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Home My WebLink About2022-05-11 CVBFFA Agenda PacketChula Vista Bayfront Facilities Financing Authority San Diego Unified Port District Meeting Agenda 3165 Pacific Hwy. San Diego, CA 92101 Don L. Nay Port Administration Boardroom3:00 PMWednesday, May 11, 2022 Port of San Diego Don L. Nay Port Administration Boardroom 3165 Pacific Highway San Diego, CA 92101 ****Pursuant to Assembly Bill 361 and state or local officials’ continued recommend measures to promote social distancing in response to the COVID -19 pandemic, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE AUTHORITY (BOARD). Some of the Directors may attend the meeting and participate remotely to the same extent as if they were present. The public is welcome to attend in person, or alternatively. MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at: https://portofsandiego.legistar.com/Calendar.aspx PROVIDING PUBLIC COMMENT Public comment is limited to 2 minutes per speaker on both agenda, and non -agenda items. The time allotted for speakers may be adjusted by the Board Chair at his or her discretion. PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE FOLLOWING NO LATER THAN THE TIME THE PUBLIC COMMENT PORTION FOR THE AGENDA ITEMS IS CONCLUDED, HOWEVER THE PUBLIC IS STRONGLY ENCOURAGED TO DO SO PRIOR TO THE ITEM BEING CALLED: In-Person Participation: Complete and submit a Speaker Slip and give to the District Clerk. Remote Participation: 1. Call 619-736-2155 and leave a brief voicemail message that will be played during the meeting. A voicemail longer than the time allotted for public comment on that item will be stopped after that time has elapsed. 2. Email a request to provide live comments to PublicRecords@portofsandiego .org to receive a link to participate in the meeting to provide live comments. * 3. Submit written comments to PublicRecords@portofsandiego .org which will be forwarded to the Board and included in the agenda-related materials record for the meeting. Page 1 San Diego Unified Port District Printed on 5/6/2022 May 11, 2022Chula Vista Bayfront Facilities Financing Authority Meeting Agenda * Neither the San Diego Unified Port District nor the Authority are responsible for the member of the public’s internet connections or technical ability to participate in the meeting. It is highly recommended that you use voicemail rather than provide live comment. In keeping with the Americans with Disabilities Act (ADA), the Authority and San Diego Unified Port District will make every reasonable effort to encourage participation in all its public meetings. If you require assistance or auxiliary aids in order to participate at this public meeting, please contact the Office of the District Clerk at publicrecords@portofsandiego .org or (619) 686-6206 at least 48 hours prior to the meeting. Board of Directors Honorable City of Chula Vista Mayor Mary Casillas Salas City of Chula Vista Councilman Stephen Padilla Port Commissioner Ann Moore Port Commissioner Rafael Castellanos Port Commissioner Dan Malcolm A. Call to Order B. Roll Call C. Non-Agenda Public Comment Each individual speaker is limited to two (2) minutes D. Consent Items None. E. Action Items A. RESOLUTION APPROVING THE FOLLOWING ITEMS IN CONNECTION WITH THE CONSTRUCTION OF THE RESORT HOTEL, CONVENTION CENTER, AND PUBLIC IMPROVEMENTS ON THE CHULA VISTA BAYFRONT IN THE CITY OF CHULA VISTA: (1)AUTHORIZE THE EXECUTION AND DELIVERY OF THE FOURTH AMENDED & RESTATED REVENUE SHARING AGREEMENT, WITH CONDITIONS; (2)AUTHORIZE THE EXECUTION AND DELIVERY OF BOND PURCHASE AND CONTINUING COVENANT AGREEMENT AND THE PRIVATE SALE OF THE AUTHORITY BONDS IN ACCORDANCE THEREWITH; (3)AUTHORIZE THE EXECUTION AND DELIVERY OF THE DECLARATION OF RECIPROCAL EASEMENTS, WITH CONDITIONS; Page 2 San Diego Unified Port District Printed on 5/6/2022 May 11, 2022Chula Vista Bayfront Facilities Financing Authority Meeting Agenda (4)AUTHORIZE THE EXECUTION AND DELIVERY OF THE CONVENTION CENTER AGREEMENT, WITH CONDITIONS; (5) AUTHORIZE THE EXECUTION AND DELIVERY OF THE RATE LOCK AGREEMENT BY THE EXECUTIVE DIRECTOR AT HIS DISCRETION, WITH CONDITIONS (6)AUTHORIZE ACTIONS RELATED TO THE ADMINISTRATION AND OPERATION OF THE AUTHORITY B. RESOLUTION REGARDING AUTHORITY VIRTUAL MEETINGS IN ACCORDANCE WITH THE RALPH M. BROWN ACT AND ASSEMBLY BILL 361 F. Staff Comments G. Board Comment H. Adjournment Page 3 San Diego Unified Port District Printed on 5/6/2022 DATE: May 11, 2022 SUBJECT: A. RESOLUTION APPROVING THE FOLLOWING ITEMS IN CONNECTION WITH THE CONSTRUCTION OF THE RESORT HOTEL, CONVENTION CENTER, AND PUBLIC IMPROVEMENTS ON THE CHULA VISTA BAYFRONT IN THE CITY OF CHULA VISTA: (1) AUTHORIZE THE EXECUTION AND DELIVERY OF THE FOURTH AMENDED & RESTATED REVENUE SHARING AGREEMENT, WITH CONDITIONS; (2) AUTHORIZE THE EXECUTION AND DELIVERY OF BOND PURCHASE AND CONTINUING COVENANT AGREEMENT AND THE PRIVATE SALE OF THE AUTHORITY BONDS IN ACCORDANCE THEREWITH; (3) AUTHORIZE THE EXECUTION AND DELIVERY OF THE DECLARATION OF RECIPROCAL EASEMENTS, WITH CONDITIONS; (4) AUTHORIZE THE EXECUTION AND DELIVERY OF THE CONVENTION CENER AGREEMENT, WITH CONDITIONS; (5) AUTHORIZE THE EXECUTION AND DELIVERY OF THE RATE LOCK AGREEMENT BY THE EXECUTIVE DIRECTOR AT HIS DISCRETION; AND (6) AUTHORIZE ACTIONS RELATED TO THE ADMINISTRATION AND OPERATION OF THE AUTHORITY. B. RESOLUTION REGARDING AUTHORITY VIRTUAL MEETINGS IN ACCORDANCE WITH THE RALPH M. BROWN ACT AND ASSEMBLY BILL 361 EXECUTIVE SUMMARY: The Chula Vista Bayfront Facilities Financing Authority (Authority) was formed through that certain Joint Exercise of Powers Agreement between the City of Chula Vista (City) and the San Diego Unified Port District (District) dated as of May 1, 2014 and filed in the Office of the District Clerk as Document No. 61905 (Original Authority Agreement), as amended and restated by that certain Amended and Restated Joint Exercise of Powers Agreement between the City and District dated July 25, 2019 and filed in the Office of the District Clerk as Document No. 70245 (Authority Agreement). The District and City have also approved Amendment No. 1 to the Amended and Restated Authority Agreement (Amendment) on June 15, 2021, which will be executed following the issuance of certain taxable and tax-exempt bonds by the Authority (Authority Bonds). The District and the City (each, a Member of the Authority) are the sole members of the Authority. Page 2 of 13 The District and the City have been working collaboratively for decades to plan and implement the Chula Vista Bayfront Master Plan (CVBMP). Since 2014, the District and the City have been working to deliver the catalyst project for the CVBMP, an approximately 275,000 net usable square foot convention center (Convention Center) and a 1,570 to 1,600 room resort hotel (Resort Hotel) to be located on Parcel H3 of the CVBMP. The project also requires the construction of extensive public infrastructure to the areas surrounding Parcel H3 (Phase 1A Infrastructure Improvements). The actions before the Board of Directors of the Authority (Authority Board) at the May 11, 2022 Authority Board Meeting are another significant milestone on the critical path toward delivering the Convention Center and Phase 1A Infrastructure Improvements. RIDA Chula Vista, LLC (RIDA) was selected as the developer of the Convention Center and the Resort Hotel through a Request for Qualifications. At the early stages, and in light of an overall project cost in excess of $1.2 billion, it was determined that in order for the Convention Center and Phase 1A Infrastructure Improvements to be financially feasible, the City and the District would need to make a “Public Contribution” for the construction of the Convention Center and Phase 1A Infrastructure Improvements. The Public Contribution consists of approximately $284 million toward the cost of the Convention Center and approximately $85 million toward the Phase 1A Infrastructure Improvements for a total public investment of $350 million. The Authority was formed to issue bonds to finance most of the Public Contribution. In support of the Public Contribution, the Authority will issue Authority Bonds in an amount not to exceed $400 million and the Authority Bonds will be secured by funds provided by the District, the City, and the Bayfront Project Special Tax Financing District (Special Tax District). Additional funding to cover the amounts not financed will be provided through grants, a contribution of $25 million from the County of San Diego through the County Agreement (defined below), a sewer contribution from the City, a contribution through the City’s Bayfront Development Impact Fee (BFDIF) program, funds from the District that have been collected over time through various projects on the Chula Vista Bayfront, including a contribution from the North C.V. Waterfront L.P. (Pacifica), and $19.5 million from the District and City split evenly at $9.5 million each. At the May 11 Authority Board Meeting, the Authority Board will also be revising the method of sale for the Authority Bonds and approval of the execution and delivery of certain agreements which the Authority is a party to, which are listed below and described in greater detail in the Discussion section below: (1) Fourth Amended and Restated Revenue Sharing Agreement among the City, District, and Authority (Fourth A&R Revenue Sharing Agreement, Attachment A) – Describes the funds to be contributed by the City and the District to the Authority during an approximately 41-year period and how funds distributed to the Authority by the Trustee are to be shared between the City and the District; (2) Bond Purchase and Continuing Covenant Agreement among JPMorgan Chase Bank, National Association, as administrative agent (JP Morgan), one or more banks that purchase the Authority Bonds (Purchasers), and the Authority (Bond Purchase Page 3 of 13 Agreement, Attachment B) - Sets forth the terms for the purchase of the Authority Bonds by JP Morgan for a 5-year term to fund a portion of the Public Contribution; (3) Declaration of Reciprocal Easements among the District, the City, RIDA, and the Authority (Declaration of Reciprocal Easements, Attachment C) – Gives RIDA the rights, as tenant of both the Ground Lease between the District and RIDA (Hotel Ground Lease) and the Convention Center Sublease between the City and RIDA (Sublease), to operate between the two joined yet separate leasehold parcels; (4) Convention Center Agreement among the District, Authority, RIDA, and Marriott International, Inc. (Marriott) (CC SNDA, Attachment D) – Describes the circumstances, and conditions that would apply, in the event the District, City, or Authority should become the “Owner” under the Management Agreement between Marriott and RIDA (Management Agreement) following a termination of the Site Lease between the District and the Authority (Site Lease), the Facility Lease between the City and the Authority (Facility Lease), and the Sublease. (5) Authorize the Executive Director at his discretion to enter into a Rate Lock Agreement between JP Morgan and the Authority (Rate Lock Agreement) Staff recommends that the Authority Board adopt the resolution (i) authorizing execution and delivery of the Fourth A&R Revenue Sharing Agreement, Bond Purchase Agreement, Declaration of Reciprocal Easements, and CC SNDA; and (ii) authorizing the Executive Director at his discretion to enter into the Rate Lock Agreement and authorizing the Executive Director and other officers of the Authority to take actions necessary for the administration and operation of the Authority, including the purchase of insurance, all in connection with the issuance of the Authority Bonds. In addition, staff recommends that the Authority Board adopt a resolution making the finding that, based on continued state, federal, and local recommendations for social distancing, the Brown Act meetings of the Authority Board held in accordance with the Brown Act are permitted to use the exceptions to Brown Act rules set forth in AB 361. And further, that this authorization expires if not renewed at the following regular meeting of the Authority Board. RECOMMENDATION: (A) ADOPT THE RESOLUTION TO: (1) AUTHORIZE THE EXECUTION AND DELIVERY OF THE FOURTH A&R REVENUE SHARING AGREEMENT, WITH CONDITIONS; (2) AUTHORIZE THE EXECUTION AND DELIVERY OF BOND PURCHASE AGREEMENT AND THE PRIVATE SALE OF THE AUTHORITY BONDS IN ACCORDANCE THEREWITH; Page 4 of 13 (3) AUTHORIZE THE EXECUTION AND DELIVERY OF THE DECLARATION OF RECIPROCAL EASEMENTS, WITH CONDITIONS; (4) AUTHORIZE THE EXECUTION AND DELIVERY OF THE CC SNDA, WITH CONDITIONS; (5) AUTHORIZE THE EXECUTION AND DELIVERY OF THE RATE LOCK AGREEMENT BY THE EXECUTIVE DIRECTOR AT HIS DISCRETION; AND (6) AUTHORIZE ACTIONS RELATED TO THE ADMINISTRATION AND OPERATION OF THE AUTHORITY B. RESOLUTION REGARDING AUTHORITY VIRTUAL MEETINGS IN ACCORDANCE WITH THE RALPH M. BROWN ACT AND ASSEMBLY BILL 361 FISCAL IMPACT: Fourth A&R Revenue Sharing Agreement: The Fourth A&R Revenue Sharing Agreement commits the District and City to each provide an additional $9.5MM otherwise there is no additional fiscal impact. Bond Purchase Agreement: The Bond Purchase Agreement sets forth the terms and conditions pursuant to which JP Morgan and the other Purchasers will purchase the Authority Bonds. Declaration of Reciprocal Easements: There is no fiscal impact. CC SNDA: The Authority Board’s approval of the CC SNDA would require that the District, Authority, and the City replace RIDA as the “Owner” under the Management Agreement between Marriott and RIDA for the Convention Center and Hotel in the event of certain termination events. Under the CC SNDA, the liability of the District, Authority, and the City would be limited to their respective interests in the Convention Center and the underlying land and any proceeds received and applied toward the general fund from a disposition of its interest. Rate Lock Agreement: If entered into, the Authority will be required to pay a breakage fee to JP Morgan if closing does not occur. This fee will be paid by existing revenues paid by the District and City under the Fourth A&R Revenue Sharing Agreement Costs Related to the Administration and Operation of the Authority: The current costs contemplated are procurement of insurance to implement the various agreements related to the Authority Bonds. Staff has not received final numbers, but will procure such insurance in accordance with the Authority’s policies. Page 5 of 13 DISCUSSION: As more fully discussed below, staff recommends that the Authority Board adopt the resolution authorizing execution and delivery of the Fourth A&R Revenue Sharing Agreement, execution and delivery of the Bond Purchase Agreement, execution and delivery of the Declaration of Reciprocal Easements, execution and delivery of the CC SNDA, execution and delivery of the Rate Lock Agreement in the discretion of the Executive Director, and Executive Director and other officers of the Authority to take actions necessary for the administration and operation of the Authority, including the purchase of insurance. Overview Over the course of the last year and a half, the District, City and Authority have taken many actions to approve the documents needed to proceed with the issuance of the Authority Bonds. These documents include the Support Agreement between the Authority and the District (Support Agreement), the Hotel Ground Lease, the Indenture of Trust between Wilmington Trust, National Association (Trustee) and the Authority (Authority Indenture), the Loan Agreement between the Trustee, the Bayfront Project Special Tax Financing District (Special Tax District), and the Authority (Loan Agreement), the Project Implementation Agreement among the District, City, RIDA, Authority, and Special Tax District (Project Implementation Agreement), the Facility Lease, the Site Lease, and the Sublease. The Support Agreement, Hotel Ground Lease, Authority Indenture, Loan Agreement, Project Implementation Agreement, Facility Lease, Site Lease, and Sublease were subject to a validation action filed by the District, City, Authority, and Special Tax District on July 6, 2021 and concluded on October 26, 2021 through a Judgment of Validation entered in favor of the District, City, Authority, and Special Tax District. As part of the Authority’s action on June 28, 2021, the Authority delegated to the Executive Director and his designated representatives (Authorized Officers) the authority to make and consent to certain changes to the agreements to be entered into in connection with the issuance of the Authority Bonds. Leasing Structure: The leasing documents are comprised of the Site Lease, Facility Lease, Sublease, and the Hotel Ground Lease, which have been previously approved by the parties. The Site Lease, Facility Lease, and the Sublease are collectively referred to as, the Convention Center Leases. The chart below describes the flow of the leasing documents between the parties: Page 6 of 13 In order to execute and operate under this leasing structure where RIDA will be constructing both the Convention Center and Resort Hotel, Marriott will be operating both of the Convention Center and Resort Hotel through the Management Agreement, and certain common areas and utilities will be used in common, a Declaration of Reciprocal Easements and a CC SNDA will need to be approved and executed when the Authority Bonds are issued (Closing Date). I. Fourth A&R Revenue Sharing Agreement To memorialize how various funds from the City and District would be contributed and applied to the CVB and the Public Contribution, the City and the District entered into a Revenue Sharing Agreement on April 24, 2018 (Original Revenue Sharing Agreement). Since the approval of the Revenue Sharing Agreement on April 24, 2018, the agreement has been amended and restated three separate times with the objective to allocate the residual cash flow after debt service is paid and add the Authority as a party to the agreement. Most recently, the Authority approved the Third Amended and Restated Revenue Sharing Agreement (District Clerk No. 73382) (Third A&R RSA). Page 7 of 13 Certain changes now need to be made to the Third A&R RSA to reflect the current deal structure between the City and the District based on the final project documents. The main changes that have been made to the Third A&R RSA in the Fourth A&R Revenue Sharing Agreement are: (1) Align with Requirements of Public Financing – Updates needed to be made to adjust the delivery date of certain funds from the District and City to the Trustee. In addition, the reserve account was removed from the waterfall distribution of residual revenues because a separate reserve was created through the public financing structure. (2) Clarify the Types of Funds - The funds from the District needed to be updated to clarify what would happen in the event of a change (i.e., amendment, restatement, replacement) to the District’s real estate agreements. (3) Commit Additional Funds – Due to increased construction costs, the Public Contribution needed to be modified to help cover some of the additional cost of the Convention Center. Specifically, through the Fourth A&R Revenue Sharing Agreement, the District and City would each contribute an additional $9 million for a total of $18 million to cover the increased cost of the Convention Center. Additionally, the previously approved Project Implementation Agreement required that the District and the City contribute a total of $1 million to RIDA to share in the cost of the construction bonds. Such amount will now be provided earlier at project closing and may be used by RIDA to pay for the construction bonds or at any time during construction to pay for its contractors should RIDA exceed the amounts of funds available to the Authority at any given time due to the draw schedule for the public financing. This compromise was reached to alleviate some of the funding shortages that could result from a draw down schedule financing for the Authority Bonds, as opposed to the previously contemplated financing structure that would have made funds available in whole to the Authority at closing but was no longer economically feasible. II. Bond Purchase Agreement The total estimated cost to construct the Resort Hotel, Convention Center and the Phase 1A Improvements is $1.35 billion. Through the issuance of the Authority Bonds, the Authority, the District, and the City intend to fund approximately $275 million of this amount to pay for a portion of the costs of construction of the Phase 1A Improvements and the Convention Center. • Approximately $10 million of this amount will be applied to fund the construction of the Phase 1A Improvements. Page 8 of 13 • Approximately $265 million of this amount will be applied to fund the construction of the Convention Center District and City staff have reviewed RIDA’s calculations for the cost of the Phase 1A Improvements. Based on those calculations, the amount needed to fund the Phase 1A Improvements is available using a combination of proceeds from the Authority Bonds and the anticipated $25 million contribution from the County of San Diego as memorialized in the Chula Vista Bayfront Project Funding Agreement (District Clerk’s Document No. 70780) (County Agreement). District and City staff have reviewed RIDA’s calculations for the cost of the Convention Center and based on those calculations the amount needed to fund the Convention Center is available through the contribution of $284 million, $19 million contributed at the Closing Date split evenly by the District and City, and RIDA’s private financing and equity. The Authority authorized the issuance of the Authority Bonds pursuant to Resolution No. 2021-001 which was adopted on June 28, 2021. At that time, a public sale of the Authority Bonds to J.P. Morgan Securities, Inc. as the “Underwriter” was approved as the method of sale for the Authority Bonds. Staff now recommends that the Authority change the method of sale of the Authority Bonds to a private sale to the Purchasers pursuant to the Bond Purchase Agreement . This change in the method of sale is recommended based on information provided to the Authority by the Underwriter that: (i) due to the extraordinary volatility in the debt markets there is no assurance that a public sale of the Authority Bonds will be successful, (ii) even if a public sale succeeded in attracting buyers, due to rising interest rates, a public sale will not produce the $265 million of construction funds for the Convention Center previously agreed upon by the City, Port and RIDA, and (iii) a public sale will take longer to complete than a private sale. The Authority Bonds will be issued with a final maturity in 37 years (June 1, 2059) as was originally planned in the public sale. However, given that the Purchasers are only willing to commit to own the Authority Bonds for a period of five years, the Authority Bonds will be subject to a mandatory redemption (i.e., equivalent of a maturity date) on June 1, 2027 unless the Purchasers agree to waive that redemption. This means that the Authority will need to make arrangements to pay to the Purchasers all amounts due on the Authority Bonds on or before June 1, 2027 either by finding new purchasers of the Authority Bonds or issuing new bonds to refund the Authority Bonds. Under the terms of the Authority Bonds, the Authority has the right to pay off the Purchasers, without any prepayment penalty, on any date on or after June 1, 2026. This provision gives the Authority a year to determine the best time and method to pay off the Purchasers. Based on the most recent estimates from the Administrative Agent, the Authority Bonds for the Convention Center (Series 2022A) will be issued in the approximate amount of $371,975,309 and the Authority Bonds for the Phase 1A Infrastructure Improvements (Series 2022B) will be issued in the approximate amount of $10,240,996. A combined Page 9 of 13 all-in true interest cost of 9.057053% per annum is projected. The estimated annual debt service schedule for the Authority Bonds to the June 1, 2027 mandatory redemption date based on the foregoing estimates (Annual Debt Service Schedule) is set forth in Attachment E to this report. Under the terms of the Bond Purchase Agreement, there are a number of circumstances under which the interest rate on the Authority Bonds could increase to a Default Rate, which is the actual rate on each series of the Authority Bonds when issued plus 3% per annum. A new feature of the private sale is that the Purchasers will make Advances under the Bond Purchase Agreement to purchase the Series 2022A Bonds that are part of the Authority Bonds over a period of three years which is matched to correspond to the construction schedule for the Convention Center. This feature reduces interest costs for the Authority as interest accrues only on the amount advanced. Under the Bond Purchase Agreement, there are a number of conditions to each subsequent Advance being made so it is possible that the funding of some portion of the $265 million of construction funds for the Convention Center could be delayed or not made. The estimated schedule of Advances (Schedule of Advances) is attached as Attachment F to this report and the final schedule will be determined at the time that the final interest rates are set for the Authority Bonds. While the change to a private sale has clear advantages to the Authority, City and District in terms of allowing construction on the Convention Center and Resort Hotel to begin soon, there are risks associated with this approach primarily related to the need to pay off the Purchasers on or before June 1, 2027 in the full amount of the Authority Bonds and accrued interest. It could be that market conditions or other factors, such as a failure of RIDA to complete and open the Resort Hotel and Convention Center on time among others, will prevent the payoff in which case the Authority Bonds would pay interest at the Default Rate until paid. It is also possible that interest rates will be higher at the time of payoff than now so the Authority is assuming interest rate risk. Additionally, while the private sale to the Purchasers is allowing the full amount of the $265 million public agency contribution to be funded, the amount of bonds needed to pay off the Purchasers could be more than the $400 million maximum principal amount of Authority Bonds previously authorized to be issued. The exact amount of bonds necessary to accomplish the payoff of the Purchasers will depend upon market conditions at the time of payoff but based on current interest rates has been estimated by the Underwriter to be $382,765,000. The resolution approves the private sale of the Authority Bonds to the Purchasers in accordance with the terms of the Bond Purchase Agreement. III. Declaration of Reciprocal Easements In order to ensure continuity of operations between the Resort Hotel and Convention Center under the leasing structure outlined above, the District, Authority, City and RIDA will enter into a Declaration of Reciprocal Easements. During the time that the leasing structure is in place the Declaration of Reciprocal Easements clarifies the rights RIDA has Page 10 of 13 to operate between the two joined yet separate leasehold parcels. Specifically, as part of the Declaration of Reciprocal Easements, the District, as the owner of the Resort Hotel parcel, and the District as the owner of the Convention Center parcel, grant each other reciprocal non-exclusive easements over portions of the improvements located on their land (i.e., Central Plant, structural members, columns beams) for maintenance, repair, replacement, restoration or reconstruction of the improvements, transmission of the utilities, construction (i.e., defined encroachment rights), and egress and ingress through defined common areas and for emergency situations. The District as the “Owner” transfers the benefit of these easements to the tenants of the parcels, which in this case would be the Authority under the Site Lease, the City under the Facility Lease, and RIDA under the Sublease and Hotel Ground Lease. At the May 11, 2022 Authority Board meeting, the Authority Board will be asked to authorize the execution of the Declaration of Reciprocal Easements. IV. CC SNDA Marriott has asked the Authority, the District and the City to enter into the CC SNDA to set forth the circumstances, and conditions that would apply, should any of the Convention Center Leases terminate, and the Management Agreement is still in effect. If such a situation should occur, Marriott would remain bound by all of the terms of the Management Agreement; except that Marriott will have no such obligation to recognize the Authority, City or the District, as applicable, as the “Owner” replacing RIDA, unless the Authority, District or City, as applicable, cures all outstanding Defaults on behalf of “Owner” under the Management Agreement that: (i) are of a continuing nature; (ii) exist as of the termination date of the Convention Center Leases (as the case may be); (iii) are not personal to RIDA; and (iv) are reasonably susceptible to cure by the District, City or Authority (as applicable). The foregoing are subject to various exceptions, which include RIDA’s obligation to initially construct the Convention Center. V. Rate Lock Agreement Based on the new financing structure and the dynamic changes in the market with respect to interest rates, it may be beneficial for the Authority to enter into a Rate Lock Agreement. Rate locks are established based on the current interest rate market and the cost of funds of the entity providing the rate lock. Staff recommends that the Authority Board authorize the Executive Director to enter into a Rate Lock Agreement if the Executive Director in his discretion determines that it is beneficial for the Authority to enter into a Rate Lock Agreement VI. Costs Related to the Administration and Operation of the Authority In order to implement the various agreements related to the Authority Bonds, the Authority will incur certain costs necessary for the administration and operation of the Authority, Page 11 of 13 including the purchase of insurance. Staff recommends that the Board authorize staff to incur such costs in accordance with the Authority’s existing policies, including without limitation, the Chula Vista Bayfront Facilities Financing Authority Policy for Procurement of Professional and Legal Services. VII Authority Board Virtual Meetings in Accordance with the Brown Act and AB 361 AB 361 enacted certain exceptions to the Brown Act to allow virtual and hybrid meetings of the public agencies when there is a proclaimed state of emergency and state or local officials are recommending measures to promote social distancing. On March 4, 2020, the Governor declared a state of emergency related to COVID-19 which still remains in effect. The District declared a state of emergency on March 18, 2020 which remains in effect. Several state, federal, and local agencies continue to recommend social distancing to prevent the spread of COVID-19. For example: • On September 23, 2021, Wilma J. Wooten, the Public Health Officer for the County of San Diego, issued a Health Officer Teleconference Recommendation which recommends continued virtual Brown Act meetings to help prevent the spread of COVID- 19. • Cal-OSHA adopted temporary emergency standards for workplaces that do not require social distancing but do require employers to provide effective training and instruction to employees that includes “The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing, face coverings, increased ventilation indoors, and respiratory protection decrease the spread of COVID- 19, but are most effective when used in combination.” [Available at: https://www.dir.ca.gov/dosh/coronavirus/ETS.html.] • The California Department of Healthcare Services, which administers the state’s Medi-Cal program provides the following in its Frequently Asked Questions for Medi-Cal beneficiaries: “Even after being vaccinated, people will still need to practice other precautions, like wearing a mask, social distancing, handwashing, and other hygiene measures, until public health officials say otherwise.” [Available at https://www.dhcs.ca.gov/Pages/COVID-19-Vaccines.aspx.] • The California Department of Public Health has issued guidance about additional vaccine doses for persons who are immunocompromised. The guidance contains the following: “As a person with a weak immune system, once I get an additional dose, can I reduce the use of other precautions such as masking, distancing, and avoiding groups and crowds.” A: “No, because even with an extra dose of mRNA vaccine, not everyone with a compromised immune system appears to mount a normal immune Page 12 of 13 response. We are still learning about this, but at this time, we consider it prudent to continue taking extra precautions.” [Available at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID- 19/ThirdVaccineDoseQandA.aspx.] Therefore, staff recommends the Authority Board adopt a resolution making the finding that, based on continued state, federal, and local recommendations for social distancing, the Brown Act meetings of the Authority Board are permitted to use the exceptions to Brown Act rules set forth in AB 361. And further, that this authorization expires if not renewed at the next regular meeting of the Authority Board that is not cancelled. VIII. Recommendation A. As more fully discussed above, staff recommends that the Authority Board adopt the resolution authorizing execution and delivery of the Fourth A&R Revenue Sharing Agreement, execution and delivery of the Bond Purchase Agreement and approval of the sale of the Authority Bonds at a private sale pursuant thereto, execution and delivery of the Declaration of Reciprocal Easements, execution and delivery of the CC SNDA, the Executive Director at his discretion to enter into a Rate Lock Agreement and authorizing the Executive Director and other officers of the Authority to take actions necessary for the administration and operation of the Authority, including the purchase of insurance. B. Make Findings Regarding Authority Board Virtual Meetings in Accordance with the Brown Act and AB 361. Co-Counsel’s Comments: Each Co-Counsel has reviewed this agenda sheet and Attachments A-D as presented to him or her and approve each as to form and legality. Environmental Review: The proposed action by the Authority Board is to adopt a resolution, approving the execution and delivery of the Bond Purchase Agreement, Fourth A&R Revenue Sharing Agreement, the Declaration of Reciprocal Easements, and the CC SNDA, and authorizing the Executive Director at his discretion to enter into a Rate Lock Agreement and authorizing the Executive Director and other officers of the Authority to take actions necessary for the administration and operation of the Authority. The