01. Funding Loan Agreement - Vista Breeze
4868-2375-4370.7
FUNDING LOAN AGREEMENT
(Construction Phase)
among
BANK OF AMERICA, N.A.,
as Initial Funding Lender
HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA,
as Governmental Lender
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Fiscal Agent
Relating to
Vista Breeze
City of Miami Beach, Miami-Dade County, Florida
Maximum Funding Loan Principal Amount: $32,500,000
Dated as of December 1, 2023
4868-2375-4370.7
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions .......................................................................................................................... 3
Section 1.02 Interpretation ..................................................................................................................... 14
ARTICLE II
THE FUNDING LOAN
Section 2.01 Terms. ............................................................................................................................... 15
Section 2.02 Pledged Security ............................................................................................................... 16
Section 2.03 Revenue Obligations ......................................................................................................... 17
Section 2.04 Funding Loan Agreement Constitutes Contract................................................................ 17
Section 2.05 Form and Execution .......................................................................................................... 17
Section 2.06 Authentication ................................................................................................................... 17
Section 2.07 Mutilated, Lost, Stolen or Destroyed Governmental Lender Note ................................... 18
Section 2.08 Registration; Transfer of Funding Loan; Transferee Representations Letter. .................. 18
Section 2.09 Funding Loan Closing Conditions; Delivery of Governmental Lender Note ................... 19
Section 2.10 Establishment of Project Loan Fund; Application of Funding Loan Proceeds and Other
Money. .............................................................................................................................. 20
Section 2.11 Direct Loan Payments to Fiscal Agent or Funding Lender; Servicer Disbursement of Fees.
.......................................................................................................................................... 20
Section 2.12 Conversion ........................................................................................................................ 21
ARTICLE III
PREPAYMENT OF THE FUNDING LOAN
Section 3.01 Prepayment of the Funding Loan Prior to Maturity. ......................................................... 21
Section 3.02 Notice of Prepayment ....................................................................................................... 22
ARTICLE IV
REVENUES AND FUNDS
Section 4.01 Pledge of Revenues and Assets; Establishment of Funds ................................................. 22
Section 4.02 Project Loan Fund. ............................................................................................................ 23
Section 4.03 Application of Revenues. .................................................................................................. 25
Section 4.04 Application of Loan Payment Fund .................................................................................. 26
Section 4.05 Application of Loan Prepayment Fund ............................................................................. 26
Section 4.06 Administration Fund ......................................................................................................... 26
Section 4.07 [Reserved]. ........................................................................................................................ 27
Section 4.08 Investment of Funds .......................................................................................................... 27
ii
4868-2375-4370.7
Section 4.09 [Reserved]. ........................................................................................................................ 28
Section 4.10 Accounting Records .......................................................................................................... 28
Section 4.11 Amounts Remaining in Funds .......................................................................................... 28
Section 4.12 Rebate Fund; Compliance with Tax Certificate ................................................................ 28
Section 4.13 Cost of Issuance Fund ....................................................................................................... 30
Section 4.14 Reports From the Fiscal Agent ......................................................................................... 30
ARTICLE V
GENERAL COVENANTS AND REPRESENTATIONS
Section 5.01 Payment of Principal and Interest ..................................................................................... 31
Section 5.02 Performance of Covenants ................................................................................................ 31
Section 5.03 Instruments of Further Assurance ..................................................................................... 31
Section 5.04 Inspection of Project Books .............................................................................................. 32
Section 5.05 No Modification of Security; Additional Indebtedness .................................................... 32
Section 5.06 Damage, Destruction or Condemnation ............................................................................ 32
Section 5.07 Tax Covenants .................................................................................................................. 32
Section 5.08 Representations and Warranties of the Governmental Lender ......................................... 33
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF FISCAL AGENT AND FUNDING LENDER
Section 6.01 Events of Default .............................................................................................................. 34
Section 6.02 Acceleration; Other Remedies Upon Event of Default. .................................................... 34
Section 6.03 Funding Lender Representative Control of Proceedings .................................................. 36
Section 6.04 Waiver by Governmental Lender...................................................................................... 36
Section 6.05 Application of Money After Default ................................................................................. 36
Section 6.06 Remedies Not Exclusive ................................................................................................... 37
Section 6.07 Fiscal Agent May Enforce Rights Without Governmental Lender Note .......................... 37
Section 6.08 [Reserved]. ........................................................................................................................ 37
Section 6.09 Termination of Proceedings .............................................................................................. 37
Section 6.10 Waivers of Events of Default ............................................................................................ 37
Section 6.11 Interest on Unpaid Amounts and Default Rate for Nonpayment ...................................... 37
Section 6.12 Assignment of Borrower Loan; Remedies Under the Borrower Loan. ............................ 38
Section 6.13 Substitution ....................................................................................................................... 38
ARTICLE VII
CONCERNING THE FISCAL AGENT
Section 7.01 Standard of Care ............................................................................................................... 38
Section 7.02 Reliance Upon Documents ............................................................................................... 39
Section 7.03 Use of Proceeds ................................................................................................................ 42
Section 7.04 Escrowed Funds ................................................................................................................ 42
iii
4868-2375-4370.7
Section 7.05 Trust Imposed ................................................................................................................... 42
Section 7.06 Compensation of Fiscal Agent .......................................................................................... 43
Section 7.07 Qualifications of Fiscal Agent .......................................................................................... 43
Section 7.08 Merger of Fiscal Agent ..................................................................................................... 44
Section 7.09 Resignation by the Fiscal Agent ....................................................................................... 44
Section 7.10 Removal of the Fiscal Agent............................................................................................. 44
Section 7.11 Appointment of Successor Fiscal Agent. .......................................................................... 44
Section 7.12 Concerning Any Successor Fiscal Agent .......................................................................... 45
Section 7.13 Successor Fiscal Agent ..................................................................................................... 45
Section 7.14 Appointment of Co-Fiscal Agent or Separate Fiscal Agent ............................................. 45
Section 7.15 Notice of Certain Events ................................................................................................... 47
Section 7.16 [Reserved]. ........................................................................................................................ 47
Section 7.17 Filing of Financing Statements ......................................................................................... 47
Section 7.18 USA Patriot Act Requirements of the Fiscal Agent ......................................................... 47
ARTICLE VIII
AMENDMENTS OF CERTAIN DOCUMENTS
Section 8.01 Amendments to this Funding Loan Agreement ................................................................ 48
Section 8.02 Amendments to Financing Documents Require Consent of Funding Lender Representative
.......................................................................................................................................... 48
Section 8.03 Opinion of Bond Counsel Required .................................................................................. 48
ARTICLE IX
SATISFACTION AND DISCHARGE OF FUNDING LOAN AGREEMENT
Section 9.01 Discharge of Lien .............................................................................................................. 48
Section 9.02 Discharge of Liability on Funding Loan ........................................................................... 49
Section 9.03 Payment of Funding Loan After Discharge of Funding Loan Agreement ........................ 49
ARTICLE X
INTENTIONALLY OMITTED
ARTICLE XI
MISCELLANEOUS
Section 11.01 Servicing of the Funding Loan ......................................................................................... 49
Section 11.02 Limitation of Rights .......................................................................................................... 49
Section 11.03 Construction of Conflicts; Severability ............................................................................ 50
Section 11.04 Notices. ............................................................................................................................. 50
Section 11.05 Funding Lender Representative. ....................................................................................... 53
Section 11.06 Payments Due on Non-Business Days .............................................................................. 54
Section 11.07 Counterparts ...................................................................................................................... 54
iv
4868-2375-4370.7
Section 11.08 Laws Governing Funding Loan Agreement ..................................................................... 54
Section 11.09 No Recourse ...................................................................................................................... 54
Section 11.10 Successors and Assigns .................................................................................................... 55
EXHIBIT A FORM OF GOVERNMENTAL LENDER NOTE
EXHIBIT B FORM OF NOTICE OF APPOINTMENT OF FUNDING LENDER REPRESENTATIVE
EXHIBIT C FORM OF TRANSFEREE REPRESENTATIONS LETTER
EXHIBIT D PROJECT LOAN FUND REQUISITION
EXHIBIT E CONSTRUCTION PHASE INTEREST RATE
4868-2375-4370.7
FUNDING LOAN AGREEMENT
This FUNDING LOAN AGREEMENT (this “Funding Loan Agreement”), is made and entered
into as of December 1, 2023, by and among BANK OF AMERICA, N.A., in its capacity as Initial Funding
Lender (the “Initial Funding Lender”), the HOUSING FINANCE AUTHORITY OF MIAMI-DADE
COUNTY, FLORIDA (the “Governmental Lender”), a public body corporate and politic organized and
existing under the laws of the State of Florida (the “State”), and THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., a national banking association, organized and operating under the laws of the
United States of America, having a corporate trust office in Jacksonville, Florida, as Fiscal Agent (the
“Fiscal Agent”). Capitalized terms are defined in Section 1.01 of this Funding Loan Agreement.
RECITALS
A. Pursuant to Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-78
adopted by the Board of County Commissioners of Miami-Dade County (the “Board”) on October 17,
1978, Ordinance No. 78-89 enacted by the Board on December 12, 1978 and Ordinance No. 11-99 enacted
by the Board on December 6, 2011 (collectively, the “Act”) and the Construction Phase Borrower Loan
Agreement dated as of December 1, 2023 (the “Construction Phase Borrower Loan Agreement”) by and
among the Governmental Lender, the Fiscal Agent and Vista Breeze, Ltd., a Florida limited partnership
duly organized and existing under the laws of the State (the “Borrower”), and, following Conversion, as
amended and restated pursuant to the Amended and Restated Borrower Loan Agreement (the “Permanent
Phase Borrower Loan Agreement”) to be entered into by and among the Governmental Lender, the Fiscal
Agent and the Borrower upon Conversion, the Governmental Lender is agreeing to make a construction
period mortgage loan pursuant to the Construction Phase Borrower Loan Agreement (the “Construction
Phase Borrower Loan “) and a permanent phase mortgage loan pursuant to the Permanent Phase Borrower
Loan Agreement (the “Permanent Phase Borrower Loan”) to the Borrower in the maximum aggregate
principal amount of $32,500,000 to provide for the financing of the acquisition, construction and equipping
of a multifamily rental housing development located at 175 S. Shore Drive and 280 S. Shore Drive, in the
City of Miami Beach, Miami-Dade County, Florida to be known as Vista Breeze (the “Project”).
B. The Governmental Lender is making the Construction Phase Borrower Loan to the
Borrower with the proceeds received from the separate loan made to the Governmental Lender by the Initial
Funding Lender pursuant to this Funding Loan Agreement in the maximum aggregate principal amount of
$32,500,000 (the “Construction Phase Funding Loan”). The Construction Phase Funding Loan is
evidenced by the Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) dated December 15, 2023
in the form attached hereto as Exhibit A (together with all riders and addenda thereto, the “Governmental
Lender Note”) delivered by the Governmental Lender to the Initial Funding Lender.
C. The Initial Funding Lender, pursuant to the terms and subject to the conditions of this
Funding Loan Agreement and the Construction Disbursement Agreement, has agreed to originate and fund
the Funding Loan to the Governmental Lender on a draw-down basis, which proceeds of the Funding Loan
will be used by the Governmental Lender to fund the Construction Phase Borrower Loan to the Borrower
in corresponding installments pursuant to the Construction Phase Borrower Loan Agreement. The Initial
Funding Lender will administer the Funding Loan and Construction Phase Borrower Loan during the
Construction Phase in accordance with the Construction Disbursement Agreement and the other Financing
Documents.
D. The Borrower has agreed to use the proceeds of the Borrower Loan to finance the
acquisition, construction and equipping of the Project and to pay certain closing costs with respect to the
Borrower Loan and the Funding Loan.
2
4868-2375-4370.7
E. The Borrower’s repayment obligations in respect of the Construction Phase Borrower Loan
will be evidenced by a Construction Phase Project Loan Note dated December 15, 2023 (together with all
riders and modifications thereto, the “Construction Phase Borrower Note”) delivered to the
Governmental Lender, which Construction Phase Borrower Note will be endorsed by the Governmental
Lender to the Fiscal Agent as security for the Funding Loan.
F. To secure the Borrower’s obligations under the Construction Phase Borrower Note, the
Borrower will execute and deliver to the Governmental Lender a Multifamily Mortgage, Assignment of
Rents, Security Agreement and Fixture Filing dated as of the date hereof (the “Security Instrument”) with
respect to the Project, which Security Instrument will be assigned by the Governmental Lender to the Fiscal
Agent as security for the Funding Loan.
G. On the Conversion Date, (i) this Funding Loan Agreement will be amended and restated
pursuant to the Amended and Restated Funding Loan Agreement (the “Amended and Restated Funding
Loan Agreement”), to be entered into by the Governmental Lender, the Fiscal Agent and Citibank, N.A.,
as the purchaser of the Funding Loan from the Initial Funding Lender (the “Permanent Phase Funding
Lender”), which Amended and Restated Funding Loan Agreement shall be substantially in the form
attached to the Forward Purchase Agreement, (ii) the Permanent Phase Borrower Loan Agreement shall be
executed and delivered and become effective by its terms, (iii) the Permanent Phase Borrower Note
substantially in the form attached to the Forward Purchase Agreement shall be executed and delivered by
the Borrower, and (iv) the Permanent Phase Funding Loan Agreement, the Permanent Phase Borrower Loan
Agreement and the Permanent Phase Borrower Note will secure the Funding Loan in substitution for the
Construction Phase Funding Loan Agreement, Construction Phase Borrower Loan Agreement and
Construction Phase Borrower Note, respectively, at which time the Construction Phase Funding Loan
Agreement, and Construction Phase Borrower Loan Agreement will terminate.
H. If the Conditions to Conversion are satisfied as provided in the Forward Purchase
Agreement, the Borrower Loan will convert from the Construction Phase Borrower Loan to the Permanent
Phase Borrower Loan on the Conversion Date and, on such Conversion Date, the Initial Funding Lender
shall deliver, and the Permanent Phase Funding Lender shall purchase, the Funding Loan, as evidenced by
the Governmental Lender Note. If the Conditions to Conversion are not satisfied, the Borrower Loan will
not convert from the Construction Phase Borrower Loan to the Permanent Phase Borrower Loan, and the
Permanent Phase Funding Lender will not have any obligation with respect to the purchase of the Funding
Loan and the Initial Funding Lender will remain the owner of the Funding Loan as the holder of the
Governmental Lender Note.
I. As a Condition to Conversion, the Construction Phase Borrower Note will be satisfied in
full, the Security Instrument will be amended and restated, the Permanent Phase Funding Loan Agreement,
and the Permanent Phase Borrower Loan Agreement and the Permanent Phase Bo rrower Note will be
executed and delivered, in each case pursuant to the forms attached to the Forward Purchase Agreement.
J. The Governmental Lender has determined that all things necessary to incur the Funding
Loan and to execute and deliver the Governmental Lender Note, when executed by the Governmental
Lender and authenticated by the Fiscal Agent and issued in accordance with this Funding Loan Agreement,
the valid, binding and legal obligation of the Governmental Lender and to constitute this Funding Loan
Agreement a valid lien on the properties, interests, revenues and payments herein pledged to the payment
of the principal of, premium, if any, and interest on, the Governmental Lender Note, have been duly taken,
and the creation, execution and delivery of this Funding Loan Agreement and the execution and delivery
of the Governmental Lender Note, subject to the terms of this Funding Loan Agreement, have been duly
authorized by the Governmental Lender.
3
4868-2375-4370.7
K. The Fiscal Agent has the power and authority to enter into this Funding Loan Agreement,
including corporate trust powers to accept the trusts hereunder and to accept and assume its other
responsibilities hereunder as Fiscal Agent as evidenced by its execution of this Funding Loan Agreement.
NOW, THEREFORE, in consideration of the premises and of the origination and funding of the
Funding Loan by the Funding Lender, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The terms used in this Funding Loan Agreement (except as herein
otherwise expressly provided or unless the context otherwise requires) for all purposes of this Funding Loan
Agreement and of any amendment or supplement hereto shall have the respective mea nings specified
below. Terms used herein not otherwise defined shall have the respective meanings set forth in the
Construction Phase Borrower Loan Agreement or the Construction Disbursement Agreement.
“Act” means, collectively, Chapter 159, Part IV, Florida Statutes, as amended, Resolution R-1194-
78 adopted by the Board of County Commissioners of Miami-Dade County (the “Board”) on October 17,
1978, Ordinance No. 78-89 enacted by the Board on December 12, 1978 and Ordinance No. 11-99 enacted
by the Board on December 6, 2011.
“Administration Fund” means the Administration Fund established by the Fiscal Agent pursuant to
Section 4.01 hereof.
“Advance Request” shall mean a request by the Borrower to the Initial Funding Lender that the
Initial Funding Lender disburse proceeds of the Funding Loan to the Fiscal Agent as provided hereunder,
which request shall be in the form prescribed by the Construction Disbursement Agreement and defined
therein as a Draw-Down Notice.
“Advance Termination Date” means the earliest to occur of (i) the date when the sum of the
aggregate advances of the Funding Loan made by the Initial Funding Lender equals the Authorized
Amount, (ii) the date that is three (3) years after the Delivery Date, (iii) the Conversion Date, (iv) the date
of a Determination of Taxability or (v) the occurrence of an Event of Default hereunder.
“Assignment” means the Assignment of Leasehold Mortgage, and Collateral Loan Documents
dated as of the date hereof by the Governmental Lender assigning its interest in the Security Instrument to
the Fiscal Agent.
“Authorized Amount” shall mean $32,500,000, the maximum principal amount of the Funding Loan
authorized under this Funding Loan Agreement.
“Authorized Officer” means (a) when used with respect to the Governmental Lender, the Chair,
Vice-Chair, any Secretary/Assistant Secretary or the Executive Director of the Governmental Lender and
such additional Person or Persons, if any, duly designated by the Governmental Lender in writing to act on
its behalf, (b) when used with respect to the Borrower, any authorized partner of the Borrower and such
additional Person or Persons, if any, duly designated by the Borrower in writing to act on its behalf, (c) when
used with respect to the Fiscal Agent, any authorized signatory of the Fiscal Agent, or any Person who is
authorized in writing to take the action in question on behalf of the Fiscal Agent, (d) when used with respect
to the Servicer, any Person or Persons duly designated by the Servicer in writing to act on its behalf,
(e) when used with respect to the Funding Lender Representative, any Person who is authorized in writing
4
4868-2375-4370.7
to take the action in question on behalf of the Funding Lender Representative, and (f) when used with
respect to the Governmental Lender Servicer, any Person who is authorized in writing to take the action in
question on behalf of the Governmental Lender Servicer.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor federal statute.
“Bond Counsel” means (a) on the Delivery Date, the law firm or law firms delivering the approving
opinion(s) with respect to the Governmental Lender Note, or (b) any other firm of attorneys selected by the
Governmental Lender that is experienced in matters relating to the issuance of obligations by states and
their political subdivisions that is listed as municipal bond attorneys in The Bond Buyer’s Municipal
Marketplace and is acceptable to the Funding Lender Representative.
“Borrower” means Vista Breeze, Ltd., a Florida limited partnership duly organized and existing
under the laws of the State, or any of its permitted successors or assigns, as owner of the Project.
“Borrower Equity Account” means the Borrower Equity Account of the Project Loan Fund
established by the Fiscal Agent pursuant to Section 2.10 hereof.
“Borrower Equity Deposit” means $5,365,086.00, which shall be comprised of sources other than
the proceeds of the Borrower Loan.
“Business Day” means any day other than (a) a Saturday or a Sunday, or (b) a day on which
(i) banking institutions in the City of New York or in the city in which the Principal Office of the Fiscal
Agent is located are authorized or obligated by law or executive order to be closed or (ii) the New York
Stock Exchange is closed.
“Borrower Loan” means the loan made by the Governmental Lender to the Borrower pursuant to
the Construction Phase Borrower Loan Agreement in the maximum aggregate principal amount of
$32,500,000, as evidenced by the Construction Phase Borrower Note.
“Borrower Loan Documents” means the Security Instrument, the Construction Phase Borrower
Note, the Construction Phase Borrower Loan Agreement, the Tax Regulatory Agreement, the Assignment,
the Construction Disbursement Agreement, any Subordination Agreement(s) and any and all other
instruments and other documents evidencing, securing, or otherwise relating to the Borrower Loan or any
portion thereof.
“Capitalized Interest Account” means the Capitalized Interest Account of the Project Loan Fund
established by the Fiscal Agent pursuant to Section 2.10 hereof.
“Certificate of the Governmental Lender” and “Request of the Governmental Lender” mean,
respectively, a written certificate or request signed in the name of the Governmental Lender by an
Authorized Officer of the Governmental Lender or such other Person as may be designated and authorized
to sign for the Governmental Lender. Any such instrument and supporting opinions or representations, if
any, may, but need not, be combined in a single instrument with any other instrument, opinion or
representation, and the two or more so combined shall be read and construed as a single instrument.
“Code” shall mean the Internal Revenue Code of 1986, as in effect on the Delivery Date or (except
as otherwise referenced herein) as it may be amended to apply to obligations issued on the Delivery Date,
together with applicable proposed, temporary and final regulations promulgated, and applicable official
public guidance published, under the Code.
5
4868-2375-4370.7
“Completion” has the meaning provided in the Construction Disbursement Agreement.
“Compliance Monitoring Fee” means the compliance monitoring fee in an annual amount equal to
$30.00 per rental unit in the Project (119 units; $3,570.00 annual fee) (subject to adjustment from time to
time by the Governmental Lender) to be paid by the Borrower to the Governmental Lender pursuant to the
Tax Regulatory Agreement. The initial compliance monitoring fee shall be equal to the annual amount
prorated from the first day of the Qualified Project Period (as evidenced by the delivery of the initial
Certificate of Continuing Program Compliance pursuant to Section 4(d) of the Tax Regulatory Agreement)
to the following December 1.
“Conditions to Conversion” has the meaning given to that term in the Forward Purchase
Agreement.
“Construction Disbursement Agreement” means the Construction Disbursement Agreement dated
as of the date hereof by and between the Borrower and the Initial Funding Lender, as the same may be
amended, modified or supplemented from time to time.
“Construction Loan Documents” means the Forward Purchase Agreement, the Construction
Disbursement Agreement, and all other documents to be executed and delivered by Borrower to the Initial
Funding Lender in connection with the Project.
“Construction Phase” means the period of time during the Construction Phase Borrower Loan,
which time period shall commence on the Delivery Date and remain in effect to, but not including, the
Conversion Date.
“Construction Phase Interest Rate” has the meaning set forth in the Construction Phase Borrower
Note.
“Construction Phase Borrower Loan Agreement” means the Construction Phase Borrower Loan
Agreement dated as of the date hereof among the Borrower, the Governmental Lender and the Fiscal Agent,
as amended, supplemented or restated from time to time.
“Construction Phase Borrower Note” means the Promissory Note dated the Delivery Date from
the Borrower, including all riders and addenda thereto, evidencing the Borrower’s obligation to repay the
Construction Phase Borrower Loan, which Construction Phase Borrower Note will be delivered to the
Governmental Lender and endorsed by the Governmental Lender to the Fiscal Agent as security for the
Funding Loan, as the same may be amended, restated, supplemented or otherwise modified from time to
time, or any note executed in substitution therefor, as such substitute note may be amended, restated,
supplemented or otherwise modified from time to time.
“Conversion” means conversion of the Construction Phase Borrower Loan to the Permanent Phase
Borrower Loan on the Conversion Date.
“Conversion Date” means the date the Permanent Phase Funding Lender purchases the Funding
Loan from the Initial Funding Lender upon the satisfaction of the Conditions to Conversion.
“Cost,” “Costs” or “Costs of the Project” means costs paid with respect to the Project that (i) are
properly chargeable to capital account (or would be so chargeable with a proper election by the Borrower
or but for a proper election by the Borrower to deduct such costs) in accordance with general federal income
tax principles and in accordance with United States Treasury Regulations Section 1.103-8(a)(1), (ii) are
paid with respect to a qualified residential rental project or projects within the meaning of Section 142(d)
of the Code, (iii) are paid after the earlier of (A) 60 days prior to the date of a resolution of the Governmental
6
4868-2375-4370.7
Lender to reimburse costs of the Project with proceeds of the Governmental Lender Note or (B) the Delivery
Date, and (iv) if the Costs of the Project were previously paid and are to be reimbursed with proceeds of
the Governmental Lender Note such costs were (A) Costs of Issuance of the Governmental Lender Note,
(B) preliminary capital expenditures (within the meaning of United States Treasury Regulations Secti on
1.150-2(f)(2)) with respect to the Project (such as architectural, engineering and soil testing services)
incurred before commencement of acquisition or construction of the Project that do not exceed twenty
percent (20%) of the issue price of the Governmental Lender Note (as defined in United States Treasury
Regulations Section 1.148-1), or (C) capital expenditures with respect to the Project that are reimbursed no
later than eighteen (18) months after the later of the date the expenditure was paid or the date the Project is
placed in service (but no later than three (3) years after the expenditure is paid); provided however, that if
any portion of the Project is being constructed or developed by the Borrower or an affiliate (whether as a
developer, a general contractor or a subcontractor), “Cost,” “Costs” or “Costs of the Project” shall include
only (a) the actual out-of-pocket costs incurred by the Borrower or such affiliate in developing or
constructing the Project (or any portion thereof), (b) any reasonable fees for supervisory services actually
rendered by the Borrower or such affiliate (but excluding any profit component) and (c) any overhead
expenses incurred by the Borrower or such affiliate which are directly attributable to the work performed
on the Project, and shall not include, for example, intercompany profits resulting from members of an
affiliated group (within the meaning of Section 1504 of the Code) participating in the acquisition,
construction or development of the Project or payments received by such affiliate due to early Completion
of the Project (or any portion thereof).
“Cost of Issuance Fund” means the Cost of Issuance Fund established by the Fiscal Agent pursuant
to Section 4.01 hereof.
“Costs of Issuance” means, as applicable, (i) the fees (excluding ongoing fees), costs and expenses
of (a) the Governmental Lender, the Governmental Lender’s counsel and the Governmental Lender’s
financial advisor, (b) Bond Counsel, (c) the Fiscal Agent and the Fiscal Agent’s counsel, (d) the Initial
Funding Lender and the Initial Funding Lender’s counsel (e) the Permanent Funding Lender and Permanent
Funding Lender’s counsel, (f) the Borrower’s counsel attributable to the funding of the Borrower Loan and
the Borrower’s financial advisor, if any, and (g) the Governmental Lender Servicer; and (ii) all other fees,
costs and expenses directly associated with the Funding Loan and the Borrower Loan, including, without
limitation, printing costs, costs of reproducing documents, filing and recording fees.
“Costs of Issuance Deposit” means the deposit to be made by the Borrower with the Fiscal Agent
on the Delivery Date, which deposit shall equal $217,995.00 of the Borrower Equity Deposit.
