HomeMy WebLinkAboutRES NO 98-84RESOLUTION NO, 98-84
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
BAKERSFIELD APPROVING THE FORMATION AND
MEMBERS AND DIRECTORS OF THE CITY OF
BAKERSFIELD PUBLIC FACILITIES CORPORATION,
AND APPROVING THE FINANCING ARRANGEMENTS FOR
BONDS OF SAID CORPORATION, THE BASE RENTAL
PAYMENT, AND AWARDING THE CONSTRUCTION
CONTRACT FOR THE WASTEWATER TREATMENT PLANT
NO. 3
WHEREAS, the City of Bakersfield Public Facilities
Corporation (the "Corporation") has been incorporated by a
group of public-spirited citizens for the specific and primary
purpose of providing financial assistance to the City of
Bakersfield (the "City") by financing the improvement of
Wastewater Treatment Plant No. 3; and
WHEREAS, by its Articles of Incorporation and by its
Bylaws, no part of the net earnings, funds or assets of said
Corporation shall inure to the benefit of any member thereof or
any other person, firm or corporation, except the District; and
WHEREAS, the City has need to expand the Wastewater
Treatment Plant No. 3 and facilities; and
WHEREAS, this City Council by Ordinance No. 2955 N.S.
approved the form of Lease to be entered into with the
Corporation; and
WHEREAS, the Corporation has
Leasehold Mortgage Revenue Bonds
the Bonds to
to approval of
received bids on its 1985
(the "Bonds")
E F Hutton & Co.~ Inc.
this City Council; and
and has awarded
subject
WHEREAS, based on the interest rate to be paid on the Bonds
the Base Rental to be set forth in Section 6(a) of the Site
Lease and Project Lease will be $ 1,848,306
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Bakersfield as follows:
Section 1. All of the recitals herein contained are
true and correct and this City Council so finds.
Section 2. The Corporation and its formation are hereby
approved and the members and Directors of the Corporation,
namely, Jay Alvin Wheelan, John E. Chafin, William Jing, and
Gregory Klemko are hereby approved.
Section 3. The form of the Indenture of Mortgage and
Deed of Trust dated as of January 1, 1985, proposed to be
entered into by the Corporation and Security Pacific National
Bank, as Trustee, submitted to this City Council and the
Corporation for the 1985 Leasehold Mortgage Revenue Bonds, in
an aggregate principal amount of not exceeding $15,010,000,
proposed to be issued by the Corporation under said Indenture
of Mortgage and Deed of Trust, are hereby approved. The
proposed sale by the Corporation of up to $15,010,000 of said
bonds is hereby approved.
Section 4. That DYN Construction Corporation
is the lowest responsible bidder bidding on the construction of
the Wastewater Treatment Plant No. 3 expansion (the "Project"),
and is awarded the contract for said work as set forth in plans
and specifications for that work, subject to the delivery of
2357p/2160/05 -2-
the Corporation's Bonds.
Section 5.
approved.
Section 6.
The Base Rental
Payment of St,848,306 is
The Mayor, City Clerk and any other officers
of the City are authorized to execute such documents as may be
necessary to complete the financing, construction and leasing of
the Project.
I HEREBY CERTIFY that the foregoing Resolution was
passed and adopted by the Council of the City of Bakersfield at a
regular meeting thereof held on the 19%h day of December , 1984,
by the following vote:
DEPUTY CITY CL~RK and Ex Officio Clerk of the
APPROV~ this 19th day of December ,
-- /
APPROVED as to form:
CITY ATTO~Y of the City of Bakersfield
Council of the City of Bakersfield
-3-
OH&S
DRAFT
12/1/84
CITY OF BAKERSFIELD
and
CROCKER NATIONAL BANK,
as Trustee
INDENTURE
Dated as of December 1, 1984
$35,000,000
CITY OF BAKERSFIELD
HOSPITAL REVENUE BONDS
(GREATER BAKERSFIELD MEMORIAL HOSPITAL)
SERIES 1984
Section
4.08 Remarketing Agent ..................
4.09 Qualifications of Remarketing Agent .........
4.10 Creation of Purchase Fund; Purchase of Bonds
Delivered to Trustee ............... 35
4.11 Disposition of Bonds ................ 36
4.12 Delivery of Proceeds of Sale ............ 37
4.13 No Purchases or Sales After Default ......... 37
4.14 Indexing Agent ................... 37
4.15 Qualifications of Indexing Agent .......... 38
4.16 Several Capacities ................. 38
4.17 Cancellation of Unmarketed Bonds .......... 38
Page
34
35
ARTICLE V
REVENUES
5.01 Pledge and Assignment of Revenues .......... 38
5.02 Deposit of Revenues ................. 39
5.03 Payment of Interest on Bonds ............ 40
5.04 Payment of Principal of Bonds ............ 40
5.05 Reserve Fund .................... 41
5.06 Investment of Moneys in Funds and Accounts ..... 41
5.07 Letter of Credit and Surety Bond Generally ..... 43
5.08 Gross Revenue Fund ................. 43
5.09 Funds Remaining After Payment ............ 43
5.10 Application of Redemption Fund ........... 43
ARTICLE VI
PARTICULAR COVENANTS
6.01 Punctual Payment .................. 44
6.02 Against Encumbrances ................. 44
6.03 Power to Issue the Bonds and Make Pledge
and Assignment .................. 44
6.04 Accounting Records and Financial Statements ..... 44
6.05 Tax Covenants .................... 45
6.06 Other Covenants ................... 46
6.07 Waiver of Laws ................... 46
6.08 Further Assurances ................. 46
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
7.01 Events of Default; Acceleration;
Waiver of Default ................. 47
7.02 Application of Revenues and Other Funds
After Default ................... 49
ii
TABLE OF CONTENTS
Section Page
Parties .......................... 1
Preambles ......................... 1
ARTICLE I
DEFINITIONS; CONTENT OF
CERTIFICATES AND OPINIONS
1.01 Definitions ..................... 2
1.02 Content of Certificates and Opinions ........ 19
2.01
2 02
2 O3
2 O4
2 O5
2 06
2 07
2.08
ARTICLE II
THE BONDS
Authorization of Bonds ............... 20
Terms of the Bonds ................. 20
Execution of Bonds ................. 24
Transfer of Bonds ................. 25
Exchange of Bonds ................. 25
Bond Register .................... 25
Temporary Bonds ................... 25
Bonds Mutiliated, Lost Destroyed or Stolen ..... 26
ARTICLE III
ISSUE OF BONDS; APPLICATION OF PROCEEDS
3.01 Issuance of Bonds .................. 27
3.02 Application of Proceeds ............... 27
3.03 Establishment and Application of
Project Fund ................... 27
3.04 Establishment and Application
of Costs of Issuance Fund ............. 28
3.05 Validity of Bonds .................. 29
G.01
4.02
4.03
4.04
4.05
4.06
4.07
ARTICLE IV
REDEMPTION
Redemption of Bonds ................. 29
Selection of Bonds for Redemption .......... 31
Notice of Redemption ................ 31
Partial Redemption of Bonds ............. 32
Effect of Redemption ................ 32
Purchase of Bonds at Option of Holder ........ 32
Change of Letter of Credit Bank ........... 3%
Section
11.03
11.04
11.05
11.06
11.07
11.08
11.09
11 10
11 11
tl 12
11 13
11 14
11 15
Page
Limitation of Rights to Parties, the Corporation
and Bondholders .................. 63
Waiver of Notice .................. 64
Severability of Invalid Provisions ......... 64
Notice to City, Corporation and Trustee ....... 64
Evidence of Rights of the Bondholders ........ 65
Funds and Accounts ................. 65
Disqualified Bonds ................. 65
Money Held for Particular Bonds ........... 66
Article and Section Headings and References ..... 66
Waiver of Personal Liability ............ 66
Execution in Several Counterparts .......... 67
Term of Indenture .................. 67
Third Party Beneficiary ............... 67
Execution ......................... 68
Exhibit A -
Exhibit B -
Exhibit C -
Form of Series 1984 Bond
Description of Personal Property
Notice to Bondholders of Change
in Issuer of Letter of Credit
Form of Requisition
Liens on Title Report
Exhibit D -
Exhibit E -
iv
Section
Page
7.03 Letter of Credit and Surety Bond .......... 49
7.04 Preference Fund ................... 50
7.05 Trustee to Represent Bondholders .......... 51
7.06 Bondholders' Direction of Proceedings ........ 52
7.07 Limitation on Bondholders' Right to Sue ....... 52
7.08 Absolute Obligation of City ............. 53
7.09 Termination of Proceedings ............. 53
7.10 Remedies Not Exclusive ............... 53
7.11 No Waiver of Default ................ 53
8.01
8.02
8.03
8.04
8.05
8.06
ARTICLE VIII
THE TRUSTEE
Duties, Immunities and Liabilities of Trustee .... 53
Merger or Consolidation ............... 55
Liability of Trustee ................ 56
Right of Trustee to Rely on Documents ........ 56
Preservation and Inspection of Documents ...... 57
Compensation and Reimbursement ........... 57
9.01
9.02
9.03
9.04
9.05
ARTICLE IX
MODIFICATION OF INDENTURE
Modification without Consent of Bondholders ..... 58
Modification with Consent of Bondholders ...... 69
Effect of Supplemental Indenture .......... 60
Opinion of Counsel as to Supplemental
Indenture ..................... 60
Notation of Modification on Bonds;
Preparation of New Bonds ............. 60
ARTICLE X
DEFEASANCE
10.01 Discharge of Indenture ............... 60
10.02 Discharge of Liability on Bonds .......... 61
10.03 Deposit of Money or Securities with Trustee .... 62
10.04 Payment of Bonds After Discharge of Indenture 62
ARTICLE XI
MISCELLANEOUS
11.01 Liability of City Limited to Revenues ........ 63
11.02 Successor Is Deemed Included in All References
to Predecessor .................. 63
iii
WHEREAS, in order to provide for the authentication
and delivery of the Bonds, to establish and declare the terms
and conditions upon which the Bonds are to be issued and
secured and to secure the payment of the principal thereof
and interest thereon, the City has authorized the execution
and delivery of this Indenture; and
WHEREAS, all acts and proceedings required by law
necessary to make the Bonds, when executed by the City,
authenticated and delivered by the Trustee and duly issued,
the valid, binding and legal limited obligation of the City,
and to constitute this Indenture a valid and binding
agreement for the uses and purposes herein set forth in
accordance with its terms, have been done and taken, and the
execution and delivery of the Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
order to secure the payment of the principal of and the
interest on the Bonds, according to their tenor, and to
secure the performance and observance of all the covenants
and conditions therein and herein set forth, and to declare
the terms and conditions upon and subject to which the Bonds
are to be issued and received, and in consideration of the
premises and of the mutual covenants herein contained and of
the purchase and acceptance of the Bonds by the holders
thereof, and for other valuable consideration, the receipt
whereof is hereby acknowledged, the City does hereby covenant
and agree with the Trustee, for the benefit of the holders of
the Bonds, as follows:
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION 1.01. Definitions. Unless the context
otherwise requires, the terms defined in this Section shall,
for all purposes of this Indenture and of any indenture
supplemental hereto and of any certificate, opinion or other
document herein mentioned, have the meanings herein
specified, to be equally applicable to both the singular and
plural forms of any of the terms herein defined.
Accountant
"Accountant" means any independent certified public
accountant or firm of such accountants selected by the
Corporation and not objected to by the Trustee.
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040213-0005-087- 5718m ( 0338m)
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THIS INDENTURE, made and entered into as of the
first day of December, 1984, by and between the CITY OF
BAKERSFIELD, a municipal corporation and charter city in the
State of California (the "City"), and CROCKER NATIONAL BANK,
a national banking association duly organized under the laws
of the United States, having a corporate trust office in San
Francisco, California, and being qualified to accept and
administer the trusts hereby created (the "Trustee"';
W I T N E S S E T H:
WHEREAS, the City is a municipal corporation and
charter city duly organized and existing under a freeholders'
charter pursuant to which the City has the right and power to
make and enforce all laws and regulations in respect to
municipal affairs and certain other matters in accordance
with and as more particularly provided in Sections 3, 5 and 7
of Article XI of the Constitution of the State of California
and Section 12 of the charter of the City (the "Charter");
WHEREAS, the City Council of the City, acting under
and pursuant to the powers reserved to the City under
sections 3, 5 and 7 of Article XI of the Constitution of the
State of California and Section 12 of the Charter, has
adopted the Health Facilities Financing Law, Ordinance No.
2871, constituting Chapter 3.60 of the Bakersfield Municipal
Code (the "Law"), and has therein authorized the provision of
financial assistance to health facilities for the purposes
and subject to the conditions described therein;
WHEREAS, the Greater Bakersfield Memorial Hospital
Association (the "Corporation") has applied for the City's
financial assistance in financing the construction,
furnishing and equipping of certain improvements to its
health facility in Bakersfield, California (the "Health
Facility"), and, after due investigation and deliberation,
the City has approved said application and authorized the
issuance of its City of Bakersfield Hospital Revenue Bonds
(Greater Bakersfield Memorial Hospital), Series 1984 (the
"Bonds"), in the aggregate principal amount of thirty-five
million dollars ($35,000,000) to provide such assistance to
the Corporation in accordance with the Law;
WHEREAS, the City has duly entered into a loan
agreement with the Corporation specifying the terms and
conditions of a loan by the City to the Corporation of the
proceeds of the Bonds to provide for the financing and
refinancing of the Health Facility and of the payment by the
Corporation to the City of amounts sufficient for the payment
of the principal of and interest on the Bonds and certain
related expenses;
Authorized Representative
"Authorized Representative" means with respect to
the Corporation, its President, Vice President for Financial
Services, or any other person designated as an Authorized
Representative of it by a Certificate of the Corporation
signed by its President and filed with the Trustee, and with
respect to the Lender~ any corporate officer designated as an
Authorized Representative of the Lender.
Available Moneys
"Available Moneys" means moneys which (i) are
proceeds of the sale of the Bonds, (ii) have been on deposit
with the Trustee for a period of at least ninety-one (91)
days and not commingled with moneys so held for less than
said period and during which period no petition under the
Bankruptcy Act has been filed by or against the Corporation
(or a bankruptcy or similar proceeding instituted by or
against the Corporation) unless, if such a petition has been
filed or such a proceeding has been instituted, it has been
dismissed and all applicable appeal periods have expired
during such period, (iii) are investment earnings on moneys
described by (i) or (ii) above, or (iv) are from demands for
payment under the Letter of Credit.
Bankruptcy Act
"Bankruptcy Act" means the United States Bankruptcy
Code, Title 11 of the United States Code.
Bonds
"Bonds" means the City of Bakersfield Hospital
Revenue Bonds (Greater Bakersfield Memorial Hospital), Series
1984, authorized by, and at any time outstanding pursuant to,
this Indenture.
Business Day
"Business Day" means any day excluding Saturday or
Sunday and excluding any day on which banks or savings and
loan associations in New York, New York or in the cities
where the principal offices of the Trustee, the Lender or the
Surety are located are closed.
Certificate, Statement, Request, Requisition or Order of the
~ity or the Corporation
"Certificate," "Statement," "Request,"
"Requisition" and "Order" of the City or the Corporation
040213-0005-087-5718m(0338m)
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Additional Payments
"Additional Payments" means the payments so
designated and required to be made by the Corporation
pursuant to the Agreement.
Administrative Fees and Expenses
"Administrative Fees and Expenses" means any
application, commitment, financing or similar fee charged, or
reimbursement for administrative or other expenses incurred,
by the City or the Trustee, including Additional Payments.
Affiliated Corporation
"Affiliated Corporation" means any corporation
which, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with the Corporation.
Aggregate Debt Service
"Aggregate Debt Service" means, as of any date of
calculation and with respect to any period, the sum of
amounts of Debt Service for all Funded Debt for such period.
Agreement
"Agreement" means that certain loan agreement by
and between the City and the Corporation, dated as of
December t, 1984, as originally executed and as it may from
time to time be supplemented, modified or amended in
accordance with the terms thereof and of this Indenture.
Assignment of Lease
"Assignment of Lease" means that certain assignment
of lessor's interest in lease with Kings View Homes, Inc. and
its assignee, Kern View Hospital, Inc., dated as of
December 1, 1984, executed by the Corporation in favor of the
Trustee and the Lender.
Audited Financial Statements
"Audited Financial Statements" means the audited
financial statements for the Corporation as prepared and
audited by an Accountant in accordance with generally
accepted accounting principles or auditing standards.
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040213-0005-087-5718m ( 0338m)
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and charges, fees and disbursements of consultants and
professionals, fees of The Dowdell Corporation, placement
fees, fees and charges for preparation, execution and
safekeeping of the Bonds and any other cost, charge or fee
connection with the original issuance of the Bonds.
Costs of Issuance Fund
"Costs of Issuance Fund" means the fund by that
name established pursuant to Section 3.04.
Debt Service
"Debt Service," when used with respect to any
Funded Debt, means, as of any date of calculation and with
respect to any period, the sum of (1) the interest falling
due on such Funded Debt during such period (except to the
extent that such interest is payable from the proceeds of
such Funded Debt set aside for such purpose) and (2) the
principal (or mandatory sinking fund) payments or deposits
required with respect to such Funded Debt during such period;
computed on the assumption that no portion of such Funded
Debt shall cease to be outstanding during such period except
by reason of the application of such scheduled payments;
provided, however, that in the case of the obligation to make
Loan Repayments, principal payments shall be assumed to be
due on January 1 in each year, commencing in 1985, through
2015, and interest shall be assumed to be payable at a rate
per annum equal to the greater of ten percent (10~) or the
rate then applicable to the Bonds; provided further that for
purposes of such computation if Funded Debt is secured by an
irrevocable letter of credit issued by a financial
institution having a combined capital and surplus of at least
seventy-five million dollars ($75,000,000), principal
payments or deposits with respect to such Funded Debt
nominally due in the last Fiscal Year in which such Funded
Debt matures may, at the option of the Corporation, be
treated as if they were due as specified in any loan
agreement issued in connection with such letter of credit or
pursuant to the repayment provisions of such letter of credit
and interest on such Funded Debt after such Fiscal Year shall
be assumed to be payable pursuant to the terms of such loan
agreement or repayment provisions; and provided further that
if interest on Funded Debt is payable pursuant to a variable
interest rate formula, the interest rate on such Funded Debt
for periods when the actual interest rate cannot be yet
determined shall be assumed to be equal to the maximum
interest rate permitted by the agreement under which such
Funded Debt was issued or incurred, or, if no such maximum
interest rate is specified, the greater of the current
interest rate calculated pursuant to the provisions of such
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040213-0005-087- 5718m 0338m)
mean, respectively, a written certificate, statement,
request, requisition or order signed in the name of the City
by its Mayor, City Manager, Clerk or such other person as may
be designated and authorized to sign for the City, or in the
name of the Corporation by an Authorized Representative of
the Corporation. 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. If and to the extent
required by Section 1.02, each such instrument shall include
the statements provided for in Section 1.02.