proposed action does not constitute a “project” under the definition as set forth in the California Page 13 of 13 Environmental Quality Act (CEQA Guidelines § 15378(b)(2)) because they will not have a potential to result in a direct or indirect physical change in the environmental and are, therefore, not subject to CEQA. No further action under CEQA is required. In addition, the proposed Authority Board action would not conflict with the Port Act of the District or the Public Trust Doctrine. Finally, the proposed action does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit Regulations. Therefore, issuance of a Coastal Development Permit or exclusion is not required. PREPARED BY: Adam Meyer Assistant Director, Real Estate, District Tiffany Allen Deputy City Manager & Director, Development Services, City Attachment(s): Attachment A: Fourth A&R Revenue Sharing Agreement Attachment B: Bond Purchase Agreement Attachment C: Declaration of Easements Attachment D: CC SNDA Attachment E: Annual Debt Service Schedule Attachment F: Schedule of Advances 704898225.1 . Attachment A FOURTH AMENDED AND RESTATED REVENUE SHARING AGREEMENT By and Among CITY OF CHULA VISTA, SAN DIEGO UNIFIED PORT DISTRICT, and CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (Chula Vista Resort Hotel, Convention Center and Public Infrastructure Improvements) This Fourth Amended and Restated Revenue Sharing Agreement (“Agreement”), dated _______ __, 2022, is entered into by and among the City of Chula Vista, a chartered municipal corporation (“City”), the San Diego Unified Port District, a public corporation (“District”), and the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (“Authority”). The City, Authority, and District may be individually referred to herein as, a “Party”, and collectively as, the “Parties”. RECITALS WHEREAS, to develop certain portions of the Chula Vista Bayfront (“CVB”) for the benefit of the residents, tenants, and visitors of the CVB, the City and the District formed the Authority to fund a portion of the costs of a convention center (“Convention Center”) to be located on the CVB and a portion of the costs of certain public infrastructure improvements in the CVB to be constructed during the initial phase of development of the CVB (such public infrastructure improvements being herein referred to as the “Phase 1A Infrastructure Improvements”); and WHEREAS, the Authority was formed pursuant to that certain Joint Exercise of Powers Agreement between the City and the District dated as of May 1, 2014 and filed in the Office of the District Clerk as Document No. 61905, as amended and restated by that certain Amended and Restated Joint Exercise of Powers Agreement between the City and the District dated July 25, 2019 and filed in the Office of the District Clerk as Document No. 70245 (as amended, restated, or supplemented from time to time, “Authority Incorporation Agreement”); and WHEREAS, the Authority will fund such costs through issuance of the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) (the “2022A Bonds”) and Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022B (Tax-Exempt) (the “2022B Bonds” and, together with the 2022A Bonds, the “Authority 2022 Bonds”); and WHEREAS, the Authority 2022 Bonds will be issued pursuant to the terms of an indenture of trust (“Indenture”) by and between the Authority and the corporate trustee identified therein (the “Trustee”) to be entered into on the date of initial issuance of the Authority 2022 Bonds (the “Closing Date”); and WHEREAS, it is expected that RIDA Chula Vista, LLC (“RIDA”) will construct the Convention Center and Phase 1A Infrastructure Improvements pursuant to a Project 704898225.1 2 Implementation Agreement among RIDA, the District, the City, the Authority, and the Special Tax District (“PIA”) that will be entered into on the Closing Date; and WHEREAS, RIDA will construct some of the Phase 1A Infrastructure Improvements pursuant to a Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right of Entry License Agreement dated September 1, 2021 among RIDA, the City, the District, and the Authority and filed in the Office of the District Clerk as Document No. 73207 (“Early Work Agreement”); and WHEREAS, it expected that RIDA will finance the construction of a resort hotel (“Hotel”) to be located on the CVB; and WHEREAS, it is expected that RIDA will make payments to the District with respect to the Hotel pursuant to a Ground Lease between the District and RIDA to be entered into on the Closing Date (“Hotel Ground Lease”); and WHEREAS, it is expected that RIDA will make certain payments to the City, or the Trustee as its assignee, with respect to the Convention Center pursuant to a Sublease between the City and RIDA to be entered into on the Closing Date (“Convention Center Sublease”); and WHEREAS, it is expected that the City and the District will enter into a Mutual Lease and Sublease Enforcement Agreement on the Closing Date (“Enforcement Agreement”); and WHEREAS, the District will contribute funds to the repayment of the Authority 2022 Bonds and bonds issued to refund the Authority 2022 Bonds pursuant to a Support Agreement between the Authority and the District (the “Support Agreement”) and the City will contribute funds to repayment of the Authority 2022 Bonds and bonds issued to refund the Authority 2022 Bonds pursuant to a Facility Lease between the Authority and the City; and WHEREAS, the Bayfront Project Special Tax Financing District (“Special Tax District”) will contribute funds to the repayment of the Authority 2022 Bonds and bonds issued to refund the Authority 2022 Bonds pursuant to a loan agreement between the Special Tax District and the Authority (the “Loan Agreement”); and WHEREAS, the City and the District entered into that certain Revenue Sharing Agreement dated April 24, 2018 and filed in the Office of the District Clerk as Document No. 68392 (the “Original RSA”); and WHEREAS, the City and District entered into that certain Amended and Restated Revenue Sharing Agreement dated November 19, 2019 and filed in the Office of the District Clerk as Document No. 70911 (the “Amended RSA”) that amended and restated in its entirety the Original RSA; and WHEREAS, the City and District entered into that certain Second Amended and Restated Revenue Sharing Agreement dated September 15, 2020 and filed in the Office of the District Clerk as Document No. 71855 (the “Second Amended RSA”) that amended and restated in its entirety the Amended RSA; and 704898225.1 3 WHEREAS, the City and District entered into that certain Third Amended and Restated Revenue Sharing Agreement dated June 28, 2021 and filed in the Office of the District Clerk as Document No. 73382 (the “Third Amended RSA”) that amended and restated in its entirety the Second Amended RSA; and WHEREAS, the City and the District desire to amend and restate in its entirety the Third Amended RSA as set forth herein. NOW THEREFORE, in consideration of One Dollar and the mutual promises set forth herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The Recitals are incorporated herein by reference. 2. Term. The term of this Agreement commenced on the effective date of the Original RSA, May 7, 2018. Amendment and restatement of the Third Amended RSA as set forth herein shall take effect on the date first set forth above. If the Authority 2022 Bonds are issued, this Agreement shall terminate on the later to occur of the following two dates, which shall be referred to herein as the “Agreement Termination Date”: (i) the first date on which no Authority 2022 Bonds (including any bonds issued to refund the Authority 2022 Bonds) remain Outstanding (as such term is defined in the Indenture) and all amounts have been paid to Trustee in satisfaction of all claims against the Authority under the Indenture with respect to the Authority 2022 Bonds, including all fees, charges and expenses of the Trustee which are properly payable thereunder (“Bond Defeasance Date”); or (ii) thirty-eight (38) years from the Closing Date, provided however that in no event shall the term of this Agreement exceed sixty-six (66) years. Prior to the Closing Date, the Parties may, by mutual agreement, terminate this Agreement at any time. If the Authority 2022 Bonds are not issued on or prior to June 30, 2025, then this Agreement shall terminate on July 1, 2025 unless extended or terminated by mutual agreement of the Parties prior thereto. 3. Agreements. This Agreement amends, restates, and supersedes in its entirety the Third Amended RSA. As their interests may appear, the City, the District and the Authority hereby agree as follows: 3.1 Funds and Existing Funds. “Funds” means, collectively, moneys in an amount equivalent to each of the following sources of funds: A. District (i) all funds actually received by the District from the following items (collectively, “Real Estate Revenues”) commencing on July 1, 2018: (a) the funds actually received by the District from the premises that are the subject of the real estate agreements (each, the “Original Premises”) set forth in Exhibit 1 (each, a “Real Estate Agreement” and collectively, the “Real Estate Agreements”); provided, however, if any of the Real Estate 704898225.1 4 Agreements are renewed, replaced, assigned, or amended prior to the Agreement Termination Date, then on and after such renewal, replacement, assignment, or amendment, as applicable, the following shall apply: (1) if the Original Premises for such Real Estate Agreement remains the same, the District shall contribute the funds actually received by the District from such Real Estate Agreement regardless of whether such amounts are the same, less, or more than previously contributed by the District under this Agreement; (2) if the Original Premises for such Real Estate Agreement are decreased either in size or configuration, the District shall contribute the funds actually received by the District from such Real Estate Agreement regardless of whether such amounts are the same, less, or more than previously contributed by the District under this Agreement; provided, that if the portion of the Original Premises excluded from the aforementioned agreement (“Remainder Parcel”) becomes the subject of a future Real Estate Agreement, the District shall contribute funds actually received from the District from such Remainder Parcel pursuant to this Section; (3) if the Original Premises for such Real Estate Agreement are increased either in size or configuration to include additional premises outside of the Original Premises boundaries of such Real Estate Agreement and such additional premises are immediately adjoining the original premises or are located in the City of Chula Vista (each a “Modified Boundary Agreement”), the District shall contribute funds actually received from the District from such Real Estate Agreement based on a formula calculated by multiplying the total amount of the funds actually received from the District for such Real Estate Agreement in the immediately prior year by a fraction, the numerator of which shall be an amount equal to the Modified Boundary Agreement premises still within the original premises boundary, and the denominator of which shall be the total premises area of the Modified Boundary Agreement as modified. For example, if the Original Premises of a Real Estate Agreement encompasses 5.0 acres, and the 704898225.1 5 Modified Boundary Agreement includes 4.0 acres of the Original Premises, and adds 6.0 acres of premises outside the original premises, then forty percent (40%) of the funds actually received by the District under the Modified Boundary Agreement shall be paid as Real Estate Revenues under this Section; the City and the District acknowledge and agree that any modification of the RV Park Lease (listed on and as defined in Exhibit 1) to include some or all of parcel S-3 or a replacement of the RV Park TUOP (listed on and as defined in Exhibit 1) where RIDA is the tenant shall not constitute a “Modified Boundary Agreement” for purposes of this Section; and for any of the scenarios (1)-(3) above, if the new Real Estate Agreement is a revenue generating agreement then the District may deduct from the funds to be paid the Authority under scenarios (1)-(3) any related out- pocket operating costs paid by the District to the third parties to operate the premises. For the avoidance of doubt, it is the intent of the District to contribute funds from Original Premises derived from a Real Estate Agreement that the District actually receives during the term of this Agreement. (b) less $3,283,970, which is the actual amount of the buyout payment paid solely by the District to Chula Vista Marina, LP, dba Chula Vista Marina (“RV Park Lessee”) to terminate the lease between the RV Park Lessee and the District (“Net RV Park Buyout Credit”), such amount to be amortized over a period of eight years commencing on July 1, 2018 pursuant to the schedule of credits provided in Exhibit 2, attached hereto and incorporated herein by reference (“Net RV Park Buyout Credit Schedule”), as such Net RV Park Buyout Credit Schedule and its contents may be administratively modified from time to time with the mutual consent of the City Manager of the City (the “City Manager”) and the Executive Director of the District (the “Executive Director”), without further approval of the Board of Port Commissioners of the District (“District Board”) or City Council of the City (“City Council”); and (ii) the annual payments to be made by the District (the “District Support Payments”) pursuant to the Support Agreement; and (iii) any funds in addition to those specified in (i) and (ii) above committed by the District to the Convention Center or the Phase 1A Infrastructure Improvements (together, the “CVB Public 704898225.1 6 Improvements”) to be applied as Funds in accordance with the terms of this Agreement with the approval of the City Manager and the Executive Director, without further approval of the District Board or the City Council. B. City All funds actually received by the City from the following items commencing on July 1, 2018: (i) the transient occupancy taxes levied pursuant to Chula Vista Municipal Code Chapter 3.40, attributable to the Convention Center, the Hotel, the RV Park TUOP (listed on and as defined in Exhibit 1), and the RV Park Lease (listed on and as defined in Exhibit 1) (such transient occupancy taxes, the “TOT”); (ii) that portion of use and sales taxes levied pursuant to the Bradley- Burns Uniform Local Use and Sales Tax Law (California Revenue and Taxation Code Section 7000, et seq.) and allocated to the City pursuant to applicable law attributable to the RV Park Lease, the Convention Center and the Hotel, exclusive of any amount so levied and allocated to the City pursuant to voter approval by the electors of the City, which portion is currently one percent (1%) of taxable transactions (the “Sales Tax”); (iii) incremental ad valorem property tax (including property tax in-lieu of motor vehicle license fees) generated by the Convention Center and Hotel parcels, which is that amount in excess of any ad valorem property tax levied in the fiscal year in which the Authority 2022 Bonds are initially issued as provided in the Facility Lease (Chula Vista Bayfront Convention Center) between the Authority and the City (the “Facility Lease”); (iv) an amount equal to $986,625.00, increasing 3% on July 1 of each year, commencing July 1, 2017, which amount is based on the payment made by the District to the City in fiscal year 2016 pursuant to that certain Municipal Services Agreement No. 88-2012 between the District and the City for the provision of Police, Fire and Emergency Medical Services; (v) special tax proceeds (“Special Tax Revenues”) of the Special Tax District generated by the Hotel, the RV Park, and the Rambler Motel; and (vi) any funds in addition to those specified in (i) through (v) above committed by the City to the CVB Public Improvements to be applied as Funds in accordance with the terms of this Agreement, 704898225.1 7 with the approval of the City Manager and the Executive Director, without further approval of the City Council or the District Board. C. As used herein, “Existing Funds” means, collectively, moneys in an amount equivalent to each of the following sources of funds actually received by the District or the City, as applicable, from and after July 1, 2018: (i) the Real Estate Revenues; (ii) the TOT attributable to the RV Park TUOP and the RV Park Lease; and (iii) amounts described in Section 3.1(B)(iv). The City and the District shall remit any Existing Funds as of the end of December 31, 2021, as such date may be extended by agreement of the Parties, remaining after any expenditure permitted by Section 3.2 to the Trustee in accordance with the Indenture by no later than the Closing Date. No interest will accrue with respect to the Existing Funds contributed by the City or the District prior to the Closing Date. The Existing Funds to be contributed by the City and by the District shall not include interest earned by the City or the District on such funds prior to the Closing Date. Should either the City or the District elect to retain Existing Funds for the period from and after July 1, 2018 to the Closing Date, such Existing Funds shall be reported as restricted in the audited financial statements included in such Party’s Annual Comprehensive Financial Report (“ACFR”), commencing with such Party’s ACFR for the fiscal year ended June 30, 2020. Funds received by the Authority on or prior to the Closing Date shall be transferred by the Authority to the Trustee on or prior to the Closing Date as provided in Section 3.3. 3.2 Use of Existing Funds Prior to the Closing Date. Existing Funds may be expended by the City and the District prior to the Closing Date pursuant to the following terms: A. The City may deduct amounts reimbursed to RIDA pursuant to that certain Pre-Close Design Reimbursement Agreement, dated September 15, 2020, entered into between the City and RIDA; B. The City may deduct plan review, permitting, and inspection fees in the amount that would have been incurred by RIDA to process the work for the Phase 1A Infrastructure Improvements based on current schedules of fees adopted by the City for such plan review, permitting, and inspection; C. The City and the District may deduct design, plan review, permitting, project/construction management, and inspection costs incurred by the City and the District, respectively, for Phase 1A Infrastructure Improvements, memorialized in one or more operating memoranda of the City and the 704898225.1 8 District executed by the City Manager and the Executive Director, without further approval of the City Council or the District Board; D. The City and the District may deduct such amounts necessary for the payment of existing or future obligations of the Authority, including without limitation, administrative fees, consultant and attorneys’ fees, and other staff reimbursements and fees (collectively, the “Pre-Close Authority Expenses”), as such Pre-Close Authority Expenses are memorialized in one or more operating memoranda of the City and the District executed by the City Manager and the Executive Director, without further approval of the City Council or the District Board; E. Pursuant to Section 3.10, the City and the District have each committed to contribute $9,500,000 to the Trustee on or prior to the Closing Date, and each of the City and the District may pay $500,000 of their respective commitments from Existing Funds; F. Prior to the deduction of any amounts by the City or by the District pursuant to Section 3.2(A) through Section 3.2(D), the Party desiring to deduct such amount shall submit an accounting of such amounts to the other Parties and the other Parties shall review the accounting in good faith and approve or reject such accounting within thirty (30) days. If the accounting is approved, such amount shall be deducted from the Existing Funds to be delivered by such Party by no later than the Closing Date; provided, that the Parties may elect a different method to document and approve the accounting of such amounts as memorialized in an operating memoranda of the City and the District executed by the City Manager and Executive Director, without further approval of the City Council or the District Board. Should the Closing Date for the Authority 2022 Bonds not occur as provided in Section 2, and such date is not extended by mutual agreement of the Parties in accordance with Section 2 of this Agreement, the City and the District shall each prepare an accounting of amounts deducted and approved by such Party from the Existing Funds pursuant to Section 3.2(A) through Section 3.2(D) above (the “Pre-Close Expenses”). Should the Pre- Close Expenses of the City exceed the Pre-Close Expenses of the District, or in the alternative, the Pre-Close Expenses of the District exceed the Pre- Close Expenses of the City, then the Party with the lower Pre-Close Expenses shall make a reimbursement sufficient to equalize the Pre-Close Expenses between the City and the District (e.g., if the City has expended $2.0 million and the District has expended $1.0 million, then the combined Pre-Close Expenses total $3.0 million, with a fair-share expense of $1.5 million per Party, and a reimbursement due from the District to the City in the amount of $0.5 million, the “Pre-Close Expense Reimbursement”). The Pre-Close Expense Reimbursement shall be made within thirty (30) days of the District and City’s mutual agreement as to the amount of such payment; and 704898225.1 9 G. This Section 3.2 shall extend beyond the termination of this Agreement to the extent necessary to complete the accounting for the transactions in this Section 3.2 to be completed. 3.3 Use of Existing Funds Subsequent to the Closing Date. Any Existing Funds collected by the City and the District subsequent to the transfer of funds to the Trustee under Section 3.1(C) shall be paid by such Parties in accordance with the provisions of the Support Agreement and the Facility Lease to the Trustee for application in accordance with the provisions of the Indenture. Any Existing Funds in the Trustee’s possession after the Closing Date shall be treated as amounts to be disbursed by the Authority in accordance with Section 3.4 below. A. If the Closing Date for the Authority 2022 Bonds does not occur as provided in Section 2, and such date is not extended by mutual agreement of the Parties in accordance with Section 2 of this Agreement, then Existing Funds shall be transferred to the Authority, and the Authority shall use the Existing Funds in the following manner: (1) pay any termination costs to the Trustee; (2) pay RIDA, on behalf of the City and the District, any amounts due and payable by the City and the District to RIDA for the work performed by RIDA pursuant to the Early Work Agreement prior to the termination of this Agreement in an amount that the Executive Director of the Authority verbally confirms with the City Manager of the City and the Executive Director of the District (“Approved Early Work Costs”); (3) pay for any outstanding contractual obligations of the Authority, including without limitation, consultant and attorneys’ fees (collectively, the “Termination Authority Expenses”); and (4) pay for any other uses as may be authorized by resolution of the Authority. B. After the Authority has paid the Existing Funds in the order set forth in Section 3.3(A) above, the Authority shall distribute the remaining Existing Funds to the City and the District based on the accounting for Pre-Close Expenses described in Section 3.2(F). 3.4 Contribution of Funds Post Bond Defeasance Date . On and after the Bond Defeasance Date until the Agreement Termination Date, the District and the City shall contribute Existing Funds annually to the Authority (“Post Defeasance Payments”) and such Post Defeasance Payments shall be distributed to the District and City as set forth in Section 3.5. 3.5 Distribution of Funds Post Closing Date. On and after the Closing Date until the Agreement Termination Date, amounts disbursed by the Trustee to the Authority pursuant to the provisions of the Indenture (the “Residual Revenues”), together with the Post Defeasance Payments and RIDA Lease Payments (as such term is defined below) received by the Authority, shall be applied in the following order of priority: 704898225.1 10 1. To reimburse the District for the cumulative amount of District Support Payments actually contributed by the District and not previously reimbursed to the District by the Authority; then 2. To reimburse the City and the District pari passu for any amounts either Party actually paid or contributed to the County of San Diego (“County”) pursuant to the Chula Vista Bayfront Project Funding Agreement (“Funding Agreement”) by and among the County, the City, the District and the Authority; then 3. To reimburse the City for 73.6% of the cumulative actual, direct costs incurred by the City to provide fire service within the CVB, which 73.6% reflects amounts for which the City is entitled to reimbursement in addition to any payments the City receives pursuant to any municipal services agreement between the City and the District in effect at the time such reimbursement is being made and which is the proportionate share of costs attributable to the Convention Center and the Hotel and not previously reimbursed to the City or paid through Special Tax Revenues; then 4. To reimburse the City and the District on a proportionate, pro-rata basis, for each Party’s contribution of the Existing Funds, as of the Closing Date, and not previously reimbursed to the City or the District; then 5. To reimburse the City and the District on a proportionate, pro-rata basis, for each Party’s contribution of Existing Funds after the Closing Date, continuing to the Agreement Termination Date, and not previously reimbursed to the City or the District; then 6. Any Funds remaining after the payments described in numbered items (1) through (5) above will be equally distributed between the City and the District. No interest will accrue with respect to unreimbursed Funds contributed by the City or the District. 3.6 RIDA Lease Payments. Pursuant to the Hotel Ground Lease and the Convention Center Sublease, each to be executed at the Closing Date, RIDA will be obligated to pay to the District and to the City, respectively, certain payments, which payments, exclusive of the RIDA Parking Payments (as such term is defined in Section 3.9 of this Agreement) and any Advance Rent (as such term is defined in the Convention Center Sublease) are collectively referred to herein as the “RIDA Lease Payments.” Each of the District and City shall remit to the Authority any RIDA Lease Payments such Party actually receives from RIDA within thirty (30) days following the District’s or City’s receipt of such RIDA Lease Payments. The District’s and City’s obligation to remit the RIDA Lease Payments to the Authority shall cease on the Agreement Termination Date. For purposes of this Agreement, the RIDA Lease Payments shall not be considered Funds. 704898225.1 11 3.7 Parks. The District and the City have agreed to cooperate in good faith and use their respective best efforts to negotiate an agreement (“Park Agreement”) which grants the City a nonexclusive, joint-use right or other interest in the areas designated for public park use within the CVB (the “Park Areas”). The Park Agreement is anticipated to provide as follows: as and when the City collects Parkland Acquisition and Development fees, or other such park related impact fees as may be adopted in the future, from developments in the CVB (collectively, the “PAD Fees”), the City will pay the acquisition component of such PAD Fees to the District, or an amount equivalent to the acquisition component of the PAD Fees, as rent under the Park Agreement (such amount being referred to as the “Park Rent”). To the extent that the City pays Park Rent to the District, the District shall contribute the Park Rent actually received to the Authority and the Authority shall use the Park Rent to reimburse the City and the District for O&M Costs (defined below) actually paid by each of the City and the District, subject to terms of any future implementing agreements entered into by the City, the District and/or the Authority. 3.8 Operations & Maintenance Costs and Transit Plan. A. The City and District agree to generally split the operation and maintenance costs (“O&M Costs”) for the CVB not otherwise maintained by a third party. The District will be responsible for the O&M Costs of the parks and all related public infrastructure located within the parks. The City will be responsible for the O&M Costs of the streets and sanitary sewers. B. The City and District will split the O&M Costs payable pursuant to that certain Chula Vista Bayfront Master Plan Natural Resources Management Plan filed June 6, 2016 in the Office of the District Clerk as Document No. 65065 that are not the responsibility of a third party (“NRMP Costs”). The NRMP Costs shall be shared equally by the District and the City. C. The City will be responsible for funding a transit plan for the Chula Vista Bayfront Shuttle as defined in the Chula Vista Bayfront Master Plan Public Access Program, filed in the Office of the District Clerk as Document No. 59408, as such document may be amended from time to time (the “Shuttle Transit Plan”). The City will cooperate with the District in good faith to coordinate implementation of the Shuttle Transit Plan with any other transit plan needed for the CVB. The City will also be responsible for funding the implementation of the Shuttle Transit Plan, including capital costs and operational costs of the Chula Vista Bayfront Shuttle, until such time as such operational costs are borne by other applicable transportation providers or the City and District mutually agree that the Chula Vista Bayfront Shuttle is no longer required. D. The Parties agree that there shall be paid from the Funds to the extent permitted by law, an amount not to exceed $300,000 in total for a period not to exceed ten years from February 18, 2016 to address insurance costs associated with certain soil conditions which the owner of HP-5, H-13, 704898225.1 12 H-14 and H-15 in the CVB (collectively, “Pacifica Parcels”) may encounter as follows: (a) $200,000 to be used solely for any deductibles for that certain “Beazley Eclipse Enviro Covered Location Insurance Policy (Site Environmental)” insurance policy (W1ABE0160101) effective February 11, 2016 and dated May 13, 2016 (“Pacifica Policy”) and (b) $100,000 for the following three items only: (1) any environmental cleanup not covered by the Pacifica Policy but required pursuant to the Regional Water Quality Control Board approved cleanup levels as detailed in the Final Cleanup and Abatement Completion Report, Soil Remediation, Exchange Parcel - Former South Campus, Chula Vista, California, prepared by Haley & Aldrich, Inc. and dated February 2015; (2) to pay for costs set forth in (1) above but only in the event that the insurance company goes out of business; or (3) to pay for costs set forth in (1) above but only in the event the environmental cleanup exceeds the total amount covered by the Pacifica Policy. The Parties agree that any amounts payable under this Section 3.8(D) shall be interpreted as an “Additional Administrative Expense” under the Indenture and shall be paid in accordance with the provisions therein. E. In no event shall either Party be reimbursed for any O&M Costs that have been previously reimbursed to such Party through Special Tax Revenues. 3.9 Parking Lease Payments. RIDA is expected to pay to the District a percentage of the gross revenues it receives for the use of parking spaces on the Hotel site and in the parking garage (collectively, the “RIDA Hotel Parking Payments”). The District shall deliver to the City fifty percent (50%) of all RIDA Hotel Parking Payments the District actually receives from RIDA under the Hotel Ground Lease within thirty (30) days following the District’s receipt of such RIDA Hotel Parking Payments. To the extent, RIDA pays to the City a percentage of the gross revenues it receives for the use of parking spaces on the Convention Center site (“RIDA CC Parking Payments”), the City shall deliver to the District fifty percent (50%) of the RIDA CC Parking Payments it actually receives within thirty (30) days following the City’s receipt of such RIDA CC Parking Payments. The District’s obligation to remit the RIDA Hotel Parking Payments to the City and the City’s obligation to remit the RIDA CC Parking Payments to the District shall cease on the Agreement Termination Date. For purposes of this Agreement, the RIDA Hotel Parking Payments and RIDA CC Parking Payments shall not be considered Revenues as such term is defined in the Indenture and shall not be considered Funds for purposes of this Agreement. 3.10 Commitment for Contribution. The City and the District hereby each commit to contribute $9,500,000 to the Trustee on or prior to the Closing Date, and each of the City and the District may pay $500,000 of their respective commitments from Existing Funds. 704898225.1 13 4. Operating Memoranda. To the extent the City and the District enter into any operating memoranda pursuant to the terms of this Agreement that requires any action(s) be taken by the Authority, the City and the District shall (i) specify in the operating memoranda any instructions that the Authority shall follow upon receipt of the operating memoranda; and (ii) promptly deliver the operating memoranda to the Treasurer of the Authority after the execution of the operating memoranda by the City Manager of the City and the Executive Director of the District. If the Authority is unable to comply with the instructions set forth in the operating memoranda for any reason, the Authority shall inform the District and the City promptly and to the extent compliance with the instructions requires the adoption of certain administrative rules or procedures or an amendment to the Authority Incorporation Agreement or the Bylaws of the Authority (“Authority Bylaws”), the City and the District, as the sole members of the Authority, shall use good faith efforts to promptly adopt such administrative rules or procedures administratively or present any modifications to the Authority Bylaws or Authority Incorporation Agreement to the Authority Board of Directors for their consideration, as necessary. 5. Binding Agreement. The Parties agree that this Agreement is a binding agreement among the Parties. Notwithstanding the binding nature of this Agreement, the Parties contemplate that future implementing agreements between the City and the District or the Authority, between the District and the Authority and/or among the City, the District and the Authority may be needed to implement or clarify the terms of this Agreement. To that end, each of the Parties agree to meet and confer in good faith in response to a request by any other Party regarding the implementation or clarification of this Agreement. 