“Default Rate” means an interest rate equal to the lower of (i) five percent (5%) per annum above
the Construction Phase Interest Rate or (ii) the Maximum Interest Rate.
“Delivery Date” means December 15, 2023, the date of funding of the initial advance of the
Funding Loan and the delivery of the Governmental Lender Note by the Governmental Lender to the Initial
Funding Lender.
“Determination of Taxability” shall mean, (a) a final determination by the Commissioner or any
District Director of the Internal Revenue Service, (b) a private ruling or Technical Advice Memorandum
issued by the National Office of the Internal Revenue Service in which Governmental Lender and Borrower
were afforded the opportunity to participate, (c) a determination by any court of competent jurisdiction, (d)
the enactment of legislation which has become effective or (e) receipt by Fiscal Agent or Funding Lender
Representative, at the request of Governmental Lender, Borrower, Fiscal Agent or Funding Lender
Representative, of an opinion of Bond Counsel, in each case to the effect that the interest on the
Governmental Lender Note is includable in gross income for federal income tax purposes of the Funding
Lender or any former Funding Lender other than a Funding Lender or Holder of the Governmental Lender
7
4868-2375-4370.7
Note who is a “substantial user” of the Project or a “related person” (as such terms are defined in Section
147(a) of the Code); provided, however, that no such Determination of Taxability under clause (a) or (c)
shall be deemed to have occurred if the Governmental Lender (at the sole expense of the Borrower) or the
Borrower is contesting such determination, has elected to contest such determination in good faith and is
proceeding with all applicable dispatch to prosecute such contest until the earliest of (i) a final determination
from which no appeal may be taken with respect to such determination, (ii) abandonment of such appeal
by the Governmental Lender or the Borrower, as the case may be, or (iii) one year from the date of initial
determination.
“Electronic Notice” means delivery of notice in a Portable Document Format (PDF) by electronic
mail to the electronic mail addresses listed in Section 11.04 hereof; provided, that if a sender receives notice
that the electronic mail is undeliverable, notice must be sent as otherwise required by Section 11.04 hereof.
“Equity Investor” means Bank of America, N.A., a national banking association, as the investor
limited partner of the Borrower and its permitted successors and assigns.
“Event of Default” or “event of default” means any of those events specified in and defined by the
applicable provisions of Article VI hereof to constitute an event of default.
“Exempted Transfer” shall mean (i) a transfer of the Funding Loan by the Funding Lender
Representative to any affiliate or other party related to the Funding Lender that is a Qualified Transferee or
(ii) the sale or transfer of the Funding Loan to a special purpose entity, a trust or a custodial or similar
pooling arrangement from which the Funding Loan or securitized interests therein are not expected to be
sold or transferred except to (x) owners or beneficial owners thereof that are Qualified Transferees or (y)
in circumstances where secondary market credit enhancement is provided for such securitized interests
resulting in a rating thereof of at least “A” or better.
“Extraordinary Fiscal Agent’s Fees and Expenses” means all those fees, expenses and
reimbursements earned or incurred by the Fiscal Agent as described under Section 7.06 hereof during any
year for Extraordinary Services, as set forth in a detailed invoice to the Borrower, the Servicer and the
Funding Lender Representative.
“Extraordinary Services” means and includes, but not by way of limitation, services, actions and
things carried out and all expenses incurred by the Fiscal Agent, in respect of or to prevent default under
this Funding Loan Agreement or the Borrower Loan Documents, including any reasonable attorneys’ or
agents’ fees and expenses and other litigation costs that are entitled to reimbursement under the terms of
the Construction Phase Borrower Loan Agreement and other actions taken and carried out by the Fiscal
Agent which are not expressly set forth in this Funding Loan Agreement or the Borrower Loan Documents.
“Fair Market Value” means the price at which a willing buyer would purchase the investment from
a willing seller in a bona fide, arm’s length transaction (determined as of the date the contract to purchase
or sell the investment becomes binding) if the investment is traded on an established securities market
(within the meaning of Section 1273 of the Code) and, otherwise, the term “Fair Market Value” means the
acquisition price in a bona fide arm’s length transaction (as referenced above) if (a) the investment is a
certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the
investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a
specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply
contract or other investment agreement) that is acquired in accordance with applicable regulations under
the Code, (c) the investment is a United States Treasury Security--State and Local Government Series that
is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (d) any
commingled investment fund in which the Governmental Lender and related parties do not own more than
8
4868-2375-4370.7
a ten percent (10%) beneficial interest therein if the return paid by the fund is without regard to the source
of investment.
“Fee Component” has the meaning set forth in the Construction Phase Borrower Loan
Agreement.
“Fee Guaranty & Environmental Indemnity” means the Fee Guaranty and Environmental
Indemnity Agreement, dated as of December 1, 2023, by and among the Governmental Lender, the Fiscal
Agent and the Governmental Lender Guarantors.
“Financing Documents” means, collectively, this Funding Loan Agreement, the Governmental
Lender Note, the Tax Certificate, the Borrower Loan Documents, the Construction Loan Documents,
Government Lender Guaranties and all other documents or instruments evidencing, securing or relating to
the Borrower Loan and the Funding Loan.
“Final Credit Underwriting Report” means the Housing Finance Authority of Miami-Dade
County, Florida Credit Underwriting Report for the Project, dated November 9, 2023 and supplemental
letters dated November 9, 2023 and December 14, 2023, prepared by the Governmental Lender Servicer.
“Fiscal Agent” means The Bank of New York Mellon Trust Company, N.A., and its successors
hereunder.
“Forward Purchase Agreement” means the Forward Purchase Agreement dated as of the date
hereof by and among the Initial Funding Lender, the Permanent Funding Lender, and the Borrower, as the
same may be amended, modified or supplemented from time to time.
“Funding Lender” means any Person who is the holder of the Governmental Lender Note.
“Funding Lender Representative” means the Funding Lender or any Person designated by the
Funding Lender to act on behalf of the Funding Lender as provided in Section 11.05, or an assignee of such
Person as provided in Section 11.05. The initial Funding Lender Representative shall be the Initial Funding
Lender.
“Funding Loan” means, prior to the Conversion Date, the loan in the maximum aggregate principal
amount of $32,500,000 made to the Governmental Lender pursuant to this Funding Loan Agreement
(Construction Phase) by the Initial Funding Lender.
“Funding Loan Amortization Schedule” means the Funding Loan Amortization Schedule attached
as Schedule 1 to the Governmental Lender Note.
“Government Obligations” means investments meeting the requirements of clause (a) or (b) of the
definition of “Qualified Investments” herein.
“Governmental Lender” means the Housing Finance Authority of Miami-Dade County, Florida, a
public body corporate and politic created, organized and existing under the laws of the State.
“Governmental Lender Conversion Fee” means the one (1) time fee payable to the Governmental
Lender on the Conversion Date in the amount of $203,125.00; however, in the event the Conversion Date
occurs after 30 months from the date of issuance of the Governmental Lender Note, an additional fee will
be payable to the Governmental Lender for the lengthened period, calculated on a per diem basis from the
date that is 30 months from the date of issuance of the Governmental Lender Note to the Conversion Date.
9
4868-2375-4370.7
“Governmental Lender Extraordinary Fees and Expenses” means the expenses and disbursements
payable to the Governmental Lender under this Funding Loan Agreement for Extraordinary Services and
extraordinary expenses, including extraordinary fees, costs and expenses incurred by the Governmental
Lender, Bond Counsel and counsel to the Governmental Lender which are to be paid by the Borrower
pursuant to the Borrower Loan Documents.
“Governmental Lender Fee” means, collectively, the Governmental Lender Ordinary Fees and
Expenses and the Governmental Lender Extraordinary Fees and Expenses.
“Governmental Lender Guaranties” means, collectively, (i) the Guaranty of Completion, (ii) the
Guaranty of Recourse Obligations, (iii) the Operating Deficit Guaranty, and (iv) the Fee Guaranty and
Environmental Indemnity, each dated as of the date of this Funding Loan Agreement, by the Governmental
Lender Guarantors for the benefit of the Governmental Lender and the Fiscal Agent.
“Governmental Lender Guarantors” means, collectively, the Borrower, APC Vista Breeze, LLC,
a Florida limited liability company, Vista Breeze HACMB, Inc., a Florida not for profit corporation,
Atlantic Pacific Communities, LLC, a Delaware limited liability company, APC Vista Breeze
Development, LLC, a Florida limited liability company, HACMB Development, LLC, a Florida limited
liability company, Howard D. Cohen Revocable Trust Under Agreement Dated 4/6/1993, and Howard D.
Cohen, individually.
“Governmental Lender Ordinary Fees and Expenses” means the Governmental Lender Conversion
Fee and a one (1) time initial issuance fee payable to the Governmental Lender on or before the Delivery
Date in the amount of $81,250.00.
“Governmental Lender Servicer” means the servicer appointed by the Governmental Lender to
service the Borrower Loan on behalf of the Governmental Lender and to monitor the construction of the
Project. Initially, the Governmental Lender Servicer shall be AmeriNat®, a Minnesota limited liability
company authorized to transact business in the State of Florida, its successors and assigns.
“Governmental Lender Servicer Fee” means the fees and expenses of the Governmental Lender
Servicer as may be amended from time to time, as provided in the Servicing Agreement.
“Governmental Lender Short-Term Prepayment Fee” means the applicable fee in the following
schedule determined based on the principal amount of the Governmental Lender Note to be prepaid and the
length of time between the date of issuance of the Note and the prepayment or final maturity of the
Governmental Lender Note; provided however, such fee shall not be less than $20,000, which fee is payable
on the partial or full prepayment or final maturity date, as applicable:
Prepayment Date
Note Amount ≤ 18-Month 18+ to 24-Months 24+ to 60-Months
$15 million or less 31 bps 24 bps 18 bps
Above $15 million up to $20 million 30 bps 23 bps 17 bps
$20 million up to $25 million 29 bps 22 bps 16 bps
$25 million up to $30 million 28 bps 21 bps 15 bps
$30 million or above 27 bps 20 bps 14 bps
10
4868-2375-4370.7
“Governmental Lender Note” means the Multifamily Housing Revenue Note, Series 2023 (Vista
Breeze) dated the Delivery Date, executed by the Governmental Lender and authenticated by the Fiscal
Agent in favor of the Initial Funding Lender, in the form attached hereto as Exhibit A, as the same may be
amended, restated, supplemented or otherwise modified from time to time, or any mortgage note executed
in substitution therefor, as such substitute note may be amended, restated, supplemented or otherwise
modified from time to time.
“Guaranty of Completion” means the Absolute and Unconditional Guaranty of Completion, dated
as of December 1, 2023, from the Governmental Lender Guarantors, jointly and severally, in favor of the
Governmental Lender and the Fiscal Agent.
“Guaranty of Recourse Obligations” means the Absolute and Unconditional Guaranty of Recourse
Obligations, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and
severally, in favor of the Governmental Lender and the Fiscal Agent.
“Initial Debt Service Deposit” means an amount equal to the interest payable on the Funding Loan
for the period commencing on the Delivery Date to but not including the first day of the third calendar
month immediately succeeding the Delivery Date.
“Initial Funding Lender” means Bank of America, N.A., as initial holder of the Governmental
Lender Note.
“Interest Payment Date” means (i) the first day of each calendar month, commencing January 1,
2024, (ii) the date of any prepayment of the Funding Loan, but only with respect to the portion of the
Funding Loan subject to prepayment, and (iii) the Maturity Date.
“Investment Income” means the earnings and profits derived from the investment of money
pursuant to Section 4.08 hereof.
“Loans” means, together, the Borrower Loan and the Funding Loan.
“Loan Payment Fund” means the Loan Payment Fund established by the Fiscal Agent pursuant to
Section 4.01 hereof.
“Loan Prepayment Fund” means the Loan Prepayment Fund established by the Fiscal Agent
pursuant to Section 4.01 hereof.
“Maturity Date” means the maturity date of the Funding Loan set forth in Section 2.01(e) hereof.
“Maximum Interest Rate” means the rate of interest which results in the maximum amount of
interest allowed by applicable law.
“Moody’s” means Moody’s Investors Service, Inc., its successors and assigns, if such successors
and assigns continue to perform the services of a securities rating agency.
“Net Proceeds” when used with respect to any insurance or condemnation award, means the
proceeds from the insurance or condemnation award with respect to which that term is used remaining after
payment of all reasonable expenses incurred in the collection of such insurance proceeds or condemnation
award, including reasonable attorneys’ fees.
11
4868-2375-4370.7
“Notes” means, together, the Construction Phase Borrower Note or Permanent Phase Borrower
Note, as applicable, and the Governmental Lender Note.
“Notice of Conversion” means a written notice to be delivered by the Permanent Phase Funding
Lender to the Fiscal Agent, the Borrower and the Initial Funding Lender as provided in the Forward
Purchase Agreement.
“Operating Deficit Guaranty” means the Absolute and Unconditional Guaranty of Operating
Deficits, dated as of December 1, 2023, from the Governmental Lender Guarantors, jointly and severally,
to the Governmental Lender and the Fiscal Agent.
“Ordinary Fiscal Agent’s Fees and Expenses” means the annual administration fee for the Fiscal
Agent’s ordinary fees and expenses in rendering its services under this Funding Loan Agreement during
each twelve month period, which fee is equal to (and shall not exceed) $4,250 and shall be payable semi-
annually in advance on the Delivery Date and each December 1 and June 1, commencing June 1, 2024,
thereafter.
“Permanent Phase Funding Loan Agreement” means the Amended and Restated Funding Loan
Agreement, dated as of the date of Conversion among the Borrower, the Permanent Phase Funding Lender,
the Governmental Lender and the Fiscal Agent, which shall be in substantially the form attached to the
Forward Purchase Agreement and shall be executed and delivered on the Conversion Date, as amended,
supplemented or restated from time to time.
“Permanent Phase Borrower Loan Agreement” means the Amended and Restated Borrower Loan
Agreement, dated as of the date of Conversion among the Borrower, the Governmental Lender and the
Fiscal Agent, which shall be in substantially the form attached to the Forward Purchase Agreement and
shall be executed and delivered on the Conversion Date, as amended, supplemented or restated from time
to time.
“Permanent Phase Borrower Note” means the Amended and Restated Borrower Note dated the
Conversion Date from the Borrower, including all riders and addenda thereto, evidencing the Borrower’s
obligation to repay the Permanent Phase Borrower Loan, which Permanent Phase Borrower Note (which
will be an amendment and restatement in its entirety of the Construction Phase Borrower Note) will be
delivered to the Fiscal Agent in substitution of the Construction Phase Borrower Note, as an amendment
and restatement of the Construction Phase Borrower Note, as the same may be amended, restated,
supplemented otherwise modified from time to time, or any note executed in substitution therefor, as such
substitute note may be amended, restated, supplemented or otherwise modified from time to time.
“Person” means an individual, a corporation, a partnership, an association, a joint stock company,
a joint venture, a trust, an unincorporated association, a limited liability company or a government or any
agency or political subdivision thereof, or any other organization or entity (whether governmental or
private).
“Pledged Security” has the meaning given to that term in Section 2.02 hereof.
“Principal Office of the Fiscal Agent” means the office of the Fiscal Agent referenced in
Section 11.04(a) hereof, or such other office or offices as the Fiscal Agent may designate in writing from
time to time, or the office of any successor Fiscal Agent where it principally conducts its business of serving
as Fiscal Agent under indentures pursuant to which municipal or governmental obligations are issued.
“Project” means, collectively, the land and residential rental apartment units, and related fixtures,
equipment, furnishings and site improvements to be known as Vista Breeze located 175 S. Shore Drive and
12
4868-2375-4370.7
280 S. Shore Drive, in the City of Miami Beach, Miami-Dade County, Florida, including the real estate
described in the Security Instrument.
“Project Account” means the Project Account of the Project Loan Fund established by the Fiscal
Agent pursuant to Section 2.10 hereof.
“Project Loan Fund” means the Project Loan Fund established by the Fiscal Agent pursuant to
Section 2.10 hereof.
“Qualified Investments” means any of the following if and to the extent permitted by law: (a) direct
and general obligations of the United States of America; (b) obligations of any agency or instrumentality
of the United States of America the payment of the principal of and interest on which are unconditionally
guaranteed by the full faith and credit of the United States of America; (c) senior debt obligations of Freddie
Mac; (d) senior debt obligations of Fannie Mae; (e) demand deposits or time deposits with, or certificates
of deposit issued by, the Fiscal Agent or its affiliates or any bank organized under the laws of the United
States of America or any state or the District of Columbia which has combined capital, surplus and
undivided profits of not less than $50,000,000; provided that the Fiscal Agent or such other institution has
been rated at least “VMIG-1”/’”A-1+” by Moody’s or S&P which deposits or certificates are fully insured
by the Federal Deposit Insurance Corporation or collateralized pursuant to the requirements of the Office
of the Comptroller of the Currency; (f) investment agreements with a bank or any insurance company or
other financial institution which has a rating assigned by Moody’s or S&P to its outstanding long-term
unsecured debt which is the highest rating (as defined below) for long-term unsecured debt obligations
assigned by Moody’s or S&P, and which are approved by the Funding Lender Representative; (g) the
Dreyfus Treasury Securities Cash Management Investor Class 261941207 DRVXX; (h) shares or units in
any money market mutual fund rated “Aaa”/”AAA” by Moody’s or S&P (or if a new rating scale is
implemented, the equivalent rating category given by the Rating Agency for that general category of
security) (including mutual funds of the Fiscal Agent or its affiliates or for which the Fiscal Agent or an
affiliate thereof serves as investment advisor or provides other services to such mutual fund receives
reasonable compensation therefor) registered under the Investment Company Act of 1940, as amended,
whose investment portfolio consists solely of (A) direct obligations of the government of the United States
of America, or (B) tax-exempt obligations; (i)(i) tax-exempt obligations rated in the highest short term
rating category by Moody’s or S&P, or (ii) shares of a tax-exempt municipal money market mutual fund or
other collective investment fund registered under the federal Investment Company Act of 1940, whose
shares are registered under the federal Securities Act of 1933, having assets of at least $100,000,000, and
having a rating of “Aaa”/”AAA” by Moody’s or S&P (or if a new rating scale is implemented, the
equivalent rating category given by the Rating Agency for that general category of security), for which at
least 95% of the income paid to the holders on interest in such money market fund will be excludable from
gross income under Section 103 of the Code, including money market funds for which the Fiscal Agent or
its affiliates receive a fee for investment advisory or other services to the fund; or (j) any other investments
approved in writing by the Funding Lender Representative. For purposes of this definition, the “highest
rating” means a rating of at least “VMIG-1”/”A-1+” for obligations with less than one year maturity; at
least “Aaa”/”VMIG-1”/”AAA”/”A-1+” for obligations with a maturity of one year or greater but less than
three years; and at least “Aaa”/”AAA” for obligations with a maturity of three years or greater. Qualified
Investments must be limited to instruments that have a predetermined fixed-dollar amount of principal due
at maturity that cannot vary or change and interest, if tied to an index, shall be tied to a single interest rate
index plus a single fixed spread, if any, and move proportionately with such index. Ratings of Qualified
Investments shall be determined at the time of purchase of such Qualified Investments and without regard
to ratings subcategories, and the Fiscal Agent shall have no responsibility to monitor the ratings of Qualified
Investments after the initial purchase of such Qualified Investments.
“Rating Agency” means Moody’s or S&P, as applicable, or any successor rating service thereof.
13
4868-2375-4370.7
“Rebate Analyst” means a certified public accountant, financial analyst or bond counsel, or any
firm of the foregoing, or financial institution (which may include the Fiscal Agent) experienced in making
the arbitrage and rebate calculations required pursuant to Section 148 of the Code, selected and retained by
the Borrower at the expense of the Borrower, with the prior written consent of the Governmental Lender,
to make the rebate computations required under this Funding Loan Agreement and the Construction Phase
Borrower Loan Agreement; the fees of the Rebate Analyst shall be paid by the Borrower.
“Rebate Fund” means the Rebate Fund established by the Fiscal Agent pursuant to Section 4.01
hereof.
“Rebate Year” means each one-year period that ends at the close of business on the day in the
calendar year that is selected by Borrower as indicated in the Tax Certificate. The first and last Rebate
Years may be short periods. If no day is selected by Borrower before the earlier of the Maturity Date or
the date that is five years after the Delivery Date, each Rebate Year ends on each anniversary of the Delivery
Date and on the Maturity Date or date of earlier payment in full of the Governmental Lender Note.
“Requisition” means, with respect to the Project Loan Fund, the requisition in substantially the
form of Exhibit D to this Funding Loan Agreement required to be submitted in connection with
disbursements from the Project Account and/or the Borrower Equity Account of the Project Loan Fund.
“Resolution” means the resolution adopted by the Governmental Lender on November 13, 2023,
authorizing the Funding Loan, the Borrower Loan and the execution and delivery of the Financing
Documents to which it is a party.
“Responsible Officer” when used with respect to the Fiscal Agent, means any officer in the
corporate trust department (or any successor thereto) of the Fiscal Agent, or any other officer or
representative of the Fiscal Agent customarily performing functions similar t o those performed by any of
such officers and also means, with respect to a particular corporate trust matter, any other officer of the
Fiscal Agent to whom such matter is referred because of that officer’s knowledge of, and familiarity with,
the particular subject..
“Revenue Fund” means the Revenue Fund established by the Fiscal Agent pursuant to Section 4.01
hereof.
“Revenues” means (a) all payments made with respect to the Borrower Loan pursuant to the
Construction Phase Borrower Loan Agreement, the Construction Phase Borrower Note or the Security
Instrument, including but not limited to all casualty or other insurance benefits and condemnation awards
paid in connection therewith and all payments obtained through the exercise of remedies under the
Financing Documents, and (b) all money and securities held by the Fiscal Agent in the funds and accounts
established pursuant to this Funding Loan Agreement (excluding money or securities designated for deposit
into and held in the Cost of Issuance Fund, the Administration Fund and the Rebate Fund), together with
all investment earnings thereon.
“Security Instrument” means the Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing dated as of the date hereof, by the Borrower, granting a first priority mortgage and security interest
in the Project to the Governmental Lender to secure the repayment of the Borrower Loan and related
obligations, which Security Instrument has been assigned by the Governmental Lender to the Fiscal Agent
pursuant to the Assignment as security for the Funding Loan, as the same will be amended and restated into
the form attached to the Forward Purchase Agreement upon the occurrence of the Conversion Date, as the
same may be further amended, supplemented or restated.
14
4868-2375-4370.7
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC
business, and its successors and assigns, if such successors and assigns continue to perform the services of
a securities rating agency.
“Servicer” means any entity appointed by the Funding Lender Representative to service the
Borrower Loan and any successor in such capacity as appointed by the Funding Lender Representative
pursuant to Section 3.02 of the Construction Phase Borrower Loan Agreement. The Servicer shall be Bank
of America, N.A.
“Servicing Agreement” means the Construction Loan Servicing Agreement, dated as of December
1, 2023, by and among the Governmental Lender, the Fiscal Agent and the Governmental Lender Servicer.
“State” means the State of Florida.
“Subordination Agreement” means any subordination or intercreditor agreement(s) entered into
with respect to any subordinate financing related to the Project, as the same may be amended, supplemented
or restated.
“Subordinate Loan Account” means the Subordinate Loan Account of the Project Loan Fund
established by the Fiscal Agent pursuant to Section 2.10 hereof.
“Subordinate Loans” means, collectively, the City HOME Loan, the ELI Loan, the NHTF Loan,
the Viability Loan, the SAIL Loan and the Surtax Loan, each as further defined in the Construction
Disbursement Agreement.
“Tax Certificate” shall mean the Tax Certificate and Agreement executed by the Governmental
Lender and the Borrower including all exhibits and other attachments thereto as may be amended from time
to time.
“Tax Regulatory Agreement” means the Land Use Restriction Agreement dated as of December 1,
2023 among the Governmental Lender, the Fiscal Agent and the Borrower.
“Transferee Representations Letter” has the meaning set forth in Section 2.08 hereof.
“Unassigned Rights” means all of the rights of the Governmental Lender and its directors, officers,
commissioners, elected officials, attorneys, accountants, employees, agents and consultants to be held
harmless and indemnified, to be paid its fees and expenses, to give or withhold consent to amendments,
changes, modifications and alterations, to receive notices and the right to enforce such rights.
Section 1.02 Interpretation. The words “hereof,” “herein,” “hereunder,” and other words of
similar import refer to this Funding Loan Agreement as a whole and not to any particular Article, Section
or other subdivision. Words of the masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders. Words importing the singular number shall include the plural
number and vice versa unless the context shall otherwise indicate. All accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with generally accepted accounting
principles as in effect from time to time. References to Articles, Sections, and other subdivisions of this
Funding Loan Agreement are to the designated Articles, Sections and other subdivisions of this Funding
Loan Agreement as originally executed. The headings of this Funding Loan Agreement are for convenience
only and shall not define or limit the provisions hereof.
15
4868-2375-4370.7
ARTICLE II
THE FUNDING LOAN
Section 2.01 Terms.
(a) The total principal amount of the Funding Loan is hereby expressly limited to the
Authorized Amount. The Funding Loan shall be originated and funded by the Initial Funding Lender to
the Governmental Lender in accordance with Section 2.01(b) below. The proceeds of the Funding Loan
shall be deposited with the Fiscal Agent and disbursed in accordance with this Funding Loan Agreement.
The Funding Loan shall be evidenced by the Governmental Lender Note and shall bear interest and be paid
in accordance with the payment terms set forth in the Governmental Lender Note and this Funding Loan
Agreement.
(b) The Funding Loan shall be originated by the Initial Funding Lender on a draw-down basis.
The proceeds of the Funding Loan shall be advanced by the Initial Funding Lender in installments directly
to the Fiscal Agent for deposit to the Project Account upon receipt of an Advance Request and the
satisfaction of the conditions to such advance set forth in the Construction Disbursement Agreement and
the form of requisition attached as Exhibit D hereto; provided that, as set forth in the Construction
Disbursement Agreement, the full remaining unfunded portion of the Funding Loan shall be advanced by
the Initial Funding Lender upon receipt by the Funding Lender Representative and the Fiscal Agent of a
Draw-Down Notice (as defined in the Construction Disbursement Agreement). Upon the advancement of
the proceeds of the Funding Loan in accordance with the terms hereof, the principal amount of the
Governmental Lender Note in a principal amount equal to the amount so advanced shall be deemed to be
increased automatically and without further acts on the part of the Governmental Lender or the Fiscal Agent.