City
"City" means the City of Bakersfield, a charter
city and municipal corporation in the State of California,
issuer of the Bonds.
as
Conversion
"Conversion" means the conversion of the interest
rate on the Bonds from a floating to a fixed rate as provided
in Section 2.02(g).
Conversion Date
"Conversion Date" means the date on which interest
on the Bonds is converted to a fixed interest rate in
accordance with the provisions of Section 2.02(g).
Corporation
"Corporation" means Greater Bakersfield Memorial
Hospital Association, a nonprofit public benefit corporation
validly existing and in good standing under the laws of the
State of California, or any corporation which is the
surviving, resulting or transferee corporation in any merger,
consolidation or transfer of assets permitted under the
Agreement.
Costs of Issuance
"Costs of Issuance" means all items of expense
directly or indirectly payable by or reimbursable to the City
or the Corporation and related to the authorization,
issuance, sale and delivery of the Bonds, including but not
limited to costs of preparation and reproduction of
documents, filing and recording fees, initial fees and
charges of the Trustee, initial fees and charges relating to
the Letter of Credit, premium for the Surety Bond, legal fees
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040213-0005-087- 5718m (0338m)
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the Fixed Interest Index by the Indexing Agent shall be
conclusive and binding on the Holders of the Bonds.
Fixed Interest Rate
"Fixed Interest Rate" shall mean the interest rate
borne by the Bonds after Conversion, determined in accordance
with Section 2.02(i).
Funded Debt
"Funded Debt" means (a) twenty-five percent (25%)
of the outstanding principal amount of all indebtedness of
persons other than an Affiliated Corporation for which the
Corporation is a guarantor, provided, however, that (i) one
hundred percent (100%) of the outstanding principal amount of
such indebtedness shall be included under this clause (a) if
the Corporation has been required to make payments pursuant
to its guarantee, and (ii) the Corporation shall not be
deemed to be a guarantor for purposes of this clause (a) by
reason of the "endorsement" of any "check" by the Corporation
as such terms are used in Division 3 of the California
Commercial Code, (b) all indebtedness of any Affiliated
Corporation for which the Corporation is guarantor, provided
that Net Income Available for Debt Service of such Affiliated
Corporation shall be included in calculations required by the
Agreement and this Indenture if Debt Service with respect to
such indebtedness is included in such calculations, and
(c) all indebtedness of the Corporation (including the
obligation of the Corporation to make Loan Repayments and any
installment purchase and lease rental obligations) which
(i) in accordance with generally accepted accounting
principles is classified as a liability on a balance sheet,
and (ii) which has a final maturity (or which, pursuant to
the terms of a revolving credit or similar agreement or
otherwise, is renewable or extendable at the option of the
Corporation to a date or for a period or periods ending) more
than one year after the date of creation thereof,
notwithstanding the fact that payments in respect thereof
(whether installment, serial maturity or sinking fund
payments or otherwise) are required to be made less than one
year after the date of the creation thereof; excluding any
indebtedness which is renewable or extendable pursuant to the
terms of a revolving credit or similar agreement if, by the
terms of such agreement, no indebtedness is permitted to be
outstanding thereunder for a period of at least thirty (30)
consecutive days during each period of twelve (12)
consecutive months beginning with the effective date of such
revolving credit or other similar agreement.
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040213-0005-087-5718m(0338m)
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agreement or the Prime Rate as of the date of calculation
(unless the interest on such Funded Debt is exempt from
federal income taxation under Section 103 of the Internal
Revenue Code of 1954, as amended, in which event the greater
of the current interest rate calculated pursuant to the
provisions of such agreement or seventy percent (70~) of the
Prime Rate as of the date of calculation).
Deed of Trust
"Deed of Trust" means that certain deed of trust,
assignment of rents, security agreement and fixture filing,
dated as of December 1, 1984, executed by the Corporation, as
trustor, in favor of Ticor Title Insurance Company of
California, as trustee, for the benefit of the Lender and the
Trustee.
Due-Bill-Check
"Due-Bill-Check" means a check, post-dated to the
next Interest Payment Date, in an amount equal to the total
interest to be due and payable during the pending Interest
Period.
Event of Default
"Event of Default" means any of the events
specified in Section 7.01.
Fiscal Year
"Fiscal Year" means the period beginning on July 1
of each year and ending on the next succeeding June 30, or
any other twelve-month period hereafter selected and
designated as the official fiscal year period of the
Corporation.
Fixed Interest Index
"Fixed Interest Index" shall mean an index computed
by the Indexing Agent equal to the average yield at par (on
the basis of a term and redemption provisions as nearly equal
as practicable to the remaining term and redemption
provisions of the Bonds at the time of calculation) of
securities the interest on which is exempt from federal
income taxation, and having ratings, or issued by at least
ten (10) issuers of outstanding obligations having ratings,
comparable to that which, in the opinion of the Remarketing
Agent, would be assigned to the Bonds following Conversion,
taking into consideration any Letter of Credit or other
security to be provided upon Conversion. The computation of
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040213-0005-087-5718m (0338m)
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Indenture
"Indenture" means this Indenture, as originally
executed or as it may from time to time be supplemented,
modified or amended by any Supplemental Indenture.
Indexing Agent
"Indexing Agent" shall mean the indexing agent
appointed in accordance with Section 4.14 hereof.
Insurance and Condemnation Proceeds Fund
"Insurance and Condemnation Proceeds Fund" means
the fund by that name established pursuant to Section 7.6 of
the Agreement.
Insurance Consultant
"Insurance Consultant" means a person having
experience and a favorable reputation in consulting on the
insurance requirements of health care facilities in the State
of California of the general size and character of the Health
Facility, selected by the Corporation and not objected to by
the Trustee.
Interest Fund
"Interest Fund" means the fund by that name
established pursuant to Section 5.02.
Interest Payment Date
"Interest Payment Date" means the first day of each
month commencing January 1, 1985, or, after Conversion,
January 1 or July 1 of each year. If any Interest Payment
Date is not a Business Day, interest shall be paid on (but
not recalculated to) the next succeeding Business Day.
Interest Period
"Interest Period" shall mean, (i) prior to the
Conversion Date, the period from and including the first day
in each calendar month to and including the last day in such
month, except that the first Interest Period shall commence
on and include the date of the first authentication and
delivery of the Bonds hereunder and an Interest Period shall
end on and include the earlier of the day preceding the
Conversion Date or the day preceding January 1, 2015 and (ii)
after the Conversion Date, each six month period (or fraction
thereof for the first such period) from and including the
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040213-0005-087-5718m(0338m)
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Gross Patient Revenues
"Gross Patient Revenues" means all patient charges
recorded by the Corporation during the applicable Fiscal Year.
Gross Revenues
"Gross Revenues" means all revenues, income,
receipts and money received by or on behalf of the
Corporation with respect to the Health Facility, including
(a) gross revenues derived from operation and possession of
the Health Facility, (b) gifts, grants, bequests, donations
and contributions, to the extent received with respect to the
Health Facility and not specifically restricted by the donor
to a particular purpose inconsistent with their use for the
payment of Loan Repayments or Additional Payments,
(c) proceeds derived with respect to the Health Facility from
(i) condemnation proceeds, (ii) securities and other
investments, (iii) inventory and other tangible and
intangible property, (iv) insurance maintained pursuant to
Section 7.3 of the Agreement, and (v) contract rights and
other rights and assets now or hereafter owned by the
Corporation, and (d) rentals received from the lease of
office space in the Health Facility; provided, however, that
Gross Revenues shall not include accounts receivable or the
proceeds of accounts receivable of the Corporation.
Health Facility
"Health Facility" means (i) the real property
described in Exhibit A to the Deed of Trust; (ii) all
buildings, structures, fixtures and improvements thereto; and
(iii) all tangible personal property owned by the Corporation
and used or anytime hereafter used in, around or about the
aforesaid real property, whether now existing or hereafter
constructed, installed or acquired, including but not limited
to the personal property described in Exhibit B hereto.
Holder or Bondholder
"Holder" or "Bondholder," whenever used herein with
respect to a Bond, means the person in whose name such Bond
is registered.
Indemnity and Collateral Agreement
"Indemnity and Collateral Agreement" means that
certain agreement dated as of December 1, 1984 between the
Surety and the Lender, as it may be amended from time to time.
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040213-0005- 087-5718m ( 0338m)
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certificates of deposit may not exceed fifteen percent (15~)
of the funds which may be invested pursuant to the provisions
of this Indenture; (f) money market mutual funds invested in
securities described in clause (a) hereof; and
(g) investments in repurchase agreements with nationally
recognized institutions. For purposes of the foregoing, the
term "repurchase agreement" means a purchase of securities by
the Trustee pursuant to an agreement by which the seller will
repurchase such securities on or before a specified date and
for a specified amount; provided that the repurchase
agreements shall have a term of no longer than seven (7) days
and the underlying securities shall be actually delivered to
or for the account of the Trustee.
Law
"Law" means the City of Bakersfield Health
Facilities Financing Law, Ordinance No. 2871, constituting
Chapter 3.60 of the Bakersfield Municipal Code, as now in
effect and as the same may from time to time hereafter be
amended or supplemented.
Lender
"Lender" means California Federal Savings and Loan
Association, a savings and loan association organized and
existing by virtue of the laws of the United States, as
issuer of the initial Letter of Credit, or any other
institution obligated under any substitute Letter of Credit
subsequently in effect.
Letter of Credit
"Letter of Credit" means the letter of credit,
dated , 1984, issued by California Federal Savings
and Loan Association, and payable to the Trustee, or any
letter of credit substituted for such letter of credit
pursuant to Section 4.3 of the Agreement.
Letter of Credit Agreement
"Letter of Credit Agreement" means that certain
agreement, dated as of December 1, 1984, between the
Corporation and the Lender, or any similar agreement relating
to the Letter of Credit then in effect.
Letter of Credit Period
"Letter of Credit Period" means the period from
initial issuance of the Bonds until the earlier of (i) the
Conversion Date, if the Corporation gives notice that no
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040213-0005-087-5718m(0338m)
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last Interest Payment Date to and including the day before
the next Interest Payment Date.
Investment Company
"Investment Company" shall mean an open-end
diversified management investment company registered under
the Investment Company Act of 1940, as amended.
Investment Securities
"Investment Securities" means any of the following:
(a) United States Treasury notes, bonds, bills, or
certificates of indebtedness, or those for which the faith
and credit of the United States are pledged for the payment
of principal and interest; (b) obligations issued by banks
for cooperatives, federal land banks, federal intermediate
credit banks, federal home loan banks, the Federal Home Loan
Bank Board, or obligations, participations, or other
instruments of or issued by, or fully guaranteed as to
principal and interest by, the Federal National Mortgage
Association; or guaranteed portions of Small Business
Administration notes; or obligations, participations, or
other instruments of or issued by a federal agency or a
United States government-sponsored enterprise; (c) bills of
exchange or time drafts drawn on and accepted by a commercial
bank, otherwise known as bankers acceptances, which are
eligible for purchase by the Federal Reserve System; provided
that purchases of bankers acceptances may not exceed 270
days' maturity or thirty percent (30~) of the funds which may
be invested pursuant to the provisions of this Indenture;
(d) commercial paper of "prime" quality of the highest
ranking or of the highest letter and numerical rating as
provided for by Standard and Poor's Corporation, or its
successors; provided that the corporations issuing such
commercial paper (1) are organized and operating within the
United States, (2) have total assets in excess of five
hundred million dollars ($500,000,000) and (3) have an "A" or
higher rating for the issuer's debentures, other than
commercial paper, as provided for by Standard and Poor's
Corporation, or its successors; and provided further that
purchases of eligible commercial paper may not exceed 90
days' maturity (or such earlier day if such moneys may be
needed) nor represent more than ten percent (10%) of the
outstanding paper of an issuing corporation, and may not
exceed fifteen percent (15%) of the money which may be
invested pursuant to the provisions of this Indenture;
(e) negotiable certificates of deposit issued by or time
deposits in a nationally or state-chartered bank, including
the Trustee, or a state or federal savings and loan
association, provided that the purchase of negotiable
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Opinion of Bond Counsel
"Opinion of Bond Counsel" means a written opinion
of counsel experienced in matters relating to the tax-exempt
status of interest on obligations of the same general type as
the Bonds, selected by the City and not objected to by the
Trustee.
Opinion of Counsel
"Opinion of Counsel" means a written opinion of
counsel (who may be counsel for the City) selected by the
City and not objected to by the Trustee. If and to the
extent required by the provisions of Section 1.02, each
Opinion of Counsel shall include the statements provided for
in Section 1.02.
Outstanding
"Outstanding," when used as of any particular time
with reference to Bonds, means (subject to the provisions of
Section 11.09) all Bonds theretofore authenticated and
delivered by the Trustee under the Indenture except (1) Bonds
theretofore cancelled by the Trustee or surrendered to the
Trustee for cancellation; (2) Bonds with respect to which all
liability of the City shall have been discharged in
accordance with Section 10.02, including Bonds (or portions
of Bonds) referred to in Section 11.10; and (3) Bonds for the
transfer or exchange of or in lieu of or in substitution for
which other Bonds shall have been authenticated and delivered
by the Trustee pursuant to this Indenture.
Permitted Encumbrances
"Permitted Encumbrances" shall have the meaning set
forth in Section 9.03 of the Letter of Credit Agreement, or
if no Letter of Credit is in effect, shall mean and include
(1) undetermined liens and charges incident to construction
or maintenance, and liens and charges incident to
construction or maintenance now or hereafter filed of record
which are being contested in good faith and have not
proceeded to judgment, provided that the Corporation shall
have set aside reserves with respect thereto which, in the
opinion of its Board of Directors, are adequate; (2) the lien
of taxes and assessments which are not delinquent, or which
are being contested in good faith, provided that the
Corporation shall have set aside reserves with respect
thereto which, in the opinion of its Board of Directors, are
adequate; (3) minor defects and irregularities in the title
to the Health Facility which in the aggregate do not
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040213-0005-087-5718m(O338m)
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Letter of Credit will remain in effect after the Conversion
Date, or (ii) final maturity of the Bonds.
Loan Default Event
"Loan Default Event" means any of the events
specified in Section 9.1 of the Agreement.
Loan Repayments
"Loan Repayments" means the payments so designated
and required to be made by the Corporation pursuant to the
Agreement.
Management Consultant
"Management Consultant" means any firm having
experience and a favorable reputation in reporting on
questions relating to the financial condition of health care
facilities and selected by the Corporation and not objected
to by the Trustee.
Maximum Aggregate Annual Debt Service
"Maximum Aggregate Annual Debt Service" means, as
of any date of calculation, the Aggregate Debt Service as
computed for the then current or any future Fiscal Year in
which such sum shall be largest.
Multiple
"Multiple" means the percentage factor applied to
the Prime Rate to determine the interest rate borne by the
Bonds prior to the Conversion Date, as it may be set pursuant
to Section 2.02.
Net Income Available for Debt Service
"Net Income Available for Debt Service" means for
any period, the Corporation's combined net income from
operations, plus (1) interest, depreciation and amortization
expense, (2) unrestricted investment income/ (3) the proceeds
of business interruption insurance (to the extent not
included in the determination of net income) and (4) gifts,
grants, bequests, donations and contributions, to the extent
available for the payment of Debt Service; net income from
operations and the foregoing items in (1) and (2) to be
determined in accordance with generally accepted accounting
principles.
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040213-0005-087-5718m(O338m)
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of each such Fiscal Year and the Funded Debt proposed to be
incurred, or (b) a written feasibility report of a Management
Consultant to the effect that Net Income Available For Debt
Service for each of the two Fiscal Years immediately
following the incurrence of such Funded Debt (or if such
Funded Debt is incurred to finance additional facilities, for
the two Fiscal Years immediately following the Fiscal Year in
which it is projected that such additional facilities will be
completed and placed in service) is projected to be at least
equal to 1.50 times Maximum Aggregate Annual Debt Service on
all Funded Debt proposed to be outstanding at the end of each
such Fiscal Year; (13) the lien of the Deed of Trust and
Assignment of Lease; (14) leases permitted by Section 6.7 of
the Agreement; (15) statutory rights of the United States of
America to recover against the Corporation by reason of
federal funds made available under 42 U.S.C. §§ 291 et seq.,
and similar rights under other federal and state statutes;
and (16) any liens described in Exhibit E hereto.
Person
"Person" means an individual, corporation, firm,
association, partnership, trust, or other legal entity or
group of entities, including a governmental entity or any
agency or political subdivision thereof.
Prime Rate
"Prime Rate" means the rate of interest announced
from time to time by the Trustee for unsecured commercial
loans as its "prime rate."
Principal Fund
"Principal Fund" means the fund by that name
established pursuant to Section 5.02.
Project
"Project" means the additions, extensions,
alterations and improvements to the Health Facility for which
Certificate of Need No. 1029 was issued on August 9, 1983 by
the Office of Statewide Health Planning and Development of
the State of California pursuant to Part 1.5 of Division 1 of
the California Health and Safety Code and the regulations
promulgated thereunder, and any other additions and
improvements approved in writing by the Lender.