6. Event of Default. An “Event of Default” will occur under this Agreement when: (a) there is a material breach of any material condition, covenant or promise set forth herein; (b) written notice thereof has been given to the Party in breach; and (c) such breach has not been cured within ten (10) business days after such notice was given to the Party in breach. In the event the breach cannot reasonably be cured within such ten (10) business day period, the Party in breach must commence cure of the breach within such ten (10) business day period and thereafter diligently proceed to cure such breach. A waiver by any Party of any such breach shall not be construed as a waiver of any succeeding breach of the same or other condition, covenant or promise. In the event of an Event of Default, the non- defaulting Parties may, in their sole and absolute discretion, elect to either: (a) extend the time beyond the cure period set forth in this Section 6 for the defaulting Party to perform the applicable obligation(s) hereunder for a period of time acceptable to the non-defaulting Parties, or (b) proceed with an action or proceeding for specific performance. 7. Remedies. The occurrence of an Event of Default shall give the non-defaulting Parties the right to proceed with an action or proceeding for specific performance. 8. Notices. The notice addresses for the District and the City shall be the same as those set forth in the Authority Incorporation Agreement and shall be sent by certified U.S. Mail (return receipt requested) and shall be deemed delivered three days after deposit in the U.S. Mail. The address for the Authority shall be the following and shall be subject to the same notice procedures as set forth for the City and the District in this Section 8: 704898225.1 14 To Authority: Chula Vista Bayfront Facilities Financing Authority P.O. Box 5296 Chula Vista, CA 91912 With a copy to: Executive Director San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Port Attorney 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: City Manager City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 With a copy to: City Attorney City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 9. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the City and the District with respect to the subject matter hereof, except for the Contemporaneous Agreements (as defined in the PIA), the Early Work Agreement, the Enforcement Agreement, and the Authority Incorporation Agreement. 704898225.1 15 10. Drafting Presumption; Review Standard. The Parties acknowledge that this Agreement has been agreed to by all the Parties, that each Party has consulted with attorneys with respect to the terms of this Agreement and that no presumption shall be created against the drafting Party. Any deletion of language from this Agreement prior to its execution by City, District and Authority shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the Parties intended thereby to state the converse of the deleted language. 11. Governing Law. This Agreement and all of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of California. 12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be the original and all of which shall constitute one and the same document. 13. Electronic Signatures. The words “execution”, “execute”, “signed”, “signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transaction contemplated hereby shall be deemed to include electronic signatures, contract formations on electronic platforms approved by the Parties, or the keeping of such electronic signatures and electronic contracts in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act. 704898225.1 16 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and the year first set forth above. CITY: CITY OF CHULA VISTA Mary Casillas Salas Mayor ATTEST: Kerry K. Bigelow, MMC City Clerk APPROVED AS TO FORM: Glen R. Googins, City Attorney DISTRICT: APPROVED AS TO FORM AND LEGALITY: SAN DIEGO UNIFIED PORT DISTRICT, GENERAL COUNSEL a public corporation Thomas A. Russell Joe Stuyvesant President/CEO 704898225.1 17 AUTHORITY: APPROVED AS TO FORM AND LEGALITY: CHULA VISTA BAYFRONT FACILITIES CO-COUNSEL FINANCING AUTHORITY, a California joint exercise of powers authority Glen R. Googins Joe Stuyvesant City of Chula Vista City Attorney Executive Director Thomas A. Russell San Diego Unified Port District General Counsel 704898225.1 . Exhibit 1 Listing of Real Estate Agreements 1. Amended, Restated and Combined Lease between the San Diego Unified Port District (the “District”) and Marine Group Boat Works, LLC for property at the North Side of G Street at the terminus of both Quay Avenues and Sandpiper Way in Chula Vista, which lease is on file in the Office of the District Clerk as Document No. 54509, as amended, restated, and modified as of the Closing Date. Lease expires on January 31, 2030, with an eleven year option to extend to January 31, 2041. 2. Lease between the District and Chula Vista Marina, LP, dba Chula Vista Marina, for property located at 550 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 14244, as amended, restated, and modified as of the Closing Date. Lease expires on November 30, 2030. 3. Lease between the District and SHM South Bay, LLC, for property located at 640 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. ______, as amended, restated, and modified as of the Closing Date and expiring on June 30, 2032. 4. Lease between the District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the District Clerk as Document No. 70407 (“RV Park Lease”), as amended, restated, and modified as of the Closing Date and expiring on September 16, 2085. 5. Tideland Use and Occupancy Permit between the District and Sun Chula Vista Existing Park RV LLC for property located at 460 Sandpiper Way in Chula Vista which tideland use and occupancy permit is on file in the Office of the District Clerk as Document No. 69412 (“RV Park TUOP”), as amended, restated, and modified. TUOP terminated on October 31, 2021. 704898225.1 Exhibit 2 Net RV Park Buyout Credit Schedule Fiscal Year (FY) RV Park Buyout Credit Cumulative Credit FY 19 $410,500 $410,500 FY 20 $410,500 $821,000 FY 21 $410,500 $1,231,500 FY 22 $410,500 $1,642,000 FY 23 $410,500 $2,052,500 FY 24 $410,500 $2,463,000 FY 25 $410,500 $2,873,500 FY 26 $410,470 $3,283,970 Note: The total rent credit was reduced from $4,329,614 to $3,283,970 based on a permitted rent credit applied to the Chula Vista Marina lease as partial payment of the RV Park Buyout. This therefore will reduce the Chula Vista Marina rent actually received by the District from the tenant by $1,045,644 until November 30, 2021. CHAPMAN DRAFT DATED 5/5/22 Chula Vista - Bond Purchase and Continuing Covenant Agreement[10] 4379772 Attachment B BOND PURCHASE AND CONTINUING COVENANT AGREEMENT dated as of [___________], 2022 among CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, THE PURCHASERS PARTY HERETO and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent ___________________________ JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Sole Lead Arranger and Sole Bookrunner -i- TABLE OF CONTENTS SECTION HEADING PAGE ARTICLE I DEFINITIONS .................................................................................................1 Section 1.01. Defined Terms .......................................................................................1 Section 1.02. Terms Generally...................................................................................24 Section 1.03. Accounting Terms; GAAP ...................................................................24 Section 1.04. Divisions ..............................................................................................25 ARTICLE II PURCHASE OF BONDS AND ADVANCES .......................................................25 Section 2.01. Purchase of Bonds................................................................................25 Section 2.02. Advances ..............................................................................................25 Section 2.03. Default Rate .........................................................................................26 Section 2.04. Reserved ...............................................................................................26 Section 2.05. Obligations Absolute ...........................................................................26 Section 2.06. Redemption of Bonds ..........................................................................26 Section 2.07. Funding of Advances ...........................................................................27 Section 2.08. Payment Obligations ............................................................................27 Section 2.09. Termination of Commitments ..............................................................27 Section 2.10. Determination of Taxability .................................................................27 Section 2.11. Funding Indemnity ...............................................................................28 Section 2.12. Fees ......................................................................................................28 Section 2.13. Interest..................................................................................................29 Section 2.14. Increased Costs ....................................................................................29 Section 2.15. Reserved ...............................................................................................30 Section 2.16. Withholding of Taxes; Gross-Up .........................................................30 Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.............32 Section 2.18. Mitigation Obligations; Replacement of Credit Parties .......................34 Section 2.19. Defaulting Purchasers ..........................................................................36 ARTICLE III REPRESENTATIONS AND WARRANTIES ........................................................37 Section 3.01. Organization .........................................................................................37 Section 3.02. Authorization .......................................................................................37 Section 3.03. No Conflicts .........................................................................................38 Section 3.04. Compliance with Governmental Rules ................................................38 Section 3.05. No Litigation ........................................................................................38 Section 3.06. Government Approvals ........................................................................38 Section 3.07. Enforceability .......................................................................................38 Section 3.08. Taxes ....................................................................................................39 Section 3.09. Insurance ..............................................................................................39 Section 3.10. Security ................................................................................................39 Section 3.11. No Defaults ..........................................................................................39 Section 3.12. No Bankruptcy .....................................................................................39 Section 3.13. Title to Assets ......................................................................................39 -ii- Section 3.14. Delivery of Documents ........................................................................39 Section 3.15. No Government Proceedings ...............................................................39 Section 3.16. Reserved ...............................................................................................40 Section 3.17. Investment Company; Margin Regulations .........................................40 Section 3.18. Anti-Terrorism Laws; OFAC ...............................................................40 Section 3.19. No Bank Accounts ...............................................................................41 Section 3.20. Incorporation by Reference..................................................................41 Section 3.21. Correct Information .............................................................................41 Section 3.22. No Immunity ........................................................................................41 Section 3.23. Tax-Exempt Status ...............................................................................41 Section 3.24. Pending Legislation and Decisions ......................................................41 ARTICLE IV CONDITIONS ................................................................................................42 Section 4.01. Effective Date ......................................................................................42 Section 4.02. Conditions Precedent to each Advance................................................45 ARTICLE V AFFIRMATIVE COVENANTS .........................................................................47 Section 5.01. Maintenance of Existence ....................................................................47 Section 5.02. Documents ...........................................................................................47 Section 5.03. Taxes ....................................................................................................47 Section 5.04. Insurance ..............................................................................................47 Section 5.05. Compliance with Law ..........................................................................47 Section 5.06. Project and Records .............................................................................47 Section 5.07. Reserved ...............................................................................................48 Section 5.08. Accounts and Financial Reporting .......................................................48 Section 5.09. Notices .................................................................................................48 Section 5.10. Delays ..................................................................................................50 Section 5.11. Use of Proceeds....................................................................................50 Section 5.12. Governmental Approvals .....................................................................50 Section 5.13. Know Your Customer Information ......................................................50 Section 5.14. Contract Documents.............................................................................51 Section 5.15. Notice of Completion ...........................................................................51 Section 5.16. Reserved ...............................................................................................51 Section 5.17. Further Assurances and Corrective Instruments ..................................51 Section 5.18. Tax Covenants .....................................................................................51 ARTICLE VI NEGATIVE COVENANTS ..............................................................................52 Section 6.01. Indebtedness .........................................................................................52 Section 6.02. Negative Pledge ...................................................................................52 Section 6.03. Investments ..........................................................................................53 Section 6.04. Sale of Assets .......................................................................................53 Section 6.05. Maintenance of Tax-Exempt Status of Bonds ....................................53 Section 6.06. Related Documents ..............................................................................53 Section 6.07. Change in Name, Place of Business or Fiscal Year .............................53 Section 6.08. Coastal Development Permit ...............................................................53 -iii- Section 6.09. No Unauthorized Derivative Transactions ...........................................53 Section 6.10. No Consolidation or Merger ................................................................53 Section 6.11. No Accounts.........................................................................................53 Section 6.12. No Subsidiaries ....................................................................................54 Section 6.13. No Transactions with Affiliates ...........................................................54 Section 6.14. Anti-Corruption Laws; Anti-Terrorism Laws; OFAC .........................54 Section 6.15. Convention Center Payment Request; Requisition From Construction Fund .....................................................................................................54 ARTICLE VII EVENTS OF DEFAULT ..................................................................................54 Section 7.01. Events of Default .................................................................................54 Section 7.02. Remedies Upon an Event of Default ...................................................56 Section 7.03. Application of Payments ......................................................................57 ARTICLE VIII THE ADMINISTRATIVE AGENT ....................................................................57 Section 8.01. Authorization and Action .....................................................................57 Section 8.02. Administrative Agent’s Reliance, Indemnification, Etc ......................60 Section 8.03. Posting of Communications .................................................................61 Section 8.04. The Administrative Agent Individually ...............................................62 Section 8.05. Successor Administrative Agent ..........................................................63 Section 8.06. Acknowledgements of Purchasers .......................................................64 Section 8.07. Certain ERISA Matters ........................................................................65 Section 8.08. Certificate That the Project Is In-Balance ............................................66 Section 8.09. 2022 Bonds Assigned Rights ...............................................................67 ARTICLE IX MISCELLANEOUS ........................................................................................67 Section 9.01. Notices .................................................................................................67 Section 9.02. Waivers; Amendments .........................................................................69 Section 9.03. Expenses; Indemnity; Damage Waiver ................................................69 Section 9.04. Successors and Assigns........................................................................71 Section 9.05. Survival ................................................................................................76 Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution ..........76 Section 9.07. Severability ..........................................................................................77 Section 9.08. Right of Setoff......................................................................................77 Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process ..............78 Section 9.10. WAIVER OF JURY TRIAL ........................................................................78 Section 9.11. Headings ..............................................................................................79 Section 9.12. Confidentiality .....................................................................................79 Section 9.13. No Fiduciary Duty, Etc. .......................................................................80 Section 9.14. USA PATRIOT Act .............................................................................81 Section 9.15. Acknowledgement and Consent to Bail-In of EEA Financial Institutions............................................................................................81 Section 9.16. Acknowledgement Regarding Any Supported QFCs ..........................81 Section 9.17. Third Party Beneficiary........................................................................82 -iv- SCHEDULES: SCHEDULE 1.01 — COMMITMENT AMOUNTS AND PERCENTAGES EXHIBITS: EXHIBIT A — Form of Assignment and Assumption EXHIBIT B — Advance Funding Schedule for 2022A Bonds EXHIBIT C — Form of Compliance Certificate EXHIBIT D — Administrative Agent Fees THIS BOND PURCHASE AND CONTINUING COVENANT AGREEMENT dated as of [______________], 2022, among the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California and that certain Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019, as amended by that certain Amendment No. 1 to the Amended and Restated Joint Exercise of Powers Agreement dated and effective ______, 2022, by and between the City of Chula Vista, a charted city organized and existing under the laws of the State of California (the “City”) and the San Diego Unified Port District, a public corporation (the “Port District”) (the “Authority”), the PURCHASERS party hereto, and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a banking association organized and existing under the laws of the United States, as Administrative Agent. RECITALS WHEREAS, the Authority has issued its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) (the “2022A Bonds”) and its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2022B (Tax-Exempt) (the “2022B Bonds”; and, together with the 2022A Bonds, the “Bonds”) pursuant to that certain Indenture of Trust dated as of [______ __], 2022 (as the same may be amended, modified or restated in accordance with the terms thereof and hereof, the “Indenture”), between the Authority and Wilmington Trust, National Association, as trustee (the “Trustee”); and WHEREAS, the Purchasers (as hereinafter defined) have agreed to extend credit to the Authority through the purchase of the Bonds and, as a condition to such purchase, the Purchasers have required the Authority to enter into this Agreement. NOW, THEREFORE, TO INDUCE THE PURCHASERS TO PURCHASE THE BONDS, AND FOR OTHER VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, AND INTENDING TO BE LEGALLY BOUND HEREBY, THE AUTHORITY, THE ADMINISTRATIVE AGENT AND THE PURCHASERS HEREBY AGREE AS FOLLOWS: ARTICLE I DEFINITIONS Section 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below: “Administrative Agent” means JPMorgan Chase Bank, National Association, in its capacity as administrative agent for the Purchasers hereunder. “Administrative Agent Fees” has the meaning assigned in Section 2.12(b). -2- “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent. “Advance Funding Dates” means each date on which Advances are scheduled to be made by the Purchasers pursuant to Section 2.02 and the Advance Funding Schedule. “Advance Funding Schedule” means the schedule of Advances to be made by the Purchasers with respect to the Series 2022A Bonds pursuant to Section 2.02 hereof as set forth on Exhibit B. “Advances” means, collectively, the Initial Advance and each subsequent advance made by the Purchasers pursuant to Section 2.02(b) hereof and in accordance with the Advance Funding Schedule. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agent Indemnitee” has the meaning assigned to it in Section 9.03(c). “Aggregate 2022A Commitment Amount” means the sum of the 2022A Commitment Amount of each of the respective Purchasers. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Authority from time to time concerning or relating to bribery or corruption . “Anti-Terrorism Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Authority from time to time concerning or relating to terrorism or Sanctions, including, without limitation, the Patriot Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act, or any regulations passed thereunder, including the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V) or any enabling legislation or executive order relating thereto or successor statute thereto. “Applicable Party” has the meaning assigned to it in Section 8.03(c). “Applicable Percentage” means, with respect to any Purchaser or Bondholder at any time, (a) with respect to the 2022A Bonds, (i) for a Purchaser, the percentage (carried out to the ninth decimal place) of the Aggregate 2022A Commitment Amount of all Purchasers represented by such Purchaser’s 2022A Commitment at such time, plus (ii) to the extent such Purchaser is a Bondholder, the percentage of the total aggregate principal amount of Bonds held by such Bondholder; provided that, in the case of Section 2.19 when a Defaulting Purchaser shall exist, “Applicable Percentage” shall be determined disregarding any Defaulting Purchaser’s 2022A Commitment, and (b) with respect to the 2022B Bonds, the percentage of the total aggregate principal amount of Bonds held by such Bondholder. “Applicable Rate” means 1.90% per annum. -3- “Application for Payment” has the meaning given such term in the Building Loan Agreement. “Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a). “Approved Fund” has the meaning assigned to it in Section 9.04(b). “Arranger” means JPMorgan Chase Bank, National Association, in its capacity as sole lead arranger hereunder and sole bookrunner. “Arranger Fee” means the fee payable to the Arranger on the Effective Date. “Arranger Fee Letter” means that certain Fee Letter dated as of _____, 2022, by and between the Arranger and the Authority. “Assignment and Assumption” means an assignment and assumption entered into by a Purchaser and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent. “Authority” has the meaning set forth in the recitals hereof. “Authorized Officer” means the Executive Director of the Authority (or his or her designated representative) or Treasurer of the Authority (or his or her designated representative) or any other Person authorized by the Authority to perform an act or sign a document on behalf of the Authority for purposes of this Agreement. “Available Sources of Funds” means, without duplication, as of any date of determination, the following: (i) amounts on deposit in the 2022A Bond Proceeds Subaccount of the Series 2022A Account of the Construction Fund (excluding any amounts described in subsection (ix) below that may deposited in the 2022A Bond Proceeds Subaccount of the Series 2022A Account of the Construction Fund); (ii) the Unutilized Amount; (iii) without duplication, amounts paid by RIDA as Sublease Advance Rent under the Sublease; (iv) the undisbursed proceeds of the Building Loan Facility allocated to the “Loan Budget” (as defined in the Building Loan Agreement and excluding, for this calculation, the commitment of any “Defaulting Lender” as defined thereunder); (v) the undisbursed proceeds of the Mezzanine Facility; -4- (vi) without duplication, [(a)(i) [$214,000,000] (i.e., the amount of “Cash Equity” (as defined in the Building Loan Agreement) to be contributed to the development or construction of the RHCC Project pursuant to the Building Loan Agreement, less (ii) the amount of equity that has been contributed to RIDA and expended in connection with the development or construction of the RHCC Project (excluding proceeds of the Mezzanine Facility and funds that have been disbursed from the “Borrower’s Funds Account” (as defined in the Building Loan Agreement)), plus (b) any amount (other than disbursements under the Project Implementation Agreement or as described in the foregoing clause (a)) that RIDA has used to fund construction of the Convention Center, plus (c) funds that are on deposit in the Borrower’s Funds Account]; plus (vii) without duplication, the amount of any contingency funds held by RIDA, regardless of when such are available to be spent by RIDA; plus (viii) without duplication, any amounts held in the Public Entity Contribution Subaccount of the 2022A Account of the Construction Fund; plus (ix) condemnation and insurance proceeds on deposit under the Bank Loan Agreement or by the Trustee in the Insurance and Condemnation Fund that RIDA represents to the Administration Agent will be used to Complete the RHCC Project, or any other condemnation or insurance proceeds which RIDA represents to the Administrative Agent is reasonably expected to be received (up to a maximum of $10,000,000 at any given time). “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute. “Bankruptcy Event” means, with respect to any entity: (a) an involuntary proceeding is commenced or an involuntary petition is filed seeking (i) liquidation, reorganization or other relief in respect of such entity or any of its debts, or of a substantial part of the assets thereof, under any insolvency law, or (ii) the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official for such entity or for a substantial part of the assets thereof, and, in any case referred to in the foregoing clauses (a)(i) and (ii), such proceeding or petition continues undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing is entered; or (b) such entity (i) applies for or consents to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official therefor or for a substantial part of the assets thereof, (ii) is generally not paying its debts as they become due unless such debts are -5- the subject of a bona fide dispute, or becomes unable to pay its debts generally as they become due, (iii) makes a general assignment for the benefit of creditors, (iv) consents to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition with respect to it described in clause (a) of this definition, (v) commences a voluntary proceeding under any insolvency law, or file a voluntary petition seeking liquidation, reorganization, an arrangement with creditors or an order for relief under any insolvency law, as amended, supplemented or replaced), (vi) files an answer admitting the material allegations of a petition filed against it in any proceeding referred to in the foregoing clauses (b)(i) through (v), inclusive, or (vii) takes any action for the purpose of effecting any of the foregoing. “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Bond Counsel” means Stradling Yocca Carlson & Rauth, a Professional Corporation, or another firm of nationally recognized bond counsel approved in writing by the Administrative Agent. “Bondholder” and “Bondholders” means, individually or collectively, as applicable, each Purchaser that is a holder of Bonds that is or has become a party hereto. “Bonds” has the meaning set forth in the recitals hereof. “Building Loan Administrative Agent” means the “Administrative Agent” as defined in the Building Loan Agreement. “Building Loan Agreement” means that certain Building Loan Agreement dated as of [________], 2022, by and among RIDA, Wells Fargo Bank, National Association, the Lenders (as defined therein) party thereto, Wells Fargo Securities, LLC and BofA Securities, Inc. “Building Loan Closing Date” has the meaning assigned to “Closing Date” as defined in the Building Loan Agreement. “Building Loan Facility” means the commitment to make advances under the Building Loan Agreement. “Business Day” has the meaning set forth in the Indenture. “Capitalized Interest Subaccounts” means, collectively, the 2022A Capitalized Interest Subaccount and the 2022B Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established under the Indenture. -6- “CBRE” means CBRE, Inc., a Delaware corporation. “Certificate that the Project Is In-Balance” means any certificate provided by the Administrative Agent pursuant to Section 8.08 hereof. “Change in Law” means the occurrence after the date of this Agreement of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Purchaser (or, for purposes of Section 2.14(b), by any lending office of such Purchaser or by such Purchaser’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted, issued or implemented. “Chapter 3.61” means Chapter 3.61 of the Chula Vista Municipal Code as amended from time to time. “City” means the City of Chula Vista, a chartered city organized and existing under the laws of the State of California. “Coastal Development Permit” means that certain San Diego Unified Port District Development Services Department Coastal Development Permit, dated July 11, 2019 and assigned Permit Number CDP-2019-03, as amended from time to time. “Code” means the Internal Revenue Code of 1986, as amended. “Commencement of Operations” means the Resort Hotel and the Convention Center have opened for business to the general public (notwithstanding that every feature thereof may not be operating as of such date) and all Governmental Approvals required for the operation thereof as intended have been obtained. “Commitment” means, with respect to each Purchaser, the sum of such Purchaser’s 2022A Commitments and 2022B Commitments. “Communications” has the meaning assigned to it in Section 8.03(c). “Complete” or “Completion” has the meaning assigned to it in the Project Implementation Agreement. -7- “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Construction Late Charges” means amounts payable by RIDA to the Trustee pursuant to Section 5.1.2 of the Project Implementation Agreement, whether paid by RIDA, the Guarantor or any other Person Guaranteeing RIDA’s obligations under the Project Implementation Agreement. “Construction Monitor” means Fulcrum Company, or in the event Fulcrum Company is not engaged to act as Construction Monitor, such other Person which is acceptable to the Administrative Agent in its sole discretion. “Convention Center” means those certain improvements consisting of approximately 275,000 square feet of meeting space, together with all related improvements, appurtenances, fixtures facilities and amenities, to be located on the Site. “Convention Center Costs” has the meaning set forth in the Indenture. “Convention Center Payment Request” shall have the meaning given such term in the Project Implementation Agreement. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Covered Party” has the meaning assigned to it in Section 9.16. “Credit Party” and “Credit Parties” means, individually or collectively, as applicable, the Administrative Agent and each Purchaser. “Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. -8- “Default Rate” means (i) with respect to the interest rate borne by the Bonds, the per annum rate otherwise applicable to the Bonds, plus 3.0%, (ii) with respect to the Commitment Fee (as defined in Section 2.12 below), the Applicable Rate, plus 3.0%, and (iii) with respect to any other Obligation payable by the Authority to a Purchaser hereunder that is not paid when due, a rate per annum equal to the sum of (a) 3% plus (B) the greater of (x) the Federal Funds Effective Rate plus 2% and (y) the Prime Rate plus 1%, in each case payable on demand; provided, however, the Default Rate shall in no event exceed a maximum of twelve percent (12%) per annum. “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “Defaulting Purchaser” means any Purchaser that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) make any required Advance with respect to the 2022A Bonds or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Purchaser notifies the Administrative Agent in writing that such failure is the result of such Purchaser having been notified by the Administrative Agent that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Authority or any Credit Party in writing, or has made a public statement to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Purchaser’s determination not to fund due to the Administrative Agent’s notice to it that a condition precedent to making an Advance under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Purchaser that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to make Advances under this Agreement, provided that such Purchaser shall cease to be a Defaulting Purchaser pursuant to this clause (c) upon the Administrative Agent’s receipt of such certification in form and substance satisfactory to it, or (d) has become the subject of (A) a Bankruptcy Event or (B) a Bail-In Action. “Determination of Taxability” means, solely with respect to the 2022B Bonds, the first to occur of any of the following: (i) when the Authority files any statement, supplemental statement or other tax schedule, return or document which discloses that an Event of Taxability shall have in fact occurred; (ii) when the Authority shall be advised in writing by the Commissioner of the Internal Revenue Service or the Director of Tax-Exempt Bonds of the Tax-Exempt and Government Entities Division of the Internal Revenue Service (or any other government official exercising the same or a substantially similar function from time to time, including an employee subordinate to one of these officers who has been authorized to provide such advice) that, based upon filings of the Authority, or upon any review or audit of the Authority or upon any other ground whatsoever, an Event of Taxability shall have occurred; or -9- (iii) when the Authority shall receive notice from a Bondholder or any former Bondholder that the Internal Revenue Service (or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of such Bondholder or such former Bondholder the interest on the Bonds due to the occurrence of an Event of Taxability; provided, however, no Determination of Taxability shall occur under subparagraph (iii) hereunder unless the Authority has been afforded the reasonable opportunity, at its expense, to contest any such assessment, and, further, no Determination of Taxability shall occur until such contest, if made, has been finally determined; provided further, however, that upon demand from a Bondholder or former Bondholder, the Authority shall promptly reimburse such Bondholder or former Bondholder for any payments, including any taxes, interest, penalties or other charges, such Bondholder (or former Bondholder) shall be obligated to make as a result of the Determination of Taxability. “Developer’s Phase 1A Infrastructure Improvements” has the meaning set forth in the Project Implementation Agreement. “dollars” or “$” refers to lawful money of the United States of America. “EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02). “Electronic Signature” means an electronic symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record. "ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time. -10- “Event of Default” has the meaning assigned to such term in Section 7.01. “Event of Taxability” means a (i) change in Law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstance (including, without limitation, the taking of any action by the Authority, or the failure to take any action by the Authority, or the making by the Authority of any misrepresentation herein or in any certificate required to be given in connection with the issuance, sale or delivery of the 2022B Bonds) which has the effect of causing interest paid or payable on the 2022B Bonds to become includable, in whole or in part, in the gross income of a Bondholder or any former Bondholder of 2022B Bonds for federal income tax purposes or (ii) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any official action by the Internal Revenue Service or the Department of the Treasury (or any other government agency exercising the same or a substantially similar function from time to time), which decree, judgment or action shall be final under applicable procedural Law, in either case, which has the effect of causing interest paid or payable on the 2022B Bonds to become includable, in whole or in part, in the gross income of such Bondholder or such former Bondholder for federal income tax purposes with respect to the 2022B Bonds. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Purchaser, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Purchaser, withholding Taxes imposed on amounts payable to or for the account of such Purchaser with respect to an applicable interest in the Bonds or Commitment pursuant to a law in effect on the date on which (i) such Purchaser acquires such interest in the Bonds or Commitment (other than pursuant to an assignment request by the Authority under Section 2.18(b)) or (ii) such Purchaser changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Purchaser’s assignor immediately before such Purchaser acquired the applicable interest in a Bond or Commitment or to such Purchaser immediately before it changed its lending office, and (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(f). “Executive Order” has the meaning set forth in Section 3.18 hereof. “Facility Lease” means that certain Facility Lease dated as of [________], 2022, by and between the Authority, as lessor and sublessor, and the City, as lessee and sublessee, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof. “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. -11- “Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America. “Fee Reserve Account” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(f) of the Indenture. “Financing District” means the Bayfront Project Special Tax Financing District, established pursuant to Chapter 3.61. “GAAP” means generally accepted accounting principles in the United States of America. “Governmental Approvals” means all permits, licenses, authorizations, consents, certifications, exemptions, rulings, entitlements and approvals issued by a Governmental Authority of whatever kind and however described, including siting and operating permits and licenses, which are required by the applicable Governmental Authority to be obtained or maintained by any person with respect to the Project. “Governmental Authority” means any nation, state, sovereign or government, any federal, regional, state or local government or political subdivision thereof or any other entity exercising executive, legislative, judicial, regulatory or administrative powers or functions of or pertaining to government and having jurisdiction over the Person or matters in question. “Governmental Rule” means any statute, law, treaty, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive, requirement or other governmental restriction or any similar form of decision of or determination by, or any interpretation or administration of any of the foregoing, in each case, having the force of law by, any Governmental Authority, which is applicable to any person, whether now or hereafter in effect. “Ground Lease” means that certain ground lease dated as of _______, 2022, between the Port District, as lessor, and RIDA, as lessee as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof. “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. -12- “Guarantor” means MFO Holding Company, LLC, a Delaware limited liability company. “Guaranty” means that certain Completion Guaranty made as of ______, 2022, by the Guarantor to and for the benefit of the Port District, the Authority, the City and the Administrative Agent on behalf of the Purchasers.1 “Hotel Improvements” shall have the meaning given such term in the Building Loan Agreement. “In-Balance” means, as of any date of determination by the Administration Agent pursuant to Section 8.08 hereof, that: (A) the total costs necessary for: (i) Completion of the RHCC Project (without regard to the Phase 1A Infrastructure Improvements and any City development fees that are being deferred); plus (ii) Interest payments, fees and other amounts payable on or with respect to the Building Loan Agreement and the Mezzanine Facility, in all cases accruing through Completion of the RHCC Project (without regard to the Phase 1A Infrastructure Improvements); plus (iii) Insurance premiums, taxes and operating expenses required to be paid by RIDA through Completion of the RHCC Project (without regard to the Phase 1A Infrastructure Improvements) pursuant to the Building Loan Agreement, each as contemplated by the Project Budget as modified from time to time, that remain unpaid as of such date of determination, are less than: (B) the Available Sources of Funds as of such date of determination. “Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all obligations, contingent or otherwise, of such Person 1 Still under review. -13- as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, and (j) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor; provided that no Indebtedness of the City or the Port shall be treated as Indebtedness of the Authority. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Authority under any Related Document and (b) to the extent not otherwise described in (a) hereof, Other Taxes. “Indemnitee” has the meaning assigned to it in Section 9.03(b). “Indenture” has the meaning set forth in the recitals hereof. “Ineligible Institution” has the meaning assigned to it in Section 9.04(b). “Information” has the meaning assigned to it in Section 9.12. “Initial Advance” means the initial Advance made by the Purchasers on the Effective Date pursuant to Section 2.02(a) hereof in the aggregate principal amount of (1) $[________], with respect to the 2022A Bonds, and (2) $[________], with respect to the 2022B Bonds; provided that the Initial Advance with respect to the Series 2022B Bonds shall be made by JPMorgan Chase Bank, National Association, as Purchaser, in the full principal amount of the 2022B Bonds authorized to be issued under the Indenture. “Insurance Advisor” means Alpha Risk Management, Inc., or such other insurance consulting firm acceptable to the Administrative Agent in its sole discretion. “Insurance and Condemnation Fund” means the fund by that name established and maintained by the Trustee pursuant to Section 3.11 of the Indenture and administered as described in Section 4.5 of the Indenture. “Interest Payment Date” has the meaning given such term in the Indenture. “IRS” means the United States Internal Revenue Service. “KMA” means Keyser Marston Associates, Inc., a California corporation. “KYC” means any “know your customer” diligence deliverables to be delivered by the Authority to the Purchasers prior to the Effective Date upon the request of the Purchasers. -14- “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. “Lease Payments” means those payments made by the City to the Authority as annual rental for the use and possession of the Facility (as defined in the Facility Lease), as set forth in Section 4.4 of the Facility Lease. “Lien” means any mortgage, pledge, hypothecation, assignment, mandatory deposit arrangement, encumbrance, lien (statutory or other), or preference, priority or other security agreement of any kind or nature whatsoever, including any sale leaseback arrangement, any conditional sale or other title retention agreement, any financing lease having substantially the same effect as any of the foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law. “Loan Agreement” means that certain Loan Agreement dated as of [______], 2022, between the Authority, the Financing District, and the Trustee, as amended from time to time in accordance with the terms hereof and thereof. “Loan Payments” means those payments of principal and interest made by the Financing District to the Authority under the Loan Agreement. “Local Obligations” means, collectively, the Facility Lease, the Loan Agreement, and the Support Agreement. “Material Adverse Effect” means the occurrence of an event that has a material adverse effect on: (a) the legality, validity or enforceability of any Related Document, (b) the ability of the Authority to pay or perform or comply with any of its material obligations under any of the Related Documents to which it is a party or enforce its rights or remedies thereunder, (c) the RHCC Project, including, without limitation, the ability to Complete the RHCC Project solely from Available Sources of Funds and prior to the date which is fifty-four months following the Effective Date, (d) the ability of any Credit Party to enforce its rights and remedies under this Agreement or the Indenture, or the ability of the Trustee to enforce its rights and remedies under any Related Document or part thereof that has been assigned to it by the Authority pursuant to the terms of the Indenture. “Material Event of Default” means any “default” or an “Event of Default” under any Related Document, the Sublease, the Guaranty or the Building Loan Agreement (after notice and opportunity to cure as provided for under the terms thereof) which could reasonably be expected to have a Material Adverse Effect. For clarity, and without limitation, a Public Entity Event of Default and an Event of Default under Section 7.01(e), (h) or (j) shall constitute a Material Event of Default. -15- “Maximum Federal Corporate Tax Rate” means the maximum marginal statutory rate of federal tax, as in effect from time to time, imposed upon the income of corporations generally pursuant to Section 26 U.S. Code § 11(b) (whether or not any Bondholder is actually taxed at such maximum marginal statutory rate). “Mezzanine Facility” means the loans contemplated under the Mezzanine Loan Agreement. “Mezzanine Loan Agreement” has the meaning assigned to it under the Building Loan Agreement. “Mezzanine Loan Borrower” has the meaning assigned to it under the Building Loan Agreement. “Net Proceeds” has the meaning assigned to it in the Indenture. “Non-Purchaser Transferee” has the meaning set forth in Section 9.04(f) hereof. “NYFRB” means the Federal Reserve Bank of New York. “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Authority arising under this Agreement to the Administrative Agent and/or the Purchasers, under the Indenture with respect to the Bonds, or under a Related Document that would result in a Material Adverse Effect if not satisfied, complied with or performed, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Authority or any Affiliate thereof of any proceeding under any debtor relief laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed or allowable claims in such proceeding. Without limiting the foregoing, Obligations include (a) the obligation of the Authority to pay principal, interest, charges, expenses, fees, indemnities and other amounts payable by the Authority to the Trustee on behalf of the Bondholders under the Indenture and (b) the obligation of the Authority to reimburse any amount in respect of any of the foregoing that the Administrative Agent, on behalf of the Purchasers and in its sole discretion, may elect to pay or advance on behalf of the Authority; provided that no such amount shall be advanced by the Administrative Agent except upon not less than three (3) Business Days’ notice to the Authority. -16- “OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Related Document, or sold or assigned an interest in any Bond or Related Document). “Other Requisite Information” means, with respect to any Convention Center Payment Request delivered pursuant to the Project Implementation Agreement, (i) the Application for Payment relating to the Hotel Improvements, as executed by RIDA and delivered to the Building Loan Administrative Agent during the same month as such Convention Center Payment Request and (ii) the monthly report required to be delivered to the Administrative Agent by the Construction Monitor.2 “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Related Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18). "Outstanding” has the meaning set forth in the Indenture. “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate. “Parking Improvements” has the meaning set forth in the Project Implementation Agreement. “Participant” has the meaning assigned to such term in Section 9.04(c). “Participant Register” has the meaning assigned to such term in Section 9.04(c). “Patriot Act” has the meaning assigned to it in Section 9.14. “Payment” has the meaning assigned to such term in Section 8.06(c)(i). 2 Still being developed by RIDA and the Administrative Agent. -17- “Payment Notice” has the meaning assigned to such term in Section 8.06(c)(ii). “Permitted Replacement Purchaser” means (i) RIDA, (ii) RIDA Development Corporation, (iii) Ares Management Corporation, (iv) Marriott International Capital Corporation, (v) any of their respective Affiliates, or (vi) any other Person (other than an Ineligible Institution) that is approved by each of the Authority and the Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Phase 1A Infrastructure Improvements” means, collectively, the Developer’s Phase 1A Infrastructure Improvements and Sweetwater Park. “Plan Asset Regulations” means 29 CFR 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time. “Port District” has the meaning set forth in the preamble hereof. “Port District Payments” has the meaning set forth in the Support Agreement. “Pre-Completion Lease Payments” means those payments made by the City to the Authority as set forth in Section 4.12 of the Facility Lease. “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective. “Project” means the Convention Center and the Developer’s Phase 1A Infrastructure Improvements. “Project Budget” means the “Loan Budget” as defined in the Building Loan Agreement. "Project Funds” means, collectively, the Revenue Fund, the Authority Surplus Fund, Construction Fund, the 2022A Capitalized Interest Subaccount of the Interest Account of the Revenue Fund, the 2022B Capitalized Interest Subaccount of the Interest Account of the Revenue Fund, the Cost of Issuance Fund, the Fee Reserve Account, the Rebate Fund, the Redemption -18- Fund, the Administrative Expense Fund, the Insurance and Condemnation Fund, and the Reserve Fund (and all subaccounts of each thereunder) as each is defined in the Indenture.3 "Project Implementation Agreement” means that certain Project Implementation Agreement dated as of [________], 2022, by and among the City, the Financing District, RIDA, the Port District and the Authority, as amended in accordance with the terms hereof and thereof. “Project Related Costs” means, collectively, (a) the portion of the Convention Center financed from the proceeds of the 2022A Bonds in accordance with the Project Implementation Agreement, (b) the costs of Developer’s Phase 1A Infrastructure Improvements Costs to be paid with amounts on deposit in the 2022B Account of the Construction Fund (and all subaccounts thereunder) in accordance with the Project Implementation Agreement, and (c) the costs of funding the 2022A Capitalized Interest, the 2022B Capitalized Interest and the Fee Reserve Account in accordance with the Indenture, which Subaccounts shall be used to pay interest on the 2022A Bonds and the 2022B Bonds, respectively, and to pay the Administrative Agent Fees and the Commitment Fees payable by the Authority, all as provided under the Indenture. “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. “Public Entity” or “Public Entities” means, individually or collectively, as applicable, the City, the Port District, the Financing District and the Authority . “Public Entity Contribution Subaccount” shall have the meaning given such term in the Indenture. “Public Entity Event of Default” means any Event of Default under Section 7.01(a), (b), (c), (d), (f), (g), (i), (k), (l) or (m) hereof. “Purchaser” and “Purchasers” means, individually or collectively, as applicable, each Person listed on Schedule 1.01 and each other Person that has become a Purchaser pursuant to an Assignment and Assumption or otherwise with a 2022A Commitment or 2022B Commitment hereunder. “Purchaser Parent” means, with respect to any Purchaser, any Person as to which such Purchaser is, directly or indirectly, a subsidiary. “Purchaser Transferee” has the meaning set forth in Section 9.04(e) hereof. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). “QFC Credit Support” has the meaning assigned to it in Section 9.16. 3 NTD: Subject to final list of accounts under the Indenture. -19- “Real Estate Revenues” has the meaning set forth in the Support Agreement. “Recipient” means any Credit Party, as applicable. “Redemption Fund” means the fund by that name established and maintained by the Trustee pursuant to Section 3.12 of the Indenture and administered as described in Section 4.6 of the Indenture. “Register” has the meaning assigned to such term in Section 9.04(b). “Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof. “Related Documents” means this Agreement, including schedules and exhibits hereto, and the Bonds, the Indenture, the Loan Agreement, the Site Lease, the Facility Lease, the Support Agreement, the Project Implementation Agreement, and any amendments, modifications or supplements thereto or waivers thereof, and any other agreements entered into in connection herewith by the Authority with or in favor of the Administrative Agent and/or the Purchasers and specified in writing by the Administrative Agent to the Authority from time to time as agreements to be considered Related Documents hereunder. “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates. “Reliance Letter” means that certain letter dated May ___, 2022, from RIDA [and RIDA Development Corporation] in favor of the Administrative Agent and the Purchasers.4 “Request of the Authority” shall have the meaning given such term in the Indenture. “Required Credit Parties” means, subject to Section 2.19, (a) at any time prior to the Commitments terminating or expiring, Purchasers having unfunded Commitments plus principal amount of Bonds Outstanding representing more than 50% of the sum of all of the unfunded Commitments plus the aggregate principal amount of Bonds Outstanding at such time; and (b) for 4 Still being reviewed by RIDA, Latham, JPMorgan and Chapman. -20- all purposes after the Bonds become due and payable pursuant to Section 7.01 or the Commitments expire or terminate, Purchasers holding Bonds in the aggregate principal amount representing more than 50% of the aggregate Outstanding principal amount of the Bonds at such time; provided that, in the case of clauses (a) and (b) above, for the purpose of determining the Required Credit Parties needed for any waiver, amendment, modification or consent of or under this Agreement or any other Related Document, any Purchaser that is the Authority or any Public Entity or an Affiliate of the Authority or any Public Entity shall be disregarded. “Reserve Fund” means the fund by that name established and maintained by the Trustee pursuant to Section 3.6 of the Indenture and administered as described in Section 4.3 of the Indenture. “Reserved Rights” has the meaning given such term in the Indenture. “Resort Hotel” has the meaning set forth in the Project Implementation Agreement. “Revenue Fund” means the fund by that name established and held by the Trustee pursuant to Section 3.3 of the Indenture and administered as described in Section 4.2 of the Indenture. “Revenues” means: (a) all Lease Payments, Pre-Completion Lease Payments, Loan Payments, Port District Payments, and other amounts paid pursuant to the terms of the Local Obligations and the Project Implementation Agreement for deposit to the Revenue Fund, (b) (i) Net Proceeds and (ii) RIDA Insurance and Condemnation Payments, in each case transferred from the Insurance and Condemnation Fund to the Revenue Fund and/or the Redemption Fund in accordance with Section 4.5 of the Indenture; (c) all Construction Late Charges paid by RIDA or the Guarantor to the Authority or to the Trustee as assignee of the Authority; (d) all other moneys received by the Trustee from time to time for deposit to the Revenue Fund, Redemption Fund or Reserve Fund as set forth in the Indenture; and (e) investment income with respect to any moneys held by the Trustee in the Revenue Fund, Redemption Fund and Reserve Fund. “RHCC Project” means, collectively, the Resort Hotel, the Convention Center, the Parking Improvements and the Phase 1A Infrastructure Improvements. “RIDA” means RIDA Chula Vista, LLC, a Delaware limited liability company, and any successor thereto. “RIDA Insurance and Condemnation Payments” means amounts paid by RIDA to the Trustee for deposit to the Insurance and Condemnation Fund in accordance with Sections 5.1 and 5.2 of the Sublease. “RSG” means RSG, Inc., a California corporation. “Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, the so - called Donetsk People’s Republic, the so- called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria). -21- “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions. “Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. “SEC” means the Securities and Exchange Commission of the United State of America. “Securities Act” means the Securities Act of 1933, as amended. “Site” has the meaning set forth in the Site Lease. “Site Lease” means that certain Site Lease dated as of [________], 2022, by and between the Port District and the Authority, as amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof and thereof. “State” means the State of California. “Sublease” means that certain Sublease Agreement dated as of [________], 2022, by and between the City and RIDA, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof. “Subsidiary” of any Person means any corporation or other entity (i) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person or one or more other Subsidiaries of such Person or (ii) the governing documents of which provide that (x) substantially all of the assets thereof shall be distributed upon liquidation or dissolution to such Person and/or one or more other Subsidiaries of such Person or (y) a majority of the board of directors or other persons performing similar functions of which shall be appointed or otherwise selected, directly or indirectly, by the board of directors of such Person and/or one or more other Subsidiaries of such Person. “Support Agreement” means that certain Support Agreement dated as of [________], 2022, by and between the Port District and the Authority, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof. “Supported QFC” has the meaning set forth in in Section 9.16. -22- “Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Authority or the Subsidiaries shall be a Swap Agreement. “Sweetwater Park” has the meaning set forth in the Project Implementation Agreement. “Tax Certificate” means the certificate by that name to be executed by the Authority on the Effective Date with respect to the 2022B Bonds to establish certain facts and expectations and which contains certain covenants relevant to compliance with the Code. “Tax-Exempt Bonds” means the 2022B Bonds. “Taxable Date” means the date on which interest on the 2022B Bonds is first includable in gross income of any Bondholder (including, without limitation, any previous Bondholder) thereof as a result of an Event of Taxability as such a date is established pursuant to a Determination of Taxability. “Taxable Period” has the meaning set forth in Section 2.10 hereof. “Taxable Rate” means, for each day, with respect to the 2022B Bonds, an interest rate per annum equal to the product of (i) the interest rate on the 2022B Bonds during such period and (ii) the Taxable Rate Factor, rounded to the sixth decimal place; provided, however, the interest rate computed under the foregoing shall in no event exceed twelve percent (12%) per annum. “Taxable Rate Factor” means, for each day that the Taxable Rate is determined, the quotient of (i) one divided by (ii) one minus the Maximum Federal Corporate Tax Rate in effect as of such day. “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax, penalties or similar liability with respect thereto. “Transactions” means the execution, delivery and performance by the Authority of this Agreement and the Related Documents, the issuance and purchase of Bonds, and the use of the proceeds thereof. “Trustee” means Wilmington Trust, National Association, as trustee under the Indenture and any successor thereto. “2022 Bonds Assigned Rights” has the meaning given such term in the Indenture. -23- “2022A Bonds” has the meaning given such term in the recitals of this Agreement. “2022A Capitalized Interest Subaccount” has the meaning set forth in the Indenture. “2022A Commitment” means the obligation of each Purchaser to purchase the 2022A Bonds by extending Advances thereunder in an aggregate principal amount at any one time not to exceed the Aggregate 2022A Commitment Amount. The 2022A Commitment, when referring to each individual Purchaser, means the portion of the 2022A Commitment relating to such Purchaser in the amount set forth on Schedule 1.01 opposite such Purchaser’s name, or in the Assignment and Assumption or other documentation or record (as such term is defined in Section 9-102(a)(70) of the New York Uniform Commercial Code) as provided in Section 9.04(b)(ii)(C), pursuant to which such Purchaser shall have assumed its 2022A Commitment, as applicable, and giving effect to (a) any reduction in such amount from time to time pursuant to Section 2.09 and (b) any reduction or increase in such amount from time to time pursuant to assignments by or to such Purchaser pursuant to Section 9.04; provided, that at no time shall (a) the aggregate principal amount of required Advances under the 2022A Bonds exceed such Purchaser’s 2022A Commitment Amount and (b) the sum of the aggregate principal amount of all Advances under the 2022A Bonds exceed the Aggregate 2022A Commitment Amount. “2022A Commitment Amount” means for each Purchaser, the amount set forth opposite such Purchaser’s name on Schedule 1.01 attached hereto. “2022A Commitment Termination Date” means the earliest to occur of (a) the date that Advances in the aggregate principal amount of the Aggregate 2022A Commitment Amount have been advanced by the Purchasers, (b) the termination of the obligation to purchase the 2022A Bonds hereunder pursuant to Section 7.02(a), and (c) the date that is six (6) months after the Completion of the Convention Center and the Completion of the Developer’s Phase 1A Infrastructure Improvements. “2022B Bonds” has the meaning given such term in the recitals of this Agreement. “2022B Capitalized Interest Subaccount” has the meaning set forth in the Indenture. “2022B Commitment” means the obligation of JPMorgan Chase Bank, National Association, to purchase the 2022B Bonds by extending the Initial Advance with respect thereto on the Effective Date in an aggregate principal amount at any one time not to exceed the Aggregate 2022B Commitment Amount as set forth on Schedule 1.01 opposite such Purchaser’s name. “2022B Commitment Amount” means the amount to be funded by JPMorgan Chase Bank, National Association, with respect to the 2022B Bonds on the Effective Date as set forth on Schedule 1.01 attached hereto. “Unutilized Amount” means, as of any date, with respect to the 2022A Bonds, an amount equal to the difference between (i) the Aggregate 2022A Commitment Amount and (ii) the aggregate amount of Advances made by the Purchasers pursuant to the terms hereof. -24- “U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.16. “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule. Section 1.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law, rule or regulation herein shall, unless otherwise specified, refer to such law, rule or regulation as amended, modified or supplemented from time to time and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Section 1.03. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Authority notifies the Administrative Agent that the Authority requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Authority that the Required Credit Parties request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Authority at “fair value,” as defined therein and (ii) any treatment of Indebtedness under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. -25- Section 1.04. Divisions. For all purposes under the Related Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its equity interests at such time. ARTICLE II PURCHASE OF BONDS AND ADVANCES Section 2.01. Purchase of Bonds. (a) Purchase. Subject to the terms and conditions set forth herein, each Purchaser severally agrees to purchase from the Authority, and the Authority hereby agrees to sell to each such Purchaser from time to time pursuant to each Advance, (i) the 2022A Bonds, at a price of par, in an aggregate principal amount not to exceed the amount of such Purchaser’s respective 2022A Commitment Amount, in accordance with Section 2.02(a) and on the dates and in the aggregate principal amounts set forth in Exhibit B hereto and (ii) the 2022B Bonds, at a price of par, in an aggregate principal amount not to exceed the amount of such Purchaser’s respective 2022B Commitment Amount, in accordance with Section 2.02(a). (b) Closing. On the Effective Date, the Authority shall satisfy the conditions set forth in Article IV hereof. Upon such satisfaction, the Purchasers will make the Initial Advance in immediately available federal funds payable to the Trustee on behalf of the Authority. One fully registered Bond of each Series, in the aggregate principal amount equal to each Purchaser’s respective Commitment with respect to such Series, shall be issued to and registered in the name of the related Purchaser. Section 2.02. Advances. (a) Initial Advance. Upon satisfaction of the conditions precedent set forth in Article IV hereof, on the Effective Date, (i) with respect to 2022B Bonds, JP Morgan Chase Bank, National Association, as Purchaser, shall make an Advance in an amount equal to the Initial Advance to the Trustee for the benefit of the Authority, and (ii) with respect to 2022A Bonds, each Purchaser shall make the amount of its Advance available to the Administrative Agent, pursuant to Section 2.07, in an amount equal to its Applicable Percentage of the Initial Advance to be deposited by the Administrative Agent on behalf of the Purchasers with the Trustee for the benefit of the Authority, each of which shall be applied as specified in Section 3.2 of the Indenture. (b) Additional Advances. With respect to 2022A Bonds, after the making of the Initial Advance and prior to the 2022A Commitment Termination Date, and subject to the satisfaction of the conditions precedent set forth in Section 4.02 of this Agreement, each Purchaser shall make additional Advances available to the Administrative Agent, pursuant to Section 2.07, to be -26- deposited by the Administrative Agent on behalf of the Purchasers with the Trustee for the benefit of the Authority and to be applied as set forth in Section 3.2 of the Indenture, on a several basis and ratably by the Purchasers in proportion to their respective Applicable Percentages, in accordance with the Advance Funding Schedule attached hereto as Exhibit B; provided that the aggregate principal amount of all Advances by the Purchasers shall not exceed the Aggregate 2022A Commitment Amount and the aggregate principal amount of all Advances by any particular Purchaser shall not exceed such Purchaser’s 2022A Commitment Amount. The Authority acknowledges that the Purchasers shall not be obligated to make Advances except in accordance with the provisions of this Agreement. The Purchasers agree, by their acceptance of the Bonds, that Advances shall be made in the manner and upon the terms and conditions set forth in this Agreement. The Authority shall not use any Advance for any payment which is not permitted by the Indenture, this Agreement or any other Related Document, and the Authority further agrees that the proceeds of each such Advance shall be applied in the manner set forth in the related form of Request of the Authority delivered by the Authority to the Administrative Agent pursuant to Section 4.02(a) hereof. Section 2.03. Default Rate . Upon the occurrence and during the continuance of a Public Entity Event of Default, or upon the occurrence of any Material Event of Default that is not cured within a period thirty (30) days, all Obligations shall bear interest at the Default Rate, which shall be payable by the Authority to the Administrative Agent upon demand therefor and be calculated on the basis of a 360-day year and actual days elapsed. Section 2.04. Reserved. Section 2.05. Obligations Absolute. The payment obligations of the Authority under this Agreement shall be payable only from Revenues, shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including without limitation the following: (a) any amendment or waiver of or any consent to departure from all or any of the Related Documents not consented to by the Administrative Agent; (b) the existence of any claim, set-off, defense or other right which the Authority may have at any time against any Purchaser or any other person or entity, whether in connection with this Agreement, the other Related Documents, the transactions contemplated herein or therein or any unrelated transaction; or (c) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing. Section 2.06. Redemption of Bonds. Optional Redemption. The Bonds shall not be callable for redemption prior to June 1, 2026. The Authority shall provide at least fifteen (15) but not more than thirty (30) days’ written notice to the Administrative Agent and the Trustee prior to the date of any redemption of the Bonds. -27- Section 2.07. Funding of Advances. Each Purchaser shall make the amount of its Advance available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 10:00 a.m., New York City time, on each Advance Date. Upon satisfaction of the applicable conditions of Section 4.02 hereof, the Administrative Agent shall transfer such funds to the Trustee for the account of the Authority, which funds shall be deposited by the Trustee in accordance with the terms of the Indenture and disbursed in accordance with the terms of the Indenture and the Project Implementation Agreement. Section 2.08. Payment Obligations. The Authority hereby unconditionally, irrevocably and absolutely agrees to make prompt and full payment of all Obligations payable to the Credit Parties whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect, absolute or contingent, with interest thereon at the rate or rates provided in this Agreement or the Indenture, as applicable; provided that notwithstanding any other provision herein to the contrary, all such Obligations payable to the Credit Parties shall be special, limited obligations of the Authority, payable solely from the Revenues and funds pledged under the Indenture and the Authority shall not be considered to be in default under any Related Document in the event that the Revenues and funds so pledged are not sufficient to pay such Obligations. Section 2.09. Termination of Commitments. Unless previously terminated, the 2022A Commitment shall terminate on the 2022A Commitment Termination Date, and the 2022B Commitment shall terminate upon the Initial Advance being made by JPMorgan Chase Bank, National Bank pursuant to Section 2.02(a). Section 2.10. Determination of Taxability. (a) In the event a Determination of Taxability occurs, to the extent not payable to each Bondholder under the terms of the Indenture and the 2022B Bonds, the Authority hereby agrees to pay to each Bondholder on demand therefor (i) an amount equal to the difference between (A) the amount of interest that would have been paid to such Bondholder on the 2022B Bonds during the period for which interest on the 2022B Bonds is included in the gross income of such Bondholder if the 2022B Bonds had borne interest at the Taxable Rate, beginning on the Taxable Date (the “Taxable Period”), and (B) the amount of interest actually paid to the Bondholder during the Taxable Period, and (ii) an amount equal to any interest, penalties or charges owed by such Bondholder as a result of interest on the 2022B Bonds becoming included in the gross income of such Bondholder, together with any and all attorneys’ fees, court costs, or other out-of-pocket costs incurred by such Bondholder in connection therewith; (b) Subject to the provisions of paragraph (c) below, such Bondholder shall afford the Authority the reasonable opportunity, at the Authority’s sole cost and expense, to contest (i) the validity of any amendment to the Code which causes the interest on the 2022B Bonds to be included in the gross income of such Bondholder or (ii) any challenge to the validity of the tax exemption with respect to the interest on the 2022B Bonds, including the right to direct the necessary litigation contesting such challenge (including administrative audit appeals); provided that, in no event shall a Bondholder be required to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Authority or any other Person; and -28- (c) As a condition precedent to the exercise by the Authority of its right to contest set forth in paragraph (b) above, the Authority shall, on demand, immediately reimburse the Administrative Agent for any and all expenses (including attorneys’ fees for services that may be required or desirable, as determined by the Administrative Agent or any other Bondholder in its reasonable discretion) that may be incurred by the Administrative Agent or any other Bondholder (which amounts shall be communicated to the Authority by the Administrative Agent) in connection with any such contest, and shall, on demand, immediately reimburse the Administrative Agent for any and all such payments, including any taxes or interest or penalties or other charges payable by the Administrative Agent or any other Bondholder for failure to include such interest in its gross income. The Administrative Agent shall be responsible for disbursing to any Bondholder any amounts paid to the Administrative Agent by the Authority on behalf of such Bondholder. Section 2.11. Funding Indemnity. In the event any Purchaser, other than a Defaulting Purchaser, shall incur any loss, cost, or expense (including, without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by such Purchaser to purchase or hold the Bonds and/or to make Advances in the amounts scheduled to be made on each Advance Funding Date or the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to such Purchaser) as a result of a failure to satisfy each of the conditions of Section 4.02 on the applicable Advance Funding Date (other than a failure to satisfy the condition in Section 4.02(a)(ii) due to a Material Event of Default under the Building Loan Agreement, the Mezzanine Loan Agreement or otherwise caused by RIDA) or in the event of any redemption of the Bonds on a date prior to June 1, 2026, for any reason, whether before or after the occurrence of an Event of Default, and whether or not such payment is required by any provision of this Agreement or the Indenture, then upon the demand of the Administrative Agent on behalf of such Purchaser, the Authority shall pay to the Administrative Agent on behalf of such Purchaser a break-funding payment in such amount as will reimburse such Purchaser for such loss, cost or expense. If the Administrative Agent on behalf of any such Purchaser requests such break-funding payment such Purchaser shall provide to the Authority a certificate setting forth the computation of the loss, cost, or expense giving rise to the request for such break-funding payment in reasonable detail and such certificate shall be conclusive if reasonably determined. Without prejudice to the survival of any other agreement of the Authority hereunder, the agreements and obligations of the Authority contained in this Section 2.11 shall survive the termination of this Agreement and the payment in full of the Bonds and the obligations of the Authority thereunder and hereunder. Section 2.12. Fees. (a) The Authority shall pay to the Administrative Agent for the account of each Purchaser in accordance with its Applicable Percentage, a commitment fee in dollars equal to the Applicable Rate times the actual daily Unutilized Amount, subject to adjustment as provided in Section 2.19 (the “Commitment Fee”), which Commitment Fee shall be payable from amounts on deposit in the Fee Reserve Account. The Commitment Fee shall accrue at all times from the Effective Date until the 2022A Commitment Termination Date, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on March 1, June 1, September 1 and December 1 of each year, commencing with the first such date to occur after the Effective Date, to the 2022A Commitment Termination Date, and on -29- the 2022A Commitment Termination Date. The Commitment Fee shall be calculated quarterly in arrears on the basis of a year of 360 days and actual days elapsed. (b) The Authority agrees to pay to the Administrative Agent, for its own account, fees payable on the dates and in the amounts set forth in Exhibit D hereto (the “Administrative Agent Fees”), which Administrative Agent Fees shall be payable from amounts on deposit in the Fee Reserve Account.5 Section 2.13. Interest. The Bonds shall, subject to Section 2.10 hereof, bear interest as set forth in the Indenture; provided; however, that at all times during the continuance of a Public Entity Event of Default, or upon the occurrence of any other Material Event of Default that is not cured within thirty (30) days, the Bonds shall bear interest at the Default Rate. Section 2.14. Increased Costs. (a) If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, liquidity ratio or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Purchaser; (ii) subject any Purchaser to any Tax (other than Excluded Taxes) with respect to the Bonds, its Commitment or any Related Document, or changes the basis of taxation of payments to any Purchaser in respect thereof; or (iii) affects the capital and liquidity requirements of any Purchaser; and the result of any of the foregoing shall be to (i) increase the cost to such Purchaser of holding or committing to purchase the Bonds, (ii) reduce the amount of any sum received or receivable by such Purchaser in respect of any purchase of Bonds, or (iii) has or would have the effect of reducing the rate of return on such Purchaser’s capital with respect to the Bonds to a level below that which such Purchaser would have achieved but for such Change in Law (in each case, an “Increased Cost”), then, upon written request of such Purchaser delivered to the Administrative Agent and by the Administrative Agent to the Authority, the Authority will pay to the Administrative Agent for disbursement to such Purchaser, as the case may be, such additional amount or amounts as will compensate such Purchaser, as the case may be, for such additional costs incurred or reduction suffered. (b) If any Purchaser determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Purchaser’s capital or on the capital of such Purchaser’s holding company, if any, as a consequence of this Agreement, to a level below that which such Purchaser or such Purchaser’s holding company could have 5 Exhibit D needs to be completed by JPM and will set out Administrative Agent Fees which will be sized to cover the costs of the construction monitor and work provided by JPMorgan’s construction real estate loan administration team (CRELA), which are estimated to aggregate $649,500 and funded from quarterly Advances deposited in the Fee Reserve Account/Subaccount. -30- achieved but for such Change in Law (taking into consideration such Purchaser’s policies and the policies of such Purchaser’s holding company with respect to capital adequacy and liquidity), then, upon the written request of such Purchaser delivered to the Administrative Agent and by the Administrative Agent to the Authority, the Authority will pay to the Administrative Agent for disbursement to such Purchaser, such additional amount or amounts as will compensate such Purchaser or such Purchaser’s holding company for any such reduction suffered. (c) A certificate of such Purchaser setting forth, in reasonable detail, the basis for such calculation and the amount or amounts necessary to compensate such Purchaser or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section, shall be delivered to the Authority and shall be conclusive as to the amount thereof absent manifest error. The Authority shall pay to the Administrative Agent for disbursement to such Purchaser the amount shown as due on any such certificate within 10 days after receipt thereof. (d) Failure or delay on the part of any Purchaser to demand compensation pursuant to this Section shall not constitute a waiver of such Purchaser’s right to demand such compensation; provided that the Authority shall not be required to compensate such Purchaser pursuant to this Section for any increased costs or reductions incurred more than 270 days prior to the date that such Purchaser causes the Administrative Agent to notify the Authority of the Change in Law giving rise to such increased costs or reductions and of such Purchaser’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof. Section 2.15. Reserved. Section 2.16. Withholding of Taxes; Gross-Up. (a) Payments Free of Taxes. Any and all payments by or on account of any Obligation of the Authority to the Administrative Agent or any Purchaser under any Related Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Authority shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (b) Payment of Other Taxes by the Authority. The Authority shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes that the Administrative Agent or any other Purchaser is required to pay under applicable law. -31- (c) Evidence of Payments. As soon as practicable after any payment of Taxes by the Authority to a Governmental Authority pursuant to this Section, the Authority shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. (d) Indemnification by the Authority. Without duplication of any amount payable by the Authority under this Section 2.16, the Authority shall indemnify each Credit Party, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Credit Party or required to be withheld or deducted from a payment to such Credit Party, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Authority by the Administrative Agent on its own behalf or on behalf of a Credit Party, shall be conclusive absent manifest error. (e) Indemnification by the Purchasers. Each Purchaser (other than the Administrative Agent) shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Purchaser (but only to the extent that the Authority has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Authority to do so), (ii) any Taxes attributable to such Purchaser’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Purchaser, in each case, that are payable or paid by the Administrative Agent in connection with any Related Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Purchaser by the Administrative Agent shall be conclusive absent manifest error. Each Purchaser (other than the Administrative Agent) hereby authorizes the Administrative Agent to setoff and apply any and all amounts at any time owing to such Purchaser under any Related Document or otherwise payable by the Administrative Agent to such Purchaser from any other source against any amount due to the Administrative Agent under this paragraph (e). (f) Status of Purchasers. Any Purchaser (other than the Administrative Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Related Document shall deliver to the Administrative Agent and the Administrative Agent shall deliver to the Authority, at the time or times reasonably requested by the Authority or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Authority or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Purchaser, if reasonably requested by the Authority or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Authority or the Administrative Agent as will enable the Authority or the Administrative Agent to determine whether or not such Purchaser is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in -32- Section 2.16(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in such Purchaser’s reasonable judgment such completion, execution or submission would subject such Purchaser to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Purchaser. Each Purchaser agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Authority and the Administrative Administrative Agent, who shall in turn notify the Authority, in writing of its legal inability to do so. If a Purchaser fails to provide such certification, then such Purchaser shall reimburse the Authority for any costs, fines or expenses incurred by the Authority as a result of its failure to withhold any Tax. (g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (h) Survival. Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Purchaser, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Related Document, for a period of two (2) years after the repayment, satisfaction or discharge of all of the Authority’s obligations with respect to the Bonds. (i) Defined Terms. For purposes of this Section, the term “Purchaser” includes any Purchaser and the term “applicable law” includes FATCA. Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs . (a) The Authority shall make, or cause the Trustee to make, each payment or prepayment with respect to the Bonds (whether of principal or interest) and each payment of fees or of amounts payable under Section 2.14, or 2.16, or otherwise), to the Administrative Agent, for the account of the respective -33- Purchasers to which such payment is owed, prior to 1:00 p.m., New York City time, on the date when due or the date fixed for any prepayment hereunder, in immediately available funds, without setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 383 Madison Avenue, New York, New York, except that payments pursuant to (or as described in) Sections 2.06, 2.13, 2.14, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. Except as otherwise provided herein, any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars. (b) At any time that payments are not required to be applied in the manner required by Section 7.03, and except to the extent otherwise expressly provided herein: (i) each Advance shall be made by the Purchasers, each payment of the Commitment Fee shall be made for account of the Purchasers, and each termination of the amount of the Commitments shall be applied to the respective Commitments of the Purchasers, pro rata according to the amounts of their respective Commitments; (ii) each Advance shall be allocated pro rata among the Purchasers according to the amounts of their respective Commitments; (iii) each payment or prepayment of principal of the Bonds shall be made for account of the Purchasers pro rata in accordance with the respective unpaid principal amounts of the Bonds held by them; and (iv) each payment of interest on the Bonds shall be made for account of the Purchasers pro rata in accordance with the amounts of interest on the Bonds then due and payable to the respective Purchasers. (c) At any time that payments are not required to be applied in the manner required by Section 7.03, if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest on the Bonds and fees then due to such parties, and (ii) second, towards payment of principal then due with respect to the Bonds, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (d) If any Bondholder shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Bonds resulting in such Bondholder receiving payment of a greater proportion of the aggregate amount of its Bonds and accrued interest thereon than the proportion received by any other Bondholder, then the Bondholder receiving such greater proportion shall purchase (for cash at face value) participations in the Bonds of other Bondholders to the extent necessary so that the benefit of all such payments shall be shared by the Bondholders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Bonds; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any -34- payment made by the Authority pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Bondholder as consideration for the assignment of or sale of a participation in any of its Bonds to any assignee or participant, other than to the Authority or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Authority consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Bondholder acquiring a participation pursuant to the foregoing arrangements may exercise against the Authority rights of setoff and counterclaim with respect to such participation as fully as if such Bondholder were a direct creditor of the Authority in the amount of such participation. (e) Unless the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the other Credit Parties pursuant to the terms hereof or any other Related Document, notice from the Authority that the Authority will not make such payment or prepayment, the Administrative Agent may assume that the Authority has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Credit Parties the amount due. In such event, if the Authority has not in fact made such payment, then each of the Credit Parties severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Credit Party with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Section 2.18. Mitigation Obligations; Replacement of Credit Parties . (a) If any Credit Party requests compensation under Section 2.14, or if the Authority is required to pay any Indemnified Taxes or additional amounts to any Credit Party or any Governmental Authority for the account of any Credit Party pursuant to Section 2.16, then such Credit Party shall use reasonable efforts to designate a different lending office for funding its purchase of Bonds hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Credit Party, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Sections 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Credit Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Credit Party. (b) If any Credit Party requests compensation under Section 2.14, or if the Authority is required to pay any Indemnified Taxes or additional amounts to any Credit Party or any Governmental Authority for the account of any Credit Party pursuant to Section 2.16, or if any Credit Party becomes a Defaulting Purchaser, or if any Credit Party does not consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this Agreement or any other Related Document that requires the consent of each of the Credit Parties or each of the Credit Parties affected thereby (so long as the consent of the Required Credit Parties has been obtained), then the Authority may, at its sole expense and effort, upon notice to such Credit Party and the Administrative Agent, require such Credit Party to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.14 or 2.16) and obligations under this Agreement and the other Related Documents to an assignee that shall assume such obligations (which assignee may be another Credit Party, if a Credit Party accepts -35- such assignment); provided that (i) the Authority shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Credit Party shall have received payment of an amount equal to the outstanding principal of its Bonds, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Authority (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments. A Credit Party shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Credit Party or otherwise, the circumstances entitling the Authority to require such assignment and delegation cease to apply. Each party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Authority, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (ii) the Credit Party required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Credit Party; provided that any such documents shall be without recourse to or warranty by the parties thereto. (c) If (x) any Credit Party becomes a Defaulting Purchaser and (y) either (A) the Authority does not exercise its right to replace such Defaulting Purchaser pursuant to Section 2.18(b) within fifteen (15) days after the date on which such Credit Party became a Defaulting Purchaser or (B) such Credit Party has not been replaced within thirty (30) days after the date on which such Credit Party became a Defaulting Purchaser, then RIDA may, at its sole expense and effort, upon notice to such Credit Party, the Authority and the Administrative Agent, require such Credit Party to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.14 or 2.16 ) and obligations under this Agreement as a Purchaser to an assignee that shall assume such obligations (which assignee may be another Credit Party, if a Credit Party accepts such assignment, or a Permitted Replacement Purchaser); provided that (i) RIDA shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, and (ii) such Credit Party shall have received payment of an amount equal to the outstanding principal of its Bonds, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Authority (in the case of all other amounts). Each party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by RIDA, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (ii) the Credit Party required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents -36- necessary to evidence such assignment as reasonably requested by the applicable Credit Party; provided that any such documents shall be without recourse to or warranty by the parties thereto. Section 2.19. Defaulting Purchasers. Notwithstanding any provision of this Agreement to the contrary, if any Credit Party becomes a Defaulting Purchaser, then the following provisions shall apply for so long as such Credit Party is a Defaulting Purchaser: (a) Commitment Fees shall cease to accrue on the Unutilized Amount of such Defaulting Purchaser pursuant to Section 2.12(a); (b) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Purchaser (whether voluntary or mandatory, at maturity, pursuant to Section 7.03 or otherwise) or received by the Administrative Agent from a Defaulting Purchaser pursuant to Section 9.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Purchaser to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Purchaser to any other Credit Party hereunder; third, as the Authority may request (so long as no Event of Default exists), to the funding of any purchase of 2022A Bonds in respect of which such Defaulting Purchaser has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Authority, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Purchaser’s potential future funding obligations with respect to 2022A Bond purchases under this Agreement; fifth, to the payment of any amounts owing to the Credit Parties as a result of any judgment of a court of competent jurisdiction obtained by any Credit Party against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement or under any other Related Document; sixth, so long as no Event of Default exists, to the payment of any amounts owing to the Authority as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement or under any other Related Document; and seventh, to such Defaulting Purchaser or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any 2022A Bonds in respect of which such Defaulting Purchaser has not fully funded its appropriate share, and (y) such 2022A Bonds were purchased at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the 2022A Bonds of all non-Defaulting Purchasers on a pro rata basis prior to being applied to the payment of any 2022A Bonds of such Defaulting Purchaser until such time as all 2022A Bonds are held by the Credit Parties pro rata in accordance with the Commitments without giving effect to clause (c) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Purchaser that are applied (or held) to pay amounts owed by a Defaulting Purchaser pursuant to this Section shall be deemed paid to and redirected by such Defaulting Purchaser, and each Credit Party irrevocably consents hereto; and (c) the Commitment of such Defaulting Purchaser shall not be included in determining whether the Required Credit Parties have taken or may take any action -37- hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that this clause (c) shall not apply to the vote of a Defaulting Purchaser in the case of an amendment, waiver or other modification requiring the consent of such Credit Party or each Credit Party affected thereby. If (i) a Bankruptcy Event or a Bail-In Action with respect to a Purchaser or Purchaser Parent shall occur following the date hereof and for so long as such event shall continue or (ii) any Purchaser has defaulted in fulfilling its obligation to make Advances hereunder, the Administrative Agent shall notify the Authority and RIDA within ten (10) days thereof and (x) the Authority shall have the right to replace such Defaulted Purchaser pursuant to Section 2.18(b) and (y) RIDA shall have the right to replace such Defaulted Purchaser with a Permitted Replacement Purchaser pursuant to Section 2.18(c); provided until such Defaulted Purchaser has been so replaced in accordance with Section 2.18(b) or Section 2.18(c), as applicable, no other Purchaser shall be obligated to make Advances unless the Credit Parties shall have entered into arrangements with the Authority or such Credit Party, satisfactory to the other Credit Parties, to defease any risk to it in respect of such Credit Party hereunder. In the event that each of the Administrative Agent, the Authority, and each other Credit Party agrees that a Defaulting Purchaser has adequately remedied all matters that caused such Credit Party to be a Defaulting Purchaser, then on such date such Credit Party shall purchase at par such of the Bonds of the other Credit Parties as the Administrative Agent shall determine may be necessary in order for such Credit Party to hold such Bonds in accordance with its Applicable Percentage. Notwithstanding any provision of this Agreement to the contrary, the Authority will not incur any cost, expense or other liability to the Administrative Agent, any Purchaser, any Credit Party or other Person as a result of any Credit Party becoming a Defaulting Purchaser hereunder. ARTICLE III REPRESENTATIONS AND WARRANTIES The Authority represents and warrants to the Credit Parties that: Section 3.01. Organization. The Authority is a joint exercise of powers authority, duly organized and existing under the laws of the State, is qualified to do business in the State and in every jurisdiction where such qualification is required by applicable law and has the requisite power and authority and has taken all actions necessary to enter into contracts such as this Agreement and the Related Documents to which it is a party, which powers have been validly exercised in connection with the transactions effected by this Agreement and the Related Documents. Section 3.02. Authorization. (i) The Authority has duly authorized the execution and delivery of each Related Document to which it is a party and the performance of its obligations thereunder and no such authority has been repealed, revoked or rescinded and is in full force and -38- effect; and (ii) all necessary action on the part of the Authority required to authorize the execution, delivery and performance of each Related Document to which it is a party has been duly taken. Section 3.03. No Conflicts. The execution and delivery by the Authority of the Related Documents to which it is a party, and the consummation of the transactions contemplated therein and compliance with the terms and conditions thereof will not, in any material respect, (1) conflict with or violate any existing law or regulation applicable to it, (2) result in a default under any indenture, mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or restriction of any kind to which any of its assets are subject, or (3) result in the creation or imposition of any Lien other than liens permitted under the Related Documents, unless, in any such case, such violation or default would not reasonably be expected to have a Material Adverse Effect. Section 3.04. Compliance with Governmental Rules . The Authority is in compliance with all Governmental Rules applicable to the Authority, and with the terms of all other Governmental Approvals obtained by it, except for any such noncompliance that would not be reasonably expected to result in a Material Adverse Effect. Section 3.05. No Litigation. Other than as provided to the Administrative Agent in writing prior to the Effective Date, there is no action, suit or proceeding pending in any court, any other Governmental Authority with jurisdiction over the Authority or any arbitration in which service of process has been completed against the Authority or, to the knowledge of the Authority, any other action, suit