Aggregate Principal Amount of the
Note, together with accrued and unpaid interest thereon to such Interest Due Date. In the event
that any such acceleration payment is made from sources other than funds pledged by the
Borrower as security under the Contract (or other Borrower funds), the amounts paid on behalf
of the Borrower shall be deemed to be immediately due and payable to the Secretary. Nothing in
this paragraph shall be construed as permitting or implying that the Borrower may, without the
3'_61.9
A-2-3
'm
written consent of the Holder and the Secretary, modify, extend, alter or affect in any manner
whatsoever the right of the Holder timely to receive any and all pa,,Tnents of principal and
interest specified in this Note.
In addition, the Secretary may declare the Borrower in default under this Note if the
Secretary makes a final decision in accordance with the provisions of 24 C.F.R. § 570.913 (or
any successor regulation thereof), including requirements for reasonable notice and opportunity
for hearing, that the Borrower has failed to comply substantially with Title I of the HCD Act_
Followina the giving of such reasonable notice, the Secretary may take the remedial actions
specified as available in the relevant provisions of the Contract pending the Secretary's final
decision.
1. Holder's Reliance on Guarantee
Following a default by the Borrower under the terms of this Note, the Holder agrees to
rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of
any instruments or azeements securing or otherwise related to this Note shall be the sole
responsibility of the Secretary, and the Holder shall not be responsible for the preparation,
contents or administration of such instruments and agreements, or for any actions taken in
connection with such instruments and agreement. The Holder, to the extent it is legally able to do
so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon the
Holder by this Note.
Amendment
This Note may only be amended with the prior written consent of the Secretary and the
Borrower. No such amendment shall reduce, without the prior written consent of the Holder of
this Note, in any manner the amount of, or delay the timing of, payments required to be received
on this Note by the Holder or Trustee, including Guarantee Pavments.
K. Waivers
The Borrower hereby waives any requirement for presentment, protest or other demand
or notice with respect to this Note. The Borrower hereby waives notice of default and
opportunity for hearing for any failure to make a payment when due.
L. DeIivery and Effective Date
This Note is deemed issued, executed, and delivered on behalf of the Borrower by its
authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the
HCD Act, effective as of the date of the Secretary's Guarantee.
M. Borrower Specific Provisions
[This space intentionally left blank]
]Signature page follows]
3'_''61 `9
A-2-4
hi WITNESS WHEREOF, the undersigned, as an authorized official of the Borrower,
has executed and delivered this Note.
ATTEST:
(Signature)
(Name)
(Title)
:225!•9
BORROWER
By:
(Signature)
(N ame)
(Title)
A-2-5
SCHEDULE P&I
Principal
Principal Amount Due Date Interest Rate
August 1. 2000
August 1, 2001
August 1, 2002
August 1, 2003,
August 1, 2004
August 1, 2005
August I, 2006
August 1, 2007
August 1, 2008
August 1, 2009
August 1, 2010
August 1, 2011
August 1, 2012
August 1, 2013
August 1, 2014
August 1, 2015
August 1, 2016
August 1, 2017
August 1, 2018
August 1, 2019
Aggregate
Principal
Amount of Note: S
Optional Redemption Available
YES NO
Principal Amounts for which Optional Redemption is available may be redeemed, subject to the terms contained
herein and in the Trust Agreement, on any Interest Due Date on or after 1 1, 20
( 1.
3226 119
I
EXHIBIT B
(FORM OF GUARANTEE1
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM
GUARANTEE OF THE SECRETARY OF HOUSING
AND URBAN DEVELOPMENT
NOTE NUMBER:
BORROWER:
DATE OF NOTE:
MAXIMUM COMMITMENT AMOUNT:
Guarantee issued pursuant to Section 108 of the Housing and Community Development Act of
1974, as amended.
TO: HOLDER (as defined in the above -referenced Note)
The Secretary of Housing and Urban Development, pursuant to Section 108 of the Housing and
Community Development Act of 1974, as amended, but not personally, hereby unconditionally
guarantees to the holder of the attached Note (as described above), and pledges to such holder
the full faith and credit of the United States of America for, the payment of the principal and
interest when and as due on such Note in accordance with its terms. The Secretary waives any
requirement for presentment, protest, or other demand or notice with respect to such Note.
The validity of this Guarantee is incontestable in the hands of any holder of such Note.
IN WITNESS WHEREOF, the Secretary of Housing and urban Development or his duly
authorized representative has signed this Guarantee.