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040213-0005-087-5718m(O338m)
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materially and adversely affect the value or operation of the
Health Facility for the purposes for which it is or may
reasonably be expected to be used; (4) easements, exceptions
or reservations for the purpose of pipelines, telephone
lines, telegraph lines, power lines and substations, roads,
streets, alleys, highways, railroad purposes, drainage and
sewerage purposes, dikes, canals, laterals, ditches, the
removal of oil, gas, coal or other minerals, and other like
purposes, or for the joint or common use of real property,
facilities and equipment, which in the aggregate do not
materially interfere with or impair the operation of the
Health Facility for the purposes for which it is or may
reasonably be expected to be used; (5) rights reserved to or
vested in any municipality or governmental or other public
authority to control or regulate or use in any manner any
portion of the Health Facility which do not materially impair
the operation of the Health Facility for the purposes for
which it is or may reasonably be expected to be used;
(6) present or future valid zoning laws and ordinances;
(7) the rights of the City and the Trustee under the
Agreement; (8) liens securing indebtedness for the payment,
redemption or satisfaction of which money in the necessary
amount shall have been deposited in trust with a trustee or
other holder of such indebtedness; (9) existing or future
purchase money security interests and security interests
existing on any property prior to the time of its acquisition
by the Corporation through purchase, merger, consolidation or
otherwise, whether or not assumed by the Corporation, or
placed upon property acquired hereafter by the Corporation to
secure a portion of the purchase price thereof, or lessors'
interests in leases required to be capitalized in accordance
with generally accepted accounting principles, if the
principal amounts secured by any such interests shall not
exceed the lesser of the cost or fair market value thereof as
determined in good faith by the Corporation's Board of
Directors; (10) statutory liens arising in the ordinary
course of business which are not delinquent or are being
contested in good faith by the Corporation; (11) the lease or
license of the use of a part of the Corporation's facilities
for use in performing professional or other services
necessary for the proper and economical operation of the
Health Facility in accordance with customary business
practices in the industry; (12) liens securing on a parity
basis the obligations of the Corporation under the Loan
Agreement and other Funded Debt~ provided that prior to the
incurrence of such Funded Debt the Corporation files with the
City and the Trustee either (a) a written report of an
Accountant to the effect that Net Income Available For Debt
Service for each of the two immediately preceding Fiscal
Years was at least equal to 1.25 times Maximum Aggregate
Annual Debt Service on all Funded Debt outstanding at the end
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040215-0005-087-5718m(O338m)
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as of any date of ~ "~^-
~c~=~u~,, an amount equal to maximum
annual debt service on all Bonds Outstanding as of such date,
provided however, that the Reserve Fund Requirement shall not
exceed the maximum amount allowed under the Internal Revenue
Code of 1954, as amended, and any regulations promulgated
thereunder.
Revenues
"Revenues" means all amounts received by the City
or the Trustee pursuant or with respect to the Agreement,
including, without limiting the generality of the foregoing,
Loan Repayments (including both timely and delinquent
payments and any late charges, and whether paid from any
source), proceeds of any drawing under the Letter of Credit
or the Surety Bond (other than drawings relating to the
Purchase Option), prepayments, insurance proceeds,
condemnation proceeds, and all interest, profits or other
income derived from the investment of amounts in any fund or
account established pursuant to this Indenture, but not
including any Administrative Fees and Expenses.
Supplemental Indenture
"Supplemental Indenture" means any indenture
hereafter duly authorized and entered into between the City
and the Trustee, supplementing, modifying or amending this
Indenture; but only if and to the extent that such
Supplemental Indenture is specifically authorized hereunder.
Surety
"Surety" means Industrial Indemnity Company, a
California corporation, or any successor thereto.
Surety Bond
"Surety Bond" means that certain surety bond dated
December __, 1984 issued by the Surety for the benefit of the
City and assigned to the Trustee, or any surety bond
substituted for such surety bond in connection with a
substitute Letter of Credit delivered to the Trustee pursuant
Go Section 4.3 of the Agreement.
Trustee
"Trustee" means Crocker National Bank, a national
banking association duly organized and existing under the
laws of the United States, having a corporate trust office in
San Francisco, California or its successor as Trustee
hereunder as provided in Section 8.01.
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040213-0005-087-5718m(O338m)
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Project Fund
"Project Fund" means the fund by that name
established pursuant to Section 3.03.
Purchase Date
"Purchase Date" means the date stated in a notice
submitted pursuant to Section 4.06 by a Holder of the Bonds
on which Bonds will be purchased by the Trustee.
Purchase Fund
"Purchase Fund" means the fund by that name
established pursuant to Section 4.10.
Purchase Option
"Purchase Option" means the demand by a Bondholder
exercised pursuant to the terms of Section 4.06.
Record Date
"Record Date" means, prior to the Conversion Date,
three (3) Business Days prior to each Interest Payment Date,
and after the Conversion Date, fifteen (15) days prior to
each Interest Payment Date.
Remarketing Agent
"Remarketing Agent" shall mean the placement agent
or agents appointed in accordance with Section 4.08 hereof.
Remarketing Agreement
"Remarketing Agreement" means that certain
remarketing agreement, dated as of December 1, 1984, by and
between the Corporation and Crocker National Bank, a national
banking association, as Remarketing Agent, or any similar
agreement setting forth the duties of the Remarketing Agent.
Reserve Fund
"Reserve Fund" means the fund by that name
established pursuant to Section 5.05.
Reserve Fund Requirement
"Reserve Fund Requirement" means following amounts
at the following times: (i) if a Letter of Credit is in
effect, zero; and (ii) if no Letter of Credit is in effect,
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040213-0005-087-57tSm(O338m)
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ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds. An issue of
bonds to be issued hereunder in order to obtain moneys for
the purposes of financing the construction, furnishing and
equipping of certain improvements to the Health Facility for
the benefit of the City and the Corporation is hereby
created. Such issue is designated "City of Bakersfield
Hospital Revenue Bonds (Greater Bakersfield Memorial
Hospital), Series 1984." The principal amount of the Bonds
which may be issued and Outstanding under this Indenture
shall not exceed thirty-five million dollars ($35,000,000),
exclusive of Bonds executed and authenticated as provided in
Section 2.08.
SECTION 2.02. Terms of the Bonds. (a) The Bonds
shall be issued only as fully registered Bonds, without
coupons, in denominations of $100,000 or any integral
multiple thereof, or, after Conversion, in denominations of
$5,000 or any integral multiple thereof. The Bonds shall
mature on January 1, 2015.
(b) The Bonds shall bear interest from and
including the date of delivery thereof to the initial
purchaser until payment of the principal and interest thereof
shall have been made or provided for in accordance with the
provisions hereof, whether at maturity, upon redemption or
otherwise. Prior to Conversion, interest accrued on the
Bonds during each Interest Period shall be paid on the
immediately succeeding Interest Payment Date subject to prior
redemption or demand for payment and shall be computed on the
basis of (i) prior to Conversion, a year of 365 or 366 days,
as appropriate, for the actual number of days elapsed, and
(ii) after Conversion, on the basis of a year of 360 days and
twelve 30-day months.
The Bonds shall bear interest for each day from the
date thereof, until changed in accordance herewith or until
Conversion, at an interest rate equal to the Prime Rate for
such day multiplied by the Multiple. The initial Multiple
shall be 53~. The Multiple may be changed from time to time
upon receipt by the Trustee of a written certificate of the
Indexing Agent specifying the Multiple which would, in its
judgment having due regard to prevailing financial market
conditions, result in an interest rate necessary, but not in
excess of the interest rate necessary, to enable the Bonds to
be sold at a price equal to the principal amount of the Bonds
plus accrued interest; provided, however, that the Multiple
shall not be less than 40% or more than 65%. Each change to
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040213-0005-087-5718m(0338m)
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SECTION 1.02. Content of Certificates and
Opinions. Every certificate or opinion provided for in this
Indenture with respect to compliance with any provision
hereof shall include (1) a statement that the person making
or giving such certificate or opinion has read such provision
and the definitions herein relating thereto; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the certificate or opinion is based~
(3) a statement that, in the opinion of such person, that
person has made or caused to be made such examination or
investigation as is necessary to enable that person to
express an informed opinion with respect to the subject
matter referred to in the instrument to which the person's
signature is affixed; and (4) a statement as to whether, in
the opinion of such person, such provision has been complied
with.
Any such certificate or opinion made or given by an
officer of the City or an officer of the Corporation may be
based, insofar as it relates to legal, accounting or health
facility matters, upon a certificate or opinion of or
representation by counsel, an accountant or a management
consultant, unless such officer knows, or in the exercise of
reasonable care should have known, that the certificate,
opinion or representation with respect to the matters upon
which such certificate or statement may be based, as
aforesaid, is erroneous. Any such certificate or opinion
made or given by counsel, an accountant or a management
consultant may be based, insofar as it relates to factual
matters (with respect to which information is in the
possession of the City or the Corporation, as the case may
be) upon a certificate or opinion of or representation by an
officer of the City or the Corporation, unless such counsel,
accountant or management consultant knows, or in the exercise
of reasonable care should have known, that the certificate or
opinion or representation with respect to the matters upon
which such person's certificate or opinion or representation
may be based, as aforesaid, is erroneous. The same officer
of the City or the Corporation, or the same counsel or
accountant or management consultant, as the case may be, need
not certify to all of the matters required to be certified
under any provision of this Indenture, but different
officers, counsel, accountants or management consultants may
certify to different matters, respectively.
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040213-0005-087-5718m(0338m) 12/03/84
for, in which case they shall be dated as of such date of
authentication; provided, however, that if, as shown by the
records of the Trustee, interest on the Bonds shall be in
default, Bonds issued in exchange for Bonds surrendered for
transfer or exchange shall be dated as of the date to which
interest has been paid in full on the Bonds or, if no
interest has been paid on the Bonds, the date of the first
authentication and delivery of Bonds hereunder.
(g) The rate of interest on the Bonds may at the
option of the Corporation be converted to the Fixed Interest
Rate on any Interest Payment Date on or after July 1, 1985,
in accordance with the procedures set forth in this paragraph
(g). In order to effect Conversion, the Corporation will
deliver a written notice to the Trustee, the City, the
Indexing Agent, the Remarketing Agent, the Surety and the
Lender in the manner provided in Section 4.9 of the
Agreement, which notice shall be accompanied by an Opinion of
Bond Counsel to the effect that Conversion will not cause
interest on the Bonds to become subject to federal income
taxation. The Trustee shall give notice to the Holders of
the Bonds, in the same manner that notices of redemption are
given, not less than 25 days before the Conversion Date,
specifying:
(i) that the interest rate on the Bonds will be
converted to the Fixed Interest Rate on the Conversion
Date;
(ii) the Preliminary Fixed Interest Rate (defined
in paragraph (i) below) determined 35 days before the
Conversion Date and specifying that the Fixed Interest
Rate to become effective on the Conversion Date shall be
determined 15 days before the Conversion Date, and shall
not be less than the Preliminary Fixed Interest Rate;
(iii) that after Conversion interest shall be
payable from the Conversion Date semiannually on each
January 1 and July 1, commencing on the next January 1
or July 1 after the Conversion Date;
(iv) whether or not a Letter of Credit will remain
in effect after the Conversion and, if so, that the
Bonds will be subject to redemption when the Letter of
Credit expires;
(v) that any ratings on the Bonds will expire and
whether the Bonds will be re-rated;
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040213-0005-087-5718m(0338m)
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the Multiple shall be effective on the first day of the next
succeeding Interest Period; provided, however, that if any
Bonds shall have been delivered to the Trustee for purchase
pursuant to Section 4.06 hereof and if any of such Bonds are
sold pursuant to the Remarketing Agreement after such written
certificate of the Indexing Agent is filed with the Trustee
and prior to the first day of the next succeeding Interest
Period, the change in the Multiple shall be effective as of
the date of such sale.
Anything herein to the contrary notwithstanding,
(x) in no event shall the interest rate borne by the Bonds
exceed the lesser of 15~ per annum or the maximum rate
permitted by law and (y) the interest rate in effect six (6)
Business Days before the end of each Interest Period shall
remain in effect without further change until the end of such
Interest Period.
(c) The adjustment of the Multiple by the
Remarketing Agent shall be conclusive and binding upon the
Holders of the Bonds.
(d) The Bonds and the certificate of
authentication to be executed on all the Bonds by the Trustee
are to be in substantially the form thereof set forth in
Exhibit A with necessary or appropriate variations, omissions
and insertions as permitted or required by this Indenture.
(e) Principal of Bonds shall be payable to the
Holders of such Bonds upon presentation and surrender of such
Bonds at the principal corporate trust office of the Trustee
in San Francisco, California. Interest on the Bonds shall be
paid by check or draft drawn upon the Trustee and mailed to
the Holders of the Bonds appearing on the registration books
of the Trustee at the close of business on each Record Date
at the addresses of such Holders as they shall appear on such
registration books or, at the written request of Holders of
at least $1,000,000 in aggregate principal amount of Bonds,
by wire transfer in immediately available funds. Payment as
aforesaid shall be made in such coin or currency of the
United States of America as, at the respective times of
payment, shall be legal tender for the payment of public and
private debts.
(f) Bonds authenticated prior to the first
Interest Payment Date shall be dated as of the date of
delivery thereof to the initial purchasers thereof and Bonds
authenticated subsequent to the first Interest Payment Date
shall be dated as of the Interest Payment Date next preceding
the date of authentication thereof, unless such date of
authentication shall be an Interest Payment Date to which
interest on the Bonds has been paid in full or duly provided
21
040213-0005-087-5718m(O338m)
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purchased, and the Bonds will continue to bear interest as
provided in Section 2.02(b), and be subject to demand
purchase. The Trustee shall notify all Bondholders of the
cancellation of the Conversion in the same manner as notice
for redemption is given.
(i) After Conversion, the Bonds will bear interest
at the Fixed Interest Rate, payable on January 1 and July 1
of each year, commencing on the January 1 and July 1 next
following the Conversion Date. The Fixed Interest Rate shall
be the higher of (i) the "Preliminary Fixed Interest Rate,"
which shall be equal to the Fixed Interest Index computed by
the Indexing Agent thirty-five (35) days before the
Conversion Date, or (ii) the "Final Fixed Interest Rate,"
which shall be equal to the Fixed Interest Index computed by
the Indexing Agent fifteen (15) days before the Conversion
Date; but in no event shall the Fixed Interest Rate exceed
15~ per annum. The Trustee shall notify each Bondholder of
the Fixed Interest Rate to be in effect after the Conversion
Date in the same manner as notice for redemption is given.
(j) The Bonds shall be subject to redemption and
purchase as provided in Article IV.
SECTION 2.03. Execution of Bonds. The Bonds shall
be executed in the name and on behalf of the City with the
manual or facsimile signature of its Mayor, under its seal
attested by the manual or facsimile signature of its Clerk.
Such seal may be in the form of a facsimile of the City's
seal and may be reproduced, imprinted or impressed on the
Bonds. The Bonds shall then be delivered to the Trustee for
authentication by it. In case any of the officers who shall
have signed or attested the Bonds shall cease to be such
officer or officers of the City before the Bonds so signed or
attested shall have been authenticated or delivered by the
Trustee or issued by the City, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such
authentication, delivery and issue, shall be as binding upon
the City as though those who signed and attested the same had
continued to be such officers of the City, and also the Bonds
may be signed and attested on behalf of the City by such
persons as at the actual date of execution of such Bonds
shall be the proper officers of the City although at the
nominal date of such Bonds any such person shall not have
been such officer of the City.
Only Bonds that shall bear thereon a certificate of
authentication substantially in the form attached hereto as
Exhibit A, manually executed by the Trustee, shall be valid
or obligatory for any purpose or entitled to the benefits of
this Indenture, and such certificate of the Trustee shall be
24
040213-0005-087-5718m(O338m)
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(vi) that subsequent to the Conversion Date, no
owner of Bonds will have the right to demand purchase of
the Bonds pursuant to Section 4.06 of this Indenture; and
(vii) that all Outstanding Bonds not retained by
Holders thereof, as described below, will be purchased
by the Trustee pursuant to Section 4.06 hereof on or
before the Conversion Date at the principal amount
thereof, plus interest accrued to such date, except for
Bonds with respect to which the Holder thereof shall
have delivered to the Trustee at its principal corporate
trust office in San Francisco, California, on or before
the fifteenth (15th) day before the Conversion Date, a
written, executed instrument of such Holder or such
Holder's attorney duly authorized in writing,
satisfactory to the Trustee, (1) specifying the numbers
and denominations of all Bonds owned by such Holder;
(2) acknowledging the matters set forth in (i) through
(vi) above; (3) directing the Trustee not to purchase
such Bonds; and (4) acknowledging that such direction is
irrevocable and binding on subsequent Holders of such
Bonds.
Upon receipt of such notice from the Trustee, and
in no event later than the fifteenth (15th) day before the
proposed Conversion Date, Holders are required to either
tender their Bonds pursuant to Section 4.06 or to return the
instrument described in paragraph (vii) above acknowledging
the Holder's election to retain the Bonds with the Fixed
Interest Rate.
Any Bond purchased by the Trustee pursuant to the
provisions of Section 4.06 hereof from the date notice of
Conversion is given through and including the Conversion Date
shall not be remarketed except to a purchaser who agrees at
the time of such purchase to accept the Fixed Interest Rate
after the Conversion Date. Bonds purchased by the Trustee
pursuant to Section 4.06 of this Indenture from such notice
date through the Conversion Date and not remarketed shall
remain Outstanding as Bonds bearing the Fixed Interest Rate.
(h) If duly executed written instruments for Bonds
corresponding to the description in paragraph (g)(vii) above
or Bonds for the total aggregate principal amount of Bonds
then Outstanding have not been received by the Trustee prior
to the tenth day before the proposed Conversion Date, the
Trustee shall immediately notify the Corporation in writing,
and the Corporation shall cancel the Conversion by delivering
a written notice of cancellation to the Trustee, the City,
the Lender, the Surety and the Remarketing Agent, and in such
case the Conversion shall not occur, no Bonds will be
23
040213-0005-087-5718m(0338m) 12/03/84
lithographed or typewritten, shall be of such denomination as
may be determined by the City, shall be in fully registered
form and may contain such reference to any of the provisions
of this Indenture as may be appropriate. A temporary Bond
may be in the form of a single fully registered Bond. Every
temporary Bond shall be executed by the City and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner as the definitive Bonds. If
the City issues temporary Bonds it will execute and deliver
definitive Bonds as promptly thereafter as practicable, and
thereupon the temporary Bonds may be surrendered, for
cancellation, in exchange therefor at the principal corporate
trust office of the Trustee in San Francisco, California, and
the Trustee shall authenticate and deliver in exchange for
such temporary Bonds an equal aggregate principal amount of
Bonds of authorized denominations. Until so exchanged, the
temporary Bonds shall be entitled to the same benefits under
this Indenture as definitive Bonds authenticated and
delivered hereunder.