The initial installment of the Funding Loan shall be in the amount of $698,193.66, which amount shall be
advanced by the Initial Funding Lender and deposited in the Project Loan Fund on the Delivery Date for
application as provided in Section 2.10. Notwithstanding anything in this Funding Loan Agreement to the
contrary, no additional amounts of the Funding Loan may be drawn down and funded hereunder after the
Advance Termination Date. Any extension of the Advance Termination Date shall be subject to the receipt
by the Fiscal Agent of (i) the prior written consent of the Initial Funding Lender (ii) an opinion of Bond
Counsel (which shall also be addressed to the Funding Lender Representative) to the effect that such
extension will not adversely affect the tax-exempt status of the Governmental Lender Note.
(c) The Fiscal Agent shall maintain in its books a log which shall reflect the principal amount
of the Funding Loan advanced by the Initial Funding Lender from time to time in accordance with the
provisions of Section 2.01(b) above (the “Record of Advances”). The principal amount due on the
Governmental Lender Note shall be only such amount as has been advanced by the Initial Funding Lender
as reflected in the Record of Advances and not otherwise prepaid pursuant to the terms of this Funding
Loan Agreement. The records maintained by the Fiscal Agent in such regard will be conclusive evidence
of the principal amount of the Funding Loan (absent manifest error). The Fiscal Agent shall notify the
Governmental Lender and the Borrower if any advance of the proceeds of the Funding Loan is not made
by the Initial Funding Lender when due hereunder.
(d) The Funding Loan shall bear interest payable on each Interest Payment Date at the
Construction Phase Interest Rate during the Construction Phase. Interest shall accrue on the principal
amount of the Funding Loan which has been advanced hereunder and is outstanding as reflected on the
Record of Advances.
(e) The Funding Loan shall mature on July 1, 2057, subject to scheduled monthly principal
payments, and to optional and mandatory prepayment prior to maturity as provided in Article III hereof.
The unpaid principal balance of the Funding Loan shall be paid on the dates and in the amounts set forth
16
4868-2375-4370.7
on the initial Funding Loan Amortization Schedule provided on the Delivery Date and attached as Schedule
1 to the Governmental Lender Note; provided, however, if the Conversion Date is on a date other than the
date that is 30 months after the date of issuance of the Governmental Lender Note and/or the outstanding
amount of the Funding Loan on the Conversion Date is less than the starting principal amount set forth in
the initial Funding Loan Amortization Schedule, a new Funding Loan Amortization Schedule will be
generated on the Conversion Date with the first principal payment date being the first day of the month
immediately succeeding the Conversion Date and/or with such lesser outstanding principal amount based
on the parameters set forth in the Forward Purchase Agreement. In the event the initial Funding Loan
Amortization Schedule is modified in accordance with this Section 2.01(e), a replacement Funding Loan
Amortization Schedule will be provided by the Permanent Phase Funding Lender which will be attached to
the Governmental Lender Note on the Conversion Date. All unpaid principal and all accrued and unpaid
interest outstanding under the Funding Loan shall be due and payable on the Maturity Date.
(f) Payment of principal of, premium, if any, and interest on the Funding Loan shall be paid
by wire transfer in immediately available funds to an account within the United States of America
designated by such Funding Lender (unless otherwise directed by the Funding Lender).
(g) Subject to Section 2.12 hereof, on or before the date fixed for payment, money shall be
deposited with the Fiscal Agent to pay, and the Fiscal Agent is hereby authorized and directed to apply such
money to the payment of, the Funding Loan, together with accrued interest thereon to the date of payment.
(h) In no contingency or event whatsoever shall the aggregate of all amounts deemed interest
hereunder and charged or collected pursuant to the terms of this Funding Loan Agreement exceed the
highest rate permissible under any law which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. In the event that such court determines the Funding Lender has
charged or received interest hereunder in excess of the highest applicable rate, the Funding Lender shall
apply, in its sole discretion, and set off such excess interest received by the Funding Lender against other
obligations due or to become due under the Financing Documents and such rate shall automatically be
reduced to the Maximum Interest Rate.
Section 2.02 Pledged Security. To secure the payment of the principal of, premium, if any, and
interest on the Funding Loan according to its tenor and effect, and the performance and observance by the
Governmental Lender of all the covenants expressed or implied herein and in the Governmental Lender
Note, and the payment and performance of all amounts and obligations under the Construction
Disbursement Agreement, the Governmental Lender does hereby grant, bargain, sell, convey, pled ge and
assign a security interest, unto the Fiscal Agent, and its successors in such capacity and its and their assigns
in and to the following (said property being herein referred to as the “Pledged Security”) for the benefit of
the Funding Lender:
(a) All right, title and interest of the Governmental Lender in and to all Revenues;
(b) All right, title and interest of the Governmental Lender in and to the Construction Phase
Borrower Loan Agreement, the Construction Phase Borrower Note, the Security Instrument and the other
Borrower Loan Documents (other than the Unassigned Rights), including all extensions and renewals of
the terms thereof, if any, including, but without limiting the generality of the foregoing, the present and
continuing right to receive, receipt for, collect or make claim for any of the money, income, revenues,
issues, profits and other amounts payable or receivable thereunder (including all casualty insurance benefits
or condemnation awards), whether payable under the above referenced documents o r otherwise, to bring
actions and proceedings thereunder or for the enforcement thereof, and to do any and all things which the
Governmental Lender or any other Person is or may become entitled to do under said documents; and
17
4868-2375-4370.7
(c) Except for funds, money or securities in the Cost of Issuance Fund, the Administration
Fund and the Rebate Fund, all funds, money and securities and any and all other rights and interests in
property whether tangible or intangible from time to time hereafter by delivery or by writing of any kind,
conveyed, mortgaged, pledged, assigned or transferred as and for additional security hereunder for the
Funding Loan by the Governmental Lender or by anyone on its behalf or with its written consent to the
Fiscal Agent, which is hereby authorized to receive any and all such property at any and all times and to
hold and apply the same subject to the terms hereof.
The foregoing notwithstanding, if the Governmental Lender or its successors or assigns shall pay
or cause to be paid to the Funding Lender in full the principal, interest and premium, if any, to become due
with respect to the Funding Loan at the times and in the manner provided in Article IX hereof, and if the
Governmental Lender shall keep, perform and observe, or cause to be kept, performed and observed, all of
its covenants, warranties and agreements contained herein, then these presents and the estate and rights
hereby granted shall, at the option of the Governmental Lender, cease, terminate and be void, and thereupon
the Fiscal Agent shall cancel and discharge the lien of this Funding Loan Agreement and execute and deliver
to the Governmental Lender such instruments in writing as shall be requisite to satisfy the lien hereof, and,
subject to the provisions of Sections 4.11 and 4.12 hereof and Article IX hereof, reconvey to the
Governmental Lender the estate hereby conveyed, and assign and deliver to the Governmental Lender any
property at the time subject to the lien of this Funding Loan Agreement which may then be in its possession,
except for the Rebate Fund and cash held by the Fiscal Agent for the payment of interest on and principal
of the Governmental Lender Note; otherwise this Funding Loan Agreement to be and shall remain in full
force and effect.
Section 2.03 Revenue Obligations. The obligations of the Governmental Lender with respect
to the Governmental Lender Note are not general or special obligations of the Governmental Lender but
are revenue obligations of the Governmental Lender payable by the Governmental Lender solely from the
Pledged Security. The Governmental Lender Note shall not be a debt of the State, Miami-Dade County,
Florida (the “County”), the Governmental Lender or of any other political subdivision of the State, and
none of the State, the County, the Governmental Lender, or any other political subdivision of the State shall
be liable for the payment of the Governmental Lender Note. The faith and credit of the State, the County
or of any other political subdivision of the State are not pledged to the payment of the principal of or interest
on the Governmental Lender Note. The Governmental Lender has no taxing power.
Section 2.04 Funding Loan Agreement Constitutes Contract. In consideration of the
origination and funding of the Funding Loan by the Initial Funding Lender, the provisions of this Funding
Loan Agreement shall be part of the contract of the Governmental Lender with the Initial Funding Lender
and any successors or assigns thereof in such capacity from time to time.
Section 2.05 Form and Execution. The Governmental Lender Note shall be in substantially
the form attached as Exhibit A. The Governmental Lender Note shall be executed on behalf of the
Governmental Lender by the manual or facsimile signature of the Chair or Vice Chair of the Governmental
Lender, attested by the manual or facsimile signature of the Secretary or any Assistant Secretary of the
Governmental Lender, and sealed with an impression or facsimile of the seal of the Governmental Lender.
Any facsimile signatures shall have the same force and effect as if said officers had manually signed the
Governmental Lender Note. Any reproduction of the official seal of the Governmental Lender on the
Governmental Lender Note shall have the same force and effect as if the official seal of the Governmental
Lender had been impressed on the Governmental Lender Note.
Section 2.06 Authentication. The Governmental Lender Note shall not be valid or obligatory
for any purpose or entitled to any security or benefit under this Funding Loan Agreement unless a certificate
of authentication on the Governmental Lender Note, substantially in the form set forth in Exhibit A, shall
have been duly executed by an Authorized Officer of the Fiscal Agent; and such executed certificate of
18
4868-2375-4370.7
authentication upon the Governmental Lender Note shall be conclusive evidence that the Governmental
Lender Note has been duly executed, registered, authenticated and delivered under this Funding Loan
Agreement.
Section 2.07 Mutilated, Lost, Stolen or Destroyed Governmental Lender Note. In the event
the Governmental Lender Note is mutilated, lost, stolen or destroyed, the Governmental Lender shall
execute and the Fiscal Agent shall authenticate a new Governmental Lender Note substantially in the form
set forth in Exhibit A in exchange and substitution for and upon cancellation of the mutilated Governmental
Lender Note or in lieu of and in substitution for such lost, stolen or destroyed Governmental Lender Note,
upon payment by the Funding Lender of any applicable tax or governmental charge and the reasonable
expenses and charges of the Governmental Lender and the Fiscal Agent in connection therewith, and in the
case where the Governmental Lender Note is lost, stolen or destroyed, the filing with the Fiscal Agent of
evidence satisfactory to it that the Governmental Lender Note was lost, stolen or destroyed, and of the
ownership thereof, and furnishing the Governmental Lender and the Fiscal Agent with indemnity
satisfactory to each of them. In the event where the Governmental Lender Note shall have matured, instead
of delivering a new Governmental Lender Note the Governmental Lender may pay the same without
surrender thereof.
Section 2.08 Registration; Transfer of Funding Loan; Transferee Representations Letter.
(a) The Fiscal Agent shall act as paying agent and registrar for the Governmental Lender Note.
The Funding Loan shall be fully registered as to principal and interest in the manner and with any additional
designation as the Fiscal Agent deems necessary for the purpose of identifying the registered owner thereof.
The Funding Loan shall be transferable only on the registration books of the Fiscal Agent. The Fiscal Agent
shall maintain books or other records showing the name and date of registration, address and employer
identification number of the registered owner of the Funding Loan and any transfers of the Funding Loan
as provided herein. The Funding Loan shall initially be registered to the Initial Funding Lender, upon the
Conversion Date shall be registered to the Permanent Phase Funding Lender.
(b) Prior to the Conversion Date, the Funding Lender shall have the right to sell, assign or
otherwise transfer its interest in the Funding Loan in whole only; provided that the Funding Loan may be
transferred only to an “accredited investor” as that term is defined in Rule 501 of Regulation D under the
Securities Act or a “qualified institutional buyer” as that term is defined under Rule 144A of the Securities
Act (such ”accredited investor” or “qualified institutional buyer” a “Qualified Transferee”) that delivers a
letter to the Fiscal Agent substantially in the form attached hereto as Exhibit C setting forth certain
representations with respect to such Qualified Transferee (the “Transferee Representations Letter”).
Notwithstanding the preceding sentence, no Transferee Representations Letter shall be required for an
Exempted Transfer. In connection with any sale, assignment or transfer of the Funding Loan, the Funding
Lender shall give notice of such sale, assignment or transfer to the Fiscal Agent and the Fiscal Agent shall
record such sale, assignment or transfer on its books or other records maintained for the registration of
transfer of the Funding Loan. Such notice to the Fiscal Agent shall be accompanied by a Transferee
Representations Letter or a certification upon which the Fiscal Agent may conclusively rely stating that the
proposed transfer is an Exempted Transfer not requiring a Transferee Representations Letter. In connection
with any such transfer it shall not be necessary to present, exchange, or re-authenticate the Governmental
Lender Note, provided that the Funding Lender shall provide the Fiscal Agent with the name and date of
registration, address, and employer identification number of the assignee or transferee, so that the Fiscal
Agent may maintain the registration records, together with any information necessary to allow the Fiscal
Agent to comply with any applicable tax reporting obligations.
(c) Upon the written request of the Fiscal Agent, the transferor shall also provide or cause to
be provided to the Fiscal Agent all information necessary to allow the Fiscal Agent to comply with any
applicable tax reporting obligations, including without limitation any cost basis reporting obligations under
19
4868-2375-4370.7
Internal Revenue Code Section 6045 (“Section 6045”) unless such transferor is considered an exempt entity
under Section 6045. The Fiscal Agent may rely on the information provided to it and shall have no
responsibility to verify or ensure the accuracy of such information.
Section 2.09 Funding Loan Closing Conditions; Delivery of Governmental Lender Note.
Closing of the Funding Loan on the Delivery Date shall be conditioned upon, and the Governmental Lender
shall only execute and deliver to the Fiscal Agent, and the Fiscal Agent shall only authenticate the
Governmental Lender Note and deliver the Governmental Lender Note to the Initial Funding Lender upon,
receipt by the Fiscal Agent of the following:
(a) copies of executed counterparts of this Funding Loan Agreement, the Construction Phase
Borrower Loan Agreement, the Tax Regulatory Agreement and the Tax Certificate;
(b) an opinion of Bond Counsel or counsel to the Governmental Lender to the effect that the
Governmental Lender is duly organized and existing under the laws of the State and has duly authorized,
executed and delivered this Funding Loan Agreement, the Governmental Lender Note and the other
Financing Documents to which it is a party, and such documents are valid and binding special, limited
obligations of the Governmental Lender enforceable in accordance with their terms subject to customary
exceptions;
(c) the initial advance of the proceeds of the Funding Loan by the Initial Funding Lender in
the amount set forth in Section 2.01(b) hereof;
(d) the executed Construction Phase Borrower Note and an endorsement of the Construction
Phase Borrower Note by the Governmental Lender in favor of the Fiscal Agent;
(e) a copy of the executed Security Instrument, the Assignment, the Forward Purchase
Agreement and the Construction Disbursement Agreement;
(f) an opinion of counsel to the Borrower to the effect that the Borrower is duly organized and
validly existing and in good standing under the laws of the state in which it has been organized and in good
standing under the laws of each other state in which the Borrower transacts business and has full power and
authority to enter into the Financing Documents to which it is a party, that its execution and delivery of and
performance of its covenants in such documents do not contravene law or any provision of any oth er
documents to which it is a party or by which it or such property is bound or affected, and that all such
agreements have been duly authorized, executed and delivered by the Borrower, and are legal, valid and
binding obligations of the Borrower enforceable against the Borrower in accordance with their respective
terms;
(g) a customary approving opinion of Bond Counsel, including but not limited to an opinion
to the effect that the interest on the Governmental Lender Note, under laws in effect on the date of s uch
opinion, is excluded from gross income for federal income tax purposes and, where applicable, for State
income tax purposes;
(h) a certified copy of the Resolution;
(i) the written request and authorization to the Fiscal Agent by the Governmental Lender to
authenticate and deliver the Governmental Lender Note to the Initial Funding Lender upon funding to the
Fiscal Agent of the initial advance of proceeds of the Funding Loan;
(j) receipt by the Fiscal Agent of the amounts specified in Section 2.10 of this Funding Loan
Agreement and Section 3.03 of the Construction Phase Borrower Loan Agreement;
20
4868-2375-4370.7
(k) receipt by the Fiscal Agent of a Transferee Representations Letter from the Initial Funding
Lender substantially in the form attached hereto as Exhibit C; and
(l) a letter of the Governmental Lender Servicer acknowledging that all contingencies listed
in the Final Credit Underwriting Report have been satisfied.
Section 2.10 Establishment of Project Loan Fund; Application of Funding Loan Proceeds
and Other Money.
(a) The Fiscal Agent shall establish, maintain and hold in trust and there is hereby established
with the Fiscal Agent a Project Loan Fund and therein a Project Account, a Borrower Equity Account , a
Subordinate Loan Account and a Capitalized Interest Account. No amount shall be charged against the
Project Loan Fund except as expressly provided in this Section 2.10 and Section 4.02 hereof.
(b) The proceeds of the Funding Loan shall be delivered by the Initial Funding Lender to the
Fiscal Agent on behalf of the Governmental Lender in the initial installment on the Delivery Date and
thereafter on a drawdown basis as provided for in Section 2.01(b) hereof. Upon receipt, the Fiscal Agent
shall deposit such proceeds into the credit of the Project Account of the Project Loan Fund; provided that,
on the Delivery Date the Fiscal Agent shall deposit $535,693.66 of such proceeds into the Project Account
and $162,500.00 of such amounts shall be deposited into the Capitalized Interest Account without need for
a Requisition therefor. Amounts in the Project Loan Fund shall be disbursed as provided in
subparagraph (d) below, subject to the conditions set forth in Section 3.01 of the Construction Phase
Borrower Loan Agreement. Upon the disbursement of all amounts in the Project Loan Fund, the Fiscal
Agent shall close the Project Loan Fund.
(c) The Governmental Lender shall cause the Borrower to deliver from sources other than the
Borrower Loan, to the Fiscal Agent, on or prior to the Delivery Date, the Costs of Issuance Deposit for
deposit into the credit of the Cost of Issuance Fund and the Borrower Equity Deposit for deposit to the
credit of the Borrower Equity Account, and the Governmental Lender Conversion Fee Account. The Fiscal
Agent shall also deposit in the Borrower Equity Account any additional amounts delivered from time to
time to the Fiscal Agent and directed by the Borrower or Servicer to be deposited therein, excluding any
proceeds of the Governmental Lender Note.
(d) Upon the making of the initial deposits described above in this Section 2.10, the
Governmental Lender shall originate the Construction Phase Borrower Loan pursuant to the Construction
Phase Borrower Loan Agreement and the Fiscal Agent shall make the initial disbursements of amounts in
the Project Loan Fund to the Borrower or otherwise as provided in Section 4.02 hereof.
Section 2.11 Direct Loan Payments to Fiscal Agent or Funding Lender; Servicer
Disbursement of Fees.
(a) Notwithstanding any provision in this Funding Loan Agreement to the contrary, during any
period that a Servicer is engaged with respect to the Borrower Loan, the Governmental Lender and the
Fiscal Agent agree that all payments of principal of, and interest on the Funding Loan and all fees due
hereunder and under the Construction Phase Borrower Loan Agreement shall be paid by the Borrower:
(i) prior to Conversion, to the Fiscal Agent, and the Fiscal Agent will (1) retain the
allocable portion of the Fiscal Agent’s Ordinary Fees and Expenses (if any) for its own account,
together with any other amounts due to the Fiscal Agent remitted from the Borrower, (2) remit to
the Funding Lender all payments of principal of and interest due with respect to the Funding Loan,
together with other amounts due to the Funding Lender, pursuant to the instructions of the Funding
Lender Representative; provided, however, the Fiscal Agent shall be responsible for making the
21
4868-2375-4370.7
debt service and fee payments out of the Project Loan Fund as required under Section 4.02 hereof
prior to Completion, and (3) remit to the Servicer the allocable portion of the monthly Servicing
Fee, if any;
(ii) the Fiscal Agent (1) shall (A) be entitled to retain the Fiscal Agent’s Ordinary Fees
and Expenses, together with any other amounts due to the Fiscal Agent remitted from the Borrower
or the Servicer, as the case may be, (B) remit the Gover nmental Lender Fee to the Governmental
Lender, together with any other amounts due to the Governmental Lender, and (2) shall remit on
each Interest Payment Date (or other date on which the same becomes due) the principal of,
Prepayment Premium, if any, and interest on the Funding Loan to the Funding Lender, per the
instructions of the Funding Lender Representative;
(iii) prior to Conversion, the Fiscal Agent shall promptly notify the Funding Lender
Representative and the Governmental Lender in writing of any failure of the Borrower to make any
payment of principal of and interest on the Borrower Loan when due or to pay any fees due
hereunder or under the Borrower Loan Agreement, and the Funding Lender Representative, and
the Governmental Lender shall not be deemed to have any notice of such failure unless it has
received such notice in writing; and
(iv) any payment made in accordance with the provisions of this Section 2.12 shall be
accompanied by sufficient information to identify the source and proper appli cation of such
payment (provided any identification of any such payment as a fee as aforesaid shall be deemed a
designation to deposit such moneys in the Administration Fund per Section 4.06 hereof).
(b) If the Governmental Lender Note is sold or transferred as provided in Section 2.08, the
Funding Lender Representative shall notify the Fiscal Agent and the Borrower in writing of the name and
address of the transferee.
(c) So long as payments of principal of and interest on the Governmental Lender Note and all
fees due hereunder are being made to the Servicer in accordance with this Section 2.12 and no Event of
Default has occurred of which the Fiscal Agent has been given, or been deemed to have, notice thereof
pursuant to this Funding Loan Agreement, the Fiscal Agent shall have no obligations to collect loan
payments with respect to the Funding Loan, except at the express written direction of the Funding Lender
Representative; provided, however, the Fiscal Agent shall be responsible for making the debt service and
fee payments out of the Project Loan Fund as required under Section 4.02 hereof. Notwithstanding the
foregoing, the Funding Lender Representative may elect to have the Fiscal Agent collect and remit loan
payments and fee payments hereunder and under the Construction Phase Borrower Loan Agreement upon
written notice of such election to the Fiscal Agent, the Borrower and the Governmental Lender.
Section 2.12 Conversion. If the Notice of Conversion is issued in the timeframe required under
the Forward Purchase Agreement, Conversion will occur on the Conversion Date indicated in such Notice
of Conversion. If the Notice of Conversion is not so issued, Conversion will not occur, and the Permanent
Phase Funding Lender will not have any obligations with respect to the purchase of the Funding Loan or
otherwise with respect to the Borrower Loan or the Project.
ARTICLE III
PREPAYMENT OF THE FUNDING LOAN
Section 3.01 Prepayment of the Funding Loan Prior to Maturity.
22
4868-2375-4370.7
(a) Optional Prepayment. The Funding Loan, together with accrued interest thereon, is
subject to optional prepayment in whole, or in part, upon optional prepayment of the Construction Phase
Borrower Loan in accordance with the notice and other prepayment provisions set forth in the Construction
Phase Borrower Note.
(b) Mandatory Prepayment. The Funding Loan, together with accrued interest thereon is
subject to mandatory prepayment on any Business Day, in whole or in part as indicated below, at the earliest
practicable date upon the occurrence of any of the following:
(i) in whole or in part, upon the occurrence of a mandatory prepayment of the
Borrower Loan pursuant to the Construction Phase Borrower Note and receipt by the Fiscal Agent
of a written direction by the Funding Lender Representative that the Funding Loan shall be subject
to mandatory payment as a result thereof;
(ii) in part, on the Interest Payment Date next following the Completion of the
construction of the Project, to the extent amounts remaining in the Project Account or the
Capitalized Interest Account of the Project Loan Fund are transferred to the Loan Prepayment Fund
pursuant to Section 4.02(e) hereof; or
(iii) in whole, on or after the Forward Commitment Maturity Date if the Conversion
has not occurred, at the written direction of the Initial Funding Lender.
Section 3.02 Notice of Prepayment. Notice of the intended prepayment of the Funding Loan
shall be given by the Fiscal Agent by first class mail, postage prepaid, or by overnight delivery service, to
the Funding Lender, the Governmental Lender, and the Governmental Lender Servicer. All such
prepayment notices shall be given not less than ten (10) days nor more than sixty (60) days prior to the date
fixed for prepayment. Notices of prepayment shall state (i) the prepayment date, (ii) the prepayment
amount, and (iii) the place or places where amounts due upon such prepayment will be payable.
Notice of such prepayment shall also be sent by first class mail, postage prepaid, or by overnight
delivery service, to the Servicer, not later than the time of mailing of notices required by the first paragraph
above, and in any event no later than simultaneously with the mailing of notices required by the first
paragraph above; provided, that neither failure to receive such notice nor any defect in any notice so mailed
shall affect the sufficiency of the proceedings for the prepayment of the Funding Loan.
Notwithstanding the foregoing, in the event the Fiscal Agent is not collecting and remitting loan
payments hereunder, the Fiscal Agent shall have no obligation to send prepayment notices pursuant to this
Section 3.02.
ARTICLE IV
REVENUES AND FUNDS
Section 4.01 Pledge of Revenues and Assets; Establishment of Funds. The pledge and
assignment of and the security interest granted in the Pledged Security pursuant to Section 2.02 hereof shall
attach, be perfected and be valid and binding from and after the time of the closing of the Funding Loan
and delivery of the Governmental Lender Note by the Fiscal Agent or by any Person authorized by the
Fiscal Agent to deliver the Governmental Lender Note. The Pledged Security so pledged and then or
thereafter received by the Fiscal Agent shall immediately be subject to the lien of such pledge and security
interest without any physical delivery thereof or further act, and the lien of such pledge and security interest
shall be valid and binding and prior to the claims of any and all parties having claims of any kind in tort,
23
4868-2375-4370.7
contract or otherwise against the Governmental Lender irrespective of whether such parties have notice
thereof.
In addition to the Project Loan Fund established pursuant to Section 2.10 hereof, the Fiscal Agent
shall establish, maintain and hold in trust the following funds and accounts, each of which is hereby
established and each of which shall be disbursed and applied only as herein authorized:
(a) Revenue Fund;
(b) Loan Payment Fund;
(c) Loan Prepayment Fund;
(d) Administration Fund (and therein a Governmental Lender Conversion Fee Account);
(e) Cost of Issuance Fund; and
(f) Rebate Fund.
The funds and accounts established pursuant to Section 2.10 and this Section 4.01 shall be
maintained in the corporate trust department of the Fiscal Agent as segregated trust accounts, separate and
identifiable from all other funds held by the Fiscal Agent. The Fiscal Agent shall, at the written direction
of an Authorized Officer of the Governmental Lender, and may, in its discretion, establish such additional
accounts within any Fund, and subaccounts within any of the accounts, as the Governmental Lender or the
Fiscal Agent may deem necessary or useful for the purpose of identifying more precisely the sources of
payments into and disbursements from that Fund and its accounts, or for the purpose of complying with the
requirements of the Code relating to arbitrage, but the establishment of any such account or subaccount
shall not alter or modify any of the requirements of this Funding Loan Agreement with respect to a deposit
or use of money in the funds established hereunder, or result in commingling of funds not permitted
hereunder.
Section 4.02 Project Loan Fund.