Secretary of Housing and Urban Development
By:
Date
[FORIM OF AUTHORIZATION ORDER]
,20—
The
20_
The Chase Manhattan Bank (formerly known as Chemical Bank), as
Fiscal Agent under the
Agreement referred to below:
450 West 33rd Street
8`h Floor
New York, New York 10001
Attention: Structured Finance Operations Department
Dear Sirs:
EXHIBIT C
The following information is being fiunished to you pursuant to Sections 2.03 and 2.04
[(a) or (c), as applicable] of the Amended and Restated Master Fiscal Agency Agreement
("Agreement") dated as of May 17, 2000 providing for the issue of U.S. Government Guaranteed
Notes. Capitalized terms used herein and not otherwise defined herein have the same meanings
as in the Agreement.
[The following information must be provided regarding each Note to be (i) registered in
the name of and delivered to the initial Holder pursuant to Section 2.04(a) of the Agreement or
(ii) delivered to the Trustee after attachment of a Schedule P&I pursuant to Section 2.04(c) of the
Agreement:
1:i83.!9
(a) VariableTixed Rate Note
(b) Note Number -
(c) Borrower:
Name:
Address:
Atm:
(d) Name and address of initial Holder
(e) Principal
Principal Due Date Amount
C-1
Fixed Rate Note
Commitment [Initial
Amount Advance Amound
[_Attach either (1 ) copy of Note; or (2) Schedule P& -J; as applicable.]
(f) Disbursement Date and Disbursement Instructions for initial Advance.-
0
dvance:
(0 [State whether the Notes and their related Guarantee are to be held physically by
the Fiscal Agent or transferred to Holder and the date such delivery or transfer is
to occur.)
(h) [State whether the Notes are subject to redemption or acceleration prior to their
Principal Due Dates indicated above and if so, the terms and conditions relating to
any redemption or acceleration].
(i} [Additional directions, such as identification of Schedules for each Note that may
be replaced with substitute pages enclosed herewith.]
(j} [Such other matters as the Secretary and the Fiscal Agent may agree including
additional payment instructions, i.e., instructions to the Fiscal Agent regarding
disbursement of amounts advanced or received under the Notes] and application
of funds received by the Secretary from the Borrower.]
You are hereby instructed [to deliver such Notes to their initial Holder against payment of
the initial Advance Amount on the date of the initial Advance authorized hereunder.] [to attach
the related Schedule P&I to such Notes and deliver them to the Trustee] [BRACKETED
LANGUAGE MAY BE INCLUDED AS APPLICABLE.]
i 18=:'19
Very truly yours,
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT
Man
re
2 -
Name: _ --
Title: — — - – - –
EXHIBIT D
[FORINT OF ADVANCE ORDER]
The Chase Manhattan Bank
as Fiscal Agent
450 West 33�d Street
8'h Floor
New York, New York 10001
Attention: Structured Finance Operations Department
Re: Advance Order
Variable/Fixed Rate Note No.
Name of Borrower
To Whom It May Concern:
The following information is being furnished pursuant to Section 2.04(b) of the Amended
and Restated Master Fiscal ADency Agreement ("Agreement") dated as of May 17, 2000.
Capitalized Terms used herein, but not defined, shall have the meanings ascribed to them in the
Agreement. The Borrower has requested, and the Secretary approved, an Advance under the
above -referenced Variable/Fixed Rate Note. You are hereby instructed that the following
Advance[s] have been authorized for such Note:
Advance Amount:
Principal Due Date(s) for Advance:
Fundinga Date of Advance:
Disbursement Instructions for Advance:
[Such other information as the Secretary and the Fiscal Anent may agree.]
You are hereby instructed to notify the Holder of the above -referenced Note of the above
information. Upon receipt of funds from the Holder on the date of the Advance, you must, in
3'4183!19
Few
accordance with Section 2.04(d) and (e) of the Agreement: (i) disburse such Advance to the
Borrower; and (ii) update your records to reflect the above Advance.
31181:19
Very truly yours,
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT
0
D-2
Name:
Title:
EXHIBIT E
[FOR�NI OF NOTICE OF MISSED BORROWER PAYMENT
FROM FISCAL AGENT TO SECRETARY]
Secretary
United States Department of Housing
and Urban Development
451 Seventh Street, S.W.
Washington, D.C. 20410
Attention: Director, Financial Management Division,
Office of the Assistant Secretary for
Communitv Plannina and Development
Re: Amended and Restated
Master Fiscal Agency Agreement
dated as of Mav 17. 2000 (the "Azreement")
Dear Sir or Madam:
We are furnishing this notice to you pursuant to Section 3.06 of the above -referenced
Agreement. Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned in the Agreement.