SECTION 2.08. Bonds Mutilated, Lost, Destroyed or
Stolen. If any Bond shal~ become mutilated, the City, at the
expense of the owner of said Bond, shall execute, and the
Trustee shall thereupon authenticate and deliver, a new Bond
of like tenor and number in exchange and substitution for the
Bond so mutilated, but only upon surrender to the Trustee of
the Bond so mutilated. Every mutilated Bond so surrendered
to the Trustee shall be cancelled by it and delivered to, or
upon the order of, the City. If any Bond shall be lost,
destroyed or stolen, evidence of such loss, destruction or
theft may be submitted to the City and the Trustee and, if
such evidence be satisfactory to both and indemnity
satisfactory to them shall be given, the City, at the expense
of the owner, shall execute, and the Trustee shall thereupon
authenticate and deliver, a new Bond of like tenor and number
in lieu of and in substitution for the Bond so lost,
destroyed or stolen (or if any Bond shall have matured or
shall be about to mature, instead of issuing a substitute
Bond, the Trustee may pay the same without surrender
thereof). The City may require payment of a sum not
exceeding the actual cost of preparing each new Bond issued
under this Section and of the expenses which may be incurred
by the City and the Trustee in the premises. Any Bond issued
under the provisions of this Section in lieu of any Bond
alleged to be lost, destroyed or stolen shall constitute an
original additional contractual obligation on the part of the
City whether or not the Bond so alleged to be lost, destroyed
or stolen be at any time enforceable by anyone, and shall be
entitled to the benefits of this Indenture with all other
Bonds secured by this Indenture.
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conclusive evidence that the Bonds so authenticated have been
duly executed, authenticated and delivered hereunder and are
entitled to the benefits of this Indenture.
SECTION 2.04. Transfer of Bonds. (A) Any Bond
may, in accordance with its terms and subject to the
conditions stated below, be transferred, upon the books
required to be kept pursuant to the provisions of
Section 2.06, by the person in whose name it is registered,
in person or by his duly authorized attorney, upon surrender
of such Bond for cancellation, accompanied by delivery of a
written instrument of transfer, duly executed in a form
approved by the Trustee.
(B) Whenever any Bond or Bonds shall be surrendered
for transfer, the City shall execute and the Trustee shall
authenticate and deliver a new Bond or Bonds, for a like
aggregate principal amount, which shall have endorsed thereon
the next number which has not been assigned to a Bond. Any
tax or other governmental charge required to be paid with
respect to such transfer shall be paid by the Corporation.
(C) Notwithstanding the foregoing, Bonds which the
Trustee holds on behalf of the Lender or the Surety or for
which the Lender or the Surety is the registered owner shall
not be transferred unless the amount that may be drawn under
the Letter of Credit shall have been, or shall concurrently
with such transfer be, reinstated in the full principal
amount of the Bonds proposed to be transferred plus any
interest portion of the Letter of Credit drawn upon in
connection with the purchase of such Bonds.
SECTION 2.05. Exchange of Bonds. Bonds may be
exchanged at the principal corporate trust office of the
Trustee in San Francisco, California, for a like aggregate
principal amount of Bonds of authorized denominations. Any
tax or other governmental charge required to be paid with
respect to such exchange shall be paid by the Corporation.
SECTION 2.06. Bond Register. The Trustee will
keep or cause to be kept, at its principal corporate trust
office in San Francisco, California, sufficient books for the
registration of the Bonds, which shall at all times be open
to inspection by the City; and, upon presentation for such
purpose, the Trustee shall, under such reasonable regulations
as it may prescribe, register or cause to be registered, on
such books, the Bonds as hereinbefore provided.
SECTION 2.07. Temporary Bonds. The Bonds may be
issued in temporary form exchangeable for definitive Bonds
when ready for delivery. Any temporary Bond may be printed,
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040213-0005-087-5718m(O338m)
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Project Fund and has not been previously paid from said
fund; and (vi) that there has not been filed with or
served upon the Corporation notice of any lien, right to
lien or attachment upon, or claim affecting the right to
receive payment of, any of the amounts payable to any of
the persons named in such Requisition, which has not
been released or will not be released simultaneously
with the payment of such obligation, other than
materialmen's or mechanics' liens accruing by mere
operation of law; and
(2) so long as the Letter of Credit is outstanding
or any obligations are owed to the Lender under the
Letter of Credit Agreement, a copy of the Lender's form
for "Request for Funds" in the form of Exhibit G to the
Letter of Credit Agreement and attached to Exhibit D
hereof, signed by an Authorized Representative of the
Lender.
Upon receipt of such Requisition and, if required,
Request for Funds, the Trustee will pay the amount set forth
in such Requisition as directed by the terms thereof out of
the Project Fund. The Trustee shall disburse the moneys in
the Bond Account before disbursing any moneys from the
Hospital Account. The Trustee shall not make any such
payment if it has received notice at its address specified
pursuant to Section 11.06 hereof of any lien, right to lien
or attachment upon, or claim affecting the right to receive
payment of, any of the moneys to be so paid, which has not
been released or will not be released simultaneously with
such payment.
(C} When the Project shall have been completed and
the requirements for the final disbursement of funds
contained in Article XIII of the Letter of Credit Agreement
have been satisfied, a Certificate of the Corporation stating
the fact and date of such completion and stating that all of
the costs thereof have been determined and paid (or that all
of such costs have been paid less specified claims which are
subject to dispute and for which a retention in the Project
Fund is to be maintained in the full amount of such claims
until such dispute is resolved, at which time any amounts not
needed to pay Project costs shall be transferred to the
Principal Fund) shall be delivered to the Trustee by the
Corporation. Upon the receipt of such certificate, the
Trustee shall transfer any remaining balance in the Project
Fund, less the amount of any such retention, to the Principal
Fund.
SECTION 3.04.
Costs of Issuance Fund.
Establishment and Application of
The Trustee shall establish,
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040213--0005-087-5718m(O338m)
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ARTICLE III
ISSUE OF BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance of Bonds. At any time
after the execution of this Indenture, the City may execute
and the Trustee shall authenticate and, upon Order of the
City, deliver the Bonds in the aggregate principal amount of
thirty-five million dollars ($35,000,000).
SECTION 3.02. Application of Proceeds. The
proceeds received from the sale of the Bonds shall be
deposited in trust with the Trustee, who shall forthwith set
aside such proceeds as follows:
(a) The Trustee shall
thousand dollars ($
Fund.
set aside
) in the Costs of Issuance
(b) The Trustee shall set aside the remainder of
said proceeds in the Bond Account of the Project Fund.
The Trustee shall also deposit the moneys furnished
by the Corporation pursuant to Section 6.10 of the Agreement
in the Hospital Account of the Project Fund.
SECTION 3.03. Establishment and Application of
Project Fund. (A) The Trustee shall establish, maintain and
hold in trust a separate fund designated as the "Greater
Bakersfield Memorial Hospital Project Fund." The Project
Fund shall have, and there are hereby created, two separate
accounts called the "Bond Account" and the "Hospital
Account." The moneys in the Project Fund shall be used and
withdrawn by the Trustee to pay the costs (as that term is
defined in the Law) of the Project.
(B) Before any payment from the Project Fund shall
be made, the Corporation shall file or cause to be filed with
the Trustee:
(1) a Requisition of the Corporation stating
(i) the item number of such payment; (ii) the name of
the person to whom each such payment is due, which may
be the Corporation in the case of reimbursement for
costs of the project theretofore paid by the
Corporation; (iii) the respective amounts to be paid;
(iv) the purpose by general classification for which
each obligation to be paid was incurred; (v) that
obligations in the stated amounts have been incurred by
the Corporation and are presently due and payable and
that each item thereof is a proper charge against such
27
040213-0005-087-5718m(O338m) 12/03/84
such reduction of the principal portion of such outstanding
Letter of Credit.
(c) Change of Letter of Credit. The Bonds shall
be subject to mandatory redemption and shall be redeemed by
the Trustee, at a redemption price of 100% of the principal
amount thereof plus accrued interest to the date fixed for
redemption, on any date after the 15th day prior to the
reduction date on which the amount of the Letter of Credit is
reduced below the aggregate principal amount of Bonds then
Outstanding (except the Conversion Date) if a replacement
Letter of Credit meeting the requirements set forth in
Section 4.3 of the Agreement has been provided to the Trustee
and the Trustee has received notice pursuant to Section
4.3(vi) of the Agreement that such Letter of Credit will
result in a reduction in the rating of the Bonds by any
rating agency then rating the Bonds, except that Bonds for
which the Trustee receives written notice not to redeem
pursuant to Section 4.07 shall not be redeemed pursuant to
this subsection (c).
(d) ~ptional Redemption After Conversion. After
Conversion, the Bonds shall be subject to redemption prior to
maturity, at the option of the City upon direction of the
Corporation, as a whole at any time, or in part on any
January 1 or July 1, on the dates and at the redemption
prices (expressed as percentages of principal amount of Bonds
so called for redemption) set forth below plus accrued
interest to the date fixed for redemption, such prices to be
applicable from the first day of January through the last day
of December, inclusive, of the respective year after
Conversion, except the last such year, set forth below, as
follows:
(i) If Conversion occurs prior to January 1,
1999:
Year after Conversion
Redemption Price
Tenth
Eleventh
Twelfth
Thirteenth
Fourteenth and thereafter
102.0%
101.5
101.0
100.5
100.0
(ii) If Conversion occurs on or after
January 1, 1999:
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maintain and hold in trust a separate fund designated as the
"Greater Bakersfield Memorial Hospital Costs of Issuance
Fund." The moneys in the Costs of Issuance Fund shall be
used and withdrawn by the Trustee to pay the costs of
issuance of the Bonds upon Requisition of the Corporation
stating the person to whom payment is to be made, the amount
to be paid, the purpose for which the obligation was incurred
and that such payment is a proper charge against said fund.
On December 1, 1985 or upon the earlier Request of the
Corporation, amounts if any, remaining in the Costs of
Issuance Fund shall be transferred to the Bond Account of the
Project Fund.
SECTION 3.05. Validity of Bonds. The validity of
the authorization and issuance of the Bonds is not dependent
on and shall not be affected in any way by any proceedings
taken by the City or the Trustee with respect to or in
connection with the Agreement. The recital contained in the
Bonds that the same are issued pursuant to the Law and the
Constitution and laws of the State of California shall be
conclusive evidence of their validity and of compliance with
the provisions of law in their issuance.
ARTICLE IV
REDEMPTION
SECTION 4.01. Redemption of Bonds, The Bonds
shall be subject to redemption upon the following terms:
(a) Before Conversion. On or prior to the
Conversion Date, the Bonds shall be subject to redemption on
any Interest Payment Date on or after July 1, 1985 in whole
or in part, at the option of the City, which shall be
exercised upon direction of the Corporation, at a redemption
price of 100~ of the principal amount of the Bonds redeemed,
plus interest accrued thereon to the date fixed for
redemption.
(b) Letter of Credit Principal Portion Expires.
The Bonds shall be subject to mandatory redemption and shall
be redeemed by the Trustee in whole (but not in part), at a
redemption price equal to 100K of the principal amount
thereof plus accrued interest to the date fixed for
redemption, on any date after the 15th day prior to the
reduction date on which the amount of the Letter of Credit is
reduced below the aggreqate principal amount of Bonds then
Outstanding if a replacement Letter of Credit meeting the
requirements set forth in Section 4.3 of the Agreement is not
provided to the Trustee at least fifteen (15) days before
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040213-0005-087-5718m(0338m)
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books of the Trustee not less than thirty (30) (or, in the
case of redemption pursuant to Section 4.01(b) or (c), not
less than five) days nor more than sixty (60) days prior to
the date fixed for redemption. Each notice of redemption
shall state the redemption date, the place or places of
redemption, and, if less than all of the Bonds, the principal
amount to be redeemed. Each such notice shall also state
that on said date there will become due and payable on said
Bonds the principal amount thereof or said specified portion
of the principal amount thereof in the case of a redemption
in part only, together with interest accrued thereon to the
redemption date, and that from and after such redemption date
interest thereon shall cease to accrue, and shall require
that the Bonds be then surrendered.
SECTION 4.04. Partial Redemption of Bonds. Upon
surrender of any registered bond redeemed in part only, the
City shall execute and the Trustee shall authenticate and
deliver to the registered owner thereof, at the expense of
the City, a new fully registered Bond or Bonds of the same
series and maturity and of authorized denominations
designated by such owner equal in aggregate principal amount
to the unredeemed portion of the Bond surrendered.
SECTION 4.05. Effect of Redemption. Notice of
redemption having been duly given as aforesaid, and moneys
for payment of the principal amount of, together with
interest accrued to the date fixed for redemption on, the
Bonds (or portions thereof) so called for redemption being
held by the Trustee, on the redemption date designated in
such notice, the Bonds (or portions thereof) so called for
redemption shall become due and payable, interest on the
Bonds (or portions thereof) so called for redemption shall
cease to accrue, the Bonds (or portions thereof) shall cease
to be entitled to any benefit or security under this
Indenture, and the registered owner thereof shall have no
rights in respect thereof except to receive payment of the
principal amount of the Bonds (or portions thereof) and
accrued interest.
Upon the redemption by the Trustee of any Bond or
portion thereof in accordance with this Article, the Trustee
shall notify the Lender and the Surety in writing of the date
and amount of such redemption within three Business Days
after the date of such redemption, and the Trustee shall
deliver a reduction certificate relating to the amount
available to be drawn under the Letter of Credit in the
manner contemplated in the Letter of Credit.
Holder.
Section 4.06. Purchase of Bonds at Option of
(A) At any time prior to the Conversion Date, the
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040213-0005-087-5718m(0338m)
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Year after Conversion
Redemption Price
Fifth 102.0%
Sixth 101.5
Seventh 101.0
Eighth 100.5
Ninth and thereafter 100.0
(e) Sinking Fund Redemption After Conversion.
After Conversion, the Bonds shall be subject to redemption
prior to maturity on each January 1 commencing on the
January 1 next following the Conversion Date, but not
including January 1, 2015 (each such January 1 to be called a
"Redemption Date"), in part by lot, at a redemption price of
100K of the principal amount thereof, without premium, plus
accrued interest to the Redemption Date, from sinking fund
payments made by the Corporation, in an amount described as
follows:
The principal amount of Bonds to be redeemed on
each Redemption Date shall be an amount (calculated to
the nearest $5000) which bears the same ratio to the
total Outstanding principal amount of Bonds on the
Conversion Date, as the ratio of 1 to the total number
of Redemption Dates.
Notwithstanding the foregoing provisions, the
Indexing Agent may set a different sinking fund schedule, by
announcement in writing to the City, the Trustee, the
Corporation and the Lender, provided that there is
simultaneously delivered to the Trustee an Opinion of Bond
Counsel that the effectuation of such alternate sinking fund
schedule will not cause interest on the Bonds to become
subject to federal income taxation.
SECTION 4.02. Selection of Bonds for Redemption.
When redemption is made pursuant to provisions of the
Indenture and less than all of the Outstanding Bonds are to
be redeemed, the Trustee shall redeem the Bonds by lot. For
purposes of redeeming Bonds in denominations greater than
$100,000 before Conversion or greater than $5,000 after
Conversion, as the case may be, the Trustee shall assign to
such Bonds a distinctive number for each such $100,000
principal amount and, in selecting Bonds for redemption by
lot, shall treat such amounts as separate Bonds. The Trustee
shall promptly notify the City in writing of the numbers of
the Bonds, or portions thereof, selected for redemption.
SECTION 4.03. Notice of Redemption. Notice of
redemption shall be mailed or telegraphed to the Holders of
the Bonds at the address appearing on the bond registration
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040213-0005-087-5718m(O338m)
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required to pay the purchase price of the Bonds being
tendered. If for any reason moneys in the necessary amount
are not provided under the Letter of Credit to pay the
purchase price of Bonds being tendered, the Trustee shall
demand payment under the Surety Bond as provided in Section
5.07.
SECTION 4.07. Change of Letter of Credit Bank.
Upon receipt by the Trustee of the notice from the
Corporation described in Section ~.3(vi) of the Agreement,
the Trustee shall give written notice of the substitute
Letter of Credit, if the substitute Letter of Credit issuer
causes the Bonds to have a lower rating, to each Bondholder,
substantially in the form of Exhibit C to the Indenture,
within five days from the date of receipt by the Trustee of
the aforementioned notice. Said notice will advise each
Bondholder of the identity of the substitute Letter of Credit
issuer, the prospective rating of the Bonds and the date upon
which the substitute Letter of Credit will become effective.
Each Bondholder shall be requested to respond by mail to the
Trustee, indicating his or her election not to have Bonds
redeemed pursuant to Section 4.01(c), no later than
twenty-five (25) days from the date of the giving of notice
by the Trustee. Such election shall be irrevocable and
binding upon any subsequent Holder of the Bonds as to which
consent has been given. The Trustee shall redeem all Bonds
held by each Bondholder for which the Trustee has not
received an election in accordance with this subsection.
Such redemption shall take place on the Business Day prior to
the scheduled termination of the then-existing Letter of
Credit. The Trustee shall advise the Lender of any Bonds
subject to redemption pursuant to Section 4.01(c) immediately
upon expiration .of the election period.
SECTION 4.08. Remarketing Agent. The Corporation
shall appoint the Remarketing Agent for the Bonds, subject to
the conditions set forth in Section 4.09 hereof, and cause
said Remarketing Agent to enter into an agreement in
substantially the form of the Remarketing Agreement. The
Remarketing Agent shall designate to the Trustee its
principal office and signify its acceptance of the duties and
obligations imposed on it hereunder by a written instrument
of acceptance delivered to the Corporation, the City, the
Lender and the Trustee under which the Remarketing Agent will
agree to perform the obligations of the Remarketing Agent set
forth in the Remarketinq Agreement.