(a) Deposit. The Fiscal Agent shall deposit the proceeds of the Funding Loan into the Project
Account of the Project Loan Fund upon receipt of each advance thereof as provided in Section 2.10(b)
hereof; provided, however, that the Fiscal Agent shall transfer, without Requisition, the amount of
$162,500.00 of the initial deposit into the Project Account on the Delivery Date, into the Capitalized Interest
Account and the Funding Lender Representative may, prior to Completion direct the Fiscal Agent to deposit
into the Capitalized Interest Account a portion of the proceeds of any advance of the Funding Loan for
purposes of paying interest due on the Funding Loan. The Fiscal Agent shall deposit $4,943,966.00 of the
Borrower Equity Deposit into the Borrower Equity Account of the Project Loan Fund, as well as any
additional amounts delivered from time to time to the Fiscal Agent and directed by the Borrower or Servicer
to be deposited therein (excluding any proceeds of the Governmental Lender Note), as provided in Section
2.10(c) hereof.
(b) Disbursements. Amounts on deposit in the Project Loan Fund shall be disbursed from time
to time by the Fiscal Agent for the purpose of: (i) paying interest on the Funding Loan and the Fee
Component in each case when due during the Construction Phase and (ii) paying Costs of the Project. In
addition, amounts in the Project Loan Fund shall be transferred to the Loan Prepayment Fund, the Rebate
Fund and the Borrower at the times and in the manner provided in subsection (e) of this Section 4.02.
24
4868-2375-4370.7
(c) Transfers and Requisitions. The Fiscal Agent shall automatically transfer amounts from
the Borrower Equity Account of the Project Loan Fund to the Administration Fund to pay to the appropriate
party its accrued fees that are included in the Fee Component that are due and payable as set forth herein
or upon receipt of an invoice, without any need for a Requisition or other written direction. Unless the
Fiscal Agent is instructed otherwise by the Initial Funding Lender, the Fiscal Agent shall automatically
transfer amounts in the Capitalized Interest Account and the Borrower Equity Account of the Project Loan
Fund to the Loan Payment Fund to pay interest on the Construction Phase Borrower Loan and Funding
Loan without any need for a Requisition or other written direction; provided that amounts to be used to pay
interest shall be transferred to the Loan Payment Fund (i) during the period commencing on the Delivery
Date and concluding on the day prior to the date of Completion (as defined in the Construction
Disbursement Agreement), from the Capitalized Interest Account, and (ii) commencing on the date of
Completion and concluding on the day prior to the Conversion Date, from the Borrower Equity Account.
The Fiscal Agent shall make disbursements from the respective accounts of the Project Loan Fund for
purposes described in subsection (b)(ii) of this Section 4.02 only upon the receipt of Requisitions signed by
an Authorized Officer of the Borrower and countersigned by an Authorized Officer of the Servicer
(signifying the consent to the Requisition by the Servicer) and countersigned by an Authorized Officer of
the Governmental Lender Servicer (signifying the consent to the Requisition by the Governmental Lender
Servicer). Completed, executed Requisitions shall be delivered to the Fiscal Agent without any attachments
or other substantiating documentation, and the Fiscal Agent shall have no right or duty to determine whether
any requested disbursement from the Project Loan Fund complies with the terms, conditions and provisions
of the Construction Disbursement Agreement. The countersignature of the Authorized Officer of the
Servicer on a Requisition shall be deemed a certification and, insofar as the Fiscal Agent and the
Governmental Lender are concerned, constitute conclusive evidence, that all of the terms, c onditions and
requirements of the Construction Disbursement Agreement applicable to such disbursement have been fully
satisfied or waived. The Fiscal Agent shall, immediately upon each receipt of a completed Requisition
signed by an Authorized Officer of the Borrower and countersigned by an Authorized Officer of the
Servicer and the Governmental Lender Servicer, initiate procedures with the provider of a Qualified
Investment to make withdrawals as necessary to fund the Requisition.
Notwithstanding anything to the contrary contained herein, no signature of an Authorized Officer
of the Borrower or an Authorized Officer of the Governmental Lender Servicer shall be required during
any period in which a default has occurred and is then continuing under the Borrower Loan or any Financing
Document (notice of which default has been given in writing by the Funding Lender Representative or the
Servicer to the Fiscal Agent, the Borrower, and the Governmental Lender, and the Fiscal Agent shall be
entitled to conclusively rely on any such written notice as to the occurrence and continuation of such a
default).
(d) If a Requisition signed by an Authorized Officer of the Borrower and countersigned by an
Authorized Officer of the Servicer or Governmental Lender Servicer or (as permitted hereunder) solely by
an Authorized Officer of the Servicer, is received by the Fiscal Agent, the requested disbursement shall be
paid by the Fiscal Agent as soon as practicable, but in no event later than three (3) Business Days following
receipt thereof by the Fiscal Agent. Upon final disbursement of all amounts on deposit in the Project Loan
Fund, including all interest accrued therein, the Fiscal Agent shall close the Project Loan Fund.
(e) Immediately prior to any mandatory prepayment of the Funding Loan pursuant to
Section 3.01(b)(i) hereof, any amount then remaining in the Project Loan Fund shall, at the written direction
of the Funding Lender Representative, be transferred to the Loan Prepayment Fund to pay amounts due on
the Funding Loan, if any. In addition, any amount remaining in the Project Account of the Project Loan
Fund following Completion of the construction of the Project in accordance with the Construction
Disbursement Agreement, evidenced by an instrument signed by the Funding Lender Representative or the
Servicer, shall be transferred to the Loan Prepayment Fund and used to prepay the Funding Loan in
accordance with Section 3.01(b)(ii) hereof, unless the Fiscal Agent receives an opinion of Bond Counsel
25
4868-2375-4370.7
(which shall also be addressed to the Funding Lender Representative) to the effect that a use of such money
for other than prepayment of the Funding Loan will not adversely affect the tax-exempt status of the
Governmental Lender Note; provided, that any amounts in the Project Account of the Project Loan Fund
in excess of the amount needed to fund the related prepayment of the Funding Loan shall be transferred to
the Rebate Fund. In the event there are funds remaining in the Capitalized Interest Account following
Completion of the construction of the Project in accordance with the Construction Disbursement
Agreement, evidenced by an instrument signed by the Funding Lender Representative or the Servicer, shall
be transferred to the Loan Prepayment Fund and used to prepay the Funding Loan in accordance with
Section 3.02(b)(ii) hereof. In the event there are funds remaining in the Borrower Equity Account following
Completion of the construction of the Project in accordance with the Construction Disbursement Agreement
and the Conversion Date has occurred, and provided no default by the Borrower exists under this Funding
Loan Agreement or any Borrower Loan Document, such funds shall be paid by the Fiscal Agent to the
Borrower at the written direction of the Funding Lender Representative or the Servicer.
(f) Amounts on deposit in the Project Loan Fund shall be invested as provided in Section 4.08
hereof. All Investment Income on amounts on deposit in the Project Loan Fund shall be retained in and
credited to and become a part of the amounts on deposit in the Project Loan Fund, and shall constitute part
of any transfers required by subsection (b) or (e) of this Section 4.02.
Section 4.03 Application of Revenues.
(a) All Revenues received by the Fiscal Agent shall be deposited by the Fiscal Agent, promptly
upon receipt thereof, to the Revenue Fund, except (i) the proceeds of the Funding Loan received by the
Fiscal Agent pursuant to Section 2.01(b), which shall be applied in accordance with the provisions of
Section 2.10 hereof; (ii) as otherwise specifically provided in subsection (c) of this Section 4.03 with
respect to certain deposits into the Loan Prepayment Fund; (iii) with respect to Investment Income to the
extent required under the terms hereof to be retained in the funds and accounts to which they are attributable;
and (iv) with respect to amounts required to be transferred between funds and accounts as provided in this
Article IV.
(b) Subject to Section 2.12 hereof, on each Interest Payment Date or any other date on which
payment of principal of or interest on the Funding Loan becomes due and payable, the Fiscal Agent, out of
money in the Revenue Fund, shall credit the following amounts to the following funds, but in the order and
within the limitations hereinafter indicated with respect thereto, as follows:
FIRST: to the Loan Payment Fund, an amount equal to the principal of and interest due on
the Funding Loan on such date (including scheduled principal pursuant to the Funding Loan
Amortization Schedule); and
SECOND: to the Loan Prepayment Fund, an amount equal to the principal and interest
due on the Funding Loan on such date with respect to a mandatory prepayment of all or a portion
of the Funding Loan pursuant to Section 3.01(b) hereof (other than any extraordinary mandatory
prepayment as described in Section 4.03(c)(i) or (iii) below).
(c) Promptly upon receipt, the Fiscal Agent shall deposit directly to the Loan Prepayment Fund
(i) Net Proceeds representing casualty insurance proceeds or condemnation awards paid as a prepayment
of the Borrower Loan, such amount to be applied to provide for the extraordinary mandatory prepayment
of all or a portion of the Funding Loan pursuant to Section 3.01(b)(i) hereof; (ii) funds paid to the Fiscal
Agent to be applied to the optional prepayment of all or a portion of the Funding Loan pursuant to
Section 3.01(a); and (iii) amounts transferred to the Loan Prepayment Fund from the Project Loan Fund
pursuant to Section 4.02(e) hereof.
26
4868-2375-4370.7
(d) Subject to Section 2.12 hereof, should the amount in the Loan Payment Fund be insufficient
to pay the amount due on the Funding Loan on any given Interest Payment Date, the Fiscal Agent shall
credit to the Loan Payment Fund the amount of such deficiency by charging the following funds and
accounts in the following order of priority: (1) the Revenue Fund; and (2) the Loan Prepayment Fund,
except no such charge to the Loan Prepayment Fund shall be made from money to be used to effect a
prepayment for which notice of prepayment has been provided for hereunder.
Section 4.04 Application of Loan Payment Fund. Subject to Section 2.12 hereof, the Fiscal
Agent shall charge the Loan Payment Fund, on each Interest Payment Date, an amount equal to the unpaid
interest and principal due on the Funding Loan on such Interest Payment Date as provided in Section 4.03(a)
and (b), and shall cause the same to be applied to the payment of such interest and principal when due. Any
money remaining in the Loan Payment Fund on any Interest Payment Date after application as provided in
the preceding sentence may, to the extent there shall exist any deficiency in the Loan Prepayment Fund to
prepay the Funding Loan if called for prepayment on such Interest Payment Date, be transferred to the Loan
Prepayment Fund to be applied for such purpose.
Any Investment Income on amounts on deposit in the Loan Payment Fund shall be deposited by
the Fiscal Agent upon receipt thereof in the Revenue Fund.
No amount shall be charged against the Loan Payment Fund except as expressly provided in this
Article IV and in Section 6.05 hereof.
Section 4.05 Application of Loan Prepayment Fund. Any money credited to the Loan
Prepayment Fund shall be applied as set forth in Sections 4.03(b) and 4.03(c) hereof; provided, however,
that to the extent any money credited to the Loan Prepayment Fund is in excess of the amount necessary to
effect the prepayments described in Sections 4.03(b) and 4.03(c) hereof it shall be applied to make up any
deficiency in the Loan Payment Fund on any Interest Payment Date, to the extent money then available in
accordance with Section 4.03(d) hereof in the Revenue Fund is insufficient to make up such deficiency;
provided that no money to be used to effect a prepayment for which a notice of prepayment has been
provided shall be so transferred to the Loan Payment Fund.
On or before each Interest Payment Date, any Investment Income on amounts on deposit in the
Loan Prepayment Fund shall be credited by the Fiscal Agent to the Revenue Fund.
No amount shall be charged against the Loan Prepayment Fund except as expressly provided in
this Article IV and in Section 6.05 hereof.
Section 4.06 Administration Fund. Subject to Section 2.12 hereof, the Fiscal Agent shall
deposit into the Administration Fund, promptly upon receipt thereof, all amounts received from the Servicer
(or the Borrower if no Servicer exists for the Borrower Loan) designated for deposit into such fund, together
with amounts transferred by the Fiscal Agent from the Project Loan Fund for deposit to the Administration
Fund pursuant to Section 4.02. Amounts in the Administration Fund shall be withdrawn or maintained, as
appropriate, by the Fiscal Agent and used FIRST, to pay to the Fiscal Agent when due the Ordinary Fiscal
Agent’s Fees and Expenses; SECOND, to pay to the Governmental Lender when due the Governmental
Lender Fee; THIRD, to pay when due the reasonable fees and expenses of a Rebate Analyst in connection
with the computations relating to arbitrage rebate required under this Funding Loan Agreement and the
Construction Phase Borrower Loan Agreement upon receipt of an invoice from the Rebate Analyst;
FOURTH, to pay to the Fiscal Agent any Extraordinary Fiscal Agent’s Fees and Expenses due and payable
from time to time, as set forth in an invoice submitted to the Borrower and the Servicer; FIFTH, to pay to
the Governmental Lender any extraordinary expenses it may incur in connection with the Borrower Loan
or this Funding Loan Agreement from time to time, as set forth in an invoice submitted to the Fiscal Agent
and the Servicer; SIXTH, to pay to the Funding Lender Representative any unpaid amounts due under the
27
4868-2375-4370.7
Construction Disbursement Agreement, as certified in writing by the Funding Lender Representative to the
Fiscal Agent; SEVENTH, to make up any deficiency in the Loan Prepayment Fund on any prepayment
date of the Funding Loan, to the extent money then available in accordance with Section 4.03(d) hereof in
the Loan Prepayment Fund is insufficient to prepay the Funding Loan scheduled for prepayment on such
prepayment date; and EIGHTH, to transfer any remaining balance after application as aforesaid to the
Revenue Fund.
In the event that the amounts on deposit in the Administration Fund are not equal to the amounts
payable from the Administration Fund as provided in the preceding paragraph on any date on which such
amounts are due and payable, the Fiscal Agent shall give notice to the Borrower and the Servicer of such
deficiency and of the amount of such deficiency and request payment within two (2) Business Days to the
Fiscal Agent of the amount of such deficiency. Upon payment by the Borrower or the Servicer of such
deficiency, the amounts for which such deficiency was requested shall be paid by the Fiscal Agent.
On or before each Interest Payment Date, any Investment Income on amounts on deposit in the
Administration Fund not needed to pay the foregoing amounts shall be credited by the Fiscal Agent to the
Revenue Fund.
No amount shall be charged against the Administration Fund except as expressly provided in this
Article IV and Section 6.05 hereof.
Notwithstanding the foregoing, on the Delivery Date, the Fiscal Agent shall credit to the
Governmental Lender Conversion Fee Account of the Administration Fund the Governmental Lender
Conversion Fee received as part of the Borrower Equity Deposit. The amounts held in the Governmental
Lender Conversion Fee Account shall be used to pay the Conversion Fee component of the Governmental
Lender Fee and for no other purpose. Investment Income on amounts on deposit in the Governmental
Lender Conversion Fee Account of the Administration Fund shall be retained in the Governmental Lender
Conversion Fee Account to be paid to the Borrower when the Governmental Lender Conversion Fee
Account is closed. On the Conversion Date, the Fiscal Agent shall transfer a n amount on deposit in the
Governmental Lender Conversion Fee Account equal to the Conversion Fee to the Governmental Lender
as payment for the Conversion Fee component of the Governmental Lender Fee and such Governmental
Lender Fee Account shall be closed; provided, however, if Conversion does not occur and the
Governmental Lender Note is fully paid pursuant to Section 3.01(b)(iii) hereof, amounts on deposit in the
Governmental Lender Conversion Fee Account of the Administration Fund, including the Conversion Fee
component, shall be paid to the Borrower.
Section 4.07 [Reserved].
Section 4.08 Investment of Funds. The money held by the Fiscal Agent shall constitute trust
funds for the purposes hereof. Any money attributable to each of the funds and accounts hereunder shall
be, except as otherwise expressly provided herein, invested by the Fiscal Agent, at the written direction of
the Borrower (or, in the case of the Rebate Fund, as provided in Section 5.07(b)), in Qualified Investments
which mature or shall be subject to prepayment or withdrawal at par without penalty on or prior to the
earlier of (i) six months from the date of investment and (ii) the date such money is needed; provided, that
if the Fiscal Agent shall have entered into any investment agreement requiring investment of money in any
fund or account hereunder in accordance with such investment agreement and if such investment agreement
constitutes a Qualified Investment, such money shall be invested in accordance with such requirements. In
the absence of written direction from the Borrower, the Fiscal Agent shall invest amounts on deposit in the
funds and accounts established under this Funding Loan Agreement in the type described in subparagraph
(g) of the definition of Qualified Investments. Such investments may be made through the investment or
securities department of the Fiscal Agent or that of its affiliates or subsidiaries, and may charge its ordinary
and customary fees for such trades, including account maintenance fees. The Fiscal Agent may purchase
28
4868-2375-4370.7
from or sell to itself or an affiliate, as principal or agent, securities herein authorized. The Fiscal Agent
shall be entitled to assume, absent receipt by the Fiscal Agent of written notice to the contrary, that any
investment which at the time of purchase is a Qualified Investment remains a Qualified Investment
thereafter. The Fiscal Agent shall have no liability in respect of losses incurred as a result of the liquidation
of any investment prior to its stated maturity or the failure of the Borrower to provide timely written
investment direction.
Qualified Investments representing an investment of money attributable to any fund or account
shall be deemed at all times to be a part of said fund or account, and, except as otherwise may be provided
expressly in other Sections hereof, the interest thereon and any profit arising o n the sale thereof shall be
credited to the Revenue Fund, and any loss resulting on the sale thereof shall be charged against the Revenue
Fund. Such investments shall be sold at the best price obtainable (but not less than par) whenever it shall
be necessary so to do in order to provide money to make any transfer, withdrawal, payment or disbursement
from said fund or account. In the case of any required transfer of money to another such fund or account,
such investments may be transferred to that fund or account in lieu of the required money if permitted
hereby as an investment of money in that fund or account. The Fiscal Agent shall not be liable or responsible
for any loss resulting from any investment made in accordance herewith. The Fiscal Agent may
conclusively rely upon the Borrower’s written instructions as to both the suitability and legality of the
directed investments.
Each of the Governmental Lender and Borrower acknowledges that to the extent that regulations
of the Comptroller of the Currency or other applicable regulatory agency grant the Governmental Lender
or the Borrower the right to receive brokerage confirmations of the security transactions as they occur, to
the extent permitted by law, each of the Governmental Lender and the Borrower specifically waives
compliance with 12 C.F.R. Part 12 and hereby notifies the Fiscal Agent hereunder, that no brokerage
confirmations need be sent relating to the security transactions as they occur.
In computing for any purpose hereunder the amount in any fund or account on any date, obligations
so purchased shall be valued at Fair Market Value.
Section 4.09 [Reserved].
Section 4.10 Accounting Records. The Fiscal Agent shall maintain accurate books and records
for all funds and accounts established hereunder.
Section 4.11 Amounts Remaining in Funds. After full payment of the Funding Loan (or
provision for payment thereof having been made in accordance with Section 9.01 hereof) and full payment
of the fees, charges and expenses of the Governmental Lender, the Fiscal Agent, the Rebate Analy st, the
Funding Lender and the Servicer and other amounts required to be paid hereunder or under any Borrower
Loan Document, including, but not limited to, the Construction Disbursement Agreement (as certified in
writing to the Fiscal Agent by the Governmental Lender with respect to amounts due to the Governmental
Lender and by the Funding Lender Representative or the Servicer on its behalf with respect to amounts
owed under the Construction Disbursement Agreement and by the Rebate Analyst with respect to amounts
due to the Rebate Analyst), any amounts remaining in any fund or account hereunder other than the Rebate
Fund shall be paid to the Borrower.
Section 4.12 Rebate Fund; Compliance with Tax Certificate. The Rebate Fund shall be
established by the Fiscal Agent and held and applied as provided in this Section 4.12. On any date on which
any amounts are required by applicable federal tax law to be rebated to the federal government, amounts
shall be deposited into the Rebate Fund by the Borrower for such purpose. All money at any time deposited
in the Rebate Fund shall be held by the Fiscal Agent in trust, to the extent required to satisfy the rebate
requirement (as set forth in the Tax Certificate) and as calculated by the Rebate Analyst, for payment to the
29
4868-2375-4370.7
government of the United States of America, and neither the Governmental Lender, the Borrower nor the
Funding Lender shall have any rights in or claim to such money. All amounts deposited into or on deposit
in the Rebate Fund shall be governed by this Section 4.12 and by the Tax Certificate. The Fiscal Agent
shall conclusively be deemed to have complied with such provisions if it follows the written instructions of
the Governmental Lender, Bond Counsel or the Rebate Analyst, including supplying all necessary
information in the manner set forth in the Tax Certificate, and shall not be required to take any actions
under the Tax Certificate in the absence of written instructions from the Governmental Lender, Bond
Counsel or the Rebate Analyst.
Within 55 days of the end of each fifth Rebate Year, the Borrower shall cause the Rebate Analyst
to calculate the amount of rebatable arbitrage, in accordance with Section 148(f)(2) of the Code and
Section 1.148-3 of the Treasury Regulations (taking into account any exceptions with respect to the
computation of the rebatable arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary
investments exceptions of Section 148(f)(4)(B) and (C) of the Code)), for this purpose treating the last day
of the applicable Rebate Year as a (computation) date, within the meaning of Section 1.148-1(b) of the
Treasury Regulations (the “Rebatable Arbitrage”). Pursuant to Section 2.04 of the Construction Phase
Borrower Loan Agreement, the Borrower shall cause the Rebate Analyst to provide such calculations to the
Fiscal Agent and the Governmental Lender. In the event that the Borrower fails to provide such information
to the Fiscal Agent and the Governmental Lender within 55 days of the end of each fifth Rebate Year, the
Fiscal Agent, at the expense of the Borrower, shall select the Rebate Analyst, with the prior written approval
of the Governmental Lender, and shall cause the Rebate Analyst to calculate the amount of rebatable
arbitrage as required herein.
Within 55 days of the end of each fifth Rebate Year, upon the written direction of the Governmental
Lender, Bond Counsel or the Rebate Analyst, an amount shall be deposited to the Rebate Fund by the Fiscal
Agent from amounts provided by the Borrower, if and to the extent required so that the balance in the
Rebate Fund shall equal the amount of Rebatable Arbitrage so calculated in accordance with the preceding
paragraph.
The Fiscal Agent shall pay, as directed by the Governmental Lender, Bond Counsel or the Rebate
Analyst, to the United States Department of the Treasury, out of amounts in the Rebate Fund:
(i) Not later than 60 days after the end of (A) the fifth Rebate Year, and (B) each
applicable fifth Rebate Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage
calculated as of the end of such Rebate Year; and
(ii) Not later than 60 days after the payment in whole of the Funding Loan, an amount
equal to 100% of the Rebatable Arbitrage calculated as of the end of such applicable Rebate Year,
and any income attributable to the Rebatable Arbitrage, computed in accordance with
Section 148(f) of the Code.
Each payment required to be made under this Section shall be made to the Internal Revenue Service
Center, Ogden, Utah 84201 (or such other address provided in such direction), on or before the date on
which such payment is due, and shall be accompanied by Internal Revenue Service Form 8038-T, which
shall be prepared by the Rebate Analyst and provided to the Fiscal Agent.
Notwithstanding any provision of this Funding Loan Agreement to the contrary, the obligation to
remit payment of the Rebatable Arbitrage to the United States of America and to comply with all other
requirements of Sections 2.04 and 4.03 of the Construction Phase Borrower Loan Agreement and this
Section 4.12, and the requirements of the Tax Certificate shall survive the defeasance or payment in full of
the Funding Loan.
30
4868-2375-4370.7
Any funds remaining in the Rebate Fund after payment in full of the Funding Loan and payment
and satisfaction of any Rebate Requirement, or provision made therefor satisfactory to the Fiscal Agent,
shall be withdrawn and remitted to the Borrower.
The Fiscal Agent shall obtain and keep such records of the computations made pursuant to this
Section 4.12 as are required under Section 148(f) of the Code to the extent furnished to the Fiscal Agent.
The Borrower shall or shall cause the Rebate Analyst to provide to the Governmental Lender and the Fiscal
Agent copies of all rebate computations made pursuant to this Section 4.12. The Fiscal Agent shall keep
and make available to the Borrower such records concerning the investments of the gross proceeds of the
Funding Loan and the investments of earnings from those investments made by the Fiscal Agent as may be
requested by the Borrower in order to enable the Borrower to cause the Rebate Analyst to make the aforesaid
computations as are required under Section 148(f) of the Code.
Notwithstanding the foregoing, the computations and payments of Rebatable Arbitrage need not be
made to the extent that neither the Governmental Lender nor the Borrower will thereby fail to comply with
any requirements of Section 148(f) of the Code based on an opinion of Bond Counsel, to the effect that
such failure will not adversely affect the exclusion from gr oss income for federal income tax purposes of
interest on the Governmental Lender Note, a copy of which shall be provided to the Fiscal Agent and the
Funding Lender Representative, at the expense of the Borrower.
Section 4.13 Cost of Issuance Fund. The Fiscal Agent shall use money on deposit to the credit
of the Cost of Issuance Fund to pay the Costs of Issuance on the Delivery Date or as soon as practicable
thereafter in accordance with the Closing Memorandum delivered to the Fiscal Agent by the Borrower on
the Delivery Date. Investment Income on amounts on deposit in the Cost of Issuance Fund shall be retained
in such fund. Amounts remaining on deposit in the Cost of Issuance Fund six (6) months after the Delivery
Date shall be transferred to the Borrower if deposited therein from the Borrower Equity Deposit. Upon
such final disbursement, the Fiscal Agent shall close the Cost of Issuance Fund.
Section 4.14 Reports From the Fiscal Agent. The Fiscal Agent shall, on or before the fifteenth
(15th) day of each month, file with the Funding Lender Representative, the Servicer, the Governmental
Lender (at its written request) and the Borrower a statement setting forth in respect of the preceding calendar
month:
(i) the amount withdrawn or transferred by it, and the amount deposited within or on
account of each fund and account held by it under the provisions of this Funding Loan Agreement,
including the amount of investment income on each fund and account;
(ii) the amount on deposit with it at the end of such month to the credit of eac h fund
and account;
(iii) a brief description of all obligations held by it as an investment of money in each
such fund and account; and
(iv) any other information which the Funding Lender Representative or the
Governmental Lender may reasonably request and to which the Fiscal Agent has access in the
ordinary course of its operations.
Upon the written request of the Funding Lender, the Fiscal Agent, at the cost of the Borrower, shall
provide a copy of such statement to Funding Lender. All records and files pertaining to the Pledged Security
shall be open at all reasonable times to the inspection of the Borrower, the Governmental Lender and the
Funding Lender Representative or the Servicer and their agents and representatives upon reasonable prior
notice during normal business hours.