or proceeding pending or threatened in any court, any other Governmental Authority with jurisdiction over the Authority or any arbitrator, in either case against the Authority, or any of the Related Documents to which it is a party, which if determined adversely to the Authority would materially adversely affect the rights, security, interests or remedies of the Credit Parties hereunder or under any of the other Related Documents or which is reasonably likely to result in a Material Adverse Effect. Section 3.06. Government Approvals. The Authority has obtained or caused to be obtained or will obtain or will cause to be obtained all Governmental Approvals that (1) are required to be obtained by the Authority in connection with the execution and delivery of each Related Document to which it is a party or (2) are required as of the date of any disbursement of funds or the performance by the Authority of its obligations under any Related Document to which it is a party or for the grant by the Authority of the Lien under the Related Documents and to the knowledge of the Authority, all such consents, approvals, authorizations and orders of any governmental or regulatory authority are in full force and effect, except for any Governmental Approvals that are not then necessary or the failure to obtain which would not reasonably be expected to have a Material Adverse Effect. Section 3.07. Enforceability. This Agreement has been duly executed and delivered by one or more duly Authorized Officers of the Authority, and each Related Document to which the Authority is a party will constitute the legal, valid and binding obligation of the Authority, enforceable against the Authority in accordance with the terms thereof, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar law or judicial action affecting the enforcement of creditors’ rights generally and the -39- application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Section 3.08. Taxes. The Authority is not required to file any tax returns or pay any Taxes. Section 3.09. Insurance. All insurance required to be maintained by the Authority pursuant to the Related Documents, from time to time, will be or has been, as applicable, obtained and will be or is, as applicable, in full force and effect, and all premiums due and payable will be or have been, as applicable, paid. Section 3.10. Security. (a) The Indenture creates, for the benefit of the owners of the Bonds the legally valid, binding and irrevocable Lien on and pledge of Revenues. There is no lien on the Revenues other than the Lien created by the Indenture. The Indenture does not permit the Authority to make any pledge or assignment of, or grant a lien on or security interest in the Revenues without the prior written consent of the Administrative Agent. The Indenture provides for the issuance of Additional Bonds and the Purchasers consent to the issuance of Additional Bonds provided the proceeds of such Additional Bonds will be used to pay the principal of, and interest on and any amount payable under Section 2.17 with respect to all Outstanding Bonds either by optional redemption on or after June 1, 2026, and prior to June 1, 2027, or by mandatory redemption on June 1, 2027, in accordance with the Indenture. (b) All Liens created under the Indenture constitute valid and legally binding security interests, ranking as contemplated therein, and all necessary recordings and filings have been or will be recorded and filed on or promptly following the Effective Date. Section 3.11. No Defaults. The Authority is not in default under any Related Document, to which it is a party which default could reasonably be expected to have a Material Adverse Effect, and to the best knowledge of the Authority, no default exists under any such Related Document which default would reasonably be expected to have a Material Adverse Effect. Section 3.12. No Bankruptcy. No Bankruptcy Event has occurred and is continuing with respect to the Authority or, to the best knowledge of the Authority, any other Public Entity. Section 3.13. Title to Assets. The Authority has good and marketable title to its assets, subject in the case of the Site to Permitted Encumbrances (as defined in the Facility Lease) except where the failure to have good and marketable title to any of its assets would not have a Material Adverse Effect. Section 3.14. Delivery of Documents. True and complete copies of all Related Documents to which the Authority is a party have been delivered to the Administrative Agent, and the Authority is not a party to any other material agreements related to the Project; except for other agreements that the Authority has entered into with respect to the Project with the written consent of the Administrative Agent. Section 3.15. No Government Proceedings. The Authority has not received any communications from, nor does the Authority have knowledge of any proceeding by, any -40- Governmental Authority that could result in termination or revocation of any Related Documents or would reasonably be expected to have a Material Adverse Effect. Section 3.16. Reserved. Section 3.17. Investment Company; Margin Regulations . The Authority is not an “investment company,” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. The Authority is not engaged in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the U.S.) or extending credit for the purpose of purchasing or carrying margin stock. Neither the purchases under the Indenture or this Agreement nor the use of the proceeds of any of the foregoing, will violate or be inconsistent with the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System. Section 3.18. Anti-Terrorism Laws; OFAC . To its best knowledge, the Authority is not in violation of any Anti-Terrorism Laws, including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Patriot Act; (a) The Authority is not any of the following: (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a Person with which the Purchaser is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or (v) a Person that is named as a “specially designated national and blocked person” on the most current list published by OFAC or any list of Persons issued by OFAC pursuant to the Executive Order at its official website or any replacement website or other replacement official publication of such list. (b) The Authority has not, directly or indirectly, (i) conducted any business or engaged in making or receiving any contribution of funds, goods or services to or for the benefit of any Restricted Party, (ii) dealt in, or otherwise engaged in any transaction relating to, any property or interests in property blocked pursuant to any Anti-Terrorism Law or (iii) engaged in or conspired to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law. -41- Section 3.19. No Bank Accounts. The Authority has no other bank accounts other than as may be required under the Indenture and any sub-accounts thereof. Section 3.20. Incorporation by Reference. The representations and warranties of the Authority contained in the Related Documents to which the Authority is a party, together with the related definitions of terms contained therein, are hereby incorporated by reference in this Agreement as if each and every such representation and warranty and definition were set forth herein in its entirety, and the representations and warranties made by the Authority in such sections are hereby made for the benefit of the Credit Parties. No amendment to or waiver of such representations and warranties or definitions made pursuant to the relevant Related Document or incorporated by reference shall be effective to amend such representations and warranties and definitions as incorporated by reference herein without the prior written consent of the Administrative Agent, which shall not be unreasonably withheld. Section 3.21. Correct Information. All information, reports and other papers and data with respect to the Authority and the Public Entities which were furnished by the Authority or any other Public Entity to KMA, RSG or CBRE in connection with the preparation of the final reports being delivered to the Administrative Agent relating to the RHCC Project were, at the time the same were so furnished, accurate in all material respects. Section 3.22. No Immunity. Under existing law, the Authority is not entitled to raise the defense of sovereign immunity in connection with any legal proceeding brought against it to enforce or collect upon this Agreement, any other Related Document to which it is a party or the transactions contemplated hereby or thereby, including the payment of the principal of and interest on the Bonds or the payment of the other Obligations. Section 3.23. Tax-Exempt Status. The Authority has not taken any action or omitted to take any action, and has no actual knowledge of any action taken or omitted to be taken by any other Person, which action, if taken or omitted, would adversely affect the exclusion of interest on the 2022B Bonds from gross income for federal income tax purposes. Section 3.24. Pending Legislation and Decisions. There is no amendment, or to the knowledge of the Authority, proposed amendment to the Constitution of the State or any State law or any administrative interpretation of the Constitution of the State or any State law, or any legislation that has passed either house of the legislature of the State, or any judicial decision interpreting any of the foregoing, the effect of which will materially adversely affect the issuance of any of the Bonds, the security for any of the Bonds or any Obligation, the creation, organization, or existence of the Authority or the titles to office of any officers executing this Agreement or any Related Documents to which the Authority is a party or the Authority’s ability to repay when due its obligations under this Agreement, any of the Bonds or any other Obligation. -42- ARTICLE IV CONDITIONS Section 4.01. Effective Date. This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02): (a) (i) Each of the Related Documents (A) shall have been duly authorized, executed, and delivered by each of the parties thereto, and all necessary Governmental Approvals shall have been obtained in connection therewith, (B) shall be in substantially the same form as the version provided to the Administrative Agent and in any event shall not have been modified, or had any provision waived, in either case, in a manner that is materially adverse to the Purchasers unless otherwise consented to by the Administrative Agent and (C) shall be in full force and effect and (ii) a fully executed true and correct copy of each of the Related Documents shall have been delivered to the Administrative Agent certified as of the Effective Date by an Authorized Officer of the Authority as to delivery of a true, complete and correct copy thereof and full force and effect. The Authority shall have delivered to the Administrative Agent any notice provided to the Authority, expressly related to the Related Documents. (b) Each of the Building Loan Agreement and the Mezzanine Loan Agreement (A) shall have been duly authorized, executed, and delivered by each of the parties thereto, and (B) shall be in substantially the same form as the version provided to the Administrative Agent, and in any event shall not have been modified, or had any provision waived, in either case, in a manner that is materially adverse to the Purchasers and (C) shall be in full force and effect and a fully executed true and correct copy shall have been delivered to the Administrative Agent certified as of the Effective Date by an Authorized Officer of RIDA and the Mezzanine Loan Borrower, as applicable, as to delivery of a true, complete and correct copy thereof and full force and effect, and all conditions precedent to the Building Loan Closing Date (as set forth in Article 3 of the Building Loan Agreement) and the closing of the Mezzanine Facility shall have been satisfied without a waiver thereof or any modification thereto, unless such waiver or modification is approved in writing by the Administrative Agent. (c) The Authority (or any other Person on its behalf) shall have obtained and provided to the Administrative Agent true, complete and correct copies of all Governmental Approvals required to be obtained by the Authority in connection with the execution and delivery of the Related Documents by the Authority (to the extent there are any) and the consummation of the transactions contemplated thereunder by the Authority (to the extent there are any), in each case, that are required to be obtained and be in full force and effect as of the Effective Date and each such Governmental Approval will be in full force and effect, except for any Governmental Approval the failure to obtain which could not reasonably be expected to have a material adverse effect on the Project (provided that, for the avoidance of doubt, a material adverse effect on the Project shall not take into account any events or circumstances related to the Authority) or a Material Adverse Effect. -43- (d) The Administrative Agent shall have received customary closing certificates, incumbency certificates, good standing certificates, resolutions and formation documents of the Authority and any other Public Entity party to a Related Document evidencing their respective due authorization and authority to execute each of the Related Documents to which they are a party. (e) The Administrative Agent shall have received the results of a UCC, tax lien, and other searches in appropriate jurisdictions with respect to the Authority and the Public Entities to the extent requested by it.6 (f) The Administrative Agent shall have received from RIDA the Project Budget in effect as of the Effective Date, and shall have received from the Construction Monitor the plan and cost review with respect to the RHCC Project issued by the Construction Monitor, each of which shall be in form and substance reasonably acceptable to the Administrative Agent. (g) The Administrative Agent shall have received a copy of the title insurance policy required under Section 5.3 of the Facility Lease (or an irrevocable commitment to issue such title insurance policy), which title insurance policy shall be in form and substance satisfactory to the Administrative Agent. (h) The Administrative Agent shall have received evidence satisfactory to it that the applicable Governmental Authority has issued all applicable building permit(s) and any other Governmental Approval necessary to commence development work at the Site. (i) The Administrative Agent shall have received a duly executed Guaranty from the Guarantor and the Reliance Letter from RIDA [and RIDA Development Corporation].7 (j) Legal opinions, including a tax opinion from Bond Counsel, in form and substance reasonably acceptable to the Administrative Agent, shall have been received by the Administrative Agent subject to customary qualifications, assumptions and exceptions, from Bond Counsel, and in particular: (i) (A) a legal opinion of Bond Counsel addressed to the Authority, to the effect that the Bonds are and will be valid and binding obligations of the Authority and interest on the 2022B Bonds is excludable from gross income for federal income tax purposes and the Indenture is a valid and binding obligation of the Authority, enforceable against the Authority in accordance with its terms, subject to certain exceptions acceptable to the Administrative Agent, and creates a valid pledge of and Lien on the Revenues, the Project Funds and other amounts pledged thereunder, and (B) a letter or letters of such Bond Counsel, addressed to the Credit Parties and their successors and assigns, to the effect that such legal opinions addressed to the Authority may be relied upon 6 Jones Day has agreed to share its search results, but since they did not search with regard to the Public Entities, Chapman has ordered that search. 7 Party or Parties to deliver Reliance Letter still being considered by JPM. -44- by the Credit Parties to the same extent as if such opinion was addressed to them; and (ii) an opinion of Bond Counsel, dated as of the Effective Date and addressed to the Administrative Agent, to the effect that the Bonds are not subject to the registration requirements of the Securities Act, (iii) from counsel to each of the Public Entities, opinions as to the due authorization, execution, delivery and enforceability of the Related Documents to which such Public Entities is a party, and such other customary matters as the Administrative Agent may reasonably request, and (iv) from external counsel to RIDA, opinions as to the due authorization, execution, delivery and enforceability of the Guaranty, the Reliance Letter and the Related Documents to which RIDA is a party, and such other customary matters as the Administrative Agent may reasonably request. (k) Evidence from the Insurance Advisor, in form and substance acceptable to the Administrative Agent, to the effect that all required insurance is in full force and effect, the premiums have been paid to the extent then due, such required insurance shall not be subject to cancellation without prior notice to the Administrative Agent, including a certification from the Insurance Advisor that such required insurance otherwise conforms in all material respects with the requirements of each applicable Related Document. (l) The Administrative Agent shall have received a certification of the Authority that as of the date of such certification it is in to compliance in all material respects with all covenants and obligations of the Authority set forth in the Related Documents to which it is a party, that no Material Event of Default or any other event that with the passage of time, giving notice, or both, would result in a Material Event of Default has occurred and is continuing on the part of the Authority and the Authority has not been notified of any Event of Default or any other event that with the passage of time, giving notice, or both, would result in an Event of Default related to the Building Loan Agreement or the Mezzanine Loan Agreement and that as of the date of such certification, all representations and warranties made by the Authority in any Related Document are true and correct in all material respects. (m) No injunction, judgment, decree or other order prohibiting, enjoining, contesting or preventing the transactions contemplated by the Related Documents shall have been issued and remains in effect and no action shall have been taken or law enacted making such transactions illegal. (n) Satisfactory completion by the Purchasers of all necessary KYC requirements. (o) The Administrative Agent shall have received a certificate of the Trustee to the effect that (A) the Project Funds have been established with the Trustee in accordance with the terms of the Indenture and (B) all moneys and securities, to the extent applicable, delivered to the Trustee under and pursuant to the Indenture, including the proceeds of the Bonds, have been duly deposited to the credit of the appropriate accounts established under or in accordance with the Indenture and held by the Trustee, and that the Trustee has not received written notice of any “Event of Default” (as defined in the Indenture). -45- (p) Proof of payment of all amounts due and payable on or prior to the Effective Date under the Related Documents and any fee letters relating thereto (including, without limitation, attorneys’ fees and costs for counsel representing the Administrative Agent) or inclusion of such payments in the flow of funds memorandum for settlement on the Effective Date from proceeds of the Initial Advance. (q) The Administrative Agent shall have received the following additional documents in form and substance reasonably acceptable to the Administrative Agent: (i) with respect to the Initial Advance, a copy of the request and authorization of the Authority to the Trustee to authenticate the Bonds and deliver the Bonds to the Purchasers upon payment, for the account of the Authority, of the applicable purchase price to be specified hereunder; (ii) specimen Bonds registered in the name of each Purchaser in the principal amount equal to such Purchaser’s respective Commitment; (iii) copies of the final written consultant reports with respect to the RHCC Project from CBRE, KMA and RSG pursuant to their respective engagement letters, including all schedules, annexes and exhibits thereto, including a reliance letter from each such consultant addressed to the Administrative Agent to the effect that the Administrative Agent and the Purchasers can rely on same; and (iv) a Tax Certificate executed by the Authority and an Information Return for Tax-Exempt Private Activity Bond Issues, Form 8038, executed by the Authority with respect to the 2022B Bonds. Section 4.02. Conditions Precedent to each Advance. The obligation of the Purchasers to make any Advance is subject to the satisfaction of the following conditions precedent on each applicable Advance Funding Date: (a) [Reserved]; (b) The Authority shall have delivered to the Administrative Agent a certificate signed by an Authorized Officer, dated the applicable Advance Funding Date, certifying as to the following as of such date: (i) the representations and warranties of the Authority contained in this Agreement and in each Related Document to which it is a party are true and correct in all material respects without duplication of any materiality qualifiers on such Advance Funding Date as though made on and as of such Advance Funding Date, except to the extent any such representation or warranty relates specifically to an earlier date in which case such representation and warranty shall be true and correct in all material respects without duplication of any materiality qualifiers as of such earlier date; -46- (ii) no Material Event of Default has occurred and is continuing or, upon the funding of the related Advance, would occur; (iii) the principal amount of the Advance to be made on such Advance Funding Date (which, in the case of the 2022B Bonds, shall only apply to the Initial Advance with respect to the 2022B Bonds to be made on the Effective Date), together with the aggregate principal amount of all Advances previously made, does not exceed, (A) with respect to the 2022A Bonds (x) the Aggregate 2022A Commitment Amount or (y) the aggregate principal amount of 2022A Bonds permitted to be issued under the Indenture or (b) with respect to the 2022B Bonds (i) the Initial Advance to be made by JPMorgan Chase Bank, National Association, as Purchaser, in the full amount of the aggregate principal amount of 2022B Bonds to be issued under the Indenture; (iv) the aggregate of all Project Related Costs incurred to date and confirmation that the proceeds of such Advance will be used to pay Project Related Costs; (v) all Governmental Approvals which are required to have been obtained as of such Advance Funding Date by or on behalf of the Authority in order to implement the Project have been so obtained and are in full force and effect and the Authority is in compliance with all such Governmental Approvals, and, to the knowledge of the Authority, no steps have been taken to revoke or cancel any such Governmental Approval, except to the extent in any such case that any failure to obtain, failure to maintain in full force and effect, non-compliance with, or revocation or cancellation of, any such Governmental Approval does not have a Material Adverse Effect; and (vi) the estimated date of the Completion of the Convention Center and the estimated date of the Completion of the Developer’s Phase 1A Infrastructure Improvements, in each case as reasonably determined by the Authority. (c) The Administrative Agent shall not have received written notice from Bond Counsel to the effect that any of the opinions described in Section 4.01 may no longer be relied upon. (d) With respect to the 2022A Bonds, the Advance Funding Date shall occur on or prior to the 2022A Commitment Termination Date. (e) The Bonds shall not be (i) assigned a specific rating by any rating agency or a CUSIP, (ii) registered with The Depository Trust Company or any other securities depository, (iii) issued pursuant to any type of official statement, private placement memorandum or other offering document or (iv) placed or offered by a broker-dealer in the capacity of an underwriter or a placement agent. -47- ARTICLE V AFFIRMATIVE COVENANTS Until the Commitments have expired or been terminated and the principal of and interest on the Bonds all other Obligations payable hereunder shall have been paid in full, the Authority covenants and agrees with the Credit Parties that: Section 5.01. Maintenance of Existence. The Authority will maintain (i) its existence pursuant to its authorizing legislation, its joint exercise of powers agreement and the laws of the State, (ii) its status of good standing in the State and (iii) all material rights, franchises, privileges and consents necessary for the maintenance of the existence of the Authority. Section 5.02. Documents. The Authority will diligently preserve and enforce and cause to be preserved and enforced its rights and remedies under the Related Documents to which it is a party. Section 5.03. Taxes. The Authority will timely pay and discharge all material Taxes and other assessments and governmental charges or levies imposed upon the Authority prior to the date on which penalties, fines or interest attach thereto; provided that the Authority may permit any such Tax, assessment, charge or levy to remain unpaid if it is being contested in good faith and adequate reserves have been provided and are maintained in accordance with GAAP and except where the failure to pay and discharge could not reasonably be expected to have a Material Adverse Effect. Section 5.04. Insurance. The Authority shall maintain, or cause to be maintained, in full force and effect all insurance required to be provided by the Authority under the Related Documents. Section 5.05. Compliance with Law. The Authority will comply with all laws applicable to it except for any noncompliance that would not reasonably be expected to have a Material Adverse Effect. Section 5.06. Project and Records. The Authority will keep proper books of records and accounts in which complete and correct entries will be made of its transactions in accordance with GAAP. The Authority shall, subject to health and safety considerations as the same relates to the Project and the Site, applicable law and to the terms of the Project Implementation Agreement and all contractual or other reasonable requirements of confidentiality and security to protect the business and affairs of third parties with whom it conducts business, during normal business hours and from time to time upon reasonable notice provided by the Administrative Agent and the Construction Monitor, and any of their respective officers, employees and agents, grant access to the Project and the Site and to the technical and statistical data, accounting books, records and other data with respect to the Project in its possession or control to the extent necessary in each case to allow the Administrative Agent and the Construction Monitor to perform their respective functions under their representative engagements and shall use its reasonable efforts to ensure that the Construction Monitor is kept apprised of developments in relation to the Project. As part of -48- its engagement, the Construction Monitor has agreed to provide monthly reports to the Administrative Agent. The Authority will permit the Administrative Agent, at all reasonable times, to take copies and extracts from such books, records and papers, and will from time to time furnish, or cause to be furnished, to the Administrative Agent such information and statements as the Administrative Agent may reasonably request, all as may be reasonably necessary for the purpose of determining performance or observance by the Authority of its obligations under the Related Documents. Section 5.07. Reserved. Section 5.08. Financial Reporting. (a) The Authority will employ a nationally-recognized firm of independent public accountants satisfactory to the Administrative Agent to audit its annual financial statements. In the event that such accounting firm should at any time cease to be its independent public accountant for any reason, the Authority will as soon as practicable appoint, and thereafter maintain, as its accountants, another nationally-recognized firm of independent public accountants reasonably acceptable to the Administrative Agent. (b) The Authority will deliver the following financial information to the Administrative Agent: (i) as soon as available and, in any event, within fifteen (15) days after the end of each fiscal quarter of the Authority, a statement of fund balances under the Indenture in form and detail reasonably satisfactory to the Administrative Agent; (ii) as soon as available, and in any event no more than one hundred eighty (180) days after the close of each fiscal year of the Authority (A) the annual financial statements of the Authority prepared in accordance with GAAP, (B) a certificate of the auditors of the Authority setting forth that they have examined such statements and have conducted a general review of accounting procedures and such tests of accounting records and other supporting evidence as they consider necessary and confirming that in their opinion such statements present fairly in all material respects the financial position of the Authority and the results of its operations for the fiscal year reported on and have been prepared in accordance with GAAP (which certificate will detail, to the extent applicable, the existence of any “going concern” or like qualification or exception) and (C) copies of, to the extent delivered, management letters, delivered by such accountants in connection with such financial statements; (iii) simultaneously with the delivery of each set of financial statements referred to in clauses (i) and (ii) above, a certificate of an Authorized Officer which states that no Default or Event of Default has occurred and is continuing or, if any Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and what action the Authority proposes to take with respect thereto. Section 5.09. Notices. The Authority shall notify the Administrative Agent of, and shall deliver to the Administrative Agent copies of any notices, certificates or reports received in -49- connection with, any of the following events promptly after the Authority has actual knowledge thereof: (i) any “step-in event,” “Default” or “Event of Default” hereunder or under any of the Related Documents to which the Authority is a party; (ii) any notices of termination, cancellation, or of matters to be referred to dispute resolution under any of the Related Documents to which the Authority is a party; (iii) the filing of any actual litigation, suit or action, or the delivery to the Authority of any written claim against the Authority or the Project in excess of $1,000,000 or in any lesser amount which could reasonably be expected to have a Material Adverse Effect; (iv) any proposal of, or action taken by, the Authority to suspend or abandon the Project; (v) the unavailability of any required insurance for the Project on commercially reasonable terms; (vi) any (i) written notice to the Authority setting forth that any material Governmental Approval will not be granted or renewed, or will not be granted or renewed in time to allow construction of the Project in compliance with all material Governmental Rules, or will be granted or renewed on terms materially more burdensome than proposed, or will be terminated, revoked or suspended and (ii) casualty, damage or loss to the Project, whether or not insured, in excess of $1,000,000 for any one casualty or loss or in the aggregate in any calendar year; (vii) the initiation, occurrence or any written threat or warning of an eminent domain action with respect to the Project; (viii) any notice of any material amendment of, supplement to or other modification of any of the Related Documents; (ix) any event of force majeure (howsoever described) that could reasonably be expected to result in a Material Adverse Effect or any other event entitling a party to any of the Related Documents to suspend performance of any obligation thereunder; (x) any insurance claims in excess of $1,000,000 either individually or in the aggregate or any other loss, damage or destruction of the Project reported to the Authority; (xi) any event which authorizes or permits the Authority to terminate any of the Related Documents; -50- (xii) claims against the Authority in an aggregate amount exceeding $1,000,000 that are not covered by insurance or a performance bond for which the carrier / bonding company has confirmed coverage; (xiii) any Liens preserved or served on the Project, or arising under any Related Document ; (xiv) any change in the auditors of the Authority within thirty (30) days of such change; (xv) any notice, complaint or order of violation or non-compliance or liability that has been received by the Authority in respect of any matter relating to the Project for which the Authority is responsible and which would reasonably be expected to have a Material Adverse Effect; (xvi) any cancellation or reduction in an insurance policy required under any Related Document to be taken out by or on behalf of the Authority in respect of the Project or any such policy becoming void or voidable where the same would have a Material Adverse Effect; and (xvii) any notice given to the Authority regarding a (i) default by the Authority under any Related Document and (ii) any notice required by law in connection with the exercise of remedies under the Related Documents. Section 5.10. Delays. The Authority shall promptly notify the Administrative Agent, or cause the Administrative Agent to be notified, in writing, after being notified by the Construction Monitor or RIDA or receiving written notice from any Governmental Authority, of any event causing delay or interruption of construction of the Convention Center or the Developer’s Phase 1A Infrastructure Improvements for more than five (5) days, or the timely Completion of the Convention Center or Completion of the Developer’s Phase 1A Infrastructure Improvements by more than thirty (30) days. Section 5.11. Use of Proceeds. The Authority shall apply the proceeds of the Bonds, including, without limitation, all Advances hereunder, in accordance with Section 3.2 of the Indenture. Section 5.12. Governmental Approvals. The Authority shall obtain and maintain, or cause to be obtained and maintained, any Governmental Approvals required to be obtained by it from time to time under the Related Documents and shall comply with its obligations under such Governmental Approvals, except where, in either case, failure to do so would not have a