The City shall cooperate with the Trustee and the
Corporation to cause the necessary arrangements to be made
and to be thereafter continued whereby funds from the sources
specified herein and in the Agreement will be made available
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040213-0005~087-5718m(0338m)
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Trustee, on behalf of the Lender or Surety, shall purchase
(but only from the funds specified in Section 4.10(b)) any
Bond (except Bonds then held by the Lender or the Surety) at
a purchase price equal to the principal amount thereof plus
accrued interest thereon, if any, to the Purchase Date, upon:
(1) delivery to the Remarketing Agent at its
principal office and to the Trustee at its principal
office of a written notice executed by the Holder of a
Bond which (a) requests purchase of the Bonds being
tendered and (b) states the Purchase Date for such
Bonds, which date shall be a Business Day not prior to
the seventh (7th) day next succeeding the date of
delivery of such notice to the Remarketing Agent and
Trustee; and
(2) delivery of such Bond(s) in negotiable form
and, in the case of any Bonds to be purchased on or
before an Interest Payment Date but after the Record
Date with respect to such Interest Payment Date, a
Due-Bill-Check, in form and substance satisfactory to
the Trustee, for interest due on such Bonds on such
Interest Payment Date, at the principal office of the
Trustee on or prior to 9:00 a.m., California time, on
the date of delivery of the notice required by clause
(1) above; or delivery of any Bonds or Due-Bill Check by
9:00 a.m. New York time to the duly appointed agent of
the Trustee, if any, in the City of New York.
The Trustee shall not be required to purchase less than the
minimum denomination of $100,000 aggregate principal amount
of any Bond.
(B) The Trustee shall give the Lender and the
Surety telephonic notice of receipt of the notice of the
Purchase Option not later than noon California time on the
Business Day following the date of receipt thereof. Upon
receipt of the tendered Bonds and any required
Due-Bill-Check, the Trustee shall provide the Lender such
evidence as Lender or the Surety may request that the Trustee
is holding the Bonds and the Due-Bill-Check not later than
twenty-four (24) hours prior to the time the Trustee will be
required to draw on the Letter of Credit.
(C) The Trustee shall make a demand for payment
under the Letter of Credit at such time to assure that the
Lender will pay such drawing by 1:00 p.m., California time,
on the Business Day prior to the Purchase Date as specified
in the purchase notice. Such drawing shall be in an amount,
taking into account moneys actually deposited with the
Trustee by the Remarketing Agent or any purchaser of Bonds,
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040213-0005-087-5718m(O338m)
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purchase price of such Bondholders' Bonds. All income or
other gain realized from the investment of moneys in the
Purchase Fund shall be transferred to the Interest Fund and
credited against the Corporation's obligation to make
deposits thereto.
(b) Funds for the purchase of Bonds at the
principal amount thereof plus interest accrued to the
purchase date shall be paid out of the Purchase Fund in the
order of priority indicated:
(i) proceeds of the sale of Bonds pursuant to the
Remarketing Agreement;
(ii) moneys representing proceeds of a drawing by
the Trustee under the Letter of Credit or the Surety
Bond, and the proceeds of the investment thereof; and
(iii) moneys furnished by the Corporation, and the
proceeds of the investment thereof, that constitute
Available Moneys.
(c) The Trustee shall:
(i) hold all Bonds delivered to it pursuant to
Section 4.06 hereof in trust for the benefit of the
respective Holders which shall have so delivered such
Bonds until moneys representing the purchase price of
such Bonds shall have been delivered to or for the
account of or to the order of such Holders; and
(ii) deliver to the Corporation, the Surety and the
Lender a copy of each notice delivered to it in
accordance with Section 4.06 hereof and, immediately
upon the delivery to it of Bonds in accordance with said
Section 4.06, give telephonic or telegraphic notice to
the Corporation, the Surety and the Lender specifying
the principal amount of the Bonds so delivered.
(d) The City and the Trustee recognize and
acknowledge that, in carrying out their responsibilities
under Sections 4.06 and 4.10, the Trustee and the Remarketing
Agent shall be acting solely as the agents of the Holders
from time to time of the Bonds. No delivery of Bonds to the
Trustee or any agent of the Trustee pursuant to Sections 4.06
and 4.10 shall constitute a redemption of the Bonds or an
extinguishment of the debt thereby evidenced.
SECTION 4.11. Disposition of Bonds. (a) Bonds
purchased by the Trustee with moneys described in subsection
(b)(i) of Section 4.10 hereof shall be registered and
36
040213-0005-087-5718m(0338m)
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for the purchase of Bonds presented at the principal office
of the Remarketing Agent and whereby Bonds executed by the
City and authenticated by the Trustee, shall be made
available to the Remarketing Agent to the extent necessary
for delivery pursuant to the Remarketing Agreement.
SECTION 4.09. Qualifications of Remarketing
Agent. The Remarketing Agent shall be a member of the
National Association of Securities Dealers, Inc. or a bank
having a capitalization of at least $15,000,000 and
authorized by law to perform all the duties imposed upon it
by the Remarketing Agreement. The Remarketing Agent may at
any time resign and be discharged of the duties and
obligations under the Remarketing Agreement by giving at
least sixty (60) days' notice to the City, the Corporation,
the Lender, the Surety and the Trustee. The Remarketing
Agent may be removed at any time, at the request of the
Corporation, by an instrument filed with the Remarketing
Agent, the Lender, the Surety and the Trustee.
The Remarketing Agent shall agree particularly to
(i) use its best efforts to remarker any Bond delivered to
the Trustee for purchase pursuant to Section 4.06 hereof, and
(ii) keep such books and records as shall be consistent with
prudent industry practice and to make such books and records
available for inspection by the Trustee, the Lender, the
Surety and the Corporation at all reasonable times. The
Remarketing Agent shall not at any time be the Holder of
Bonds with an aggregate principal amount in excess of fifteen
percent (15%) of the aggregate principal amount of Bonds then
Outstanding.
SECTION 4.10. Creation of Purchase Fund; Purchase
of Bonds Delivered to Trustee. (a) There is hereby created
and established with the Trustee a fund in the name of the
Corporation to be designated "Greater Bakersfield Memorial
Hospital Purchase Fund" (hereinafter referred to as the
"Purchase Fund") to be used to purchase Bonds tendered
pursuant to Section 4.06. There shall be deposited into the
Purchase Fund all moneys drawn by the Trustee under the
Letter of Credit or the Surety Bond in connection with
payment of Bonds tendered under Section 4.06 (which moneys
shall be held in a separate account within the Purchase Fund
designated as the "Letter of Credit Account"), all moneys
received from the sale of Bonds pursuant to the Remarketing
Agreement (which moneys shall be held in a separate account
within the Purchase Fund designated as the "Purchase Proceeds
Account"), all moneys received from the Corporation and
directed to be deposited in the Purchase Fund shall be held
in trust for the benefit of the Bondholders on whose behalf
said moneys shall have been drawn or deposited as the
35
040213-0005-087-5718m(0338m)
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(b) to determine adjustments to the Multiple as
contemplated by Section 2.02(b) hereof; and
(c) to keep such books and records as shall be
consistent with prudent industry practice and to make such
books and records available for inspection by the City, the
Trustee and the Corporation at all reasonable times.
The initial Indexing Agent appointed by the City is
The Dowdell Corporation.
SECTION 4.15. Qualifications of Indexing Agent.
The Indexing Agent shall be a financial consulting firm, a
municipal securities dealer or a nationally recognized
municipal securities evaluation service authorized by any law
to perform all the duties imposed upon it by this Indenture.
The Indexing Agent may at any time resign and be discharged
of the duties and obligations created by this Indenture by
giving at least 60 days' notice to the City, the Corporation,
the Remarketing Agent and the Trustee. The Indexing Agent
may be removed at any time by the City, with the advice of
the Corporation, by an instrument, signed by the Authority,
filed with the Indexing Agent, the Remarketing Agent and the
Trustee.
The Indexing Agent shall not at any time be the
Holder of Bonds with an aggregate principal amount in excess
of fifteen percent (15%) of Bonds then Outstanding.
SECTION 4.16. Several Capacities. Anything in
this Indenture to the contrary notwithstanding, the same
entity may serve hereunder as the Trustee, the Indexing Agent
and the Remarketing Agent and in any other combination of
such capacities, to the extent permitted by law.
SECTION 4.17. Cancellation of Unremarketed Bonds.
Upon tender of unremarketed Bonds to the Trustee, the Trustee
shall cancel said Bonds and all obligations represented
thereby shall be extinguished and discharged.
ARTICLE V
REVENUES
SECTION 5.01. Pledge and Assignment of Revenues.
(A) Subject only to the provisions of this Indenture
permitting the application thereof for the purposes and on
the terms and conditions set forth herein, there are hereby
pledged to secure the payment of the principal of and
interest on the Bonds in accordance with their terms and the
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delivered by the Trustee in the manner requested by the
purchaser thereof.
(b) (i) Bonds purchased by the Trustee pursuant
to subsection (b)(iii) of Section 4.10 shall be
cancelled or registered in the name of the Corporation
upon direction of the Corporation.
(ii) Bonds purchased by the Trustee with moneys
described in subsection (b)(ii) of Section 4.10 hereof
shall be registered and delivered upon the direction of
the Lender if purchased from Letter of Credit proceeds
or the Surety if purchased from Surety Bond proceeds.
(c) If at any time a substitute Letter of Credit
is issued by an issuer different from the then-current
Lender, and the Lender is then holding any Bonds, the Trustee
shall cooperate with the parties to arrange the transfer of
such Bonds to new custody or ownership as may be required by
the issuer of the substitute Letter of Credit.
SECTION 4.12. Delivery of Proceeds of Sale. The
proceeds of the sale by the Trustee of any Bonds delivered to
it by, or held by it for the account of, or delivered to it
by the Lender, the Surety or any other Bondholder, shall be
turned over to the Lender, the Surety or such other
Bondholder, as the case may be.
SECTION 4.13. No Purchases or Sales After Default.
Anything in this Indenture to the contrary notwithstanding,
there shall be no purchases or sales of Bonds pursuant to
this Article IV if there shall have occurred and be
continuing an Event of Default described in clause (i), (ii),
(iii), (iv) or (v) of Section 7.01(a) hereof or if any shall
have occurred which with notice or the lapse of time, or
both, would constitute such an Event of Default.
SECTION 4.14. Indexing Agent. In order to carry
out the City's duties and obligations contained herein, the
City shall, with the advice of the Corporation, appoint the
Indexing Agent as a necessary financial consultant for the
Bonds, subject to the conditions set forth in Section 4.15
hereof. The Indexing Agent shall designate to the Trustee
its principal office and signify its acceptance of the duties
and obligations imposed upon it hereunder by a written
instrument of acceptance delivered to the City, the Trustee,
the Corporation and the Remarketing Agent under which the
Indexing Agent will agree, particularly:
(a) to compute the Fixed Interest Index as and
when requested by the Corporation;
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SECTION 5.03. Payment of Interest on Bonds. The
Trustee shall use the following sources of money in the
following priority for the payment of interest on the Bonds
when due and payable:
(1) moneys deposited in the Interest Fund from
Loan Repayments made by the Corporation and investment
earnings thereon;
(2) moneys available in the Reserve Fund;
(3) proceeds of draws under the Letter of Credit
deposited in the Interest Fund;
(4) moneys deposited in the Interest Fund from
payments made by the Surety; and
(5) other moneys in the Interest Fund or otherwise
available for the payment of interest on the Bonds.
So long as a Surety Bond is in effect, the Trustee
shall on the fourth Business Day prior to each Interest
Payment Date determine whether moneys in the Interest Fund
and the Reserve Fund will be sufficient to pay the interest
becoming due on the next Interest Payment Date. If
sufficient moneys are not so available, the Trustee shall
accelerate the Bonds pursuant to Section 7.01 and immediately
draw upon the Letter of Credit pursuant to the provisions of
Section 7.01. If on the second Business Day before such
Interest Payment Date, the Lender has not made payment as
required by the Letter of Credit, the Trustee shall
immediately draw upon the Surety Bond.
SECTION 5.04. Payment of Principal of Bonds. Upon
any date upon which principal of the Bonds is due and payable
as a result of demand, maturity, mandatory or sinking fund
redemption pursuant to Section 4.01 hereof, or acceleration,
the Trustee shall use the following sources of money in the
following priority for the payment of principal of the Bonds
then due and payable:
(1) moneys in the Principal Fund to the extent
such moneys constitute Available Moneys;
(2) moneys available in the Reserve Fund which
constitute Available Moneys;
(3) moneys drawn under the Letter of Credit or the
Surety Bond; and
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provisions of this Indenture, all of the Revenues and any
other amounts (including proceeds of the sale of the Bonds)
held in any fund or account established pursuant to this
Indenture or the Agreement, other than the Purchase Fund.
Said pledge shall constitute a lien on and security interest
in such assets and shall attach, be perfected and be valid
and binding from and after delivery by the Trustee of the
Bonds, without any physical delivery thereof or further act.
(B) The City hereby transfers in trust, grants a
security interest in and assigns to the Trustee, for the
benefit of the Holders of the Bonds, all of the Revenues and
other assets pledged in subsection (A) of this Section and
all of the right, title and interest of the City in the
Agreement (except for the right to receive any Administrative
Fees and Expenses to the extent payable to the City), the
Deed of Trust and Assignment of Lease. The Trustee shall be
entitled to and shall collect and receive all of the
Revenues, and any Revenues collected or received by the City
shall be deemed to be held, and to have been collected or
received, by the City as the agent of the Trustee and shall
forthwith be paid by the City to the Trustee. The Trustee
also shall be entitled to and shall take all steps, actions
and proceedings reasonably necessary in its judgment to
enforce, either jointly with the City or separately, all of
the rights of the City and all of the obligations of the
Corporation under the Agreement, the Deed of Trust and the
Assignment of Lease.
SECTION 5.02. Deposit of Revenues. All Revenues
shall be promptly deposited by the Trustee upon receipt
thereof in certain special funds designated as the "Greater
Bakersfield Memorial Hospital Interest Fund" and the "Greater
Bakersfield Memorial Hospital Principal Fund" which the
Trustee shall establish, maintain and hold in trust, except
as otherwise provided in Sections 4.10, 5.06, 5.07 and 7.04.
All moneys paid by the Corporation as interest on the loan of
moneys provided for in the Agreement shall be deposited in
the Interest Fund, and all other Revenues (including payments
or prepayments of principal by the Corporation or drawings
under the Letter of Credit or the Surety Bond other than
drawings for the Purchase Option) shall be deposited in the
Principal Fund, except for insurance and condemnation
proceeds, which moneys shall be deposited in accordance with
Section 7.6 of the Agreement into a fund designated as the
"Insurance and Condemnation Proceeds Fund," which fund is
hereby created and established, and except as otherwise
provided in Sections 4.10, 5.06, 5.07 and 7.04. All Revenues
deposited with the Trustee shall be held, disbursed,
allocated and applied by the Trustee only as provided in this
Indenture and the Agreement.
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at such prices as the Trustee may in its discretion
determine. All Investment Securities shall be acquired
subject to the limitations set forth in Section 6.05, the
limitations as to maturities hereinafter in this Section set
forth and such additional limitations or requirements
consistent with the foregoing as may be established by
Request of the Corporation.
Moneys in all funds and accounts shall be invested
in Investment Securities maturing not later than the date on
which it is estimated that such moneys will be required by
the Trustee. All interest, profits and other income received
from the investment of moneys in any funds or accounts shall
be deposited when received in such respective fund.
Investment Securities acquired as an investment of
moneys in any fund or account established under this
Indenture or the Agreement shall be credited to such fund or
account. For the purpose of determining the amount in any
such fund or account, all Investment Securities credited to
such fund or account shall be valued at the lower of cost or
fair market value.
The Trustee may commingle any of the funds or
accounts established pursuant to this Indenture (other than
proceeds of a drawing on the Letter of Credit or the Surety
Bond) or the Agreement into a separate fund or funds for
investment purposes only, provided that all funds or accounts
held by the Trustee hereunder shall be accounted for
separately as required by this Indenture or the Agreement.
The Trustee may act as principal or agent in the making or
disposing of any investment. The Trustee may sell at the
best price obtainable, or present for redemption, any
Investment Securities so purchased whenever it shall be
necessary to provide moneys to meet any required payment,
transfer, withdrawal or disbursement from the fund or account
to which such Investment Security is credited, and, subject
to the provisions of Section 8.03, the Trustee shall not be
liable or responsible for any loss resulting from such
investment.
Notwithstanding anything hereinbefore stated, any
moneys held in the Preference Fund, Principal Fund or
Interest Fund that are proceeds of any drawing under the
Letter of Credit or the Surety Bond shall be invested only in
Investment Securities for the payment of which the full faith
and credit of the United States is pledged, and maturing no
later than 30 days after the purchase of such Investment
Securities by the Trustee.
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(4) any other moneys available for the payment of
the principal of the Bonds.
At least four (4) Business Days, if there is a Surety Bond in
effect, or two (2) Business Days, if there is a Letter of
Credit in effect without a Surety Bond, before the date on
which payment of principal on the Bonds shall be due, the
Trustee shall make a determination of the amount of money in
the Principal Fund and the Reserve Fund which will be
Available Moneys on such principal payment date. If for any
reason, sources (1) and (2) above do not provide moneys
sufficient to make full payment of principal due on such
principal payment date, the Trustee shall accelerate the
Bonds pursuant to Section 7.01 and immediately make a draw
upon the Letter of Credit pursuant to the provisions of
Section 7.01.
SECTION 5.05. Reserve Fund. The Trustee shall
establish a separate fund to be known as the "Greater
Bakersfield Memorial Hospital Reserve Fund" (the "Reserve
Fund") and shall keep on deposit in the Reserve Fund an
amount to be provided by the Corporation, when necessary,
equal to the Reserve Fund Requirement. The Trustee shall use
amounts on deposit in the Reserve Fund to pay interest on or
principal of the Bonds to the extent that moneys in the
Interest Fund or Principal Fund are insufficient.