This letter confirms our earlier telephone notice to you that we have not received the
payment required to be made on the Note of
[insert Borrower name], Note No. , with Principal Due Date[s] of [August] 1,
in the amount of $ Such amount represents [principal] [interest] [fees] on
such Note.
We agree to notify you no later than 10:00 a.m. (New York City time) on
[insert Business Day next succeeding the relevant
Payment Date] if we have not received such payment by the close of business on
[insert relevant Payment Date].
1118?;"19
Very truly yours,
THE CHASE MANHATTAN BANK, (formerly
known as Chemical Bank) as Fiscal Agent
under the Agreement
ma
Name:
Title:
E-1
EX141BIT F
[FORM OF NOTICE FOR GUARANTEE PAYMENT
FROM FISCAL AGENT TO SECRETARY]
Secretary
United States Department
of Housing and Urban Development
451 Seventh Street, S.W.
Washington, D.C. 20410
Attention: Director, Financial Management Division
Office of the Assistant Secretary for.
Communitv Planning and Development _
Re: Amended and Restated
Master Fiscal Agency Agreement,
dated as of Mav 17.2000 (the "Agreement"
Dear Sir or Madam:
We are furnishing this notice to you pursuant to Section 3.06 of the above -referenced
Agreement. Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned in the Agreement.
This letter confirms our previous telephone notice to you that we have not received the
payment required to be made on the Note of
[insert Borrower name], Note No. , with Principal Due Date[s] of
[August] 1, , in the amount of $ Our letter, dated ,
to you notified you that we had not received such payment as of such date.
We are writing this letter to inform you that you are required pursuant to your Guarantee
of such Note to make a Guarantee Payment in the amount on S in respect
of the above-mentioned Note. Pawnent should be made by wire transfer to us in immediately
available funds to:
3""8 3; 19
F-1
[insert wire instructions here.)
3(183'19
Very truly yours,
THE CHASE -NLA STH ATT -kN B_--Nk
as Fiscal Agent
under the Agreement
By
Name:
F-?
Title:
EXHIBIT G
SCHEDULE OF FISCAL AGENT FEES
FOR VARIABLE/FIXED RATE NOTES SERVICES
Each Borrower shall pay a fee to the Fiscal Agent of $70.00 per Advance, broken down as
follows:
$15 — custodial/fiscal agency services
$25 — wire fee
$30 — paying agency services
The Fiscal Agent shall deduct such fees from each Advance due to each Borrower at the time the
Fiscal Agent remits the related Advance proceeds.
In addition, Borrowers with Variable/Fixed Rate Notes remaining in variable rate mode after any
public offering of certificates of participation pursuant to the Trust Agreement shall pay an
Administration Fee of $100 per quarter. The Fiscal Agent shall include each such quarterly
Administration Fee as a line item in the related quarterly notification of amounts due under
Section 3.04 of this Agreement. Each quarterly Administration Fee is due from the Borrower to
the Fiscal Agent at the same time as the Borrower's quarterly interest payment to the Fiscal
Agent. If unpaid when due, the quarterly Administrative Fee may be deducted by the Fiscal
Agent from any subsequent Advance or Conversion Date Advance made to the related Borrower.
DCLIBI59070-1I"760.0000:-ficzgerr March10.2000-5.2
CITY OF PASCO
Accounts Payable Edit Listing
Invoice GIL Due Received Confirming
Vendor/Remittance Address Number Description Date Date Date Date EFT GIL Date Notes Amounts
Batch Department: 24.FAC ACS,Facilities
Batch Date: 1213112019
Batch Number: 2019-00003273 Batch Description: 2019 SK 011720 FAC PROJ INVOICES
1728 -BUILDERS HARDWARE & S3727296.001
TRIM KIT
10128/2019 12/31/2019 12/31/2019
No Gross:
26220
SUPPLY
Freight
0.00
Invoice Department: 24.FAC ACS,Facilities
Check Sort Code:
Bank Account Claims
State Tax:
0.00
BUILDERS HARDWARE & SUPPLY
Check Code:
Invoice Terms:
County Tax:
0.00
PO BOX C - 79005
Manual Check: No
Hold Reason:
LocaUCity Tax:
22,55
SEATTLE, WA 98119-3185
Check Number:
Discount:
0,00
Retainage:
0.00
Net Amount:
$284.75
Detail: P.O. Number CID/F/T/A/1099
Description
Quantity U/M
AmountrUnit Total Amount
NlY/Y!Y/NIN Supplies. 53.XXXX 1.0000 Ea
G/L Distribution: GIL Account/Project
367.90.607-53.3290 ( Geri CIP.Finance.Capital City Hall -Miscellaneous Items)
CP56N9AI800 ( City Hall Remodel Phase 11)
Total Invoice Items I Invoice Amount Expensed: $284.75 Invoice Amount Unencumbered:
User: Sandy Kenworthy
Pages: 1 of 4
$0.00
262.2000 262.20
Expensed Unencumbered
284.75 0.00
1/17/2020 4:15:06 PM
CITY OF PASCO
Accounts Payable Edit Listing
Invoice GIL Due Received Confirming
Vendor/Remittance Address Number Description Date Date Date Date EFT GIL Date Notes
1728 -BUILDERS HARDWARE & S3727296.002
TRIM KIT
SUPPLY
0.00
Invoice Department: 24 ADM ACS,Admin
Check Sort Code:
BUILDERS HARDWARE & SUPPLY
Check Code:
PO BOX C - 79005
Manual Check: No
SEATTLE, WA 98119-3185
Check Number.