Material Adverse Effect. Section 5.13. Know Your Customer Information. The Authority shall in a timely manner provide to each Credit Party all reasonably required know your client and anti-money laundering information with respect to the Authority. -51- Section 5.14. Contract Documents. The Authority agrees that it will perform and comply with each and every covenant and agreement required to be performed or observed by it in the Indenture and each of the other Related Documents to which it is a party, which provisions, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety all of which shall be deemed to be made for the benefit of the Purchasers and shall be enforceable against the Authority. Except as otherwise permitted pursuant to Section 6.06 hereunder or Article VII of the Indenture, to the extent that any such incorporated provision permits the Authority or any other party to modify or waive compliance with such provision, such provision shall not be modified and shall be complied with unless it is approved or waived, as applicable, by the Administrative Agent in writing. Except as permitted by the terms of the Related Documents in effect as of the Effective Date, no termination or amendment to such covenants and agreements or defined terms or release of the Authority with respect thereto made pursuant to the Indenture or any other Related Document to which the Authority is a party, shall be effective to terminate or amend such covenants and agreements and defined terms or release the Authority with respect thereto in each case as incorporated by reference herein without the prior written consent of the Administrative Agent provided in accordance with Section 6.06 hereof. Section 5.15. Notice of Completion. The Authority shall promptly provide notice to each of the other Public Entities and to the Administrative Agent of the Completion of the Phase 1A Infrastructure Improvements, the Convention Center and the Resort Hotel, and shall provide each such Person with a copy of the temporary certificate of occupancy or other permit or approval allowing for the use and occupancy of the Convention Center and the Resort Hotel. Section 5.16. Reserved. Section 5.17. Further Assurances and Corrective Instruments . The Authority will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, in forms approved by the Authority, which approval shall not be unreasonably withheld, such supplements and such further instruments as may reasonably be required for carrying out the expressed intentions of the Related Documents and as may be necessary for assuring, conveying, granting, assigning, securing and confirming the Liens (whether now existing or hereafter arising) granted by or on behalf of the Authority to the Trustee pursuant to the Indenture, or intended so to be granted pursuant to the Indenture, or which the Authority may become bound to grant, in each case as reasonably required by the Administrative Agent, and the subject of each such Lien is and will be free and clear of any other Lien thereon or with respect thereto prior to, or of equal rank with the Liens created by the Indenture, other than Liens entitled to priority as a matter of law or as permitted by such documents, or any other Related Document . The Authority will, at all times, to the extent permitted by law, defend, preserve and protect the Liens granted pursuant to the Indenture and all the rights of the Trustee under the Related Documents against all claims and demands of all Persons whomsoever. Section 5.18. Tax Covenants. Notwithstanding any other provision of this Agreement or the Indenture, absent an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected, the Authority covenants to comply with all applicable requirements of the Code necessary to preserve -52- such exclusion from gross income and specifically covenants, without limiting the generality of the foregoing, as follows: (a) Private Activity. The Authority will not take or omit to take any action or make any use of the proceeds of the Tax-Exempt Bonds or of any other moneys or property which would cause the Tax-Exempt Bonds to be “private activity bonds” within the meaning of Section 141 of the Code. (b) Arbitrage. The Authority will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take or omit to take any action which would cause the Tax-Exempt Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code. (c) Federal Guarantee. The Authority will make no use of the proceeds of the Tax-Exempt Bonds or take or omit to take any action that would cause the Tax-Exempt Bonds to be “federally guaranteed” within the meaning of Section 149(b) of the Code. (d) Information Reporting. The Authority will take or cause to be taken all necessary action to comply with the informational reporting requirement of Section 149(e) of the Code with respect to the Tax-Exempt Bonds. (e) Miscellaneous. The Authority will take no action inconsistent with its expectations stated in any Tax Certificate executed with respect to the Tax-Exempt Bonds and will comply with the covenants and requirements stated therein and incorporated by reference herein. This Section and the covenants set forth herein shall not be applicable to, and nothing contained herein shall be deemed to prevent the Authority from issuing Bonds which are not Tax- Exempt Bonds. ARTICLE VI NEGATIVE COVENANTS Until the Commitments have expired or terminated and the principal of, premium, if any, and interest on each Bond and all other Obligations payable hereunder have been paid in full, the Authority covenants and agrees with the Credit Parties that: Section 6.01. Indebtedness. The Authority shall not incur, or create, issue, assume, guarantee or otherwise become liable for any Indebtedness other than the Bonds or Additional Bonds or other bonds issued to refund and defease the Bonds in whole. Section 6.02. Negative Pledge. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues, or any other assets pledged or assigned -53- under the Indenture while any of the Bonds are Outstanding or any other Obligations remain unpaid, except the pledge and assignment created by the Indenture. Section 6.03. Investments. The Authority will not make, or direct the Trustee pursuant to the Indenture, to make, any investment other than Permitted Investments (as defined therein). Section 6.04. Sale of Assets. The Authority shall not sell, transfer, convey, assign or otherwise dispose of, in whole or any material part of its assets, or any undivided interest therein, including, without limitation, all or any part of its interests under the Project or the Related Documents, except for transfers expressly permitted by the terms of this Agreement and the Related Documents. Section 6.05. Maintenance of Tax-Exempt Status of Bonds . The Authority shall not take any action or omit to take any action which, if taken or omitted, would adversely affect the tax-exempt status of the Tax-Exempt Bonds. Section 6.06. Related Documents. The Authority shall not modify, amend or waive, or consent to any modification, amendment or waiver of, in any material respect, any Related Document or the Guaranty if such modification, amendment or waiver would have a Material Adverse Effect without the prior written consent of the Administrative Agent, or as otherwise permitted pursuant to Section 9.02 hereof. Upon the written request of the Authority as to whether any such modification, amendment or waiver requires the prior written consent of the Administrative Agent, the Administrative Agent shall not unreasonably withhold or delay its response to any such request. Section 6.07. Change in Name, Place of Business or Fiscal Year . The Authority shall not, at any time, change its name, jurisdiction of formation, fiscal year or principal place of business without the prior written consent of Administrative Agent. Section 6.08. Coastal Development Permit. The Authority shall not seek or consent to any modification, amendment or waiver in any material respect of the Coastal Development Permit in any manner that would reasonably be expected to have a Material Adverse Effect without the prior written consent of the Administrative Agent. Section 6.09. No Unauthorized Derivative Transactions. The Authority shall not enter into any agreement regarding futures, forwards, swap transactions, hedging or other similar arrangements. Section 6.10. No Consolidation or Merger. The Authority shall not enter into any consolidation or merger transaction whereby its obligations, including its obligation to make payments under the Indenture or this Agreement would become subject to novation or be assumed or undertaken by another person or continuing company. Section 6.11. No Accounts. The Authority shall not have any bank accounts other than as may be required under the Indenture. -54- Section 6.12. No Subsidiaries. The Authority shall not form or acquire any Subsidiaries. Section 6.13. No Transactions with Affiliates. Except for as contemplated by the Related Documents, and except in the ordinary course of business on terms no less favorable to the Authority entering into such transaction, taken as a whole, than could be obtained from an arm’s- length party, the Authority shall not, directly or indirectly, enter into transactions with Affiliates without the prior written consent of the Administrative Agent except for transactions with the City and Port as described in and permitted by the terms of the Related Documents. Section 6.14. Anti-Corruption Laws; Anti-Terrorism Laws; OFAC. The Authority shall not, knowingly directly or indirectly, (a)(i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any restricted party, (ii) deal in, or otherwise engage in any transaction relating to any property or interests in property blocked pursuant to any Anti-Corruption Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti- Terrorism Law (and the Authority shall deliver to the Administrative Agent any certification or other evidence requested from time to time by the Administrative Agent in its reasonable discretion, confirming compliance) or (b) cause or permit any of the funds of the Authority that are used to repay the Bonds to be derived from any unlawful activity with the result that the issuance, making or administration of the Bonds would be in violation of any Anti-Corruption Law. Section 6.15. Convention Center Payment Request; Requisition From Construction Fund. Anything in the Project Implementation Agreement or the Indenture to the contrary notwithstanding, the Authority shall not submit to the Trustee a Request of the Authority to disburse funds from the 2022A Bond Proceeds Subaccount of the 2022A Account of the Construction Fund with regard to any Convention Center Payment Request unless the Authority shall have received from the Administrative Agent a Certificate that the Project Is In-Balance or the Administrative Agent is deemed to have delivered a Certificate that the Project Is In-Balance with regard to that particular Convention Center Payment Request, in each case as provided in Section 8.08 hereof. ARTICLE VII EVENTS OF DEFAULT Section 7.01. Events of Default. If any of the following events (“Events of Default”) shall occur: (a) The occurrence of an “Event of Default” under the Indenture, including, without limitation, a failure by the Authority to pay when due the principal of or interest on the Bonds, whether on any Interest Payment Date, at maturity, upon redemption or otherwise; -55- (b) Failure by the Authority to pay when due any amounts required to be paid hereunder, other than with respect to any failure under the foregoing subsection (a) , within five (5) Business Days after the same has become due and payable; (c) Failure by the Authority to comply with any covenant, condition or agreement on its part to be observed or performed under this Agreement or any other Related Document, as applicable, other than as referred to in clauses (a) and (b) above, unless such failure would not reasonably be expected to have a Material Adverse Effect, within thirty (30) days after the earlier of (i) written notice specifying such failure and requesting that it be remedied shall have been given to the Authority by the Administrative Agent or Trustee (as applicable) or (ii) the actual knowledge of such failure by the Authority; (d) The occurrence of a Bankruptcy Event with respect to the Authority or any other Public Entity; (e) The occurrence of a Bankruptcy Event with respect to RIDA; (f) The occurrence of a default or event of default under any Related Document other than this Agreement that reasonably would be expected to have a Material Adverse Effect; (g) Any of the representations, warranties or certifications of the Authority made in or delivered pursuant to this Agreement shall prove to have been false or misleading in any material respect when made, or any of the representations, warranties or certifications made in or delivered pursuant to any other Related Document shall prove to have been false or misleading in any material respect and a Material Adverse Effect would reasonably be expected to result therefrom; (h) The failure by the Guarantor to perform, in any material respect, any of its obligations under the Guaranty; (i) One or more judgments for the payment of money in an aggregate amount of $1,000,000 or more shall be rendered against the Authority and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Authority to enforce any such judgment or is not adequately covered by insurance or a performance bond for a period of thirty (30) days; (j) The Building Loan Agreement, the Mezzanine Loan Agreement or the Guaranty shall expire or be terminated (whether by reason of a default thereunder or by mutual agreement of the parties thereto or otherwise), or for any reason shall cease to be in full force and effect; provided that an expiration or termination of the Mezzanine Loan Agreement shall not constitute an Event of Default if (i) RIDA demonstrates to the reasonable satisfaction of the Administrative Agent that a source of funds has been provided for each monthly Application for Payment with respect to the Hotel -56- Improvements and (ii) such Mezzanine Loan Agreement is replaced within ninety (90) days with an alternative form of financing in a form which is reasonably acceptable to the Administrative Agent; (k) Any material provision of any Related Document is or becomes wholly or partly void, voidable, unenforceable or illegal, and such event or circumstance could reasonably be expected to have a Material Adverse Effect; (l) Any Related Document is terminated early by any party thereto, other than as permitted by such Related Document, and such event could reasonably be expected to have a Material Adverse Effect, unless such Related Document is replaced in accordance with the requirements set forth in such Related Document within ninety (90) days following the delivery of written notice thereof to the Authority; (m) The Indenture ceases to be effective to grant a perfected Lien on the collateral described in Section 4.1 thereof; (n) Any insurance required under the Related Documents is not, or ceases to be, in full force and effect at any time when it is required to be in effect, unless such insurance is (prior to its cessation) replaced by insurance on substantially similar terms within thirty (30) Business Days after written notice thereof is provided by Administrative Agent to the Authority thereof; and (o) Invalidity of, failure to obtain or loss of a material Governmental Approval necessary for construction of any portion of the RHCC Project prior to the Completion of the RHCC Project and the failure to obtain or replace the same within a period to be agreed upon by the Administrative Agent. Section 7.02. Remedies Upon an Event of Default. Whenever any Event of Default shall have occurred and be continuing, the Administrative Agent shall notify the Authority of such Event of Default and shall be entitled to take the following actions, by notice to the Authority and the Trustee: (a) if such Event of Default is a Material Event of Default, terminate the obligation to make Advances hereunder; (b) Reserved. (c) take whatever other action at law or in equity is necessary or desirable to collect the amounts then due, or to enforce performance and observance of any obligation, agreement or covenant of the Authority under this Agreement or any other Related Document; or (d) pursuant to the terms of the Indenture, direct the Trustee to take any and all actions necessary to implement any available remedies with respect to the Bonds under the Indenture and any other Related Document. -57- In addition, at all times during the continuance of a Public Entity Event of Default, or upon the occurrence and during the continuance of any Material Event of Default which is not cured within thirty (30) days, the Bonds and all other Obligations, including, without limitation, the Commitment Fee shall accrue interest at the applicable Default Rate, in each case payable on demand. Section 7.03. Application of Payments. Notwithstanding anything herein to the contrary, following the occurrence and during the continuance of an Event of Default, at the option of the Administrative Agent, all payments received on account of the Obligations shall, subject to Section 2.19, be applied by the Administrative Agent as follows: (i) first, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts payable to the Administrative Agent (including fees and disbursements and other charges of counsel to the Administrative Agent payable under Section 9.03 and amounts pursuant to Section 2.12(b) payable to the Administrative Agent in its capacity as such); (ii) second, to payment of that portion of the Obligations constituting fees, expenses, indemnities and other amounts payable to the other Credit Parties (including fees and disbursements and other charges of counsel to the Credit Parties payable under Section 9.03) arising under the Related Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them; (iii) third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Bonds, ratably among the Bondholders in proportion to the respective amounts described in this clause (iii) payable to them; (iv) fourth, to payment of that portion of the Obligations constituting unpaid principal of the Bonds, ratably among the Bondholders in proportion to the respective amounts described in this clause (iv) payable to them; (v) fifth, to the payment in full of all other Obligations, in each case ratably among the Credit Parties based upon the respective aggregate amounts of all such Obligations owing to them in accordance with the respective amounts thereof then due and payable; and (vi) finally, the balance, if any, after all Obligations have been paid in full, to the Authority or as otherwise required by law. ARTICLE VIII THE ADMINISTRATIVE AGENT Section 8.01. Authorization and Action. (a) Each Purchaser hereby irrevocably appoints the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative agent under the Related Documents and each Purchaser -58- authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Related Documents as are delegated to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Without limiting the foregoing, each Purchaser hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Related Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Related Documents. (b) As to any matters not expressly provided for herein and in the other Related Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Credit Parties (or such other number or percentage of the Purchasers as shall be necessary, pursuant to the terms in the Related Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Purchaser; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Purchasers with respect to such action or (ii) is contrary to this Agreement or any other Related Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Purchaser in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Credit Parties prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Related Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Authority, any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however, that the foregoing shall not in any way limit the obligations of the Administrative Agent in its capacity as a Purchaser hereunder. (c) In performing its functions and duties hereunder and under the other Related Documents, the Administrative Agent is acting solely on behalf of the Purchasers (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing: (i) the Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Purchaser or holder of any other obligation other than as expressly set forth herein and in the other Related Documents, regardless of whether a Default or an Event of -59- Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Related Document with reference to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Purchaser agrees that it will not assert any claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with this Agreement and/or the transactions contemplated hereby; and (ii) nothing in this Agreement or any Related Document shall require the Administrative Agent to account to any Purchaser for any sum or the profit element of any sum received by the Administrative Agent for its own account; (d) The Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Related Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection or oversight of such sub-agent. (e) No Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Related Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder. (f) In case of the pendency of any proceeding with respect to the Authority under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Bond or any Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Authority) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Bonds and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Purchasers and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.14, 2.16 and 9.03) allowed in such judicial proceeding; and (ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; -60- and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Purchaser to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Credit Parties (other than the Administrative Agent), to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Related Documents (including under Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Purchaser any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Purchaser or to authorize the Administrative Agent to vote in respect of the claim of any Purchaser in any such proceeding. (g) The provisions of this Article are solely for the benefit of the Administrative Agent and the Purchasers, and, except solely to the extent of the Authority’s rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Authority, or any of its respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Section 8.02. Administrative Agent’s Reliance, Indemnification, Etc. (a) Neither the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, the Administrative Agent or any of its Related Parties under or in connection with this Agreement or the other Related Documents (x) with the consent of or at the request of the Required Credit Parties (or such other number or percentage of the Purchasers as shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Related Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Purchasers for any recitals, statements, representations or warranties made by the Authority or any officer thereof contained in this Agreement or any other Related Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Related Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Related Document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of the Authority to perform its obligations hereunder or thereunder. (b) The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by the Authority or a Purchaser, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Related Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Related Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Related Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere -61- in any Related Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. (c) Without limiting the foregoing, the Administrative Agent (i) may treat the payee of any Bond as its holder until such Bond has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b), (iii) may consult with legal counsel (including counsel to the Authority), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Purchaser and shall not be responsible to any Purchaser for any statements, warranties or representations made by or on behalf of the Authority in connection with this Agreement or any other Related Document, (v) in determining compliance with any condition hereunder to the purchase of any Bond that by its terms must be fulfilled to the satisfaction of a Purchaser, may presume that such condition is satisfactory to such Purchaser unless the Administrative Agent shall have received notice to the contrary from such Purchaser sufficiently in advance of the purchase of such Bond and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Related Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Related Documents for being the maker thereof). Section 8.03. Posting of Communications. (a) The Authority agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Purchasers by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”). (b) Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Purchasers and the Authority acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Purchaser that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Purchasers and the Authority hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT -62- THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS , IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO THE AUTHORITY, ANY PURCHASER, OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE AUTHORITY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Authority pursuant to any Related Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Purchaser by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform. (d) Each Purchaser agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Purchaser for purposes of the Related Documents. Each Purchaser agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Purchaser’s email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address. (e) Each of the Purchasers and the Authority agrees that the Administrative Agent may, but (except as may be required by applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies. (f) Nothing herein shall prejudice the right of the Administrative Agent or any Purchaser to give any notice or other communication pursuant to any Related Document in any other manner specified in such Related Document. Section 8.04. The Administrative Agent Individually . With respect to its Commitment and Bonds, the Person serving as the Administrative Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Purchaser. The terms “Purchasers,” “Required Credit Parties” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in its individual capacity as a Purchaser or as one of the Required Credit Parties, as applicable. The Person serving as the Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity -63- for and generally engage in any kind of banking, trust or other business with, the Authority, any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without any duty to account therefor to the Purchasers. No provision of this Agreement relating to the Administrative Agent shall in any way limit or change the duties and obligations of the Administrative Agent in its capacity as a Purchaser hereunder. Section 8.05. Successor Administrative Agent. (a) The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Purchasers and the Authority, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Credit Parties shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Credit Parties, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Purchasers, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, such appointment shall be subject to the prior written approval of the Authority (which approval may not be unreasonably withheld and shall not be required while an Event of Default caused by the Authority has occurred and is continuing). Upon the acceptance of any appointment as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Related Documents. Prior to any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign to the successor Administrative Agent its rights as Administrative Agent under the Related Documents. (b) Notwithstanding paragraph (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Purchasers and the Authority, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Related Documents; and (ii) the Required Credit Parties shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Related Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Purchaser. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Related Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. -64- Section 8.06. Acknowledgements of Purchasers . (a) Each Purchaser represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and that it has, independently and without reliance upon the Administrative Agent, any Arranger, or any other Purchaser, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Purchaser, and to purchase, acquire and hold Bonds hereunder. Each Purchaser also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Purchaser, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Authority and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Related Document or any related agreement or any document furnished hereunder or thereunder. (b) Each Purchaser, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment and Assumption or any other Related Document pursuant to which it shall become a Purchaser hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Related Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Purchasers on the Effective Date. (c) (i) Each Purchaser hereby agrees that (x) if the Administrative Agent notifies such Purchaser that the Administrative Agent has determined in its sole discretion that any funds received by such Purchaser from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Purchaser (whether or not known to such Purchaser), and demands the return of such Payment (or a portion thereof), such Purchaser shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Purchaser to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Purchaser shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Purchaser under this Section 8.06(c) shall be conclusive, absent manifest error. (ii) Each Purchaser hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Purchaser agrees that, in each such case, or if it otherwise becomes aware -65- a Payment (or portion thereof) may have been sent in error, such Purchaser shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Purchaser to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (iii) The Authority hereby agrees that in the event an erroneous Payment (or portion thereof) is not recovered from any Purchaser that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Purchaser with respect to such amount. (iv) Each party’s obligations under this Section 8.06(c) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Purchaser, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Related Document. Section 8.07. Certain ERISA Matters. (a) Each Purchaser (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser party hereto, for the benefit of, the Administrative Agent and its respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Authority, that at least one of the following is and will be true: (i) such Purchaser is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Bonds or the Commitments, (ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Purchaser’s entrance into, participation in, administration of and performance of the Bonds, the Commitments and this Agreement, (iii) (A) such Purchaser is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Purchaser to enter into, participate in, purchase, administer and perform the Bonds, the Commitments and this Agreement, (C) the entrance into, participation in, purchase and -66- administration of and performance of the Bonds, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Purchaser, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Purchaser’s entrance into, participation in, administration and purchase of and performance of the Bonds, the Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Purchaser. (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Purchaser or such Purchaser has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Purchaser further (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser party hereto, for the benefit of, the Administrative Agent and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Authority, that none of the Administrative Agent, or any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Purchaser (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Related Document or any documents related to hereto or thereto). (c) The Administrative Agent and each Arranger hereby informs the Purchasers that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Bonds, the Commitments, this Agreement and any other Related Documents (ii) may recognize a gain if it purchases the Bonds for an amount less than the amount being paid for an interest in the Bonds by such Purchaser or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Related Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent fees, utilization fees, minimum usage fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing. Section 8.08. Certificate That the Project Is In-Balance. The Administrative Agent hereby agrees that, promptly after receiving a copy of any Convention Center Payment Request submitted by RIDA under the Project Implementation Agreement and the receipt of the Other Requisite Information with respect to such Convention Center Payment Request, it shall make a determination in its reasonable discretion as to whether the Project Is In-Balance. If the Administrative Agent so determines that the Project Is In-Balance, it shall provide the Authority and RIDA with a certification that the Project Is In-Balance (each such certification herein referred to as a “Certificate that the Project Is In-Balance”); and if the Administrative Agent so determines that the conditions to providing a certification that the Project Is In-Balance have not been satisfied with regard to any Convention Center Payment Request, the Administrative Agent shall provide -67- the Authority and RIDA with an explanation in reasonable detail as why those conditions have not been satisfied. Notwithstanding the foregoing, in the event the Administrative Agent fails to provide the Authority and RIDA with written notice of any such determination within six (6) Business Days of receipt of a copy of any Convention Center Payment Request, the Administrative Agent shall be deemed to have delivered a Certificate that the Project Is In-Balance with regard to that particular Convention Center Payment Request. For the avoidance of doubt, any such certificate or explanation from the Administrative Agent may be delivered electronically. Section 8.09. 