If for any reason the amount on deposit in the
Reserve Fund is less than the Reserve Fund Requirement, the
Trustee shall require the Corporation to pay, as an
Additional Payment under Section 4.2(e) of the Agreement,
such amounts as are necessary to replenish the Reserve Fund
to the Reserve Fund Requirement, and then upon the making of
such payment by the Corporation the Trustee shall deposit
such amount in the Reserve Fund. If at any time the amount
on deposit in the Reserve Fund exceeds the Reserve Fund
Requirement, the Trustee shall transfer such excess to the
Interest Fund.
SECTION 5.06 Investment of Moneys in Funds and
Accounts. Upon Request of the Corporation, all moneys in any
of the funds and accounts established pursuant to this
Indenture or the Agreement (including the Gross Revenue Fund
and the Insurance and Condemnation Fund established
thereunder) shall be invested by the Trustee solely in
Investment Securities, as directed by the Corporation. If
the Corporation does not provide such a Request, the Trustee
shall invest all moneys in any of the funds and accounts
established pursuant to this Indenture or the Agreement in
Investment Securities, such investment to be pursuant to the
Trustee's discretion. Investment Securities may be purchased
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the redemption prices then applicable to redemptions;
provided that while a Letter of Credit is in effect, such
redemptions can only be effected with Available Moneys.
ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Payment. The City shall
punctually pay or cause to be paid the principal and interest
to become due in respect of the Bonds, in strict conformity
with the terms of the Bonds and of this Indenture, according
to the true intent and meaning thereof, but only out of
Revenues and other assets pledged for such payment as
provided in this Indenture.
SECTION 6.02. Against Encumbrances. The City
shall not create, or permit the creation of, any pledge,
lien, charge or other encumbrance upon the Revenues and other
assets pledged or assigned under this Indenture while the
Bonds are outstanding, except the pledge and assignment
created by this Indenture. Subject to this limitation, the
City expressly reserves the right to enter into one or more
other indentures for any of its corporate purposes, including
other financings or refinancings under the Law, and reserves
the right to issue other obligations for such purposes.
SECTION 6.03. Power to Issue the Bonds and Make
Pledge and Assignment. The City is duly authorized pursuant
to law to issue the Bonds and to enter into this Indenture
and to pledge and assign the Revenues and other assets
purported to be pledged and assigned, respectively, under
this Indenture in the manner and to the extent provided in
this Indenture. The Bonds and the provisions of this
Indenture are and will be the legal, valid and binding
limited obligations of the City in accordance with their
terms, and the City and Trustee shall at all times, to the
extent permitted by law, defend, preserve and protect said
pledge and assignment of Revenues and other assets and all
the rights of the Bondholders under this Indenture against
all claims and demands of all persons whomsoever.
SECTION 6.04. Accounting Records and Financial
Statements. (A) The Trustee shall at all times keep, or
cause to be kept, proper books of record and account,
prepared in accordance with the Trustee's accounting
practices for books of record and account relating to
similiar trust accounts and in accordance with the customary
standards of the industry for such books of record and
account, in which complete and accurate entries shall be made
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SECTION 5.07. Letter of Credit and Surety Bond
Generally. The Trustee is hereby authorized and directed to
demand payment under the Letter of Credit or the Surety Bond
in accordance with their terms to the extent required by
Sections 4.06, 5.03, 5.04, 7.03 or 7.04. Moneys drawn under
the Letter of Credit or the Surety Bond (except in connection
with payment of Bonds tendered under Section 4.06) shall be
held in separate accounts in the Preference Fund (as
hereinafter defined), Principal Fund and Interest Fund and
used by the Trustee solely for the purpose of paying interest
on and principal of the Bonds. The Trustee is authorized and
directed to execute such certificates, such demand for
payment and similar documents as may be required or
reasonably requested by the Lender or the Surety, including,
if following such payment no Bonds remain Outstanding, an
assignment to the Lender or the Surety, as the case may be,
of the beneficial interest of the Trustee in any security,
including the Deed of Trust and the Assignment of Lease.
SECTION 5.08. Gross Revenue Fund. Trustee agrees
to take control of the Gross Revenue Fund (as defined in
Section 4.4 of the Agreement) and apply moneys deposited
therein pursuant to the provisions of Section 4.4 of the
Agreement.
SECTION 5.09. Funds Remaining After Payment.
Whenever all Bonds and interest thereon have been paid under
the provisions of this Indenture (whether at maturity, or by
redemption or acceleration) or money is held by the Trustee
for such payment and all expenses and charges of the Trustee
have been paid, amy balance remaining in any funds or
accounts held by the Trustee shall be paid to the Lender or,
if any payments have been made under the Surety Bond, to the
Surety as reimbursement for and in the amount of any
unreimbursed amounts owed by the Corporation under the Letter
of Credit Agreement or by the Lender to the Surety under the
Indemnity and Collateral Agreement, or, if no such sums are
due and owing, such sums shall be paid to the Corporation,
except that the Corporation shall not receive any moneys
derived from a drawing under the Letter of Credit or the
Surety Bond.
SECTION 5.10. Application of Redemption Fund. The
Trustee shall establish, maintain and hold in trust a special
fund designated the "Greater Bakersfield Memorial Hospital
Optional Redemption Fund" (the "Redemption Fund"). All
amounts deposited in the Redemption Fund shall be used and
withdrawn by the Trustee solely for the purpose of redeeming
Bonds, in the manner and upon the terms and conditions
specified in Section 4.01(a) or (d), at the next succeeding
date of redemption for which notice has not been given and at
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(C) The City shall not make any use of the
proceeds of the Bonds or any other funds which will cause
such Bonds to be "federally guaranteed" and subject to
federal income taxation by reason of Section 103(h) of said
Code.
(D) The City shall not do anything which would
make interest paid on the Bonds subject to federal income
taxation.
SECTION 6.06. Other Covenants. (A) The Trustee
shall promptly collect all amounts due from the Corporation
pursuant to the Agreement, will perform all duties imposed
upon it pursuant to the Agreement (including executing the
necessary releases or documents contemplated in Section
6.7(B) thereof), and shall diligently enforce, and upon
notice of a Loan Default Event or event which with the
passage of time or giving of notice, or both, would be a Loan
Default Event take all steps, actions and proceedings
reasonably necessary for the enforcement of all of the rights
of the City and all of the obligations of the Corporation.
(B) The City shall not amend, modify or terminate
any of the terms of the Agreement, or consent to any such
amendment, modification or termination, without the written
consent of the Trustee and the Lender. The Trustee shall
give such written consent only if (1) in the opinion of the
Trustee, such amendment, modification or termination will not
materially adversely affect the interests of the Bondholders
or result in any material impairment of the security hereby
given for the payment of the Bonds, or (2) the Bondholders
(or, after Conversion! the Holders of a majority in aggregate
principal amount of Bonds then Outstanding) consent in
writing to such amendment, modification or termination.
SECTION 6.07. Waiver of Laws. The City shall not
at any time insist upon or plead in any manner whatsoever, or
claim or take the benefit or advantage of, any stay or
extension law now or at any time hereafter in force that may
affect the covenants and agreements contained in this
Indenture or in the Bonds, and all benefit or advantage of
any such law or laws is hereby expressly waived by the City
to the extent permitted by law.
SECTION 6.08. Further Assurances. The City will
make, execute and deliver any and all such further
indentures, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to
facilitate the performance of this Indenture and for the
better assuring and confirming unto the Bondholders of the
rights and benefits provided in this Indenture.
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of all transactions relating to the proceeds of the Bonds,
the Revenues and all funds and accounts established pursuant
to this Indenture. Such books of record and account shall be
available for inspection by the City, the Lender, the Surety,
the Corporation and any Bondholder holding at least $100,000
aggregate principal amount of Bonds, or each of their agents
or representatives duly authorized in writing, at reasonable
hours and under reasonable circumstances.
(B) The Trustee shall file and furnish to the City
(1) a copy of the most recent Audited Financial Statements of
the Corporation, as furnished to the Trustee pursuant to the
Agreement, and (2) on or before March 1, of each year
commencing March 1, 1985, statements (which need not be
audited) covering receipts, disbursements, allocation and
application of Revenues and any other moneys (including
proceeds of Bonds) in any of the funds and accounts
established pursuant to this Indenture for the year ended on
the preceding January 1.
SECTION 6.05. Tax Covenants. (A) The City shall
not use or permit the use of any proceeds of the Bonds or any
other funds of the City, directly or indirectly, to acquire
any securities or obligations, and shall not use or permit
the use of any amounts received by the City or the Trustee
with respect to the Agreement in any manner, and shall not
take or permit to be taken any other action or actions, which
would cause the Bonds to be "arbitrage bonds" within the
meaning of Section 103(c) of the Internal Revenue Code of
1954, as amended (in this Section called the "Code"). The
City shall require that the Corporation (or any "related
person" as defined in Section 103(b)(6)(C) of the Code) shall
not, pursuant to an arrangement, formal or informal, purchase
any portion of the Bonds in an amount related to the amount
of the loan to be made to the Corporation pursuant to the
Agreement. In the event that at any time the City is of the
opinion that for purposes of this subsection (A) it is
necessary to restrict or limit the yield on the investment of
any moneys held by the Trustee under this Indenture, the City
shall so instruct the Trustee in writing, and the Trustee
shall take such action as may be necessary in accordance with
such instructions.
(B) The City shall not use or permit the use of
any proceeds of the Bonds or any other funds of the City,
directly or indirectly, in any manner, and shall not take or
permit to be taken any other action or actions, which would
result in the Bonds being treated as an obligation not
described in Section 103(a) of the Code by reason of
classification of such Bonds as "industrial development
bonds" within the meaning of Section 103(b) of the Code.
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the Letter of Credit is not reinstated in accordance
with its terms following the honoring of a demand for
payment under the Letter of Credit in connection with a
purchase of Bonds pursuant to Section 4.06.
(b) If an Event of Default has occurred as defined
under subsections (a)(iv) or (a)(vii) above and is
continuing, then and in each and every case during the
continuance of such event of default unless the principal of
all the Bonds shall have already become due and payable, the
Trustee, by notice in writing to the City and the
Corporation, may, and upon the written request of the holders
of not less than twenty-five percent (25~) in aggregate
principal amount of the Bonds at the time Outstanding, shall,
declare the principal of all ~he Bonds then Outstanding, and
the interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in
this Indenture or in the Bonds contained to the contrary
notwithstanding, provided that the Trustee may only make such
a declaration after receiving the prior written consent of
the Lender and, if the Surety Bond is in effect, the Surety.
If an Event of Default has occurred under
subsections (a)(i), (a>(ii), (a)(iii), (a)(v) or (a)(viii)
above and is continuing, the Trustee shall declare the
principal of all the Bonds then Outstanding, and the interest
accrued thereon, to be due and payable immediately, and upon
such declaration the same shall become and shall be
immediately due and payable. If an Event of Default has
occurred under subsection (a)(vi) above and is continuing,
the principal of all the Bonds then Outstanding, and the
interest accrued thereon, shall be automatically accelerated
without need of any declaration or other action by the
Trustee, and thereupon the same shall become and shall be
immediately due and payable. The Bonds shall be accelerated
on and shall continue to accrue interest after the date of
such declaration through payment (the "Acceleration Date").
Upon the occurrence of an Event of Default under subsections
(a)(i), (a)(ii), (a)(iii), (a)(vi) or (a)(viii), the Trustee
shall draw upon the Letter of Credit and, if not honored,
then on the Surety Bond, in the amount determined pursuant to
Section 7.03, and shall send written notice to each
Bondholder stating that the Bonds have been accelerated and
stating the Acceleration Date.
(c) The provisions of subsection (c), however, are
subject to the condition that if, at any time after the
principal of the Bonds shall have been so declared due and
payable because of an Event of Default under subsections
(a)(iv) or (a)(v~i) only, and before any judgment or decree
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION 7.01. Events of Default; Acceleration;
Waiver of Default. (a) Any of the following events shall
constitute an "Event of Default":
(i) if default shall be made in the due and
punctual payment of the principal of, or interest or
premium (if any) on, any Bond when and as the same shall
become due and payable, whether at maturity as therein
expressed, by proceedings for redemption, by
acceleration or otherwise;
(ii) if on the 4th Business Day prior to any
Interest Payment Date the moneys in the Interest Fund
and Reserve Fund are insufficient to pay the interest
becoming due on the next Interest Payment Date;
(iii) if on the %th Business Day prior to any date
on which principal on the Bonds is due moneys in the
Principal Fund and Reserve Fund are insufficient to pay
the principal becoming due on such payment date;
(iv) if default shall be made by the City in the
performance or observance of any other of the covenants,
agreements or conditions on its part in this Indenture
or in the Bonds contained, and such default shall have
continued for a period of sixty (60) days after written
notice thereof, specifying such default and requiring
the same to be remedied, shall have been given to the
City, the Lender, the Surety and the Corporation by the
Trustee, or to the City, the Corporation and the Trustee
by the holders of not less than twenty-five per cent
(25~) in aggregate principal amount of the Bonds at the
time outstanding;
(v) if a Loan Default Event has occurred under
Section 9.1(k) or (1) of the Agreement and is continuing;
(vi) if a Loan Default Event has occurred under
section 9.1(g), (h) or (i) of the Agreement and is
continuing; or
(vii) if a Loan Default Event other than as
described in subsection (i), (iv) or (v) above has
occurred under the Agreement and is continuing; or
(viii) if a Loan Default Event has occured under
Section 9.1(j) of the Agreement and is continuing, or if
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040213-0005-087-5718m(0338m)
take such actions and give such notice as may be required to
pay the outstanding Bonds entitled to the benefits of such
Letter of Credit or Surety Bond. In no event shall moneys
realized from demands for payment under the Letter of Credit,
and if funds are not provided thereunder, nor moneys from the
Surety Bond, be used to pay the principal of Bonds registered
in the name of the Lender. In no event shall the Trustee
draw on the Letter of Credit to pay principal of or interest
on Bonds held by or registered in the name of the
Corporation, the Lender or the Surety.
SECTION 7.04. Preference Fund. (a) The Trustee
shall create and hold in trust a special fund to be known as
the "Greater Bakerfield Memorial Hospital Preference Fund"
(the "Preference Fund"). Moneys shall be deposited in the
Preference Fund only under the circumstances described
below. The Trustee shall retain any moneys in the Preference
Fund pending a determination by a court of competent
jurisdiction whether any amounts theretofore paid as interest
on the Bonds are recoverable by the Corporation's trustee in
bankruptcy or by the Corporation as debtor-in-possession.
The Trustee shall invest moneys in the Preference Fund only
in Investment Securities as directed by the Surety or the
Lender, as the case may be, provided however that the Trustee
agrees to return any amounts in the Preference Fund to the
Surety or the Lender upon receipt by the Trustee, prior to
the commencment of an action or proceeding seeking a
determination of whether amounts in the Preference Fund are
recoverable by the Corporation's trustee in bankruptcy or by
the Corporation as debtor-in-possession, of an agreement from
the Surety or the Lender, in form and substance satisfactory
to the Trustee, pursuant to which, upon the commencement of
any such action and notice thereof from the Trustee to the
Surety or the Lender, the Surety or the Lender shall
forthwith deposit with the Trustee the amount claimed to be
recoverable. The Trustee shall promptly apply the monies in
the Preference Fund to pay the Corporation's trustee in
bankruptcy or the Corporation as debtor-in-possession in
exchange for a release of all further claims against the
Trustee and the Bondholders, and the Trustee shall apply any
remaining balance in the Preference Fund to the satisfaction
of the Lender's obligations to the Surety under the Indemnity
and Collateral Agreement or the Letter of Credit Agreement.
In the event of a final determination by a court of competent
jurisdiciton that no such amount is recoverable, the Trustee
shall apply all moneys in the Preference Fund to the
satisfaction of the Corporation's obligations to the Surety
or the Lender under the Indemnity and Collateral Agreement or
the Letter of Credit Agreement.
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for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, there shall have been
deposited with the Trustee a sum sufficient to pay all
principal on the Bonds matured prior to such declaration and
all matured installments of interest (if any) upon all the
Bonds, with interest on such overdue installments of
principal at the rate borne by the Bonds, and the reasonable
expenses of the Trustee, and any and all other defaults known
to the Trustee (other than in the payment of principal of and
interest on the Bonds due and payable solely by reason of
such declaration) shall have been made good or cured to the
satisfaction of the Trustee or provision deemed by the
Trustee to be adequate shall have been made therefor, then,
and in every such case, the holders of at least a majority in
aggregate principal amount of the Bonds then Outstanding, by
written notice to the City, the Trustee, the Lender and the
Surety, may, on behalf of the holders of all the Bonds,
rescind and annul such declaration and its consequences and
waive such default; but no such rescission and annulment
shall extend to or shall affect any subsequent default, or
shall impair or exhaust any right or power consequent thereon.
SECTION 7.02. ~pplication of Revenues and Other
Funds After Default. If an Event of Default shall occur and
be continuing, all Revenues and any other funds then held or
thereafter received by the Trustee under any of the
provisions of this Indenture shall be applied by the Trustee
as follows and in the following order:
(1) To the payment of any expenses necessary in
the opinion of the Trustee to protect the interests of
the Bondholders and payment of reasonable charges and
expenses of the Trustee (including reasonable fees and
disbursements of its counsel) incurred in and about the
performance of its powers and duties under this
Indenture;
(2) To the payment of the principal of and
interest then due on the Bonds;
(3) Any funds remaining thereafter shall be paid
as provided in Section 5.08.
SECTION 7.03. Letter of Credit and Surety Bond.
In the event of any Event of Default under Section 7.01(a) of
this Indenture which results in acceleration of the principal
of all the Bonds Outstanding, the Trustee shall immediately
draw on the Letter of Credit, and if not honored, then on the
Surety Bond in accordance with their terms in an amount equal
to the amount of the principal Outstanding under the Bonds
and accrued interest, if necessary, and shall immediately
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Trustee shall be entitled, as a matter of right, to the
appointment of a receiver of the Revenues and other assets
pledged under this Indenture, pending such proceedings. All
rights of action under this Indenture or the Bonds or
otherwise may be prosecuted and enforced by the Trustee
without the possession of the Bonds or the production thereof
in any proceeding relating thereto, and any such suit, action
or proceeding instituted by the Trustee shall be brought in
the name of the Trustee for the benefit and protection of the
Bondholders, subject to the provisions of this Indenture.