31
4868-2375-4370.7
ARTICLE V
GENERAL COVENANTS AND REPRESENTATIONS
Section 5.01 Payment of Principal and Interest. The Governmental Lender covenants that it
will promptly pay or cause to be paid, but only from the sources identified herein, sufficient amounts to
provide for the payment of the principal of, premium, if any, and interest on the Funding Loan at the place,
on the dates and in the manner provided herein and in the Governmental Lender Note, according to the true
intent and meaning thereof.
Section 5.02 Performance of Covenants. The Governmental Lender covenants that it will
faithfully perform at all times any and all of its covenants, underta kings, stipulations and provisions
contained in this Funding Loan Agreement, in the Governmental Lender Note and in all proceedings
pertaining thereto.
Section 5.03 Instruments of Further Assurance.The Governmental Lender covenants that it
will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such
supplements hereto, and such further acts, instruments and transfers as may be reasonably required for the
better assuring, transferring, conveying, pledging, assigning and confirming unto the Fiscal Agent all and
singular its interest in the property herein described and the revenues, receipts and other amounts pledged
hereby to the payment of the principal of, premium, if any, and interest on the Funding Loan. Any and all
interest in property hereafter acquired which is of any kind or nature herein provided to be and become
subject to the lien hereof shall and without any further conveyance, assignment or act on the part of the
Governmental Lender or the Fiscal Agent, become and be subject to the lien of this Funding Loan
Agreement as fully and completely as though specifically described herein, but nothing in this sentence
contained shall be deemed to modify or change the obligations of the Governmental Lender under this
Section 5.03. The Governmental Lender covenants and agrees that, except as herein otherwise expressly
provided, it has not and will not sell, convey, mortgage, encumber or otherwise dispose of any part of its
interest in the Pledged Security or the revenues or receipts therefrom.
The Governmental Lender will promptly notify the Fiscal Agent, the Funding Lender
Representative and the Servicer in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal proces s, litigation or
administrative or judicial investigation against the Governmental Lender with respect to the
Borrower Loan;
(ii) any change in the location of the Governmental Lender’s principal office or any
change in the location of the Governmental Lender’s books and records relating to the transactions
contemplated hereby;
(iii) the occurrence of any default or Event of Default of which the Governmental
Lender has actual knowledge;
(iv) the commencement of any proceedings or any proceedings instituted by or against
the Governmental Lender in any federal, state or local court or before any governmental body or
agency, or before any arbitration board, relating to the Notes; or
(v) the commencement of any proceedings by or against the Governmental Lender
under any applicable bankruptcy, reorganization, liquidation, rehabilitation, insolvency or other
similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator,
32
4868-2375-4370.7
conservator, trustee or similar official shall have been, or may b e, appointed or requested for the
Governmental Lender or any of its assets relating to the Borrower Loan or the Funding Loan.
Section 5.04 Inspection of Project Books. The Governmental Lender covenants and agrees that
all books and documents in its possession relating to the Project shall, upon reasonable prior notice, during
normal business hours, be open to inspection and copying by such accountants or other agents as the Fiscal
Agent or the Funding Lender Representative may from time to time reasonably designate.
Section 5.05 No Modification of Security; Additional Indebtedness. The Governmental
Lender covenants to and for the benefit of the Funding Lender that it will not, without the prior written
consent of the Funding Lender Representative, take any of the following actions:
(i) alter, modify or cancel, or agree to consent to alter, modify or cancel any agreement
to which the Governmental Lender is a party, or which has been assigned to the Governmental
Lender, and which relates to or affects the security for the Borrower L oan or the payment of any
amount owed under the Financing Documents; or
(ii) create or suffer to be created any lien upon the Pledged Security or any part thereof
other than the lien created hereby and by the Security Instrument.
Section 5.06 Damage, Destruction or Condemnation. Net Proceeds resulting from casualty to
or condemnation of the Project shall be applied as provided in the Construction Disbursement Agreement
and, to the extent consistent therewith, Section 3.01(b)(i) hereof.
Section 5.07 Tax Covenants.
(a) Governmental Lender’s Covenants. The Governmental Lender covenants to and for the
benefit of the Funding Lender that it will:
(i) neither make or use nor cause to be made or used any investment or other use of
the proceeds of the Funding Loan or the money and investments held in the funds and accounts in
any manner which would cause the Governmental Lender Note to be an “arbitrage bond” under
Section 148 of the Code and the Regulations issued under Section 148 of the Code (the
“Regulations”) or which would otherwise cause the interest payable on the Governmental Lender
Note to be includable in gross income for federal income tax purposes;
(ii) enforce or cause to be enforced all obligations of the Borrower under the Tax
Regulatory Agreement in accordance with its terms and seek to cause the Borrower to correct any
violation of the Tax Regulatory Agreement within a reasonable period after it first discovers or
becomes aware of any such violation;
(iii) not take or cause to be taken any other action or actions, or fail to take any action
or actions, if the same would cause the interest payable on the Governmental Lender Note to be
includable in gross income for federal income tax purposes;
(iv) at all times do and perform all acts and things permitted by law and necessary or
desirable in order to assure that interest paid by the Governmental Lender on the Funding Loan will
be excluded from the gross income for federal income tax purposes, of the Funding Lender pursuant
to the Code, except in the event where the Funding Lender is a “substantial user” of the facilities
financed with the proceeds of the Governmental Lender Note or a “related person” within the
meaning of the Code; and
33
4868-2375-4370.7
(v) not take any action or permit or suffer any action to be taken if the result of the
same would be to cause the Governmental Lender Note to be “federally guaranteed” within the
meaning of Section 149(b) of the Code and the Regulations.
In furtherance of the covenants in this Section 5.07, the Governmental Lender and the
Borrower shall execute, deliver and comply with the provisions of the Tax Certificate, which is by
this reference incorporated into this Funding Loan Agreement and made a part of this Funding Loan
Agreement as if set forth in this Funding Loan Agreement in full, and by its acceptance of this
Funding Loan Agreement the Fiscal Agent acknowledges receipt of the Tax Certificate and
acknowledges its incorporation into this Funding Loan Agreement by this refer ence and agrees to
comply with the terms specifically applicable to it.
(b) Fiscal Agent’s Covenants. The Fiscal Agent agrees that it will invest funds held under this
Funding Loan Agreement in accordance with the covenants and terms of this Funding Loan Agreement and
the Tax Certificate (this covenant shall extend through the term of the Funding Loan, to all funds and
accounts created under this Funding Loan Agreement and all money on deposit to the credit of any such
fund or account). The Fiscal Agent covenants to and for the benefit of the Funding Lender that,
notwithstanding any other provisions of this Funding Loan Agreement or of any other Financing Document,
it will not knowingly make or cause to be made any investment or other use of the money in the f unds or
accounts created hereunder which would cause the Governmental Lender Note to be classified as an
“arbitrage bond” within the meaning of Sections 103(b) and 148 of the Code or would cause the interest on
the Governmental Lender Note to be includable in gross income for federal income tax purposes; provided
that the Fiscal Agent shall be deemed to have complied with such requirements and shall have no liability
to the extent it reasonably follows the written directions of the Borrower, the Governmental Lender, the
Funding Lender Representative, Bond Counsel or the Rebate Analyst. This covenant shall extend,
throughout the term of the Funding Loan, to all funds created under this Funding Loan Agreement and all
money on deposit to the credit of any such fund. Pursuant to this covenant, with respect to the investments
of the funds and accounts under this Funding Loan Agreement, the Fiscal Agent obligates itself to comply
throughout the term of the Funding Loan with the requirements of Sections 103(b) and 148 of the Code;
provided that the Fiscal Agent shall be deemed to have complied with such requirements and shall have no
liability to the extent it reasonably follows the written directions of the Borrower, the Governmental Lender,
Bond Counsel or the Rebate Analyst. The Fiscal Agent further covenants that should the Governmental
Lender or the Borrower file with the Fiscal Agent (it being understood that neither the Governmental Lender
nor the Borrower has an obligation to so file), or should the Fiscal Agent receive, an opinion of Bond
Counsel to the effect that any proposed investment or other use of proceeds of the Funding Loan would
cause the Governmental Lender Note to become an “arbitrage bond,” then the Fiscal Agent will comply
with any written instructions of the Governmental Lender, the Borrower, the Funding Lender
Representative or Bond Counsel regarding such investment (which shall, in any event, be a Qualified
Investment) or use so as to prevent the Governmental Lender Note from becoming an “arbitrage bond,” and
the Fiscal Agent will bear no liability to the Governmental Lender, the Borrower, the Funding Lender or
the Funding Lender Representative for investments made in accordance with such instructions.
Section 5.08 Representations and Warranties of the Governmental Lender. The
Governmental Lender hereby represents and warrants as follows:
(a) The Governmental Lender is a public body corporate and politic duly organized, validly
existing and in good standing under the laws of the State.
(b) The Governmental Lender has all necessary power and authority to issue the Governmental
Lender Note and to execute and deliver this Funding Loan Agreement, the Construction Phase Borrower
Loan Agreement and the other Financing Documents to which it is a party, and to perform its duties and
discharge its obligations hereunder and thereunder.
34
4868-2375-4370.7
(c) The revenues and assets pledged for the repayment of the Funding Loan are and will be
free and clear of any pledge, lien or encumbrance prior to, or equal with, the pledge created by this Funding
Loan Agreement, and all action on the part of the Governmental Lender to that end has been duly and
validly taken.
(d) The Financing Documents to which the Governmental Lender is a party have been validly
authorized, executed and delivered by the Governmental Lender, and assuming due authorization, execution
and delivery by the other parties thereto, constitute valid and binding obligations of the Governmental
Lender, enforceable against the Governmental Lender in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors’
rights generally and the application of equitable principles.
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF FISCAL AGENT AND FUNDING LENDER
Section 6.01 Events of Default. Each of the following shall be an event of default with respect
to the Funding Loan (an “Event of Default”) under this Funding Loan Agreement:
(a) failure to pay the principal of, premium, if any, or interest on the Funding Loan when due,
whether on an Interest Payment Date, at the stated maturity thereof, by proceedings for prepayment thereof,
by acceleration or otherwise; or
(b) failure to observe the covenants set forth in Section 5.05 hereof; or
(c) failure to observe or perform any of the covenants, agreements or conditions on the part of
the Governmental Lender (other than those set forth in Sections 5.01 and 5.05 hereof) set forth in this
Funding Loan Agreement or in the Governmental Lender Note and the continuance thereof for a period of
thirty (30) days (or such longer period, if any, as is specified herein for particular defaults) after written
notice thereof to the Governmental Lender and the Borrower from the Fiscal Agent or the Funding Lender
Representative specifying such default and requiring the same to be remedied; provided that if such default
cannot be cured within such thirty (30) day period through the exercise of diligence and the Governmental
Lender or the Borrower (to the extent curable by the Borrower) commences the required cure within such
thirty (30) day period and continues the cure with diligence and the Governmental Lender or the Borrower
(to the extent curable by the Borrower) reasonably anticipates that the default could be cured within sixty
(60) days, the Governmental Lender or the Borrower (to the extent curable by the Borrower) shall have
sixty (60) days following receipt of such notice to effect the cure; or
(d) receipt by the Fiscal Agent of written notice from the Funding Lender Representative of
the occurrence of an “Event of Default” under the Construction Phase Borrower Loan Agreement or the
Construction Disbursement Agreement.
The Fiscal Agent will promptly notify the Borrower, the Governmental Lender, the Servicer and
the Funding Lender Representative after a Responsible Officer obtains actual knowledge of the occurrence
of an Event of Default or obtains actual knowledge of the occurrence of an event which would become an
Event of Default with the passage of time or the giving of notice or both.
Section 6.02 Acceleration; Other Remedies Upon Event of Default.Upon the occurrence of an
Event of Default, the Fiscal Agent shall, upon the written request of the Funding Lender Representative, by
notice in writing delivered to the Governmental Lender and the Borrower, declare the principal of the
35
4868-2375-4370.7
Funding Loan and the interest accrued thereon immediately due and payable, and interest shall continue to
accrue thereon until such amounts are paid.
At any time after the Funding Loan shall have been so declared due and payable, and before any
judgment or decree for the payment of the money due shall have been obtained or entered, the Fiscal Agent
may, but only if directed in writing by the Funding Lender Representative, by written notice to the
Borrower, the Governmental Lender and the Fiscal Agent, rescind and annul such declaration and its
consequences if the Governmental Lender or the Borrower shall pay to or deposit with the Fiscal Agent a
sum sufficient to pay all principal on the Funding Loan then due (other than solely by reason of such
declaration) and all unpaid installments of interest (if any) on the Funding Loan then due, with interest at
the rate borne by the Funding Loan on such overdue principal and (to the extent legally enforceable) on
such overdue installments of interest, and the reasonable fees and expenses of the Fiscal Agent (including
its counsel) shall have been made good or cured or adequate provision shall have been made therefor, and
all outstanding amounts then due and unpaid under the Financing Documents (collectively, the “Cure
Amount”) shall have been paid in full, and all other defaults hereunder shall have been made good or cured
or waived in writing by the Funding Lender Representative; but no such rescission and annulment shall
extend to or shall affect any subsequent default, nor shall it impair or exhaust any right or power consequent
thereon.
Upon the occurrence and during the continuance of an Event of Default, the Fiscal Agent in its own
name and as trustee of an express trust, on behalf and for the benefit and protection of the Funding Lender,
may also proceed to protect and enforce any rights of the Fiscal Agent and, to the full extent that the Funding
Lender itself might do, the rights of the Funding Lender under the laws of the State or under this Funding
Loan Agreement by such of the following remedies as the Fiscal Agent shall deem most effectual to protect
and enforce such rights; provided that, the Fiscal Agent may undertake any such remedy only upon the
receipt of the prior written consent of the Funding Lender Representative (which consent may be given in
the sole discretion of the Funding Lender Representative):
(i) by mandamus or other suit, action or proceeding at law or in equity, to enforce the
payment of the principal of, premium, if any, or interest on the Funding Loan and to require the
Governmental Lender to carry out any covenants or agreements with or for the benefit of the
Funding Lender and to perform its duties under the Act, this Funding Loan Agreement, the
Construction Phase Borrower Loan Agreement or the Tax Regulatory Agreement (as applicable)
to the extent permitted under the applicable provisions thereof;
(ii) by pursuing any available remedies under the Construction Phase Borrower Loan
Agreement, the Tax Regulatory Agreement or any other Financing Document;
(iii) by realizing or causing to be realized through sale or otherwise upon the security
pledged hereunder; and
(iv) by action or suit in equity enjoin any acts or things that may be unlawful or in
violation of the rights of the Funding Lender and execute any other papers and documents and do
and perform any and all such acts and things as may be necessary or advisable in the opinion of the
Fiscal Agent in order to have the claim of the Funding Lender against the Governmental Lender
allowed in any bankruptcy or other proceeding.
No remedy by the terms of this Funding Loan Agreement conferred upon or reserved to the Fiscal
Agent or to the Funding Lender is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given to the Fiscal Agent or the
Funding Lender hereunder or under the Construction Phase Borrower Loan Agreement, the Tax Regulatory
Agreement, the Construction Disbursement Agreement or any other Financing Document, as applicable, or
36
4868-2375-4370.7
now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any Event of Default shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or acquiescence therein, and every such right and power may be
exercised from time to time and as often as may be deemed expedient. No waiver of any Event of Default
hereunder, whether by the Fiscal Agent or the Funding Lender, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent thereto.
Section 6.03 Funding Lender Representative Control of Proceedings. If an Event of Default
has occurred and is continuing, notwithstanding anything to the contrary herein, the Funding Lender
Representative shall have the sole and exclusive right at any time to direct the time, method and place of
conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of
this Funding Loan Agreement, or for the appointment of a receiver or any other proceedings hereunder, in
accordance with the provisions of law and of this Funding Loan Agreement. In addition, the Funding
Lender Representative shall have the sole and exclusive right at any time to directly enforce all rights and
remedies hereunder and under the other Financing Documents with or without the involvement of the Fiscal
Agent or the Governmental Lender (and in connection therewith the Fiscal Agent shall transfer or assign to
the Funding Lender Representative all of its interest in the Pledged Security at the request of the Funding
Lender Representative). In no event shall the exercise of any of the foregoing rights result in an acceleration
of the Funding Loan without the express direction of the Funding Lender Representative.
Section 6.04 Waiver by Governmental Lender. Upon the occurrence of an Event of Default, to
the extent that such right may then lawfully be waived, neither the Governmental Lender nor anyone
claiming through or under it shall set up, claim or seek to take advantage of any appraisal, valuation, stay ,
extension or prepayment laws now or hereinafter in force, in order to prevent or hinder the enforcement of
this Funding Loan Agreement; and the Governmental Lender, for itself and all who may claim through or
under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all right of
appraisement and prepayment to which it may be entitled under the laws of the State and the United States
of America.
Section 6.05 Application of Money After Default. All money collected by the Fiscal Agent at
any time pursuant to this Article shall, except to the extent, if any, otherwise directed by a court of
competent jurisdiction, be credited by the Fiscal Agent to the Revenue Fund. Such money so credited to
the Revenue Fund and all other money from time to time credited to the Revenue Fund shall at all times be
held, transferred, withdrawn and applied as prescribed by the provisions of Article IV hereof and this
Section 6.05.
In the event that at any time the money credited to the Revenue Fund, the Loan Payment Fund and
the Loan Prepayment Fund available for the payment of interest or principal then due with respect to the
Governmental Lender Note shall be insufficient for such payment, such money shall be applied as follows
and in the following order of priority:
(a) For payment of all amounts due to the Fiscal Agent incurred in performance of its duties
under this Funding Loan Agreement, including, without limitation, the payment of all reasonable fees and
expenses of the Fiscal Agent incurred in exercising any remedies under this Funding Loan Agreement.
(b) To the extent directed in writing by the Funding Lender Representative, to the
reimbursement of any unreimbursed advances made by or on behalf of the Funding Lender pursuant to the
Construction Disbursement Agreement or the Security Instrument.
(c) Unless the full principal amount of the Funding Loan shall have become or have been
declared due and payable:
37
4868-2375-4370.7
FIRST: to the Funding Lender, all installments of interest then due on the Funding
Loan in the order of the maturity of such installments; and
SECOND: to the Funding Lender, unpaid principal of and premium, if any, on the
Funding Loan which shall have become due, whether at maturity or by call for prepayment,
in the order in which they became due and payable.
(d) If the full principal amount of the Governmental Lender Note shall have become or have
been declared due and payable, to the Funding Lender for the payment of the principal of, premium, if any,
and interest then due and unpaid on the Funding Loan without preference or priority of principal over
interest or of interest over principal, or of any installment of interest over any other installment of interest.
Section 6.06 Remedies Not Exclusive. No right or remedy conferred upon or reserved to the
Fiscal Agent, the Funding Lender or the Funding Lender Representative by the terms of this Funding Loan
Agreement is intended to be exclusive of any other right or remedy, but each and every such remedy shall
be cumulative and shall be in addition to every other right or remedy given to the Fiscal Agent, the Funding
Lender or the Funding Lender Representative under this Funding Loan Agreement or existing at law or in
equity or by statute (including the Act).
Section 6.07 Fiscal Agent May Enforce Rights Without Governmental Lender Note. All
rights of action and claims, including the right to file proof of claims, under this Funding Loan Agreement
may be prosecuted and enforced by the Fiscal Agent at the written direction of the Funding Lender
Representative without the possession of the Governmental Lender Note or the production thereof in any
trial or other proceedings relating thereto. Subject to the rights of the Funding Lender Representative to
direct proceedings hereunder, any such suit or proceeding instituted by the Fiscal Agent shall be brought in
its name as Fiscal Agent without the necessity of joining as plaintiffs or defendants any Funding Lender,
and any recovery or judgment shall be for the benefit as provided herein of the Funding Lender.
Section 6.08 [Reserved].
Section 6.09 Termination of Proceedings. In case the Fiscal Agent (at the direction of the
Funding Lender Representative) or the Funding Lender Representative shall have proceeded to enforce any
right under this Funding Loan Agreement by the appointment of a receiver, by entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Governmental Lender, the Fiscal Agent, the Funding Lender
Representative, the Borrower and the Funding Lender shall be restored to their former positions and rights
hereunder with respect to the Pledged Security herein conveyed, and all rights, remedies and powers of the
Fiscal Agent and the Funding Lender Representative shall continue as if no such proceedings had been
taken.
Section 6.10 Waivers of Events of Default. The Fiscal Agent shall waive any Event of Default
hereunder and its consequences and rescind any declaration of maturity of principal of and interest on the
Funding Loan upon the written direction of the Funding Lender Representative. In case of any such waiver
or rescission, or in case any proceeding taken by the Fiscal Agent on account of any such Event of Default
shall have been discontinued or abandoned or determined adversely, then and in every su ch case the
Governmental Lender, the Fiscal Agent, the Borrower, the Servicer, the Funding Lender Representative
and the Funding Lender shall be restored to their former positions and rights hereunder, respectively, but
no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent
thereto.
Section 6.11 Interest on Unpaid Amounts and Default Rate for Nonpayment. In the event that
principal of or interest payable on the Funding Loan is not paid when due, there shall be paya ble on the
38
4868-2375-4370.7
amount not timely paid, on each Interest Payment Date, interest at the Default Rate, to the extent permitted
by law. Interest on the Funding Loan shall accrue at the Default Rate until the unpaid amount, together
with interest thereon, shall have been paid in full.
Section 6.12 Assignment of Borrower Loan; Remedies Under the Borrower Loan.
(a) The Funding Lender Representative shall have the right, with respect to the Borrower Loan,
in its sole and absolute discretion, without directing the Fiscal Agent to effect an acceleration of the Funding
Loan, to instruct the Fiscal Agent in writing to assign the Construction Phase Borrower Note, the Security
Instrument and the other Borrower Loan Documents to the Funding Lender Representative, in which event
the Fiscal Agent shall (a) endorse and deliver the Construction Phase Borrower Note to the Funding Lender
Representative and assign (in recordable form) the Security Instrument, (b) execute and deliver to the
Funding Lender Representative all documents prepared by the Funding Lender Representative necessary
to assign (in recordable form) all other Borrower Loan Documents to the Funding Lender Representative
and (c) execute all such documents prepared by the Funding Lender Representative as are necessary to
legally and validly effectuate the assignments provided for in the preceding clauses (a) and (b). The Fiscal
Agent’s assignments to the Funding Lender Representative pursuant to this Section 6.12 shall be without
recourse or warranty except that the Fiscal Agent shall represent and warrant in connection therewith (A)
that the Fiscal Agent has not previously endorsed or assigned any such documents or instruments and (B)
that the Fiscal Agent has the corporate authority to endorse and assign such documents and instruments and
such endorsements and assignments have been duly authorized.
(b) The Funding Lender Representative shall have the right, in its own name or on behalf of
the Governmental Lender or the Fiscal Agent, to declare any default and exercise any remedies under the
Construction Phase Borrower Loan Agreement, the Construction Phase Borrower Note or the Security
Instrument, whether or not the Governmental Lender Note has been accelerated or declared due and payable
by reason of an Event of Default or the occurrence of a mandatory prepayment.
Section 6.13 Substitution. Upon receipt of written notice from the Funding Lender
Representative and the approval of the Governmental Lender as and to the extent permitted under the Tax
Regulatory Agreement, the Fiscal Agent shall exchange the Construction Phase Borrower Note and the
Security Instrument for a new Construction Phase Borrower Note and Security Instrument, evidencing and
securing a new loan (the “New Borrower Loan”), which may be executed by a person other than the
Borrower (the “New Borrower”), provided that if the Fiscal Agent, the Funding Lender or a nominee of the
Fiscal Agent or the Funding Lender has acquired the Project through foreclosure, by accepting a deed in
lieu of foreclosure or by comparable conversion of the Project, no approval from the Governmental Lender
of such exchange shall be required. Prior to accepting a New Borrower Loan, the Fiscal Agent shall have
received (i) written evidence that the New Borrower shall have executed and recorded a document
substantially in the form of the Tax Regulatory Agreement (or executed and recorded an assumption of all
of the Borrower’s obligations under the Tax Regulatory Agreement) and that the Borrower Loan
Documents have been modified as necessary to be applicable to the New Borrower Loan, and (ii) an opinion
of Bond Counsel, to the effect that such exchange and modification, in and of itself, shall not affect the
exclusion, from gross income, for federal income tax purposes of the interest payable on the Governmental
Lender Note.
ARTICLE VII
CONCERNING THE FISCAL AGENT
Section 7.01 Standard of Care. The Fiscal Agent, prior to an Event of Default as defined in
Section 6.01 hereof and after the curing or waiver of all such events which may have occurred, shall perform
such duties and only such duties as are specifically set forth in this Funding Loan Agreement and no implied
39
4868-2375-4370.7
covenants or obligations should be read into this Funding Loan Agreement against the Fiscal Agent. The
Fiscal Agent, during the existence of any such Event of Default (which shall not have been cured or waived),
shall exercise such rights and powers vested in it by this Funding Loan Agreement and use the same degree
of care and skill in its exercise as a prudent Person would exercise or use under similar circumstances in
the conduct of such Person’s own affairs.
The permissive right of the Fiscal Agent to do things enumerated in this Funding Loan Agreement
or the Construction Phase Borrower Loan Agreement shall not be construed as a duty. No provision of this
Funding Loan Agreement shall be construed to relieve the Fiscal Agent from liability for its own negligence
or willful misconduct, except that:
(a) prior to an Event of Default hereunder, and after the curing or waiver of all such Events of
Default which may have occurred:
(i) the duties and obligations of the Fiscal Agent shall be determined solely
by the express provisions of this Funding Loan Agreement, and the Fiscal Agent shall not
be liable except with regard to the performance of such duties and obligations as are
specifically set forth in this Funding Loan Agreement; and
(ii) in the absence of bad faith on the part of the Fiscal Agent, the Fiscal Agent
may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificate or opinion furnished to the Fiscal Agent by the
Person or Persons authorized to furnish the same;
(b) at all times, regardless of whether or not any such Event of Default shall exist:
(i) the Fiscal Agent shall not be liable for any error of judgment made in good
faith by an officer or employee of the Fiscal Agent except for willful misconduct or
negligence by the officer or employee of the Fiscal Agent as the case may be; and
(ii) the Fiscal Agent shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the Funding
Lender Representative relating to the time, method and place of conducting any proceeding
for any remedy available to the Fiscal Agent, or exercising any trust or power conferred
upon the Fiscal Agent under this Funding Loan Agreement.
Before taking any action under this Funding Loan Agreement relating to an Event of Default or in
connection with its duties under this Funding Loan Agreement other than making payments of principal
and interest on the Governmental Lender Note as they become due or causing an acceleration of the
Governmental Lender Note whenever required by this Funding Loan Agreement, the Fiscal Agent may
require that satisfactory indemnity be furnished to it for the reimbursement of all expenses to which it may
be put and to protect it against all liability, including, but not limited to, any liability arising directly or
indirectly under any federal, state or local statute, rule, law or ordinance related to the protection of the
environment or hazardous substances, but except for liability which is adjudicated to have resulted from
the Fiscal Agent’s own negligence or willful misconduct in connection with any action so taken.