Detail: P.O. Number C/D/F/T/A/1099 Description
N/Y/Y/Y/N/N Supplies: 53.XXXX
G/L Distribution: GIL Account/Proiect
11/1812019 12/31/2019 1213V2019
Bank Account: Claims
Invoice Terms:
Hold Reason:
Quantity U/M
Amounts
No Gross:
(259.58)
Freight:
0.00
State Tax:
0.00
County Tax:
0.00
Local/City Tax:
22.55
Discount:
0.00
Retainage:
0.00
Net Amount:
($237.03)
Amount/Unit Total Amount
1.0000 Ea (259.5800) (259.58)
Expensed Unencumbered
367.90.607-53.3290 ( Gen[ CIP.Finance.Capital City Hall -Miscellaneous Items)
CP5GN9.A1800 ( City Hall Remodel Phase 11)
Total Invoice Items: I Invoice Amount Expensed: ($237.03) Invoice .Amount Unencumbered:
User: Sandy Kenworthy
Pages: 2 of 4
$0.00
(237.03) 0.00
1/17/2020 4:15:06 PM
CIN OF PASCO
Accounts Payable Edit Listing
Invoice GIL Due Received Confirming
Vendor/Remittance Address Number Description Date Date Date Date EFT GIL Date Notes
1728 -BUILDERS HARDW ARE & 53739357.001 TRIM KIT
SUPPLY
Invoice Department: 24.FAC ACS,Facilities Check Son Code:
BUILDERS HARDWARE & SUPPLY Check Code:
PO BOX C - 79005 Manual Check: No
SEATTLE, WA 98119-3185 Check Number
Detail: P.O. Number CIDIF1T/A/1099 Description
.N/Y/WYN[N Supplies: 53.XXXX
GIL Distribution: GIL Account/Proiecl
1213l/2019 12/31/2019 12131/2019
Bank Account: Claims
Invoice Terms:
Hold Reason:
Quantity U!M
Amounts
No Gross:
622.44
Freight
0.00
State Tax:
0.00
County Tax:
0.00
Local!City Tax:
53.53
Discount:
0.00
Retainage:
0.00
Net Amount:
$675.97
AmountlUnit Total Amount
$723.69
1.0000 Ea 622.4400 622.44
Expensed Unencumbered
367.90.607-53.3290 ( Gen] CJP.Finance.Capital City Hall -Miscellaneous Items)
CP5GN9A1800 ( City Hall Remodel Phase II)
Total Invoice Items: I Invoice Amount Expensed: $675.97 Invoice Amount Unencumbered:
User: Sandy Kenworthy
Pages: 3 of 4
675.97 0.00
$0,00
Batch Total Invoices:
3
Batch Total Gross:
$625.06
Batch Total Freight:
$0.00
Batch Total State Tax:
$0.00
Batch Total County Tax:
$0.00
Batch Total Local/City Tax:
$98.63
Batch Total Discount:
$0.00
Batch Total Retainage:
$0.00
Batch Total Net:
$723.69
Batch Total Unencumbered:
$0.00
Grand Total Invoices:
3
Grand Total Gross:
$625.06
Grand Total Freight
$0.00
1/17/2020 4:15:06 PM
CITY OF PASCO
Accounts Payable Edit Listing
Vendor/Remittance Address Number Description
Invoice GIL Due Received Confirming
Date Date Date Date EFT GIL Date Notes Amounts
Grand Total State Tax:
$0.00
Grand Total County Tax:
$0.00
Grand Total Local/City Tax:
$98.63
Grand Total Discount`.
$OM
Grand Total Retainage:
$0.00
Grand Total Net:
$723.69
Grand Total Unencumbered:
$0.00
User: Sandy Kenworthy Pages: 4 of 4 1/17/2020 4:15:06 PM