SECTION 7.06. Bondholders' Direction of
Proceedings. Except as provided in Section 7.01, the Holders
of a majority in aggregate principal amount of Bonds then
Outstanding shall have the right, by an instrument or
concurrent instruments in writing executed and delivered to
the Trustee, to direct the method of conducting all remedial
proceedings taken by the Trustee hereunder.
SECTION 7.07. Limitation on Bondholders' Riqht to
Sue. No Holder of any Bond shall have the right to institute
any suit, action or proceeding at law or in equity, for the
protection or enforcement of any right or remedy under this
Indenture, the Agreement, the Law or any other applicable law
with respect to such Bond, unless (1) the Holders of a
majority in aggregate principal amount of Bonds then
Outstanding shall have given to the Trustee written notice of
the occurrence of an Event of Default; (2) such Bondholders
shall have made written request upon the Trustee to exercise
the powers hereinbefore granted or to institute such suit,
action or proceeding in its own name; (3) such Bondholders
shall have tendered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in
compliance with such request; and (4) the Trustee shall have
refused or omitted to comply with such request for a period
of sixty (60) days after such written request shall have been
received by, and said tender of indemnity shall have been
made to, the Trustee.
Such notification, request, tender of indemnity and
refusal or omission are hereby declared, in every case, to be
conditions precedent to the exercise by the Bondholders of
any remedy hereunder or under law; it being understood and
intended that the Bondholders shall not have any right in any
manner whatever by their action to affect, disturb or
prejudice the security of this Indenture or to enforce any
right under this Indenture, the Agreement, the Deed of Trust,
the Law or other applicable law with respect to the Bonds,
except in the manner herein provided, and that all
proceedings at law or in equity to enforce any such right
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(b) If at any time while any of the Bonds are
Outstanding a petitio~ seeking relief under Title 11 of the
United States Code was filed (or a bankruptcy or similar
proceeding was initiated) by or against the Corporation (an
"Event of Bankruptcy"), the Trustee shall make a demand for
payment under the Letter of Credit or the Surety Bond in an
amount equal to the aggregate amount of interest payments
made by the Corporation to the Trustee under the Agreement
less than 91 days before such Event of Bankruptcy, which have
been paid to Bondholders as interest on the Bonds. Such
drawing shall be deposited in the Preference Fund.
(c) After the final payment of all of the
outstanding principal of the Bonds (whether at maturity or by
acceleration or redemption), if a Letter of Credit remains in
effect, and after Conversion, the Trustee shall, on or
immediately after the 100th day following such final payment,
draw on the Letter of Credit or the Surety Bond an amount
equal to the aggregate amount of interest payments made by
the Corporation to the Trustee under the Agreement less than
91 days before such final payment or Conversion, as the case
may be, unless the Trustee has received a certificate and an
opinion of counsel to the Corporation stating that no Event
of Bankruptcy of the Corporation has occurred within 91 days
after such date of final payment or Conversion, as the case
may be.
SECTION 7.05. Trustee to Represent Bondholders.
The Trustee is hereby irrevocably appointed as trustee and
true and lawful attorney-in-fact of the Bondholders for the
purpose of exercising and prosecuting on its behalf such
rights and remedies as may be available to the Bondholders
under the provisions of the Bonds, this Indenture, the
Agreement, the Deed of Trust, the Law and applicable
provisions of any other law. Upon the occurrence and
continuance of an Event of Default or other occasion giving
rise to a right in the Trustee to represent the Bondholders,
the Trustee in its discretion may, and upon the written
request of the Holders of a majority in aggregate principal
amount of Bonds then Outstanding and upon being indemnified
to its satisfaction therefor shall, proceed to protect or
enforce its rights or the rights of the. Holders by such
appropriate action, suit, mandamus or other proceedings as it
shall deem most effectual to protect and enforce any such
right, at law or in equity, either for the specific
performance of any covenant or agreement contained herein, or
in aid of the execution of any power herein granted, or for
the enforcement of any other appropriate legal or equitable
right or remedy vested in the Trustee or in the Holders under
this Indenture, the Agreement, the Deed of Trust the Law or
any other law; and upon instituting such proceeding, the
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prudent person would exercise or use under the circumstances
in the conduct of his or her ~own affairs. The Trustee shall,
prior to an Event of Default, and after the curing of all
Events of Default which may have occurred, perform such
duties and only such duties as are specifically set forth in
this Indenture. The Trustee shall, during the existence of
any Event of Default (which has not been cured), exercise
such of the rights and powers vested in it by this Indenture.
(B) The Trustee may appoint an agent in the City
of New York, New York to accept delivery, on behalf of the
Trustee, of Due-Bill Check(s) and Bonds required to be
submitted by Holders of Bonds exercising the Purchase Option
set forth in Section 4.06.
(C) The City may, and upon written request of the
Corporation shall, remove the Trustee at any time unless an
Event of Default shall have occurred and then be continuing,
and shall remove the Trustee if at any time requested to do
so by the Holders of a majority in principal amount of Bonds
then Outstanding or if at any time the Trustee shall cease to
be eligible in accordance with subsection (F) of this
Section, or shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the
Trustee or its property shall be appointed, or any public
officer shall take control or charge of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, in each case by giving written
notice of such removal to the Trustee, and thereupon shall
appoint, with the consent of the Corporation, the Lender and
the Surety, a successor Trustee by an instrument in writing.
(D) The Trustee may at any time resign by giving
written notice of such resignation to the City. Upon
receiving such notice of resignation, the City shall promptly
appoint, with the consent of the Corporation, the Lender and
the Surety, a successor Trustee by an instrument in writing.
(E) Any removal or resignation of the Trustee and
appointment of a successor Trustee shall become effective
upon acceptance of appointment by the successor Trustee. If
no successor Trustee shall have been appointed and have
accepted appointment within forty-five (45) days of giving
notice of removal or notice of resignation as aforesaid, the
resigning Trustee or the Holders of a majority in principal
amount of Bonds then Outstanding may petition any court of
competent jurisdiction for the appointment of a successor
Trustee, and such court may thereupon, after such notice (if
any) as it may deem proper, appoint such successor Trustee.
Any successor Trustee appointed under this Indenture, shall
signify its acceptance of such appointment by executing and
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shall be instituted, conducted and maintained in the manner
herein provided.
SECTION 7.08. Absolute Obligation of City.
Nothing in Section 7.07 or in any other provision of this
Indenture, or in the Bonds contained shall affect or impair
the obligation of the City, which is absolute and
unconditional, to pay the principal of and interest on the
Bonds to the Bondholders as herein provided, but only out of
the Revenues and other assets herein pledged therefor, or
affect or impair the right of such Holders, which is also
absolute and unconditional, to enforce such payment by virtue
of the contract embodied in the Bonds.
SECTION 7.09. Fermination of Proceedings. In case
any proceedings taken by the Trustee or the Bondholders on
account of any Event of Default shall have been discontinued
or abandoned for any reason or shall have been determined
adversely to the Trustee or the Bondholders, then in every
such case the City, the Trustee and the Bondholders, subject
to any determination in such proceedings, shall be restored
to their former positions and rights hereunder, severally and
respectively, and all rights, remedies, powers and duties of
the City, the Trustee and the Bondholders shall continue as
though no such proceedings had been taken.
SECTION 7.10. Remedies Not Exclusive. No remedy
herein conferred upon or reserved to the Trustee or to the
Bondholders is intended to be exclusive of any other remedy
or remedies, and each and every such remedy, to the extent
permitted by law, shall be cumulative and in addition to any
other remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.
SECTION 7.11. No Waiver of Default. No delay or
omission of the Trustee or of the Bondholders to exercise any
right or power arising upon the occurrence of any default
shall impair any such right or power or shall be construed to
be a waiver of any such default or an acquiescence therein;
and every power and remedy given by this Indenture to the
Trustee or to the Holders of the Bonds may be exercised from
time to time and as often as may be deemed expedient.
ARTICLE VIII
THE TRUSTEE
SECTION 8.01. Duties, Immunities and Liabilities
of Trustee. (A) The Trustee shall at all times use the same
degree of care and skill in the exercise of its duties as a
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filing of any paper or any further act, anything herein to
the contrary notwithstanding.
SECTION 8.03. Liability of Trustee. (A) The
recitals of facts herein and in the Bonds contained shall be
taken as statements of the City, and the Trustee does not
assume any responsibility for the correctness of the same, or
make any representations as to the validity or sufficiency of
this Indenture or of the Bonds, or shall incur any
responsibility in respect thereof, other than in connection
with the duties or obligations herein or in the Bonds
assigned to or imposed upon it. The Trustee shall, however,
be responsible for its representations contained in its
certificate of authentication on the Bonds. The Trustee
shall not be liable in connection with the performance of its
duties hereunder, except for its own negligence.
(B) The Trustee shall not be liable for any error
of judgment made in good faith by a responsible officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in aggregate principal amount of Bonds then
Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture.
(D) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of the
Bondholders pursuant to the provisions of this Indenture
unless such Bondholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
(E The Trustee shall not be liable for any action
taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 8.04. Right of Trustee to Rely on
Documents. The Trustee shall be protected in acting upon any
notice, resolution, request, consent, order, certificate,
report, opinion, bond or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties. The Trustee may consult with
counsel, who may be counsel of or to the City, with regard to
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delivering to the City and to its predecessor Trustee a
written acceptance thereof, and thereupon such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the moneys, estates, properties,
rights, powers, trusts, duties and obligations of such
predecessor Trustee, with like effect as if originally named
Trustee herein; but, nevertheless at the Request of the City
or the request of the successor Trustee, such predecessor
Trustee shall execute and deliver any and all instruments of
conveyance or further assurance and do such other things as
may reasonably be required for more fully and certainly
vesting in and confirming to such successor Trustee all the
right, title and interest of such predecessor Trustee in and
to any property held by it under this Indenture and shall pay
over, transfer, assign and deliver to the successor Trustee
any money or other property subject to the trusts and
conditions herein set forth. Upon request of the successor
Trustee, the City shall execute and deliver any and all
instruments as may be reasonably required for more fully and
certainly vesting in and confirming to such successor Trustee
all such moneys, estates, properties, rights, powers, trusts,
duties and obligations.
(F) Any Trustee appointed under the provisions of
this Section in succession to the Trustee shall be a trust
company or bank having the powers of a trust company with a
corporate trust office in San Francisco, California, having a
combined capital and surplus of at least two hundred fifty
million dollars ($250,000,000) and subject to supervision or
examination by federal or state authority. If such bank or
trust company publishes a report of condition at least
annually, pursuant to law or to the requirements of any
supervising or examining authority above referred to, then
for the purpose of this subsection the combined capital and
surplus of such bank or trust company 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 Trustee shall cease to be eligible in accordance with the
provisions of this subsection (F), the Trustee shall resign
immediately in the manner and with the effect specified in
this Section.
SECTION 8.02. Merger or Consolidation. Any
company into which the Trustee may be merged or converted or
with which it may be consolidated or any company resulting
from any merger, conversion or consolidation to which it
shall be a party or any company to which the Trustee may sell
or transfer all or substantially all of its corporate trust
business, provided such company shall be eligible under
subsection (F) of Section 8.01, shall be the successor to
such Trustee, as the case may be, without the execution or
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ARTICLE IX
MODIFICATION OF INDENTURE
SECTION 9.01. Modification without Consent of
Bondholders. The City and the Trustee, from time to time and
at any time, subject to the conditions and restrictions in
this Indenture contained, may enter into an indenture or
indentures supplemental hereto, which indenture or indentures
thereafter shall form a part hereof, for any one or more of
the following purposes:
(a) to add to the covenants and agreements of the
City in this Indenture contained, other covenants and
agreements thereafter to be observed, or to assign or
pledge additional security for the Bonds, or to
surrender any right or power herein reserved to or
conferred upon the City, provided, that no such
covenant, agreement, assignment, pledge or surrender
shall adversely affect the interests of the holders of
the Bonds;
(b) to make such provisions for the purpose of
curing any ambiguity, inconsistency or omission, or of
curing, correcting or supplementing any defective
provision contained in this Indenture, or in regard to
matters or questions arising under this Indenture, as
the City may deem necessary or desirable and not
inconsistent with this Indenture and which shall not
adversely affect the interests of the holders of the
Bonds; or
(c) to modify, amend or supplement this Indenture
or any indenture supplemental hereto in such manner as
to permit the qualification hereof or thereof under the
Trust Indenture Act of 1939 or any similar federal
statute hereafter in effect, and, if they so determine,
to add to this Indenture or any indenture supplemental
hereto such other terms, conditions and provisions as
may be permitted by said Trust Indenture Act of 1939 or
similar federal statute, and which shall not adversely
affect the interests of the holders of the Bonds.
Any supplemental indenture authorized by the
provisions of this Section may be executed by the City and
the Trustee without the consent of (or notice to) the Holders
of any of the Bonds at the time Outstanding, notwithstanding
any of the provisions of Section 9.02, but (i) the Trustee
shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, (ii) the
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legal questions, and the opinion of such counsel shall be
full and complete authorization and protection in respect of
any action taken or suffered by it hereunder in good faith
and in accordance therewith.
The Trustee shall not be bound to recognize any
person as the Holder of any Bond unless and until such Bond
is submitted for inspection, if required, and his title
thereto is satisfactorily established, if disputed.
Whenever in the administration of the trusts
imposed upon it by this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively
proved and established by a Certificate of the City, and such
Certificate shall be full warrant to the Trustee for any
action taken or suffered in good faith under the provisions
of this Indenture in reliance upon such Certificate, but in
its discretion the Trustee may, in lieu thereof, accept other
evidence of such matter or may require such additional
evidence as it may deem reasonable.
SECTION 8.05. Preservation and Inspection of
Documents. All documents received by the Trustee under the
provisions of this Indenture shall be retained in its
possession and shall be subject at all reasonable times to
the inspection of the City and of Bondholders holding at
least $100,000 aggregate principal amount, and their agents
and representatives duly authorized in writing, at reasonable
hours and under reasonable conditions.
SECTION 8.06. Compensation and Reimbursement. The
City agrees:
(A) to cause to be paid to the Trustee from time
to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust); and
(B) except as otherwise expressly provided herein,
to cause the Trustee to be reimbursed upon its request for
all reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture or the Agreement (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith.
57
It shall not be necessary for the consent of the
Bondholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance
thereof.
SECTION 9.03. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article IX, this Indenture shall be
and be deemed to be modified and amended in accordance
therewith, and the respective rights, duties and obligations
under this Indenture of the City, the Trustee and all holders
of outstanding Bonds shall thereafter be determined,
exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be part
of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Opinion of Counsel as to Supplemental
Indenture. Subject to the provisions of Section 8.01, the
Trustee may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
the provisions of this Article IX complies with the
requirements of this Article IX.
SECTION 9.05. Notation of Modification on Bonds;
Preparation of New Bonds. Bonds authenticated and delivered
after the execution of any supplemental indenture pursuant to
the provisions of this Article IX may bear a notation, in
form approved by the Trustee, as to any matter provided for
in such supplemental indenture, and if such supplemental
indenture shall so provide, new Bonds, so modified as to
conform, in the opinion of the Trustee and the City, to any
modification of this Indenture contained in any such
supplemental indenture, may be prepared by the City,
authenticated by the Trustee and delivered without cost to
the holders of the Bonds then outstanding, upon surrender for
cancellation of such Bonds in equal aggregate principal
amounts.
ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Indenture. Bonds may
be paid by the City in any of the following ways; provided
that the City also pays or causes to be paid any other sums
payable hereunder by the City and related to such Bonds:
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rustee shall not enter into any such supplemental indenture
which affects the rights or obligations of the Corporation
hereunder or under the Agreement without first obtaining the
written consent of the Corporation and (iii) the consent of
the Lender and the Surety shall be required so long as a
Letter of Credit or a Surety Bond is outstanding and the
Lender and the Surety are not in default.
SECTION 9.02. Modification with Consent of
Bondholders. Prior to Conversion, with the consent of 100K
of the Bondholders and after Conversion with the consent of
the Holders of not less than a majority in aggregate
principal amount of the Bonds at the time outstanding, and
the consent of the Lender and the Surety so long as a Letter
of Credit or a Surety Bond is outstanding and the Lender and
the Surety are not in default, the City and the Trustee may
from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any Supplemental
Indenture; provided, however, that no such Supplemental
Indenture shall (1) extend the fixed maturity of any Bond or
reduce the rate of interest thereon when it is a Fixed
Interest Rate or extend the time of payment of interest, or
reduce the amount of the principal thereof, or reduce any
premium payable on the redemption thereof, without the
consent of the holder of each Bond so affected, or (2) reduce
the aforesaid fraction of holders of Bonds whose consent is
required for the execution of such supplemental indentures,
or permit the creation of any lien on the Revenues prior to
or on a parity with the lien of this Indenture, except as
permitted herein, or permit the creation of any preference of
any Bondholder over any other Bondholder or deprive the
holders of the Bonds of the lien created by this Indenture
upon the Revenues, without the consent of the holders of all
the Bonds then Outstanding. Upon receipt by the Trustee of a
certified resolution of the City authorizing the execution of
any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Bondholders, as
aforesaid, the Trustee shall join with the City in the
execution of such supplemental indenture, unless (i) such
supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but shall not
be obligated to, enter into such supplemental indenture; or
(ii) such supplemental indenture affects the rights or
obligations of the Corporation hereunder or under the
Agreement, in which case the Trustee shall enter into such
supplemental indenture only if the Trustee has received the
Corporation's written consent thereto.
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The City may at any time surrender to the Trustee
for cancellation by it any Bon~s previously issued and
delivered, which the City may have acquired in any manner
whatsoever, and such Bonds, upon such surrender and
cancellation, shall be deemed to be paid and retired.