When the Fiscal Agent incurs expenses or renders services after the occurrence of an Event of
Default, such expenses and the compensation for such services are intended to constitute expenses of
administration under any federal or state bankruptcy, insolvency, arrangement, moratorium, reorganization
or other debtor relief law.
Section 7.02 Reliance Upon Documents. Except as otherwise provided in Section 7.01 hereof:
40
4868-2375-4370.7
(a) the Fiscal Agent may conclusively rely upon the authenticity or truth of the statements and
the correctness of the opinions expressed in, and shall be protected in acting and relying upon any
resolution, certificate, statement, instrument, opinion (including an opinion of independent counsel), report,
notice, notarial seal, stamp, affidavit, letter, telegram acknowledgment, verification, request, consent, order,
bond or other paper or document in good faith deemed by it to be genuine and correct and to have been
signed or sent by the proper party or parties, including any Electronic Notice as permitted hereunder or
under the Construction Phase Borrower Loan Agreement;
(b) any notice, request, direction, election, order or demand of the Governmental Lender
mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the Governmental
Lender by an Authorized Officer of the Governmental Lender (unless other evidence in respect thereof be
herein specifically prescribed), and any resolution of the Governmental Lender may be evidenced to the
Fiscal Agent by a copy of such resolution duly certified by an Authorized Officer of the Governmental
Lender;
(c) any notice, request, certificate, statement, requisition, direction, election, order or demand
of the Borrower mentioned herein shall be sufficiently evidenced by an instrument purporting to be signed
in the name of the Borrower by any Authorized Officer of the Borrower (unless other evidence in respect
thereof be herein specifically prescribed), and any resolution or certification of the Borrower may be
evidenced to the Fiscal Agent by a copy of such resolution duly certified by a secretary or other authorized
representative of the Borrower;
(d) any notice, request, certificate, statement, requisition, direction, election, order or demand
of the Servicer mentioned herein shall be sufficiently evidenced by an instrument signed in the name of the
Servicer by an Authorized Officer of the Servicer (unless other evidence in respect thereof be herein
specifically prescribed);
(e) any notice, request, direction, election, order or demand of the Funding Lender
Representative mentioned herein shall be sufficiently evidenced by an instrument purporting to be signed
in the name of the Funding Lender Representative by any Authorized Officer of the Funding Lender
Representative (unless other evidence in respect thereof be herein specifically prescribed);
(f) [Intentionally Omitted];
(g) Notwithstanding anything contained herein or in the Security Instrument to the contrary,
upon the occurrence and continuance of an Event of Default, before taking any foreclosure action or any
action which may subject the Fiscal Agent to liability under any environmental law, statute, regulation or
similar requirement relating to the environment, the Fiscal Agent may require that a satisfactory indemnity
bond, indemnity or environmental impairment insurance be furnished for the payment or reimbursement
of all expenses to which it may be put and to protect it against all liability resulting from any claims,
judgments, damages, losses, penalties, fines, liabilities (including strict liability) and expenses which may
result from such foreclosure or other action. The Fiscal Agent shall not be required to take any action to
foreclose or otherwise enforce the Security Instrument unless indemnified to its satisfaction and will not be
required to foreclose if doing so will subject it to environmental liability or will require the approval of a
governmental regulator that cannot be obtained;
(h) in the administration of the trusts of this Funding Loan Agreement, (i) the Fiscal Agent
may execute any of the trusts or powers hereby granted directly or through its agents, custodians, nominees,
receivers or attorneys appointed with due care, and (ii) the Fiscal Agent may consult with counsel (who
may be counsel for the Governmental Lender, the Servicer or the Funding Lender Representative)
concerning all matters of trusts hereof and duties hereunder, and the opinion or advice of such counsel shall
41
4868-2375-4370.7
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 the opinion of such counsel;
(i) whenever in the administration of the trusts of this Funding Loan Agreement, the Fiscal
Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or permitting
any action hereunder, such matters (unless other evidence in respect thereof be herein specifically
prescribed), may in the absence of negligence or willful misconduct on the part of the Fiscal Agent, be
deemed to be conclusively proved and established by a certificate of an officer or authorized agent of the
Governmental Lender or the Borrower and such certificate shall in the absence of bad faith on the part of
the Fiscal Agent be full warrant to the Fiscal Agent for any action taken or permitted by it under the
provisions of this Funding Loan Agreement, but in its discretion the Fiscal Agent may in lieu thereof accept
other evidence of such matter or may require such further or additional evidence as it may deem reasonable;
(j) the recitals herein and in the Governmental Lender Note (except the Fiscal Agent’s
certificate of authentication thereon) shall not be considered as made by or imposing any obligation or
liability upon the Fiscal Agent. The Fiscal Agent makes no representations as to the value or condition of
the Pledged Security or any part thereof, or as to the title of the Governmental Lender or the Borrower to
the Pledged Security, or as to the security of this Funding Loan Agreement, or of the Governmental Lender
Note issued hereunder, and the Fiscal Agent shall incur no liability or responsibility in respect of any of
such matters;
(k) the Fiscal Agent shall not be personally liable for debts contracted or liability for damages
incurred in the management or operation of the Pledged Security except for its own willful misconduct or
negligence; and every provision of this Funding Loan Agreement relating to the conduct or affecting the
liability of or affording protection to the Fiscal Agent shall be subject to the provisions of this Section
7.02(k);
(l) the Fiscal Agent shall not be required to ascertain or inquire as to the performance or
observance of any of the covenants or agreements (except to the extent they obligate the Fiscal Agent)
herein or in any contracts or securities assigned or conveyed to or pledged with the Fiscal Agent hereunder,
except Events of Default that are evident under Section 6.01(a) hereof. The Fiscal Agent shall not be
required to take notice or be deemed to have notice or actual knowledge of any default or Event of Default
specified in Section 6.01 hereof (except defaults under Section 6.01(a) hereof to the extent they are
collecting loan payments hereunder) unless the Fiscal Agent shall receive from the Governmental Lender
or the Funding Lender Representative written notice stating that a default or Event of Default has occurred
and specifying the same, and in the absence of such notice the Fiscal Agent may conclusively assume that
there is no such default. Every provision contained in this Funding Loan Agreement or related instruments
or in any such contract or security wherein the duty of the Fiscal Agent depends on the occurrence and
continuance of such default shall be subject to the provisions of this Section 7.02(l);
(m) the Fiscal Agent shall be under no duty to confirm, review or verify any financial or other
statements or reports or certificates furnished pursuant to any provisions hereof, except to the extent such
statement or reports are furnished by or under the direction of the Fiscal Agent, and shall be under no other
duty in respect of the same except to retain the same in its files and permit the inspection of the same at
reasonable times by the Funding Lender. The Fiscal Agent shall not be deemed to have notice of any
information contained therein, default or event of default which may be disclosed therein in any manner.
The Fiscal Agent does not have a duty to verify the accuracy of such statements; and
(n) the Fiscal Agent shall be under no obligation to exercise those rights or powers vested in it
by this Funding Loan Agreement, other than such rights and powers which it shall be obliged to exercise
in the ordinary course of acting as Fiscal Agent under the terms and provisions of this Funding Loan
Agreement and as required by law, at the request or direction of the Funding Lender Representative
42
4868-2375-4370.7
pursuant to Section 6.03 hereof, unless the Funding Lender Representative shall have offered to the Fiscal
Agent reasonable security or indemnity against the costs, expenses and liabilities which might be incurred
by it in the compliance with such request or direction.
None of the provisions contained in this Funding Loan Agreement shall require the Fiscal Agent to
expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.
The Fiscal Agent is authorized and directed to execute in its capacity as Fiscal Agent, the
Construction Phase Borrower Loan Agreement and the Tax Regulatory Agreement and shall have no
responsibility or liability with respect to any information, statement or recital in any offering memorandum
or other disclosure material prepared or distributed with respect to the delivery of the Governmental Lender
Note. In acting or omitting to act pursuant to the Construction Phase Borrower Loan Agreement, the Tax
Regulatory Agreement or any other documents executed in connection herewith, the Fiscal Agent shall be
entitled to all of the rights, immunities and indemnities accorded to it under this Funding Loan Agreement,
including, but not limited to, this Article VII.
The Fiscal Agent or any of its affiliates may act as advisor or sponsor with respect to any Qualified
Investments.
The Fiscal Agent agrees to accept and act upon Electronic Notice of written instructions and/or
directions pursuant to this Funding Loan Agreement. Notwithstanding the immediately preceding sentence,
the Fiscal Agent shall have the right to accept and act upon Instructions given pursuant to this Funding
Loan Agreement or any other document reasonably relating to the Governmental Lender Note and delivered
using Electronic Means as provided in Section 11.04(c) of this Funding Loan Agreement.
Any resolution, certification, notice, request, direction, election, order or demand delivered to the
Fiscal Agent pursuant to this Section 7.02 shall remain in effect until the Fiscal Agent receives written
notice to the contrary from the party that delivered such instrument accompanied by revised information
for such party.
The Fiscal Agent shall have no responsibility for the value of any collateral or with respect to the
perfection or priority of any security interest in any collateral except as otherwise provided in Section 7.17
hereof.
Section 7.03 Use of Proceeds. The Fiscal Agent shall not be accountable for the use or
application of the Governmental Lender Note authenticated or delivered hereunder or of the proceeds of
the Funding Loan except as provided herein.
Section 7.04 Escrowed Funds. In connection with the issuance of the Governmental Lender
Note, certain moneys may be deposited with the Fiscal Agent before the Delivery Date pursuant to one or
more letters of instruction from the provider or providers of such moneys. Such moneys will be held by
the Fiscal Agent subject to the terms and conditions of this Funding Loan Agreement in addition to terms
provided in such letter(s) of instruction. For such purpose the standards of care, provisions regarding
responsibilities, and indemnification and other sections relating to the Fiscal Agent contained in this
Funding Loan Agreement (the “Effective Provisions”) shall be effective as of the first date of receipt by the
Fiscal Agent of such moneys. The Effective Provisions shall be deemed incorporated into such letter(s) of
instructions.
Section 7.05 Trust Imposed. All money received by the Fiscal Agent shall, until used or applied
as herein provided, be held in trust for the purposes for which it was received.
43
4868-2375-4370.7
Section 7.06 Compensation of Fiscal Agent. The Fiscal Agent shall be entitled to its Ordinary
Fiscal Agent’s Fees and Expenses in connection with the services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the powers and duties of the Fiscal
Agent hereunder or under any Financing Document to the extent money is available therefor, in accordance
with Section 4.06 hereof, exclusive of Extraordinary Services. The Fiscal Agent shall be entitled to
Extraordinary Fiscal Agent’s Fees and Expenses in connection with any Extraordinary Services performed
consistent with the duties hereunder or under any of the Financing Documents; provided the Fiscal Agent
shall not incur any Extraordinary Fiscal Agent’s Fees and Expenses without the consent of the Funding
Lender Representative. If any property, other than cash, shall at any time be held by the Fiscal Agent
subject to this Funding Loan Agreement, or any supplement hereto, as security for the Funding Loan, the
Fiscal Agent, if and to the extent authorized by a receivership, bankruptcy, or other court of competent
jurisdiction or by the instrument subjecting such property to the provisions of this Funding Loan Agreement
as such security for the Funding Loan, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other liens or encumbrances thereon. Payment to the Fiscal Agent
for its services and reimbursement to the Fiscal Agent for its expenses, disbursements, liabilities and
advances, shall be limited to the sources described in the Construction Phase Borrower Loan Agreement,
and in Sections 4.06, 4.11 and 6.05 hereof. The Governmental Lender shall have no liability for Fiscal
Agent’s fees, costs or expenses. Subject to the provisions of Section 7.09 hereof, the Fiscal Agent agrees
that it shall continue to perform its duties hereunder and under the Financing Documents even in the event
that money designated for payment of its fees shall be insufficient for such purposes or in the event that the
Borrower fails to pay the Ordinary Fiscal Agent’s Fees and Expenses or, if applicable, the Extraordinary
Fiscal Agent’s Fees and Expenses as required by the Construction Phase Borrower Loan Agreement.
The Borrower shall indemnify and hold harmless the Fiscal Agent and its officers, directors,
officials, employees, agents, receivers, attorneys, accountants, advisors, consultants and serva nts, past,
present or future, from and against (a) any and all claims by or on behalf of any person arising from any
cause whatsoever in connection with this Funding Loan Agreement or transactions contemplated hereby,
the Project, or the delivery of the Governmental Lender Note or the Borrower Loan; (b) any and all claims
arising from any act or omission of the Borrower or any of its agents, contractors, servants, employees or
licensees in connection with the Project, or the delivery of the Governmental Lender Note or the Borrower
Loan; and (c) all costs, counsel fees, expenses or liabilities incurred in connection with any such claim or
proceeding brought thereon; except that the Borrower shall not be required to indemnify any person for
damages caused by the gross negligence, willful misconduct or unlawful acts of such person or which arise
from events occurring after the Borrower ceases to own the Project. In the event that any action or
proceeding is brought or claim made against the Fiscal Agent, or any of its officers, directors, officials,
employees, agents, receivers, attorneys, accountants, advisors, consultants or servants, with respect to
which indemnity may be sought hereunder, the Borrower, upon written notice thereof from the indemnified
party, shall assume the investigation and defense thereof, including the employment of counsel and the
payment of all expenses. The indemnified party shall have the right to approve a settlement to which it is
a party and to employ separate counsel in any such action or proceedings and to participate in the
investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such
separate counsel. The provisions of this Section 7.06 shall survive the termination of this Funding Loan
Agreement.
Section 7.07 Qualifications of Fiscal Agent. There shall at all times be a Fiscal Agent
hereunder which shall be an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof, authorized under such laws to exercise corporate trust
powers. Any successor Fiscal Agent shall have a combined capital and surplus of at least $50,000,000 (or
shall be a wholly owned subsidiary of an association or corporation that has such combined capital and
surplus), and be subject to supervision or examination by federal or state authority, or shall have been
appointed by a court of competent jurisdiction pursuant to Section 7.11 hereof. If such association or
corporation publishes reports of condition at least annually, pursuant to law or to the requirements of any
44
4868-2375-4370.7
supervising or examining authority referred to above, then for the purposes of this Section 7.07, the
combined capital and surplus of such association or 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 7.07 and another
association or corporation is eligible, the Fiscal Agent shall resign immediately in the manner and with the
effect specified in Section 7.09 hereof.
Section 7.08 Merger of Fiscal Agent. Any association or corporation into which the Fiscal
Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer
its corporate trust business and assets as a whole or substantially as a whole, or any association or
corporation resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party
shall, ipso facto, be and become successor Fiscal Agent hereunder and vested with all the title to the whole
property or Pledged Security and all the trusts, powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any instruments or any further act, deed
or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding, and
shall also be and become successor Fiscal Agent in respect of the legal interest of the Fiscal Agent.
Section 7.09 Resignation by the Fiscal Agent. The Fiscal Agent may at any time resign from
the trusts hereby created by giving written notice to the Governmental Lender, the Borrower, the Servicer
and the Funding Lender Representative. Such notice to the Governmental Lender, the Borrower, the
Servicer and the Funding Lender Representative may be served personally or sent by certified mail or
overnight delivery service. The resignation of the Fiscal Agent shall not be effective until a successor Fiscal
Agent has been appointed as provided herein and such successor Fiscal Agent shall have agreed in writing
to be bound by the duties and obligations of the Fiscal Agent hereunder.
Section 7.10 Removal of the Fiscal Agent. The Fiscal Agent may be removed at any time,
either with or without cause, with the consent of the Funding Lender Representative (which consent of the
Funding Lender Representative shall not be unreasonably withheld), by a written instrument signed by the
Governmental Lender and delivered to the Fiscal Agent, the Servicer and the Borrower. The Fiscal Agent
may also be removed by a written instrument signed by the Funding Lender Representative and delivered
to the Fiscal Agent, the Servicer, the Governmental Lender and the Borrower. In each case written notice
of such removal shall be given to the Servicer, the Borrower and to the Funding Lender. Any such removal
shall take effect on the day specified in such written instrument(s), but the Fiscal Agent shall not be
discharged from the trusts hereby created until a successor Fiscal Agent has been appointed and has
accepted such appointment and has agreed in writing to be bound by the duties and obligations of the Fiscal
Agent hereunder.
Section 7.11 Appointment of Successor Fiscal Agent.
(a) In case at any time the Fiscal Agent shall resign or be removed, or be dissolved, or shall be
in course of dissolution or liquidation, or otherwise become incapable of acting hereunder, or shall be
adjudged a bankrupt or insolvent, or if a receiver of the Fiscal Agent or of its property shall be appointed,
or if a public supervisory office shall take charge or control of the Fiscal Agent or of its property or affairs,
a vacancy shall forthwith and ipso facto be created in the office of such Fiscal Agent hereunder, and the
Governmental Lender, with the written consent of the Funding Lender Representative, shall promptly
appoint a successor Fiscal Agent. Any such appointment shall be made by a written instrument executed
by an Authorized Officer of the Governmental Lender. If the Governmental Lender fails to appoint a
successor Fiscal Agent within ten (10) days following the resignation or removal of the Fiscal Agent
pursuant to Section 7.09 or Section 7.10 hereunder, as applicable, the Funding Lender Representative may
appoint a successor Fiscal Agent.
45
4868-2375-4370.7
(b) If, in a proper case, no appointment of a successor Fiscal Agent shall be made pursuant to
subsection (a) of this Section 7.11 within sixty (60) days following delivery of all required notices of
resignation given pursuant to Section 7.09 hereof or of removal of the Fiscal Agent pursuant to Section 7.10
hereof, the retiring Fiscal Agent may apply to any court of competent jurisdiction to appoint a successor
Fiscal Agent. The court may thereupon, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Fiscal Agent.
Section 7.12 Concerning Any Successor Fiscal Agent. Every successor Fiscal Agent
appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Governmental
Lender a written instrument accepting such appointment hereunder, and thereupon such successor, without
any further act, deed or conveyance, shall become fully vested with all the Pledged Security and the rights,
powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the
written request of the Governmental Lender, the Borrower or the Funding Lender Representative, or of its
successor, and upon payment of all amounts due such predecessor, including but not limited to fees and
expenses of counsel, execute and deliver such instruments as may be appropriate to transfer to such
successor Fiscal Agent all the Pledged Security and the rights, powers and trusts of such predecessor
hereunder; and every predecessor Fiscal Agent shall deliver all securities and money held by it as Fiscal
Agent hereunder to its successor. Should any instrument in writing from the Governmental Lender be
required by a successor Fiscal Agent for more fully and certainly vesting in such successor the Pledged
Security and all rights, powers and duties hereby vested or intended to be vested in the predecessor, any
and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the
Governmental Lender. The resignation of any Fiscal Agent and the instrument or instruments removing
any Fiscal Agent and appointing a successor hereunder, together with all other instruments provided for in
this Article, shall be filed and/or recorded by the successor Fiscal Agent in each recording office where this
Funding Loan Agreement shall have been filed and/or recorded. Each successor Fiscal Agent shall mail
notice by first class mail, postage prepaid, at least once within thirty (30) days of such appointment, to the
Funding Lender.
Section 7.13 Successor Fiscal Agent . In the event of a change in the office of Fiscal Agent,
the predecessor Fiscal Agent which shall have resigned or shall have been removed shall cease to be Fiscal
Agent with respect to the Governmental Lender Note, and the successor Fiscal Agent shall become such
Fiscal Agent.
Section 7.14 Appointment of Co-Fiscal Agent or Separate Fiscal Agent. It is the intent of the
Governmental Lender and the Fiscal Agent that there shall be no violation of any law of any jurisdiction
(including particularly the laws of the State) denying or restricting the right of banking corporations or
associations to transact business as Fiscal Agent in such jurisdiction. It is recognized that in case of
litigation under or connected with this Funding Loan Agreement, the Construction Phase Borrower Loan
Agreement or any of the other Financing Documents, and, in particular, in case of the enforcement of any
remedies on default, or in case the Fiscal Agent deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein or therein granted to the Fiscal
Agent or hold title to the properties in trust, as herein granted, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary that the Fiscal Agent, with the consent
of the Governmental Lender and the Funding Lender Representative, appoint an additional individual or
institution as a co-fiscal agent or separate fiscal agent.
In the event that the Fiscal Agent appoints an additional individual or institution as a co-fiscal agent
or separate fiscal agent, in the event of the incapacity or lack of authority of the Fiscal Agent, by reason of
any present or future law of any jurisdiction, to exercise any of the rights, powers, trusts and remedies
granted to the Fiscal Agent herein or to hold title to the Pledged Security or to take any other action that
may be necessary or desirable in connection therewith, each and every remedy, power, right, obl igation,
claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this
46
4868-2375-4370.7
Funding Loan Agreement to be imposed upon, exercised by or vested in or conveyed to the Fiscal Agent
with respect thereto shall be imposed upon, exercisable by and vest in such separate fiscal agent or co-fiscal
agent, but only to the extent necessary to enable such co-fiscal agent or separate fiscal agent to exercise
such powers, rights, trusts and remedies, and every covenant and obligation necessary to the exercise
thereof by such co-fiscal agent or separate fiscal agent shall run to and be enforceable by either of them,
subject to the remaining provisions of this Section 7.14. Such co-fiscal agent or separate fiscal agent shall
deliver an instrument in writing acknowledging and accepting its appointment hereunder to the Borrower,
the Governmental Lender and the Fiscal Agent.
Should any instrument in writing from the Governmental Lender be required by the co-fiscal agent
or separate fiscal agent so appointed by the Fiscal Agent for more fully and certainly vesting in and
confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such
instruments in writing shall, on request, be executed, acknowledged and delivered by the Governmental
Lender, the Fiscal Agent and the Borrower. If the Governmental Lender shall fail to deliver the same within
thirty (30) days of such request, the Fiscal Agent is hereby appointed attorney-in-fact for the Governmental
Lender to execute, acknowledge and deliver such instruments in the Governmental Lender’s name and
stead. In case any co-fiscal agent or separate fiscal agent, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates , properties, rights, powers, trusts, duties and
obligations of such co-fiscal agent or separate fiscal agent, so far as permitted by law, shall vest in and be
exercised by the Fiscal Agent until the appointment of a new Fiscal Agent or successor to such c o-fiscal
agent or separate fiscal agent.
Every co-fiscal agent or separate fiscal agent shall, to the extent permitted by law, but to such extent
only, be appointed subject to the following terms, namely:
(a) the Governmental Lender Note shall be authenticated and delivered, and all rights, powers,
trusts, duties and obligations by this Funding Loan Agreement conferred upon the Fiscal Agent in respect
of the custody, control or management of money, papers, securities and other personal property shall be
exercised solely by the Fiscal Agent;
(b) all rights, powers, trusts, duties and obligations conferred or imposed upon the Fiscal Agent
shall be conferred or imposed upon or exercised or performed by the Fiscal Agent, or by the Fiscal Agent
and such co-fiscal agent, or separate fiscal agent jointly, as shall be provided in the instrument appointing
such co-fiscal agent or separate fiscal agent, except to the extent that under the law of any jurisdiction in
which any particular act or acts are to be performed the Fiscal Agent shall be incompetent or unqualified to
perform such act or acts, in which event such act or acts shall be performed by such co -fiscal agent or
separate fiscal agent;
(c) any request in writing by the Fiscal Agent to any co-fiscal agent or separate fiscal agent to
take or to refrain from taking any action hereunder shall be sufficient warrant for the taking or the refraining
from taking of such action by such co-fiscal agent or separate fiscal agent;
(d) any co-fiscal agent or separate fiscal agent to the extent permitted by law shall delegate to
the Fiscal Agent the exercise of any right, power, trust, duty or obligation, discretionary or otherwise;
(e) the Fiscal Agent at any time by an instrument in writing with the concurrence of the
Governmental Lender evidenced by a certified resolution may accept the resignation of or remove any co-
fiscal agent or separate fiscal agent appointed under this Section 7.14 and in case an Event of Default shall
have occurred and be continuing, the Fiscal Agent shall have power to accept the resignation of or remove
any such co-fiscal agent or separate fiscal agent without the concurrence of the Governmental Lender, and
upon the request of the Fiscal Agent, the Governmental Lender shall join with the Fiscal Agent in the
execution, delivery and performance of all instruments and agreements necessary or proper to effectuate
47
4868-2375-4370.7
such resignation or removal. A successor to any co-fiscal agent or separate fiscal agent so resigned or
removed may be appointed in the manner provided in this Section 7.14;
(f) no Fiscal Agent or co-fiscal agent hereunder shall be personally liable by reason of any act
or omission of any other Fiscal Agent hereunder;
(g) any demand, request, direction, appointment, removal, notice, consent, waiver or other
action in writing executed by the Funding Lender Representative and delivered to the Fiscal Agent shall be
deemed to have been delivered to each such co-fiscal agent or separate fiscal agent; and
(h) any money, papers, securities or other items of personal property received by any such co-
fiscal agent or separate fiscal agent hereunder shall forthwith, so far as may be permitted by law, be turned
over to the Fiscal Agent.
The total compensation of the Fiscal Agent and any co fiscal agent or separate fiscal agent shall be
as, and may not exceed the amount, provided in Section 7.06 hereof.
Section 7.15 Notice of Certain Events. The Fiscal Agent shall give written notice to the
Borrower, the Governmental Lender, the Servicer and the Funding Lender Representative of any failure by
the Borrower to comply with the terms of the Tax Regulatory Agreement or any Determination of Taxability
of which a Responsible Officer has actual knowledge.
Section 7.16 [Reserved].
Section 7.17 Filing of Financing Statements. The Fiscal Agent shall cause to be filed a
continuation statement with respect to each Uniform Commercial Code financing statement relating to the
Funding Loan on which it is listed as a secured party, and which was filed at the time of the issuance of the
Funding Loan, in such manner and in such places as the initial filings (copies of which shall be provided to
the Fiscal Agent by the Governmental Lender) were made. The Borrower shall be responsible for the
reasonable costs incurred by the Fiscal Agent in the preparation and filing of all such continuation
statements hereunder. Notwithstanding anything to the contrary contained herein, the Fiscal Agent shall
not be responsible for any initial filings of any financing statements or the information contained therein
(including the exhibits thereto), the perfection of any such security interests, or the accuracy or sufficiency
of any description of collateral in such initial filings or for filing any modifications or amendments to the
initial filings required by any amendments to Article 9 of the Uniform Commercial Cod e, and unless the
Fiscal Agent shall have been notified by the Funding Lender that any such initial filing or description of
collateral was or has become defective, the Fiscal Agent shall be fully protected in relying on such initial
filing and descriptions in filing any continuation statements or modifications thereto pursuant to this Section
7.17 and in filing any continuation statements in the same filing offices as the initial filings were made.
Section 7.18 USA Patriot Act Requirements of the Fiscal Agent. To help the government of
the United States of America fight the funding of terrorism and money laundering activities, federal law
requires all financial institutions to obtain, verify, and record information that identifies each person who
opens an account. For a non-individual Person such as a business entity, a charity, a trust, or other legal
entity, the Fiscal Agent may request documentation to verify such Person’s formation and existence as a
legal entity. The Fiscal Agent may also request financial statements, licenses, identification and
authorization documents from individuals claiming authority to represent such Person or other relevant
documentation.
48
4868-2375-4370.7
ARTICLE VIII
AMENDMENTS OF CERTAIN DOCUMENTS
Section 8.01 Amendments to this Funding Loan Agreement. Any of the terms of this Funding
Loan Agreement and the Governmental Lender Note may be amended or waived only by an instrument
signed by the Fiscal Agent and the Governmental Lender, and with the prior written consent of the Funding
Lender Representative.
Section 8.02 Amendments to Financing Documents Require Consent of Funding Lender
Representativeand Governmental Lender. Neither the Governmental Lender nor the Fiscal Agent shall
consent to any amendment, change or modification of any Financing Document without the prior written
consent of the Funding Lender Representative. The Fiscal Agent shall enter into such amendments to the
Financing Documents as shall be directed by the Funding Lender Representative, including entering into
the amendments attached as exhibits to the Forward Purchase Agreement on the Conversion Date. No
amendments to the Financing Documents shall be effective without the consent of the Governmental
Lender.
Section 8.03 Opinion of Bond Counsel Required. No amendment to this Funding Loan
Agreement, the Governmental Lender Note, the Construction Phase Borrower Loan Agreement or the
Construction Phase Borrower Note, the Security Instrument or the Tax Regulatory Agreement (including,
without limitation, the expected amendment and restatement of the Funding Loan Agreement and the
Construction Phase Borrower Loan Agreement on the Conversion Date), shall become effective unless and
until (i) the Funding Lender Representative shall have consented to the same in writing in its sole discretion
and (ii) the Funding Lender Representative, the Governmental Lender and the Fiscal Agent shall have
received, at the expense of the Borrower, (A) an opinion of Bond Counsel to the effect that such amendment,
change or modification will not, in and of itself, cause interest on the Governmental Lender Note to be
includable in gross income of the holders thereof for federal income tax purposes, and (B) an opinion of
counsel acceptable to the Funding Lender Representative to the effect that any such proposed amendment,
change or modification is authorized and complies with the provisions of this Funding Loan Agreement
and is a legal, valid and binding obligation of the parties thereto, subject to normal exceptions relating to
bankruptcy, insolvency and equitable principles limitations.
ARTICLE IX
SATISFACTION AND DISCHARGE OF FUNDING LOAN AGREEMENT
Section 9.01 Discharge of Lien. If the Governmental Lender shall pay or cause to be paid to
the Funding Lender the principal, interest and premium, if any, to become due with respect to the Funding
Loan at the times and in the manner stipulated herein and in the Governmental Lender Note, in any one or
more of the following ways:
(a) by the payment of all unpaid principal of and interest on the Funding Loan; or
(b) by the delivery of the Governmental Lender Note by the Funding Lender to the Fiscal
Agent for cancellation;
and shall have paid all amounts due and owing under the other Financing Documents, and shall have paid
all fees and expenses of and any other amounts due to the Fiscal Agent, the Servicer and the Rebate Analyst,
and if the Governmental Lender shall keep, perform and observe all and singular the covenants and
promises in the Governmental Lender Note and in this Funding Loan Agreement expressed as to be kept,
performed and observed by it or on its part, then these presents and the estates and rights hereby granted
49
4868-2375-4370.7
shall cease, determine and be void, and thereupon the Fiscal Agent shall cancel and discharge the lien of
this Funding Loan Agreement and execute and deliver to the Governmental Lender such instruments in
writing as shall be requisite to satisfy the lien hereof, and reconvey to the Governmental Lender the estate
hereby conveyed, and assign and deliver to the Governmental Lender any interest in property at the time
subject to lien of this Funding Loan Agreement which may then be in its possession, except amounts held
by the Fiscal Agent for the payment of principal of, interest and premium, if any, on the Governmental
Lender Note, the payment of any amounts owed to the United States of America pursuant to Section 4.12
hereof.
Section 9.02 Discharge of Liability on Funding Loan. Upon the deposit with the Fiscal Agent,
in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 9.01
above) to pay or prepay the Funding Loan (whether upon or prior to their maturity or the prepayment date
of the Funding Loan) provided that, if the Funding Loan is to be prepaid prior to the maturity thereof, notice
of such prepayment shall have been given as in Article III provided or provision satisfactory to the Fiscal
Agent shall have been made for the giving of such notice, all liability of the Governmental Lender in respect
of the Funding Loan shall cease, terminate and be completely discharged, except only that thereafter the
Funding Lender shall be entitled to payment by the Governmental Lender, and the Governmental Lender
shall remain liable for such payment, but only out of the money or securities deposited with the Fiscal Agent
as aforesaid for their payment, subject, however, to the provisions of Section 9.03 hereof. Any deposit
pursuant to this Section shall be verified by a verification agent acceptable to the Trustee and the
Governmental Lender pursuant to a verification report acceptable to the Trustee, the Governmental Lender
and Bond Counsel.
Section 9.03 Payment of Funding Loan After Discharge of Funding Loan Agreement.
Notwithstanding any provisions of this Funding Loan Agreement, any money deposited with the Fiscal
Agent or any paying agent in trust for the payment of the principal of, interest or premium on the
Governmental Lender Note remaining unclaimed for one (1) year after the maturity or earlier payment date:
to the extent permitted by applicable law, shall be paid to the Borrower, whereupon all liability of the
Governmental Lender and the Fiscal Agent with respect to such money shall cease, and the Funding Lender
shall thereafter look solely to the Borrower for payment of any amounts then due. All money held by the
Fiscal Agent and subject to this Section 9.03 shall be held uninvested and without liability for interest
thereon.
ARTICLE X
INTENTIONALLY OMITTED
ARTICLE XI
MISCELLANEOUS
Section 11.01 Servicing of the Funding Loan. The Funding Lender Representative may appoint
a Servicer (which may be the Funding Lender Representative if the Funding Lender Representative elects
to service the Funding Loan) to service the Funding Loan as provided in Section 3.02 of the Construction
Phase Borrower Loan Agreement.
Section 11.02 Limitation of Rights. With the exception of rights herein expressly conferred,
nothing expressed or to be implied from this Funding Loan Agreement or the Governmental Lender Note
is intended or shall be construed to give to any Person other than the Parties hereto, the Fundin g Lender,
the Funding Lender Representative, the Servicer and the Borrower, any legal or equitable right, remedy or
claim under or in respect to this Funding Loan Agreement or any covenants, conditions and provisions
hereof.
50
4868-2375-4370.7
Section 11.03 Construction of Conflicts; Severability. Notwithstanding anything provided
herein, or in any of the documents referred to herein, in the event that any contracts or other documents
executed by the Borrower or any other arrangements agreed to by the Borrower in order to finance or
refinance the Project with the proceeds of the Funding Loan, the interest on which is excluded from gross
income for federal income tax purposes under Section 103(a) of the Code are inconsistent with the
Borrower Loan Documents, then the Borrower Loan Documents shall be controlling in all respects. If any
provision of this Funding Loan Agreement shall be held or deemed to be, or shall in fact be inoperative or
unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisd ictions, or
in all cases because it conflicts with any other provision or provisions hereof or any constitution, statute,
rule of law or public policy, or for any other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any
extent whatever.
The invalidity of any one or more phrases, sentences, clauses or sections in this Funding Loan
Agreement contained, shall not affect the remaining portions of this Funding Loan Agreement, or any part
thereof.
Section 11.04 Notices.
(a) Whenever in this Funding Loan Agreement the giving of notice by mail or otherwise is
required, the giving of such notice may be waived in writing by the Person entitled to receive such notice
and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
Any notice, request, complaint, demand, communication or other paper required or permitted to be
delivered to the Governmental Lender, the Fiscal Agent, the Funding Lender Representative, the Borrower
or the Servicer shall be sufficiently given and shall be deemed given (unless another form of notice shall
be specifically set forth herein) on the Business Day following the date on which such notice or other
communication shall have been delivered to a national overnight delivery service (receipt of which to be
evidenced by a signed receipt from such overnight delivery service) addressed to the appropriate party at
the addresses set forth below or as may be required or permitted by this Funding Loan Agreement by
Electronic Notice. The Governmental Lender, the Fiscal Agent, the Funding Lender Representative, the
Borrower or the Servicer may, by notice given as provided in this paragraph, designate any further or
different address to which subsequent notices or other communication shall be sent.
The Governmental Lender: Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Executive Director
Email: cgulley@hfamiami.com
Telephone: (305) 594-2518
with copy to: Miami-Dade County Attorney’s Office
111 N.W. First Street, Suite 2810
Miami, Florida 33128
Attention: David S. Hope, Esq.
Email: dhope@miamidade.gov
The Fiscal Agent: The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
51
4868-2375-4370.7
Attention: Corporate Trust Department
Email: Heidi.bowers@bnymellon.com
Telephone: (904) 645-1983
The Borrower: Vista Breeze, Ltd.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Telephone: (305) 357-4700
Email: knaylor@apcompanies.com
with a copy to: Klein Hornig LLP
1325 G. Street NW, Suite 770
Washington, DC 20005
Attention: Chris Hornig
Email: chornig@kleinhornig.com
Tel: (202) 926-3402
52
4868-2375-4370.7
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
(which copy shall not constitute notice to Borrower)
150 W. Flagler Street
Miami, Florida 33130
Attention: Brian McDonough, Esq.
Email: bmcdonough@stearnsweaver.com
Telephone: (305) 789-3350
Fox Rothschild LLP
BNY Mellon Center
500 Grant Street, Suite 2500
Pittsburg, Pennsylvania 15219
Attention: Alec Stone
Email: ajstone@foxrothschild.com
Telephone: (412) 391-2523
with a copy to: Bank of America, N.A.
MA5-100-04-11
100 Federal Street
Boston, MA 02110
Attention: Tax Credit Asset Management (Vista Breeze)
Email: LIHTCreporting@bofa.com
with a copy to: Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
Attention: Sara C. Heskett, Esq.
Email: sara.heskett@hklaw.com
Telephone: (503) 243-5860
Funding Lender
Representative: Bank of America, N.A.
401 E. Las Olas Boulevard, 9th Floor
Fort Lauderdale, Florida 33301
Attention: Ben Rosenbaum
Email: Binyamin.rosenbaum@bofa.com
Telephone: (954) 765-2079
with a copy to: Holland & Knight LLP
31 West 52nd Street, 11th Floor
New York, New York 10019
Email: Kathleen.furey@hklaw.com
Telephone: (212) 513-3479
A duplicate copy of each notice or other communication given hereunder by any party to the
Servicer shall also be given to the Funding Lender Representative and by any party to the Funding Lender
Representative to the Servicer.
The Fiscal Agent agrees to accept and act upon Electronic Notice of written instructions and/or
directions pursuant to this Funding Loan Agreement.
53
4868-2375-4370.7
(b) The Fiscal Agent shall provide to the Funding Lender Representative and the Servicer
(i) prompt notice of the occurrence of any Event of Default pursuant to Section 6.01 hereof and (ii) any
written information or other written communication received by the Fiscal Agent hereunder within ten
(10) Business Days of receiving a written request from the Funding Lender Representative and the Servicer
for any such information or other communication.
(c) The Fiscal Agent shall have the right to accept and act upon instructions, including funds
transfer instructions (“Instructions”) given pursuant to this Agreement and related financing documents and
delivered using Electronic Means; provided, however, that the Governmental Lender and/or the Borrower,
as applicable, shall provide to the Fiscal Agent an incumbency certificate listing officers with the authority
to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such
Authorized Officers, which incumbency certificate shall be amended by the Governmental Lender and/or
the Borrower, as applicable, whenever a person is to be added or deleted from the listing. If the
Governmental Lender and/or the Borrower, as applicable, elects to give the Fiscal Agent Instructions using
Electronic Means and the Fiscal Agent in its discretion elects to act upon such Instructions, the Fiscal
Agent’s understanding of such Instructions shall be deemed controlling. The Governmental Lender and
the Borrower understand and agree that the Fiscal Agent cannot determine the identity of the actual sender
of such Instructions and that the Fiscal Agent shall conclusively presume that directions that purport to have
been sent by an Authorized Officer listed on the incumbency certificate provided to the Fiscal Agent have
been sent by such Authorized Officer. The Governmental Lender and the Bor rower shall be responsible
for ensuring that only Authorized Officers transmit such Instructions to the Fiscal Agent and that the
Governmental Lender, the Borrower and all Authorized Officers are solely responsible to safeguard the use
and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon
receipt by the Governmental Lender and/or the Borrower, as applicable. The Fiscal Agent shall not be
liable for any losses, costs or expenses arising directly or indirec tly from the Fiscal Agent’s reliance upon
and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a
subsequent written instruction. The Governmental Lender and the Borrower agree: (i) to assume all risks
arising out of the use of Electronic Means to submit Instructions to the Fiscal Agent, including without
limitation the risk of the Fiscal Agent acting on unauthorized Instructions, and the risk of interception and
misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various
methods of transmitting Instructions to the Fiscal Agent and that there may be more secure methods of
transmitting Instructions than the method(s) selected by the Governmental Lender and/or the Borrower, as
applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of
Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and
circumstances; and (iv) to notify the Fiscal Agent immediately upon learning of any compromise or
unauthorized use of the security procedures. ”Electronic Means” shall mean the following communications
methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization
codes, passwords and/or authentication keys issued by the Fiscal Agent, or another method or system
specified by the Fiscal Agent as available for use in connection with its services hereunder.
Section 11.05 Funding Lender Representative.
(a) The Initial Funding Lender is the initial Funding Lender Representative with respect to the
Governmental Lender Note. The Funding Lender Representative shall be entitled to all the rights and
privileges of the Funding Lender hereunder and under the other Financing Documents.
(b) The Funding Lender Representative may provide written notice to the Fiscal Agent
designating particular individuals or Persons authorized to execute any consent, waiver, approval, direction
or other instrument on behalf of the Funding Lender Representative, and such notice may be amended or
rescinded by the Funding Lender Representative at any time by subsequent written notice. The Funding
Lender Representative may be removed and a successor appointed by a written notice in the form of Exhibit
B hereto given by the Funding Lender to the Fiscal Agent, the Governmental Lender, the Servicer and the
54
4868-2375-4370.7
Borrower. The removal and reappointment shall be effective immediately upon receipt of such notice by
the Fiscal Agent. The Funding Lender may appoint any Person to act as Funding Lender Representative,
including, without limitation, the Servicer. If, for any reason, a Funding Lender Representative resigns by
written notice provided to the Fiscal Agent, the Funding Lender, the Governmental Lender, the Servicer
and the Borrower, all references to Funding Lender Representative herein and in the other Financing
Documents shall be deemed to refer to the Funding Lender until a successor Funding Lender Representative
is appointed by the Funding Lender.
(c) Whenever pursuant to this Funding Loan Agreement or any other Financing Document,
the Funding Lender Representative exercises any right given to it to approve or disapprove, any
arrangement or term hereof, the decision of the Funding Lender Representative to approve or disapprove
or to decide whether arrangements or terms are acceptable or not acceptable shall be in the sole discretion
of the Funding Lender Representative, except as otherwise specifically indicated.
(d) Each Funding Lender, by their purchase or other acquisition of the Funding Loan, shall be
deemed to have acknowledged and agreed to the provisions of this Funding Loan Agreement and the other
Financing Documents with respect to the Funding Lender Representative and the rights and privileges
thereof, including but not limited to the right to control all remedies in respect of the Governmental Lender
Note and the Funding Loan.
Section 11.06 Payments Due on Non-Business Days. In any case where a date of payment with
respect to the Funding Loan shall be a day other than a Business Day, then such payment need not be made
on such date but may be made on the next succeeding Business Day with the same force and effect as if
made on such date, and no interest shall accrue for the period after such date provided that payment is made
on such next succeeding Business Day.
Section 11.07 Counterparts. This Funding Loan Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 11.08 Laws Governing Funding Loan Agreement. The effect and meanings of this
Funding Loan Agreement and the rights of all parties hereunder shall be governed by, and construed
according to, the internal laws of the State without regard to conflicts of laws principles.
Section 11.09 No Recourse. No recourse under or upon any obligation, covenant or agreement
contained in this Funding Loan Agreement or in the Governmental Lender Note shall be had against any
member, officer, commissioner, director or employee (past, present or future) of the Governmental Lender,
either directly or through the Governmental Lender or its governing body or otherwise, for the payment for
or to the Governmental Lender or any receiver thereof, or for or to the Funding Lender, or otherwise, of
any sum that may be due and unpaid by the Governmental Lender or its governing body upon the
Governmental Lender Note. Any and all personal liability of every nature whether at common law or in
equity or by statute or by constitution or otherwise of any such member, officer, commissioner, director or
employee, as such, to respond by reason of any act of omission on his/her part or otherwise, for the payment
for or to the Funding Lender or otherwise of any sum that may remain due and unpaid with respect to the
Funding Loan hereby secured is, by the acceptance hereof, expressly waived and released as a condition of
and in consideration for the execution of this Funding Loan Agreement and the delivery of the
Governmental Lender Note.
55
4868-2375-4370.7
Section 11.10 Successors and Assigns. All the covenants and representations contained in this
Funding Loan Agreement by or on behalf of the parties hereto shall bind and inure to the benefit of their
successors and assigns, whether so expressed or not.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Governmental Lender, the Initial Funding Lender and the Fiscal Agent have caused this Funding Loan Agreement to be executed and delivered by duly authorized officers thereof as of the day and year first written above. HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, sas Governmental Lender hk Name: Don L. Horn Title: Chair [GOVERNMENTAL LENDER’S SIGNATURE PAGE TO VISTA BREEZE FUNDING LOAN AGREEMENT (CONSTRUCTION PHASE)] S-1 4868-2375-4370.5
BANK OF AMERICA, N.A., as Funding Lender
w Ludsnrdraftluraail
Cassandra Sliven
Senior Vice tien ent
[INITIAL FUNDING LENDER’S SIGNATURE PAGE TO
VISTA BREEZE FUNDING LOAN AGREEMENT (CONSTRUCTION PHASE)]
S-2
4868-2375-4370.2
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Fiscal Agent
hanie A. Gregne-Matthews
Title: Vice President
[FISCAL AGENT’S SIGNATURE PAGE TO
VISTA BREEZE FUNDING LOAN AGREEMENT (CONSTRUCTION PHASE)]
S-3
4868-2375-4370.5
A-1
4868-2375-4370.7
EXHIBIT A
FORM OF GOVERNMENTAL LENDER NOTE
BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS NOTE AGREES (A) THAT,
(I) IF APPLICABLE, IT HAS EXECUTED A TRANSFEREE REPRESENTATIONS
LETTER IN SUBSTANTIALLY THE FORM REQUIRED BY THE FUNDING LOAN
AGREEMENT, AND (II) THAT IT WILL NOT SELL OR OTHERWISE TRANSFER
THIS NOTE, OR ANY INTERESTS HEREIN, EXCEPT AS PROVIDED IN THE
FUNDING LOAN AGREEMENT, AND (B) THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
UNITED STATES OF AMERICA
HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA
Multifamily Housing Revenue Note, Series 2023
(Vista Breeze)
US $32,500,000 December 15, 2023
FOR VALUE RECEIVED, the undersigned, HOUSING FINANCE AUTHORITY OF MIAMI-
DADE COUNTY, FLORIDA (the “Obligor”), promises to pay (but solely from the sources and in the
manner provided for in the Funding Loan Agreement referenced below) to the order of BANK O F
AMERICA, N.A. (the “Funding Lender”), and its assigns, the maximum principal sum of THIRTY-TWO
MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS (US $32,500,000.00), plus
premium, if any, and interest thereon and to pay the other amounts owing from time to time hereunder, all
as set forth below.
This Multifamily Housing Revenue Note, Series 2023 (Vista Breeze) (this “Note”) is being
delivered pursuant to that certain Funding Loan Agreement dated as of December 1, 2023 (together with
any and all amendments, modifications, supplements and restatements, the “Funding Loan Agreement”),
among the Funding Lender, the Obligor and THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A. (the “Fiscal Agent”), pursuant to which the Obligor has incurred a loan in the maximum aggregate
principal amount of $32,500,000 (the “Funding Loan”), and this Note is entitled to the benefits of the
Funding Loan Agreement and is subject to the terms, conditions and provisions thereof. The Obligor is
using the proceeds of the Funding Loan to make a loan to VISTA BREEZE, LTD., a Florida limited
partnership (the “Borrower”) pursuant to the Construction Phase Borrower Loan Agreement dated as of
December 1, 2023 (the “Construction Phase Borrower Loan Agreement”), among the Obligor, the
Borrower and the Fiscal Agent. The outstanding principal balance of this Note at any time shall be an
amount equal to the proceeds of the Funding Loan advanced by the Funding Lender under the Funding
Loan Agreement and not otherwise prepaid.
1. Defined Terms. As used in this Note, (i) the term “Funding Lender” means the holder of
this Note, and (ii) the term “Indebtedness” means the principal of, premium, if any, and interest on or any
other amounts due at any time under this Note or the Funding Loan Agreement. “Event of Default” and
other capitalized terms used but not defined in this Note shall have the meanings given to such term in the
Funding Loan Agreement.
2. Payments of Principal and Interest. The Obligor shall pay (but solely from the sources
and in the manner provided for in the Funding Loan Agreement) on the first calendar day of each month
A-2
4868-2375-4370.7
commencing January 1, 2024, interest on this Note at the Construction Phase Interest Rate, and shall also
pay interest on this Note at the foregoing rate on the date of any optional or mandatory prepayment or
acceleration of all or part of the Funding Loan pursuant to the Funding Loan Agreement, in an amount
equal to the accrued and unpaid interest to the date of prepayment on the portion of this Note subject to
prepayment (each such date for payment an “Interest Payment Date”). Interest shall accrue on the
principal amount of the Funding Loan which has been advanced under the Funding Loan Agreement and
is outstanding as reflected on the Record of Advances.
The Obligor shall pay (but solely from the sources and in the manner provided for in the Funding
Loan Agreement) the outstanding principal of this Note in full on July 1, 2057 (the “Maturity Date”) and
in monthly installments on each date set forth on the Funding Loan Amortization Schedule attached as
Schedule 1 hereto in an amount equal to the corresponding amounts set forth thereon (as such Schedule 1
may be replaced by a new Funding Loan Amortization Schedule as provided in Section 2.01(e) of the
Funding Loan Agreement) or at such earlier times and in such amounts as may be required, in the event of
an optional or mandatory prepayment or acceleration of the Funding Loan pursuant to the Funding Loan
Agreement. The outstanding principal hereof is subject to acceleration at the time or times and under the
terms and conditions, and with notice, if any, as provided under the Funding Loan Agreement.
3. Manner of Payment. All payments under this Note shall be made in lawful currency of
the United States and in immediately available funds as provided for herein and in the Funding Loan
Agreement.
4. Application of Payments. If at any time the Funding Lender receives any amount
applicable to the Indebtedness which is less than all amounts due and payable at such time, the Funding
Lender may apply that payment to amounts then due and payable in any manner and in any order determined
by the Funding Lender, in the Funding Lender’s discretion. Neither the Funding Lender’s acceptance of a
payment in an amount that is less than all amounts then due and payable nor the Funding Lender’s
application of such payment shall constitute or be deemed to constitute either a waiver of the unpaid
amounts or an accord and satisfaction.
5. Security. The Indebtedness is secured by, among other things, the Pledged Security
pledged pursuant to the Funding Loan Agreement.
6. Acceleration. If an Event of Default has occurred and is continuing, the entire unpaid
principal balance, any accrued interest, and all other amounts payable under this Note shall at once become
due and payable, at the option of the Funding Lender, as governed by the Funding Loan Agreement, without
any prior notice to the Obligor (unless required by applicable law). The Funding Lender may exercise this
option to accelerate regardless of any prior forbearance.
7. Prepayment; Prepayment Premium. This Note is subject to prepayment as specified in
the Funding Loan Agreement. Prepayment Premium, if any, shall be payable as specified in the Funding
Loan Agreement.
8. Forbearance. Any forbearance by the Funding Lender in exercising any right or remedy
under this Note or any other document evidencing or securing the Funding Loan or otherwise afforded by
applicable law, shall not be a waiver of or preclude the exercise of that or any other right or remedy. The
acceptance by the Funding Lender of any payment after the due date of such payment, or in an amount
which is less than the required payment, shall not be a waiver of the Funding Lender’s right to require
prompt payment when due of all other payments or to exercise any right or remedy with respect to any
failure to make prompt payment. Enforcement by the Funding Lender of any security for the obligations
under this Note shall not constitute an election by the Funding Lender of remedies so as to preclude the
exercise of any other right or remedy available to the Funding Lender.
A-3
4868-2375-4370.7
9. Waivers. Presentment, demand, notice of dishonor, protest, notice of acceleration, notice
of intent to demand or accelerate payment or maturity, presentment for payment, notice of nonpayment,
grace and diligence in collecting the Indebtedness are waived by the Obligor and all endorsers and
guarantors of this Note and all other third-party obligors.
10. Loan Charges. Neither this Note nor any of the other Financing Documents will be
construed to create a contract for the use, forbearance, or detention of money requiring payment of interest
at a rate greater than the rate of interest which results in the maximum amount of interest allowed by
applicable law (the “Maximum Interest Rate”). If any applicable law limiting the amount of interest or
other charges permitted to be collected from Obligor in connection with the Funding Loan is interpreted so
that any interest or other charge provided for in any Financing Document, whether considered separately
or together with other charges provided for in any other Financing Document, violates that law, and Obligor
is entitled to the benefit of that law, that interest or charge is hereby reduced to the extent necessary to
eliminate that violation. The amounts, if any, previously paid to Funding Lender in excess of the permitted
amounts will be applied by Funding Lender to reduce the unpaid principal balance of this Note. For the
purpose of determining whether any applicable law limiting the amount of interest or other charges
permitted to be collected from Obligor has been violated, all indebtedness that constitutes interest, as well
as all other charges made in connection with the indebtedness that constitute interest, will be deemed to be
allocated and spread ratably over the stated term of this Note. Unless otherwise required by applicable law,
such allocation and spreading will be effected in such a manner that the rate of interest so computed is
uniform throughout the stated term of this Note.