SECTION 10.03. Deposit of Money or Securities with
Trustee. Whenever in this Indenture it is provided or
permitted that there be deposited with or held in trust by
the Trustee money or securities in the necessary amount to
pay or redeem any Bonds, the money or securities so to be
deposited or held may include money or securities held by the
Trustee in the funds and accounts established pursuant to
this Indenture (exclusive of the Project Fund and the
Depreciation Reserve Account) and shall be:
(a) lawful money of the United States of America
in an amount equal to the principal amount of such Bonds and
all unpaid interest thereon to maturity, except that, in the
case of Bonds which are to be redeemed prior to maturity and
in respect of which notice of such redemption shall have been
given as in this Indenture provided or provision satisfactory
to the Trustee shall have been made for the giving of such
notice, the amount to be deposited or held shall be the
principal amount of such Bonds and all unpaid interest
thereon to the redemption date~ or
(b) Investment Securities described in clause (a)
of the definition thereof in Section 1.01 the principal of
and interest on which when due will provide money sufficient
to pay the principal of and all unpaid interest to maturity,
or to the redemption date, as the case may be, on the Bonds
to be paid or redeemed, as such principal and interest become
due, provided that, in the case of Bonds which are to be
redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in this Indenture
provided or provision satisfactory to the Trustee shall have
been made for the giving of such notice;
provided, in each case, that the Trustee shall have been
irrevocably instructed (by the terms of this Indenture or by
Request of the City) to apply such money to the payment of
such principal and interest with respect to such Bonds.
SECTION 10o04. Payment of Bonds After Discharge of
Indenture. Notwithstanding any provisions of this Indenture,
any moneys held by the Trustee in trust for the payment of
the principal of, or interest on, any Bonds and remaining
unclaimed for six years after the principal of all of the
Bonds has become due and payable (whether at maturity or upon
call for redemption or by acceleration as provided in this
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(a) by paying or causing to be paid the principal
of and interest on Bonds Outstanding as and when the same
become due and payable;
(b) by depositing with the Trustee, in trust, at
or before maturity, money or securities in the necessary
amount (as provided in Section 10.03) to pay or redeem Bonds
Outstanding provided that if a Letter of Credit is in effect,
the deposit must consist of Available Moneys; or
(c) by delivering to the Trustee, for cancellation
by it, Outstanding Bonds.
If the City shall pay all Outstanding Bonds and shall also
pay or cause to be paid all other sums payable hereunder by
the City, then and in that case, at the election of the City
(evidenced by a Certificate of the City, filed with the
Trustee, signifying the intention of the City to discharge
all such indebtedness and this Indenture), and
notwithstanding that any Bonds shall not have been
surrendered for payment, this Indenture and the pledge of
Revenues and other assets made under this Indenture and all
covenants, agreements and other obligations of the City under
this Indenture shall cease, terminate, become void and be
completely discharged and satisfied. In such event, upon
Request of the City, the Trustee shall cause an accounting
for such period or periods as may be requested by the City to
be prepared and filed with the City and shall execute and
deliver to the City all such instruments as may be necessary
or desirable to evidence such discharge and satisfaction, and
the Trustee shall pay over, transfer, assign or deliver to
the Corporation all moneys or securities or other property
held by them pursuant to this Indenture which are not
required for the payment or redemption of Bonds not
theretofore surrendered for such payment or redemption.
SECTION 10.02. Discharge of Liability on Bonds.
Upon the deposit with the Trustee, in trust, at or before
maturity, of money or securities in the necessary amount (as
provided in Section 10.03) to pay or redeem any Outstanding
Bond (whether upon or prior to its maturity or the redemption
date of such Bond), provided that, if such Bond is to be
redeemed prior to maturity, notice of such redemption shall
have been given as provided in this Indenture or provision
satisfactory to the Trustee shall have been made for the
giving of such notice, then all liability of the City in
respect of such Bond shall cease, determine and be completely
discharged, and the Holder thereof shall thereafter be
entitled only to payment out of such money or securities
deposited with the Trustee as aforesaid for their payment,
subject, however~ to the provisions of Section 10.04.
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exclusive benefit of the City, the Trustee, the Corporation
and the Holders of the Bonds.
SECTION 11.04. Waiver of Notice. Whenever in this
Indenture 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.
SECTION 11.05. Severability of Invalid Provisions.
If any one or more of the provisions contained in this
Indenture or in the Bonds shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the
remaining provisions contained in this Indenture and such
invalidity, illegality or unenforceability shall not affect
any other provision of this Indenture, and this Indenture
shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein. The
City hereby declares that it would have entered into this
Indenture and each and every other Section, paragraph,
sentence, clause or phrase hereof and authorized the issuance
of the Bonds pursuant thereto irrespective of the fact that
any one or more Sections, paragraphs, sentences, clauses or
phrases of this Indenture may be held illegal, invalid or
unenforceable.
SECTION 11.06. Notice to City, Corporation and
Trustee. Any notice to or demand upon the Trustee may be
served or presented, and such demand may be made, at the
principal corporate trust office of the Trustee in San
Francisco, California, which at the date of adoption of this
Indenture is located at One Montgomery Street, San Francisco,
California 94104, Attention: Corporate Trust Department, or
at such other address as may have been filed in writing by
the Trustee with the City. Any notice to or demand upon the
City or the Corporation shall be deemed to have been
sufficiently given or served for all purposes by being
deposited, postage prepaid, in a post office letter box,
addressed, as the case may be, to the City at 1501 Truxtun
Avenue, Bakersfield, California 93301, Attention: City
Manager. A duplicate copy of each notice or communication
given hereunder by either the City or the Trustee to the
other shall also be given to the Corporation at P.O. Box
1888, Bakersfield, California 93303, Attention: Vice
President of Financial Services, to California Federal
Savings and Loan Association, 265 Anita Drive, Suite 230,
Orange, California 92668 Attention: Commercial Banking
Division, and at 5670 Wilshire Blvd., Los Angeles,
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Indenture), if such moneys were so held at such date, or six
years after the date of deposit of such moneys if deposited
after said date when all of the Bonds became due and payable,
shall, upon Request of the City, be repaid to the City free
from the trusts created by this Indenture, and all liability
of the Trustee with respect to such moneys shall thereupon
cease; provided, however, that before the repayment of such
moneys to the City as aforesaid, the Trustee may (at the cost
of the City) first mail a notice, in such form as may be
deemed appropriate by the Trustee, with respect to the Bonds
so payable and not presented and with respect to the
provisions relating to the repayment to the City of the
moneys held for the payment thereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. ~iability of City Limited to
Revenues. Notwithstanding anything in this Indenture or in
the Bonds contained, the City shall not be required to
advance any moneys derived from any source other than the
Revenues and other assets pledged under this Indenture for
any of the purposes in this Indenture mentioned, whether for
the payment of the principal of or interest on the Bonds or
for any other purpose of this Indenture. Nevertheless, the
City may, but shall not be required to, advance for any of
the purposes hereof any funds of the City which may be made
available to it for such purposes.
SECTION 11.02. Successor Is Deemed Included in All
References to Predecessor. Whenever in this Indenture either
the City or the Trustee is named or referred to, such
reference shall be deemed to include the successors or
assigns thereof, and all the covenants and agreements in this
Indenture contained by or on behalf of the City, the Trustee
shall bind and inure to the benefit of the respective
successors and assigns thereof whether so expressed or not.
SECTION 11.03. Limitation of Rights to Parties,
the Corporation and the Bondholders. Except as provided in
Section 11.13, nothing in this Indenture or in the Bonds
expressed or implied is intended or shall be construed to
give to any person other than the City, the Trustee, the
Corporation and the Holders of the Bonds, any legal or
equitable right, remedy or claim under or in respect of this
Indenture or any covenant, condition or provision therein or
herein contained; and all such covenants, conditions and
provisions are and shall be held to be for the sole and
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the Corporation, or by any other obligor on the Bonds, or by
any person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, the City
or the Corporation or any other obligor on the Bonds, shall
be disregarded and deemed not to be Outstanding for the
purpose of any such determinationl Bonds so owned which have
been pledged in good faith may be regarded as Outstanding for
the purposes of this Section if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to
vote such Bonds and that the pledgee is not a person directly
or indirectly controlling or controlled by, or under direct
or indirect common control with, the City or the Corporation
or any other obligor on the Bonds. In case of a dispute as
to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 11.10. Money Held for Particular Bonds.
The money held by the Trustee for the payment of the interest
or principal due on any date with respect to particular Bonds
(or portions of Bonds in the case of Bonds redeemed in part
only) shall, on and after such date and pending such payment,
be set aside on its books and held in trust by it for the
Holders of the Bonds entitled thereto, subject, however, to
the provisions of Section 10.04.
SECTION 11.11. Article and Section Headings and
References. The headings or titles of the several Articles
and Sections hereof, and any table of contents appended to
copies hereof, shall be solely for convenience of reference
and shall not affect the meaning, construction or effect of
this Indenture.
All references herein to "Articles," "Sections" and
other subdivisions are to the corresponding Articles,
Sections or subdivisions of this Indenture; the words
"herein," "hereof," "hereby," "hereunder" and other words of
similar import refer to this Indenture as a whole and not to
any particular Article, Section or subdivision hereof; and
words of the masculine gender shall mean and include words of
the feminine and neuter genders.
SECTION 11.12. Waiver of Personal Liability. No
member, officer, agent or employee of the City shall be
individually or personally liable for the payment of the
principal of or interest on the Bonds or be subject to any
personal liability or accountability by reason of the
issuance thereof; but nothing herein contained shall relieve
any such member, officer, agent or employee from the
performance of any official duty provided by law or by this
Indenture.
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California 90037, Attention: Commercial Banking Division,
to Industrial Indemnity Company at 255 California Street, San
Francisco, California 94111 Attention: Financial Guarantees
Dept. and to The Dowdell Corporation, 555 Capitol Mall, Suite
640, Sacramento, California 95814, Attention: President.
SECTION 11.07. Evidence of Rights of the
Bondholders. Any request, consent or other instrument
required or permitted by this Indenture to be signed and
executed by a Bondholder may be in any number of concurrent
instruments of substantially similar tenor and shall be
signed or executed by such Bondholder in person or by an
agent or agents duly appointed in writing. Proof of the
execution of any such request, consent or other instrument or
of a writing appointing any such agent, or of the holding by
any person of Bonds transferable by delivery, shall be
sufficient for any purpose of this Indenture and shall be
conclusive in favor of the Trustee and of the City if made in
the manner provided in this Section.
The fact and date of the execution by any person of
any such request, consent or other instrument or writing may
be proved by the certificate of any notary public or other
officer of any jurisdiction, authorized by the laws thereof
to take acknowledgments of deeds, certifying that the person
signing such request, consent or other instrument
acknowledged to him the execution thereof, or by an affidavit
of a witness of such execution duly sworn to before such
notary public or other officer.
The ownership of the Bonds shall be proved by the
bond registration books held by the Trustee.
SECTION 11.08. Funds and Accounts. Any fund
required by this Indenture to be established and maintained
by the Trustee may be established and maintained in the
accounting records of the Trustee, either as a fund or an
account, and may, for the purposes of such records, any
audits thereof and any reports or statements with respect
thereto, be treated either as a fund or as an account; but
all such records with respect to all such funds shall at all
times be maintained in accordance with customary standards of
the industry, to the extent practicable, for the protection
of the security of the Bonds and the rights of the Holder
thereof.
SECTION 11.09. Disqualified Bonds. In determining
whether the Holders of the requisite aggregate principal
amount of Bonds have concurred in any demand, request,
direction, consent or waiver under this Indenture, Bonds
which are owned or held by or for the account of the City or
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IN WITNESS WHEREOF, the CITY OF BAKERSFIELD has
caused this Indenture to be signed in its name by its Mayor
and its seal to be hereunto affixed and attested by its
Clerk, and CROCKER NATIONAL BANK, in token of its acceptance
of the trusts created hereunder, has caused this Indenture to
be signed in its corporate name by one of its authorized
officers and its seal to be hereunto affixed and attested by
one of its assistant secretaries, all as of the day and year
first above written.
CITY OF BAKERSFIELD
[Seal]
Attest:
By_
Mayor
City Clerk
CROCKER NATIONAL BANK
By
Vice President
[SEAL]
Attest:
Assistant Secretary
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SECTION 11.13. Execution in Several Counterparts.
This Indenture may be executed in any number of counterparts
and each of such counterparts shall for all purposes be
deemed to be an original; and all such counterparts, or as
many of them as the City and the Trustee shall preserve
undestroyed, shall together constitute but one and the same
instrument.
SECTION 11.14. Term of Indenture. Except as
otherwise provided herein, this Indenture shall remain in
full force and effect from the date of execution hereof until
the principal of and interest on the Bonds and all other
amounts required to be paid hereunder are fully paid and
satisfied and the Bonds are no longer Outstanding. The
Trustee shall execute all such releases and other documents
as may reasonably be requested by the City or the Corporation
in connection with the termination of this Indenture. All
amounts on deposit with the Trustee after the principal of
and interest on the Bonds and all other amounts required to
be paid hereunder are fully paid and satisfied and the Bonds
are no longer Outstanding shall be paid (1) first, to the
Lender and the Surety to the extent necessary to satisfy any
obligations of the Corporation as to amounts then due and
payable under the repayment provisions relating to the Surety
Bond and the Letter of Credit and (2) thereafter, to the
Corporation.
SECTION 11.15. Third Party Beneficiaries. The
Lender and the Surety are intended to be, and shall be ~eemed
to be, third party beneficiaries of this Indenture insofar as
their rights to receive the benefits of and to enforce the
provisions hereof expressly appear. It is contemplated that
the Lender's rights under this Indenture will be assigned to
the Surety. After any event of default by the Lender under
the Indemnity and Collateral Agreement, the Surety may
exercise any of the Lender's rights hereunder, and receive
payment of any moneys to which the Lender would otherwise be
entitled.
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EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
All equipment of the Corporation, whether moveable
or not or hereafter affixed to the real property described in
Exhibit A to the Deed of Trust, now owned or hereafter
acquired by the Corporation, together with all improvements,
restorations, replacements, repairs, additions, accessions or
substitutions thereto or therefor, including, without
limitation, all machinery, equipment, material, furnishings
and appliances for generation or distribution of air, water,
heat, electricity, light, fuel or refrigeration, for purposes
of ventilation, sanitation or drainage, for exclusion of
vermin or insects, for removal or disposal of dust, refuse or
garbage; all elevators, awnings, window coverings, floor
covering, laundry equipment, kitchen equipment, cabinets,
furniture and furnishings; all fixed and said premises for
use in medical care, treatment, diagnosis and services or for
other medical uses; the products and proceeds from any and
all such property; all the estate, interest, right, title,
property or other claim or demand of every nature whatsoever,
in and to such property, including specifically, but without
limitation, all deposits made with or other security given to
utility companies by the Corporation with respect to such
property and claims or demands relating to insurance or
condemnation awards which the Corporation now has or may
hereafter acquire.
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EXHIBIT A
[BOND FORM -- TO COME]
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Notice], return the enclosed written consent form, executed
by you or your attorney-in-fact, to the Trustee at the
address shown on the form. This consent, once given, is
irrevocable and binding upon any subsequent owner of the
Bonds in respect to which the consent is given.
FAILURE TO CONSENT TO THE SUBSTITUTION WILL RESULT
IN THE REDEMPTION OF YOUR BONDS. If you do not respond to
this Notice, the Trustee will redeem your Bonds at the face
value thereof, plus interest accrued to the date of
redemption, on , [one day prior to expiration
of the existing Letter of Credit].
[TRUSTEE]
~uthorized Representative
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EXHIBIT C
[Trustee's Letterheadl
NOTICE TO BONDHOLDERS OF CHANGE IN ISSUER OF LETTER OF CREDIT
CITY OF BAKERSFIELD
HOSPITAL REVENUE BONDS
(GREATER BAKERSFIELD MEMORIAL HOSPITAL)
SERIES 1984
ALL HOLDERS of the City of Bakersfield Hospital
Revenue Bonds (Greater Bakersfield Memorial Hospital), Series
1984 (the "Bonds"), PLEASE TAKE NOTICE:
In accordance with the Loan Agreement dated as of
December 1, 1984, by and between the City of Bakersfield and
Greater Bakersfield Memorial Hospital Association (the
"Corporation"), the Corporation has obtained a commitment
from:
[Substitute Letter of Credit Issuer]
to provide a substitute Letter of Credit to secure the
principal and not to exceed six months' interest (at an
assumed rate of 15~ per annum) on the Bonds, effective:
[Date of commencement of new Letter of Credit]
The Rating assigned to the unsecured debt obligations of
[Substitute Issuer] by Standard &
Poor's Corporation, the agency which rated the Bonds, is:
[Rating]
This Rating is lower than that of ]Name of Present Letter of
Credit Issuer], which provides the Letter of Credit presently
securing the Bonds.
IF YOU CONSENT TO THE SUBSTITUTION OF [Substitute
Issuer] for [Present Issuer], you must, on or before
[twenty-five days from the date of this
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EXHIBIT D
[Form of Requisition and Request for Funds
TO COME]
040213-0005-087-5718m(O338m)
12/03/84
FORM OF BONDHOLDER'S CONSENT TO SUBSTITUTE LETTER OF CREDIT
ISSUER
CITY OF BAKERSFIELD
HOSPITAL REVENUE BONDS
(GREATER BAKERSFIELD MEMORIAL HOSPITAL)
SERIES 1984
[Trustee's Address]
The undersigned, the Registered owner of $
aggregate amount of City of Bakersfield Hospital Revenue
Bonds (Greater Bakersfield Memorial Hospital), Series 1984
(the "Bonds"), numbered , DOES HEREBY CONSENT to
the substitution of for
as the issuer of the Letter of Credit securing the
Bonds, in accordance with the terms of your Notice dated
By consenting to such substitution, the undersigned
does expressly waive the right as Bondholder to have the
Trustee redeem said Bonds on at the
redemption price set forth in your Notice.
EXECUTED this day of
[Bondholder]
* Note: the signature(s) on this consent must correspond with
the name(s) written on the face of the holder's registered
Bonds.
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[Liens
EXHIBIT E
shown on Title Report --
TO COME]
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