11. Governing Law. This Note shall be governed by the internal laws of the State of Florida.
12. Captions. The captions of the paragraphs of this Note are for convenience only and shall
be disregarded in construing this Note.
13. Address for Payment. All payments due under this Note shall be payable at the principal
office of the Funding Lender as designated by the Funding Lender in writing to the Fiscal Agent and the
Servicer.
14. Default Rate. So long as (a) any monthly installment under this Note remains past due,
or (b) any other Event of Default has occurred and is continuing, interest under this Note shall accrue on
the unpaid principal balance from the earlier of the due date of the first unpaid monthly installment or the
occurrence of such other Event of Default, as applicable, at a rate (the “Default Rate”) equal to the lesser
of (i) the Construction Phase Interest Rate, otherwise in effect notwithstanding the default plus four percent
(4%) per annum or (ii) the Maximum Interest Rate. If the unpaid principal balance and all accrued interest
are not paid in full on the Maturity Date, the unpaid principal balance and all accrued interest shall bear
interest from the Maturity Date at the Default Rate.
15. Revenue Obligation. THE OBLIGATIONS OF THE OBLIGOR WITH RESPECT TO
THIS NOTE ARE NOT GENERAL OR SPECIAL OBLIGATIONS OF THE OBLIGOR BUT ARE
REVENUE OBLIGATIONS OF THE OBLIGOR PAYABLE BY THE OBLIGOR SOLELY FROM THE
PLEDGED SECURITY. THIS NOTE SHALL NOT BE A DEBT OF THE STATE, MIAMI-DATE
COUNTY, FLORIDA (THE “COUNTY”), THE OBLIGOR OR OF ANY OTHER POLITICAL
SUBDIVISION OF THE STATE, AND NONE OF THE STATE, THE COUNTY, THE OBLIGOR, OR
ANY OTHER POLITICAL SUBDIVISION OF THE STATE SHALL BE LIABLE FOR THE PAYMENT
OF THIS NOTE. THE FAITH AND CREDIT OF THE STATE, THE COUNTY OR OF ANY OTHER
POLITICAL SUBDIVISION OF THE STATE ARE NOT PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF OR INTEREST ON THIS NOTE. THE OBLIGOR HAS NO TAXING POWER.
A-4
4868-2375-4370.7
IN WITNESS WHEREOF, the Obligor has caused this Note to be duly executed by the manual
or facsimile signature of its Chair and attested by the manual or facsimile signature of its Assistant
Secretary.
HOUSING FINANCE AUTHORITY OF
MIAMI-DADE COUNTY, FLORIDA
[SEAL]
ATTEST: By:
Name: Don L. Horn
Title: Chair
Assistant Secretary
A-5
4868-2375-4370.7
CERTIFICATE OF AUTHENTICATION
This Note is issued under the provisions of and described in the within-mentioned Funding Loan
Agreement.
Date of Authentication: _______________ THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
By:
Authorized Signor
SCHEDULE 1
FUNDING LOAN AMORTIZATION SCHEDULE
4868-2375-4370.7
A-6
4868-2375-4370.7
SCHEDULE 1
FUNDING LOAN AMORTIZATION SCHEDULE
B-1
4868-2375-4370.7
EXHIBIT B
FORM OF NOTICE OF APPOINTMENT
OF FUNDING LENDER REPRESENTATIVE
Date: _______________
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Department
Vista Breeze, Ltd.
c/o Atlantic Pacific Communities, LLC
161 NW 6th Street, Suite 1020
Miami, Florida 33136
Attention: Kenneth Naylor
Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Executive Director
Re: Vista Breeze
Ladies and Gentlemen:
The undersigned is the holder (the “Funding Lender”) of the Multifamily Housing Revenue Note,
Series 2023 (Vista Breeze) dated December 15, 2023 (the “Governmental Lender Note”) delivered
pursuant to the Funding Loan Agreement dated as of December 1, 2023 (the “Funding Loan Agreement”),
among BANK OF AMERICA, N.A., in its capacity as Initial Funding Lender (the “Initial Funding
Lender”), the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a public
body corporate and politic created, organized and existing under the laws of the State of Florida (the
“Governmental Lender”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as fiscal agent (the “Fiscal Agent”). Pursuant to Section 11.05 of the Funding
Loan Agreement, you are hereby notified that, effective immediately upon receipt of this notice by the
Fiscal Agent, the Funding Lender Representative appointed under Section 11.05 of the Funding Loan
Agreement shall be _____________________________. [The person or entity previously appointed as
Funding Lender Representative shall upon the effectiveness of this notice no longer have any further rights
or obligations as Funding Lender Representative.]
The following individual or individuals shall have the authority to execute any consent, waiver,
approval, direction or other instrument on behalf of the Funding Lender Representative and the signature(s)
set forth next to his/her (their) name(s) is (are) his/her (their) true and correct signature(s).
NAME SIGNATURE
B-2
4868-2375-4370.7
Additional individuals may be given such authority by written notice to you from the Funding Lender
Representative or from the Funding Lender.
[FUNDING LENDER SIGNATURE BLOCK]
By:
Name:
Title:
C-1
4868-2375-4370.7
EXHIBIT C
FORM OF TRANSFEREE REPRESENTATIONS LETTER
[To be prepared on letterhead of transferee]
Date: ___________________
Housing Finance Authority of Miami-Dade County, Florida
7855 NW 12th Street, Suite 202
Doral, Florida 33126
Attention: Executive Director
The Bank of New York Mellon Trust Company, N.A.
4655 Salisbury Road, Suite 300
Jacksonville, Florida 32256
Attention: Corporate Trust Department
Re: Vista Breeze
Ladies and Gentlemen:
The undersigned (the “Funding Lender”) hereby acknowledges receipt of the Multifamily Housing
Revenue Note, Series 2023 (Vista Breeze) dated December 15, 2023 (the “Governmental Lender Note”)
delivered pursuant to the Funding Loan Agreement dated as of December 1, 2023 (the “Funding Loan
Agreement”), among BANK OF AMERICA, N.A., in its capacity as Initial Funding Lender (the “Initial
Funding Lender”), the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a
public body corporate and politic created, organized and existing under the laws of the State of Florida (the
“Governmental Lender”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as fiscal agent (the “Fiscal Agent”). Capitalized terms used herein and not
otherwise defined have the meanings given to such terms in the Funding Loan Agreement.
In connection with the [origination/purchase] of the Funding Loan by the Funding Lender, the
Funding Lender hereby makes the following representations upon which you may rely:
1. The Funding Lender has authority to [originate/purchase] the Funding Loan and to execute
this letter, and any other instruments and documents required to be executed by the Funding Lender in
connection with the [origination/purchase] of the Funding Loan.
2. The Funding Lender is an “accredited investor” under Regulation D of the Securities Act
of 1933 (the “Act”) or a “qualified institutional buyer” under Rule 144(a) of said Act (such “accredited
investor” or “qualified institutional buyer”, a “Qualified Transferee”), and therefore, has sufficient
knowledge and experience in financial and business matters, including purchase and ownership of
municipal and other tax-exempt obligations, to be able to evaluate the risks and merits of the investment
represented by the Funding Loan.
3. The Funding Lender acknowledges that it is [originating/purchasing] the Funding Loan for
investment for its own account and not with a present view toward resale or the distribution thereof (except
as set forth below), in that it does not now intend to resell or otherwi se dispose of all or any part of its
interests in the Funding Loan (except as set forth below); provided, however, that the Funding Lender may,
C-2
4868-2375-4370.7
notwithstanding the foregoing and the terms of Paragraph 4 below, (i) transfer the Funding Loan to any
affiliate or other party related to the Funding Lender that is a Qualified Transferee or (ii) sell or transfer the
Funding Loan to a special purpose entity, a trust or a custodial or similar pooling arrangement from which
the Funding Loan or securitized interests therein are not expected to be sold except to (x) owners or
beneficial owners thereof that are Qualified Transferees or (y) in circumstances where secondary market
credit enhancement is provided for such securitized interests resulting in a rating thereof of at least “A” or
better [INSERT FOR INITIAL FUNDING LENDER TRANSFEREE REPRESENTATION LETTER;
provided, further, however, the Funding Lender has originated and funded the Funding Loan with the
expectation that the Funding Loan will be sold to Citibank, N.A. on the Conversion Date pursuant to the
Forward Purchase Agreement.
4. In addition to the right to sell or transfer the Funding Loan as set forth in Paragraph 3
above, the Funding Lender further acknowledges its right to sell or transfer the Funding Loan, subject, as
required under the Funding Loan Agreement, to the delivery to the Fiscal Agent of a transferee
representations letter from the transferee to substantially the same effect as this Transferee Representations
Letter or in such other form authorized by the Funding Loan Agreement with no revisions except as may
be approved in writing by the Governmental Lender.
5. The Funding Lender understands that the Governmental Lender Note is not registered
under the Act and that such registration is not legally required as of the date hereof; and further understands
that the Governmental Lender Note (a) is not being registered or otherwise qualified for sale under the
“Blue Sky” laws and regulations of any state, (b) will not be listed in any stock or other securities exchange,
(c) will not carry a rating from any rating service and (d) will be delivered in a form which may not be
readily marketable.
6. The Funding Lender understands that (a) the Funding Loan is not secured by any pledge
of any moneys received or to be received from taxation by the State of Florida or any political subdivision
thereof and that the Governmental Lender has no taxing power, (b) the Funding Loan does not and will not
represent or constitute a general obligation or a pledge of the faith and credit of the Governmental Lender,
the State of Florida or any political subdivision thereof; and (c) the liability of the Governmental Lender
with respect to the Funding Loan is limited to the Pledged Security as set forth in the Funding Loan
Agreement.
7. The Funding Lender has either been supplied with or been given access to information,
including financial statements and other financial information, which it considers necessary to make an
informed decision in connection with the [origination/purchase] of the Funding Loan. The Funding Lender
has not relied upon the Governmental Lender for any information in connection with its purchase of the
Funding Loan.
8. The Funding Lender has made its own inquiry and analysis with respect to the Funding
Loan and the security therefor, and other material factors affecting the security and payment of the Funding
Loan. The Funding Lender is aware that the business of the Borrower involves certain economic variables
and risks that could adversely affect the security for the Funding Loan.
C-3
4868-2375-4370.7
All agreements, representations and warranties made herein shall survive the execution and
delivery of this letter agreement and, notwithstanding any investigation heretofore or hereafter, shall
continue in full force and effect.
[SIGNATURE BLOCK]
By:_____________________________
Name:___________________________
Title:____________________________
D-1
4868-2375-4370.7
EXHIBIT D
PROJECT LOAN FUND REQUISITION
(Project Loan Fund)
Dated: _______________, 2023
The Bank of New York Mellon Trust Company, N.A., as Fiscal Agent
Jacksonville, Florida
Re: Vista Breeze
You are requested to disburse funds from the Project Loan Fund pursuant to Section 4.02 of the
Funding Loan Agreement in the amount(s), to the person(s) and for the purpose(s) set forth in this
requisition (the “Requisition”). The terms used in this requisition shall have the meaning given to those
terms in the Funding Loan Agreement (the “Funding Loan Agreement”), dated as of December 1, 2023,
by and among BANK OF AMERICA, N.A., in its capacity as Initial Funding Lender (the “Initial Funding
Lender”), the HOUSING FINANCE AUTHORITY OF MIAMI-DADE COUNTY, FLORIDA, a public
body corporate and politic created, organized and existing under the laws of the State of Florida (the
“Governmental Lender”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, as fiscal agent (the “Fiscal Agent”), securing the Multifamily Housing
Revenue Note, Series 2023 (Vista Breeze) dated December 15, 2023 (the “Governmental Lender Note”).
REQUISITION NO.:
PAYMENT DUE TO:
AMOUNT(S) TO BE DISBURSED: $__________ from the Project Account
$__________ from the Borrower Equity Account
$__________ from the Subordinate Loan Account
The undersigned Borrower hereby represents and warrants that the following information and
certifications provided in connection with this Requisition are true and correct as of the date hereof and
authorizes Servicer to submit this Requisition to the Fiscal Agent on behalf of Borrower:
1. Purposes for which disbursement is requested are specified in the attached Schedule.
2. Party or parties to whom the disbursements shall be made are specified in the attached
Schedule (may be the undersigned in the case of reimbursement for advances and payments made or cost
incurred for work done by the undersigned); provided, that no reimbursement shall be made for advances
and payments made prior to _________, 20___).
3. The undersigned certifies that:
(a) the conditions precedent to disbursement set forth in the Construction
Disbursement Agreement have been satisfied;
(b) the disbursement requested pursuant to this Requisition will be used solely to pay
a cost or costs allowable under the Funding Loan Agreement and the Construction Disbursement
Agreement;
D-2
4868-2375-4370.7
(c) none of the items for which disbursement is requested pursuant to this Requisition
has formed the basis for any disbursement previously made from the Project Loan Fund and all such items
have been properly recorded in Borrower’s books and are set forth on the Schedule attached hereto, along
with paid invoices attached for any sum for which reimbursement is requested and invoices or bills of sales
for all other items;
(d) all labor and materials for which disbursements have been requested have been
incorporated into the Project in accordance with reasonable and standard building practices, the
Construction Disbursement Agreement and all applicable laws, ordinances, rules and regulations of any
governmental authority having jurisdiction over the Project;
(e) the materials, supplies and equipment furnished or installed for the Improvements
are not subject to any lien or security interest or that the funds to be disbursed pursuant to this Requisition
are to be used to satisfy any such lien or security interest;
(f) all of the funds being requisitioned are being used in compliance with all tax
covenants set forth in the Funding Loan Agreement, the Construction Phase Borrower Loan Agreement,
the Tax Regulatory Agreement and the Tax Certificate, including that none of the proceeds of the Funding
Loan (including investment earnings thereon) will be used to provide an airplane, a skybox or any other
private luxury box, any facility primarily used for gambling, health club facility or any store the principal
business of which is the sale of alcoholic beverages for consumption off premises;
(g) with respect to amounts from the Project Account of the Project Loan Fund, not
less than 95% of the sum of:
(A) the amounts requisitioned by this Requisition; plus
(B) all amounts previously requisitioned and disbursed from the Project Account of
the Project Loan Fund;
have been or will be applied by Borrower to pay the Costs of the Project;
(h) Borrower is not in default under the Construction Phase Borrower Loan
Agreement, the Construction Disbursement Agreement or any other Borrower Loan Document to which it
is a party and nothing has occurred to the knowledge of Borrower that would prevent the performance of
its obligations under such documents;
(i) no amounts being requisitioned hereby will be used to pay, or reimburse, any Costs
of Issuance incurred in connection with the delivery of the Governmental Lender Note or pay debt service
with respect to the Funding Loan; and
(j) Funds deposited with Borrower for further disbursement to third parties shall be
paid to such third parties by check or wire dated the date of such deposit and Borrower reasonably expects
such funds will be disbursed from its account within five Business Days of such deposit.
[Following items may not be required for Initial Disbursement]
D-3
4868-2375-4370.7
4. Estimated costs of completing the uncompleted construction as of the date of this
Requisition: _________________________.
5. Percent of construction completed as of the date this request: ________%.
IN WITNESS WHEREOF, the undersigned has executed this Requisition as of the day and date
first above written.
VISTA BREEZE, LTD.,
a Florida limited partnership
By: APC Vista Breeze, LLC, a Florida limited
liability company, its managing general partner
By: _____________________________
Kenneth Naylor, Vice President
APPROVED:
BANK OF AMERICA, N.A.
By:
Name:
Title:
AMERINAT®
By:
Name:
Title:
E-1
4868-2375-4370.7
EXHIBIT E
CONSTRUCTION PERIOD INTEREST RATE
(a) Daily SOFR Rate; Borrowings; Computations. The unpaid principal balance of
this Note from day to day outstanding which is not past due, shall bear interest at the sum of Daily SOFR
for that day plus the SOFR Margin (the “Daily SOFR Rate”). Notwithstanding anything else herein, if at
any time Daily SOFR or the Successor Rate as so determined would otherwise be less than one-half of one
percent (0.50%), such interest rate will be deemed to be one-half of one percent (0.50%) for the purposes
of this Note and the other Construction Phase Project Loan Documents.
Each Daily SOFR Advance shall be made upon Borrower’s irrevocable notice to Lender, which
may be given by a Draw Request and backup documentation to the extent required by the Construction
Phase Project Loan Documents.
All computations of interest for the Base Rate (to the extent applicable and as hereinafter defined)
shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day
year). Interest shall accrue on each advance of the Construction Phase Project Loan for the day on which
the advance is made, and shall not accrue on an advance, or any portion thereof, for the day on which the
advance or such portion is paid, provided that any advance that is repaid on the same day on which it is
made shall, subject to Section 9, bear interest for one (1) day. Each determination by the Initial Funding
Lender of an interest rate or fee hereunder or under the Construction Phase Project Loan Documents shall
be conclusive and binding for all purposes, absent manifest error. With respect to SOFR or any Successor
Rate, Initial Funding Lender will have the right to make Conforming Changes from time to time and,
notwithstanding anything to the contrary herein or in any other Construction Phase Project Loan Document,
any amendments implementing such Conforming Changes will become effective without any further action
or consent of any other party to the Note or any other Construction Phase Project Loan Document; provided
that, with respect to any such amendment effected, Initial Funding Lender shall deliver each such
amendment implementing such Conforming Changes to Borrower reasonably promptly after such
amendment becomes effective. Initial Funding Lender does not warrant, nor accept responsibility, nor shall
Initial Funding Lender have any liability with respect to the administration, submission or any other matter
related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of
doubt, the selection of such rate and any related spread or other adjustment) that is an alternative or
replacement for or successor to any such rate (including any Successor Rate) or the effect of any of the
foregoing, or of any Conforming Changes. Initial Funding Lender and its affiliates or other related entities
may engage in transactions or other activities that affect any reference rate referred to herein, or any
alternative, successor or replacement rate (including any Successor Rate) (or any component of any of the
foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to Borrower.
Initial Funding Lender may select information sources or services in its reasonable discretion to ascertain
any reference rate referred to herein or any alternative, successor or replacement rate (including any
Successor Rate) (or any component of any of the foregoing), in each case pursuant to the terms of this Note,
and shall have no liability to Borrower or any other person or entity for damages of any kind, including
direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether
in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission
related to or affecting the selection, determination, or calculation of any rate (or component thereof)
provided by any such information source or service.
(b) Illegality. If Initial Funding Lender determines that any Law has made it unlawful, or that
any Governmental Authority (as defined in Section 7) has asserted it is unlawful, for Initial Funding Lender
to make, maintain or fund Construction Phase Project Loan advances whose interest is determined by
reference to SOFR, or any Governmental Authority has imposed material restrictions on the authority of
E-2
4868-2375-4370.7
Initial Funding Lender to engage in reverse repurchase of U.S. Treasury securities transactions of the type
included in the determination of SOFR, or to determine or charge interest rates based upon SOFR, then,
upon notice thereof by Initial Funding Lender to Borrower, any obligation of Initial Funding Lender to
make or maintain Daily SOFR Advances shall be suspended, in each case until Initial Funding Lender
notifies Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand from Initial Funding Lender, convert all Daily SOFR Principal
owed to Initial Funding Lender to Base Rate Principal, provided, however, if and to the extent Initial
Funding Lender has determined that a Law has made it unlawful to convert all such Daily SOFR Principal
to Base Rate Principal, or any Governmental Authority has asserted that such a conversion is unlawful,
Borrower shall, upon demand from Initial Funding Lender, prepay all such Daily SOFR Principal owed to
Initial Funding Lender. Upon any such prepayment or conversion, Borrower shall also pay accrued interest
on the amount so prepaid or converted.
(c) Inability to Determine Rate. If (i) Initial Funding Lender determines (which
determination shall be conclusive absent manifest error) that (A) no Successor Rate for Daily SOFR has
been determined in accordance with Subsection (d) below and the circumstances under clauses (i) or (ii) of
Subsection (d) below or the Scheduled Unavailability Date has occurred (as applicable) with respect to
SOFR, or (B) adequate and reasonable means do not exist for determining SOFR for any determination
date(s) or requested payment period, as applicable, with respect to any proposed or existing advance of the
Construction Phase Project Loan; or (ii) Initial Funding Lender determines that for any reason that Daily
SOFR for any determination date(s) does not adequately and fairly reflect the cost to Initial Funding Lender
of funding any requested advance of the Construction Phase Project Loan, Initial Funding Lender will
promptly so notify Borrower. Thereafter, the obligation of Initial Funding Lender to make or maintain
Daily SOFR Advances shall be suspended, in each case until Initial Funding Lender revokes such notice.
Upon receipt of such notice, (x) Borrower may revoke any pending request for a borrowing at the Daily
SOFR Rate (to the extent of the affected Construction Phase Project Loan advances), or failing that, will
be deemed to have converted such request into a request to borrow the amount specified therein at the Base
Rate if no election is made by Borrower by the date that is three (3) Business Days after receipt by Borrower
of such notice, and (y) all amounts from day to day outstanding which are not past due, shall bear interest
at the Base Rate.
(d) Replacement of SOFR or Successor Rate. Notwithstanding anything to the contrary in
this Note or any other Construction Phase Project Loan Document, if Initial Funding Lender determines
(which determination shall be conclusive absent manifest error), or Borrower notifies Initial Funding
Lender that Borrower has determined, that:
adequate and reasonable means do not exist for ascertaining SOFR because SOFR
is not available or published on a current basis and such circumstances are unlikely to be temporary;
or
the Applicable Authority has made a public statement identifying a specific date
after which SOFR shall or will no longer be made available, or permitted to be used for determining
the interest rate of loans denominated in U.S. Dollars executed in the United States, or shall or will
otherwise cease, provided that, in each case, at the time of such statement, there is no successor
administrator that is satisfactory to Initial Funding Lender, that will continue to provide SOFR (the
latest date on which SOFR is no longer available permanently or indefinitely, the “Scheduled
Unavailability Date”);
or if any of the events or circumstances of the type described in clauses (i) or (ii) above have
occurred with respect to the Successor Rate then in effect, then, Initial Funding Lender and Borrower may
amend this Note solely for the purpose of replacing SOFR or any then current Successor Rate in accordance
with this Subsection (d) with an alternative benchmark rate giving due consideration to any evolving or
E-3
4868-2375-4370.7
then existing convention for similar U.S. Dollar-denominated bilateral portfolio commercial real property
loans for such alternative benchmark, and, in each case, including any mathematical or other adjustments
to such benchmark giving due consideration to any evolving or then existing convention for similar U.S.
Dollar-denominated bilateral portfolio commercial real property loans for such benchmark. For the
avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”.
Initial Funding Lender will promptly (in one or more notices) notify Borrower of the
implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to
the extent such market practice is not administratively feasible for Initial Funding Lender, such Successor
Rate shall be applied in a manner as otherwise reasonably determined by Initial Funding Lender.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would
otherwise be less than one-half of one percent (0.50%), the Successor Rate will be deemed to be one-half
of one percent (0.50%) for the purposes of this Note and the other Construction Phase Project Loan
Documents.
(e) Defined Terms. In addition to other terms defined herein, as used herein the following
terms shall have the meanings indicated, unless the context otherwise requires:
“Applicable Authority” means with respect to SOFR, the SOFR Administrator or any
governmental authority having jurisdiction over Initial Funding Lender or the SOFR Administrator.
“Base Rate” means, on any day, the Base Rate Margin plus the highest of: (a) the Federal Funds
Rate for that day plus ½ of 1%, (b) the rate of interest in effect for such day as publicly announced from time
to time by Initial Funding Lender as its “Prime Rate,” or (c) one percent (1.00%). The “Prime Rate” is a
rate set by Initial Funding Lender based upon various factors including Initial Funding Lender’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate. Any change in such Prime Rate
announced by Initial Funding Lender shall take effect at the opening of business on the day specified in the
public announcement of such change.
“Base Rate Advance” means an advance of the Construction Phase Project Loan that bears interest
at the Base Rate.
“Base Rate Margin” means ninety-five (95) basis points per annum.
“Base Rate Principal” means, at any time, the Principal Debt minus the portion, if any, of such
Principal Debt which is Daily SOFR Principal.
“Conforming Changes” means, with respect to the use, administration of or any conventions
associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming
changes to the definition of “Base Rate” and/or “SOFR,” timing and frequency of determining rates and
making payments of interest and other technical, administrative or operational matters (including, for the
avoidance of doubt, the definition of “Business Day,” the definition of “U.S. Government Securities
Business Day,” timing of borrowing requests or prepayment, conversion or continuation notices and length
of lookback periods) as may be appropriate, in the discretion of Initial Funding Lender, to reflect the
adoption and implementation of such applicable rate(s), and to permit the administration thereof by Initial
Funding Lender in a manner substantially consistent with market practice (or, if Initial Funding Lender
determines that adoption of any portion of such market practice is not administratively feasible or that no
market practice for the administration of such rate exists, in such other manner of administration as Initial
E-4
4868-2375-4370.7
Funding Lender determines is reasonably necessary in connection with the administration of this Note and
any other Construction Phase Project Loan Document).
“Daily Simple SOFR” with respect to any applicable determination date means the SOFR
published on the second (2nd) U.S. Government Securities Business Day preceding such date on the Federal
Reserve Bank of New York’s website (or any successor source); provided, however, that if such
determination date is not a U.S. Government Securities Business Day, then Daily Simple SOFR means such
rate that applied on the first (1st) U.S. Government Securities Business Day immediately prior thereto.
“Daily SOFR” means the rate per annum equal to Daily Simple SOFR determined for any day
pursuant to the definition thereof plus the SOFR Adjustment. Any change in Daily SOFR shall be effective
from and including the date of such change without further notice.
“Daily SOFR Advance” means an advance of the Construction Phase Project Loan by Initial
Funding Lender to Borrower or any portion of the Construction Phase Project Loan held by Initial Funding
Lender which bears interest at an applicable Daily SOFR Rate at the time in question.
“Daily SOFR Principal” means any portion of the Principal Debt which bears interest at an
applicable Daily SOFR Rate at the time in question.
“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve
Bank of New York based on such day’s federal funds transactions by depository institutions (as determined
in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to
time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the
federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than
zero, such rate shall be deemed to be zero for purposes of this Note.
“Principal Debt” means the aggregate unpaid principal balance of the Construction Phase Project
Loan at the time in question.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve
Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or
the Federal Reserve Bank of New York. “SOFR” means the Secured Overnight Financing Rate as
administered by the SOFR Administrator
“SOFR Adjustment” means 0.10% (10 basis points).
“SOFR Administrator” means the Federal Reserve Bank of New York, as the administrator of
SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or
other Person acting as the SOFR Administrator at such time.
“SOFR Margin” means one hundred ninety-five (195) basis points per annum.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day
on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange
or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under
the federal laws of the United States or the laws of the State of New York, as applicable.