2022 Bonds Assigned Rights . The Administrative Agent agrees that the 2022 Bonds Assigned Rights shall be exercised only in accordance with this Section 8.09. Notwithstanding the granting of the 2022 Bonds Assigned Rights by the Authority to the Trustee under the Indenture, (i) the Authority shall retain the ongoing right to (A) agree to any amendments to waiver of any of the terms and provisions of any Related Document which would not reasonably be expected to have a Material Adverse Effect and (B) to enforce any provision of any of the Related Documents so long as the Administrative Agent is not taking any action, or directing the Trustee to take any action, or has advised the Authority that it intends to take any such action or to direct the Trustee to take any such action with regard to the 2022 Bonds Assigned Rights, and (ii) the Administrative Agent agrees that it shall not direct the Trustee to exercise the 2022 Bonds Assigned Rights unless (x) there has been a default in any payment by a Public Entity under any Related Document, in which case the Administrative Agent may direct the Trustee to exercise one or more of the 2022 Bonds Assigned Rights in such manner as the Administrative Agent deems necessary, or (y) the Administrative Agent determines, in its reasonable discretion, that it is necessary to exercise one or more of the 2022 Bonds Assigned Rights in order to avoid the occurrence of any event that would reasonably be expected to have a Material Adverse Effect, in which case the Administrative Agent may direct the Trustee to exercise any of the 2022 Bonds Assigned Rights in such manner as the Administrative Agent deems necessary. Prior to exercising any of the 2022 Bonds Assigned Rights, the Administrative Agent will provide written notice to the Authority of its intent to do so; provided that a failure to provide such notice shall not prevent the Administrative Agent from exercising, or directing the Trustee to exercise any of the 2022 Bonds Assigned Rights. ARTICLE IX MISCELLANEOUS Section 9.01. Notices. (a) All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, as follows: (i) if to the Authority, to it at [_______], Attention of [_______] (Telecopy No. [_______]); (ii) if to the Administrative Agent, to [____________________]; (iii) if to any other Purchaser, to it at its address (or telecopy number) set forth in its Administrative Questionnaire; -68- (iv) solely with respect to the notices to RIDA under Section 2.18, 2.19 or 8.08, to: RIDA Chula Vista, LLC 1777 Walker Street Suite 501 Houston, Texas 77010 Attention: Ira Mitzner and Luke Charlton with a copy to: Latham & Watkins LLP 12670 High Bluff Drive San Diego, California 92130 Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through Approved Electronic Platforms, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b). (b) Notices and other communications to the Purchasers hereunder may be delivered or furnished by using Approved Electronic Platforms pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Purchaser. The Administrative Agent or the Authority may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. (c) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (d) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. -69- Section 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agent or any Purchaser in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the other Credit Parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Authority therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the purchase of a Bond shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Purchaser may have had notice or knowledge of such Default at the time. (b) Except as otherwise provided herein, neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Authority and the Required Credit Parties or by the Authority and the Administrative Agent with the consent of the Required Credit Parties; provided that no such agreement shall (i) increase the Commitment of any Purchaser without the written consent of such Purchaser, (ii) reduce the principal amount of any Bond or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Bondholder affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Bond, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Bondholder or Purchaser affected thereby, (iv) change this Agreement in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Purchaser, (v) change the payment waterfall provisions of Section 2.19(b) or 7.03 without the written consent of each Purchaser, or (vi) change any of the provisions of this Section or the definition of “Required Credit Parties” or any other provision hereof specifying the number or percentage of Purchasers required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Purchaser; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Authority, the Administrative Agent or the Purchasers hereunder without the prior written consent of the Authority, the Administrative Agent or the Purchasers, as the case may be. (c) If the Administrative Agent and the Authority acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Related Document, then the Administrative Agent and the Authority shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement. Section 9.03. Expenses; Indemnity; Damage Waiver. (a) The Authority shall pay (i) all reasonable out of pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with any syndication of the credit facilities provided for herein, the preparation and -70- administration of this Agreement and the other Related Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), subject in each case to any agreement the Authority has with any such Person; (ii) the reasonable fees and out-of-pocket expenses for counsel or other consultants to the Administrative Agent in connection with advising the Administrative Agent as to its rights and responsibilities under this Agreement and the other Related Documents or in connection with responding to requests from the Authority for approvals, consents and/or waivers; and (iii) all out-of-pocket expenses incurred by the Administrative Agent or any Purchaser, including the fees, charges and disbursements of any counsel for the Administrative Agent or any Purchaser, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Related Documents (whether by means of legal proceedings or otherwise), including its rights under this Section, or in connection with the Bonds purchased hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Bonds, other than expenses incurred as a result of actions taken by, or an Event of Default caused by RIDA or its Affiliates. (b) The Authority shall indemnify the Administrative Agent, the Arranger and each Purchaser, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Related Document, or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Bond or the use of the proceeds therefrom, or (iii) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation, arbitration or proceeding is brought by the Authority or its members, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. (c) Each Purchaser severally agrees to pay any amount required to be paid by the Authority under paragraph (a) or (b) of this Section 9.03 to the Administrative Agent and each Purchaser, and each Related Party of any of the foregoing Persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by the Authority and without limiting the obligation of the Authority to do so), ratably according to their respective Applicable Percentage in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Bonds shall have been paid in full, ratably in accordance with such Applicable Percentage immediately prior to such date), from and against any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any kind whatsoever that may at any time (whether before or after the -71- payment of the Bonds) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of the Commitments, the Bonds, this Agreement, any of the other Related Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent Indemnitee in its capacity as such; provided further that no Purchaser shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent Indemnitee’s negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Bonds and all other amounts payable hereunder. (d) To the extent permitted by applicable law (i) the Authority shall not assert, and the Authority hereby waives, any claim against any Indemnitee for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), and (ii) no party hereto shall assert, and each such party hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Related Document, or any agreement or instrument contemplated hereby or thereby, any Bond or the use of the proceeds thereof; provided that, nothing in this clause (d)(ii) shall relieve the Authority of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. (e) All amounts due under this Section shall be payable promptly after written demand therefor. Section 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Authority may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Authority without such consent shall be null and void); (ii) so long as no Event of Default has occurred, JPMorgan Chase Bank, National Association or any Affiliate thereof shall at all times hold an Applicable Percentage equaling more than 50%; and (iii) no Purchaser may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, and in the case of assignment of any Bonds, compliance with either clause (e) or clause (f) below, any Purchaser may assign to one or more Persons (other than an Ineligible Institution) all or a portion of its rights -72- and obligations under this Agreement (including all or a portion of its Commitment and the Bonds at the time owned by it) with the prior written consent (such consent not to be unreasonably withheld) of: (A) the Authority, which shall not be unreasonably withheld; provided that, the Authority shall be deemed to have consented to an assignment of all or a portion of the Bonds and Commitments unless it shall have objected thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof provided that no consent of the Authority shall be required for an assignment to a Purchaser, an Affiliate of a Purchaser, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; and (B) the Administrative Agent, which shall not be unreasonably withheld; provided that no consent of the Administrative Agent shall be required for an assignment of any Commitment or Bonds to an assignee that is a Purchaser (other than a Defaulting Purchaser) with a Commitment immediately prior to giving effect to such assignment. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Purchaser or an Affiliate of a Purchaser or an assignment of the entire remaining amount of the assigning Purchaser’s Commitment or the amount of the Bonds of the assigning Purchaser subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $50,000,000 unless each of the Authority and the Administrative Agent otherwise consent; provided that no such consent of the Authority shall be required if an Event of Default caused by the Authority has occurred and is continuing; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Purchaser’s rights and obligations under this Agreement; provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Purchaser’s rights and obligations in respect of one or several Bonds; (C) the parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing and recordation fee of $3,500; and (D) the assignee, if it shall not be a Purchaser, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more contacts to whom all syndicate-level information will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. -73- (E) the assignment shall not increase the obligations of the Authority. (iii) In connection with any such assignment, the Authority shall, at the request of the Administrative Agent, execute and deliver Bonds in the principal amount, and registered in the name of such Person as directed by the Administrative Agent. For the purposes of this Section 9.04(b), the term “Approved Fund” and “Ineligible Institution” have the following meanings: “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Purchaser, (b) an Affiliate of a Purchaser or (c) an entity or an Affiliate of an entity that administers or manages a Purchaser. “Ineligible Institution” means (a) a natural person, (b) a Defaulting Purchaser or its Purchaser Parent, (c) a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof or (d) the Authority or any of its Affiliates; provided that, with respect to clause (c), such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Bonds or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business. (iv) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Purchaser under this Agreement, and the assigning Purchaser thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16 and 9.03). Any assignment or transfer by a Purchaser of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Purchaser of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (v) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Authority, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Purchasers, and the Commitment of, and principal amount (and stated interest) of the Bonds owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Authority, the Administrative Agent, and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser -74- hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Authority and any Purchaser, at any reasonable time and from time to time upon reasonable prior notice. (vi) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Purchaser and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Purchaser or the assignee shall have failed to make any payment required to be made by it pursuant to [Article II] or Section 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (c) Any Purchaser may, without the consent of, but with notice to, the Authority or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”), other than an Ineligible Institution, in all or a portion of such Purchaser’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Bonds owned by it); provided that (A) such Purchaser’s obligations under this Agreement shall remain unchanged; (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Authority, the Administrative Agent, and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The Authority agrees that each Participant shall be entitled to the benefits of Sections 2.14, and 2.16 (subject to the requirements and limitations therein, including the requirements under Sections 2.16(f) (it being understood that the documentation required under Section 2.16(f) shall be delivered to the participating Purchaser and the information)) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.18 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.14 or 2.16, with respect to any participation, than its participating Purchaser would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Purchaser that sells a participation agrees, at the Authority’s request and expense, to use reasonable efforts to cooperate with the Authority to effectuate the provisions of Section 2.19(b) with respect -75- to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Purchaser; provided that such Participant agrees to be subject to Section 2.17(c) as though it were a Purchaser. Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Authority, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Bonds or other obligations under the Related Documents (the “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Bonds, or its other obligations under any Related Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Bond, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (d) Any Purchaser may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Purchaser, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto. (e) Sales and Transfers by Bondholder to a Purchaser Transferee. A Bondholder may only sell or otherwise transfer to one or more transferees all or a portion of the Bonds of such Bondholder to a Person that is (i) an Affiliate of any Bondholder or (ii) a trust or other custodial arrangement established by any Bondholder or an Affiliate of any Bondholder, the owners of any beneficial interest in which are limited to “qualified institutional buyers” as defined in Rule 144A promulgated under the 1933 Act, (each, a “Purchaser Transferee”). From and after the date of such sale or transfer, each respective Bondholder shall continue to have all of the rights of a Bondholder hereunder and under the other Related Documents as if no such transfer or sale had occurred; provided, however, that (A) no such sale or transfer referred to in clause (e)(i) or (e)(ii) hereof shall in any way affect the obligations of such Bondholder hereunder, (B) the Authority and the Trustee shall be required to deal only with such Bondholder with respect to any matters under this Agreement and (C) in the case of a sale or transfer referred to in clause (e)(i) or (e)(ii) hereof, only such assigning Bondholder shall be entitled to enforce the provisions of this Agreement. (f) Sales and Transfers by Bondholder to a Non-Purchaser Transferee. A Bondholder may sell or otherwise transfer to one or more transferees which are not Purchaser Transferees but each of which constitutes a “qualified institutional buyer” as defined in Rule 144A promulgated under the 1933 Act or, following the occurrence of an Event of Default, an institutional “accredited investor” as defined in Rule 501 of Regulation D under the 1933 Act (each a “Non-Purchaser Transferee”), all or a portion of the Bonds if (A) written notice of such sale or transfer, including that such sale or transfer is to a Non-Purchaser Transferee, together with addresses and related -76- information with respect to the Non-Purchaser Transferee, shall have been given to the Administrative Agent, the Authority, the Trustee and the other Credit Parties by such selling Bondholder and Non-Purchaser Transferee, and (B) the Non-Purchaser Transferee shall have delivered to the Administrative Agent, the Authority, the Trustee and the selling Bondholder, an investment letter in substantially the form attached as Exhibit C to the Indenture (the “Investor Letter”). From and after the date the Administrative Agent, the Authority, the Trustee and the selling Bondholder have received written notice and an executed Investor Letter, (A) the Non-Purchaser Transferee thereunder shall be a party hereto and shall have the rights and obligations of a Bondholder hereunder and under the other Related Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Non-Purchaser Transferee, and any reference to the assigning Bondholder hereunder and under the other Related Documents shall thereafter refer to such transferring Bondholder and to the Non-Purchaser Transferee to the extent of their respective interests, and (B) if the transferring Bondholder no longer owns any Bonds, then it shall relinquish its rights and be released from its obligations hereunder and under the Related Documents to the extent that such entity is no longer a Purchaser hereunder and has made Advances in the full amount of its respective Commitment (if any). Section 9.05. Survival. All covenants, agreements, representations and warranties made by the Authority herein and in the other Related Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Related Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the purchase of any Bonds, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Purchaser may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Bond or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, for a period of two years following the later of the repayment of the principal of and interest on the Bonds and all other Obligations hereunder, the expiration or termination the Commitments or the termination of this Agreement or any provision hereof. Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution . (a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Related Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. -77- (b) Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept electronic signatures in any form or format without its prior written consent. Section 9.07. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Section 9.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Purchaser and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final) at any time held, and other obligations at any time owing, by such Purchaser or any such Affiliate, to or for the credit or the account of the Authority against any and all of the obligations of the Authority now or hereafter existing under this Agreement or any other Related Document to such Purchaser or their respective Affiliates, irrespective of whether or not such Purchaser or Affiliate shall have made any demand under this Agreement or any other Related Document and although such obligations of the Authority may be contingent or unmatured or are owed to a branch office or Affiliate of such Purchaser different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Purchaser shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such Defaulting Purchaser from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Purchasers, and (y) the Defaulting Purchaser shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Purchaser as to which it exercised such right of setoff. The rights of each Purchaser and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Purchaser or their respective Affiliates may have. Each Purchaser agrees to notify the Authority and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. -78- Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process . (a) This Agreement shall be construed in accordance with and governed by the law of the State of California, without regard to the principles of conflicts of laws thereof; provided that the obligations of the Administrative Agent and each Purchaser under this Agreement shall be governed by the law of the State of New York. (b) Each of the Purchasers and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law provisions of any applicable Related Document, any claims brought against the Administrative Agent by any Purchaser relating to this Agreement, any other Related Document or the consummation or administration of the transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law of the State of New York. (c) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of the United States District Court for the Southern District of California and any court of the State of California, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Related Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal (to the extent permitted by law) or California State court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Related Document shall affect any right that the Administrative Agent or any Purchaser may otherwise have to bring any action or proceeding relating to this Agreement against the Authority or its properties in the courts of any jurisdiction. (d) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Related Document in any court referred to in paragraph (c) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (e) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law. Section 9.10. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A JURY TRIAL IN RESPECT OF ANY LITIGATION (WHETHER AS CLAIM, COUNTERCLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE) OR OTHER CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS. IT IS HEREBY ACKNOWLEDGED THAT THE WAIVER OF A JURY -79- TRIAL IS A MATERIAL INDUCEMENT FOR THE BANK TO ENTER INTO THIS AGREEMENT AND THAT THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE AUTHORITY, THE ADMINISTRATIVE AND THE CREDIT PARTIES IS MADE IN RELIANCE UPON SUCH WAIVER. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE FOLLOWING CONSULTATION WITH ITS RESPECTIVE LEGAL COUNSEL. THE AUTHORITY REPRESENTS AND ACKNOWLEDGES THAT IT HAS REVIEWED THIS PROVISION WITH ITS LEGAL COUNSEL AND THAT IT HAS KNOWINGLY AND VOLUNTARILY WAIVED ANY JURY TRIAL RIGHTS IT MAY HAVE FOLLOWING CONSULTATION WITH SUCH LEGAL COUNSEL. IF AND TO THE EXTENT THE FOREGOING WAIVER OF THE RIGHT TO A JURY TRIAL IS UNENFORCEABLE FOR ANY REASON, THE PARTIES HERETO HEREBY CONSENT TO THE ADJUDICATION OF ANY AND ALL CLAIMS PURSUANT TO JUDICIAL REFERENCE AS PROVIDED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638, AND THE JUDICIAL REFEREE SHALL BE EMPOWERED TO DETERMINE ANY AND ALL ISSUES IN SUCH REFERENCE WHETHER FACT OR LAW. EACH PARTY HERETO ACKNOWLEDGES AND REPRESENTS THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION, AND THAT IT HAS REVIEWED THIS WAIVER AND CONSENT, AND KNOWINGLY AND INTENTIONALLY WAIVES ITS JURY TRIAL RIGHTS AND CONSENTS TO JUDICIAL REFERENCES FOLLOWING THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF ITS CHOICE ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT OR TO JUDICIAL. Section 9.11. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. Section 9.12. Confidentiality. Each of the Administrative Agent and the Purchasers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, including the California Public Records Act (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or under any other Related Document or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or under any other Related Document, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Authority and its obligations, (g) on a confidential basis to (1) any rating agency in connection with rating the Authority or its Subsidiaries or the credit facilities provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of identification numbers with respect to the credit facilities provided for herein, (h) with the consent of the Authority, (i) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the -80- Administrative Agent or any Purchaser on a non-confidential basis from a source other than the Authority, and (j) to the Authority and the Authority. For the purposes of this Section, “Information” means all information received from the Authority relating to the Authority or its business, other than any such information that is available to the Administrative Agent or any Purchaser on a non-confidential basis prior to disclosure by the Authority and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry; provided that, in the case of information received from the Authority after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Section 9.13. No Fiduciary Duty, Etc. (a) The Authority acknowledges and agrees, that no Credit Party will have any obligations except those obligations expressly set forth herein and in the other Related Documents and each Credit Party is acting solely in the capacity of an arm’s length contractual counterparty to the Authority with respect to the Related Documents and the transactions contemplated herein and therein and not as a financial advisor or a fiduciary to, or an agent of, the Authority or any other person. The Authority agrees that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party in connection with this Agreement and the transactions contemplated hereby. Additionally, the Authority acknowledges and agrees that no Credit Party is advising the Authority as to any legal, tax, investment, accounting, regulatory or any other matters in any jurisdiction. The Authority shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated herein or in the other Related Documents, and the Credit Parties shall have no responsibility or liability to the Authority with respect thereto. (b) The Authority further acknowledges and agrees that each Credit Party, together with its Affiliates, is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, the Authority and other companies with which the Authority may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion. (c) In addition, the Authority acknowledges and agrees, that each Credit Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which the Authority may have conflicting interests regarding the transactions described herein and otherwise. No Credit Party will use confidential information obtained from the Authority by virtue of the transactions contemplated by the Related Documents or its other relationships with the Authority in connection with the performance by such Credit Party of services for other companies, and no Credit Party will furnish -81- any such information to other companies. The Authority also acknowledges that no Credit Party has any obligation to use in connection with the transactions contemplated by the Related Documents, or to furnish to the Authority, confidential information obtained from other companies. Section 9.14. USA PATRIOT Act. Each Purchaser that is subject to the requirements of the USA PATRIOT Act of 2001 (the “Patriot Act”) hereby notifies the Authority that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Authority, which information includes the name and address of the Authority and other information that will allow such Purchaser to identify the Authority in accordance with the Patriot Act. Section 9.15. Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Related Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Related Document may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Related Document; or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority. Section 9.16. Acknowledgement Regarding Any Supported QFCs . To the extent that the Related Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in -82- respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Related Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Related Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Related Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Purchaser shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. Section 9.17. Third Party Beneficiary. In order to induce RIDA to enter into the Related Documents to which RIDA is a party, the Authority, the Administrative Agent and the Purchasers hereby agree that RIDA shall be an express third party beneficiary of the agreements and provisions referencing RIDA in Section 2.18(c), in the third to last paragraph of Section 2.19 and in Section 8.08 hereof with the right to enforce such provisons as if RIDA were a party to this Agreement. Such provisions shall not be amended without the prior written consent of RIDA. [Signature Page to Bond Purchase and Continuing Covenant Agreement] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: ____________________________________ Name: ______________________________ Title: _______________________________ JPMORGAN CHASE BANK, National Association, individually and as Administrative Agent, By: ____________________________________ Name: ______________________________ Title: _______________________________ [OTHER BANKS] By: ____________________________________ Name: ______________________________ Title: _______________________________ Jurisdiction of tax residence: DTTP Scheme number: SCHEDULE 1.01 COMMITMENT AMOUNTS AND PERCENTAGES NAME OF PURCHASER 2022A BOND COMMITMENT AMOUNT 2022A BOND COMMITMENT PERCENTAGE 2022B BOND COMMITMENT AMOUNT 2022B BOND COMMITMENT PERCENTAGE JPMorgan Chase Bank, National Association $[______] [____]% $[______] [____]% [___________] $[______] [____]% $[______] [____]% Total $[______] 100% $[______] 100% EXHIBIT A ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Bond Purchase and Continuing Covenant Agreement identified below (as amended, supplemented or otherwise modified from time to time, the “Bond Purchase and Continuing Covenant Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Bond Purchase and Continuing Covenant Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Purchaser under the Bond Purchase and Continuing Covenant Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Purchaser) against any Person, whether known or unknown, arising under or in connection with the Bond Purchase and Continuing Covenant Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 1. Assignor: ______________________________ 2. Assignee: ______________________________ and is a(n) [Approved Fund/Purchaser Transferee/Non- Purchaser Transferee8] 3. Authority(s): Chula Vista Bayfront Facilities Financing Authority 8 Select as applicable. -2- 4. Administrative Agent: JPMORGAN CHASE BANK, National Association, as the administrative agent under the Bond Purchase and Continuing Covenant Agreement 5. Bond Purchase and Continuing Covenant Agreement: [The [amount] Bond Purchase and Continuing Covenant Agreement dated as of _______ among Chula Vista Bayfront Facilities Financing Authority, the Purchasers parties thereto, JPMORGAN CHASE BANK, National Association, as Administrative Agent, and the other parties thereto] 6. Assigned Interest9: AGGREGATE AMOUNT OF 2022A COMMITMENT FOR ALL PURCHASERS AMOUNT OF 2022A COMMITMENT ASSIGNED PERCENTAGE ASSIGNED OF 2022A COMMITMENT10 AGGREGATE AMOUNT OF BONDS FOR ALL PURCHASERS AMOUNT OF BONDS ASSIGNED PERCENTAGE ASSIGNED OF BONDS11 AGGREGATE AMOUNT OF 222B COMMITMENT FOR ALL PURCHASERS AMOUNT OF 2022B COMMITMENT ASSIGNED PERCENTAGE ASSIGNED OF 2022B COMMITMENT12 AGGREGATE AMOUNT OF BONDS FOR ALL PURCHASERS AMOUNT OF BONDS ASSIGNED PERCENTAGE ASSIGNED OF BONDS13 9 Complete applicable table(s). 10 Set forth, to at least 9 decimals, as a percentage of the Commitment of all Purchasers thereunder. 11 Set forth, to at least 9 decimals, as a percentage of the Bonds of all Purchasers thereunder. 12 Set forth, to at least 9 decimals, as a percentage of the Commitment of all Purchasers thereunder. 13 Set forth, to at least 9 decimals, as a percentage of the Bonds of all Purchasers thereunder. -3- Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more contacts to whom all syndicate-level information (which may contain material non-public information about the Authority and its Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws. The terms set forth in this Assignment and Assumption are hereby agreed to: [ASSIGNOR] [NAME OF ASSIGNOR] By: ____________________________________ Title: [ASSIGNEE] [NAME OF ASSIGNEE] By: ____________________________________ Title: -4- [Consented to and] Accepted:14 JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent By:________________________________ Title: [Consented to:]15 [NAME OF RELEVANT PARTY] By:________________________________ Title: 14 To be added only if the consent of the Administrative Agent is required by the terms of the Bond Purchase and Continuing Covenant Agreement. 15 To be added only if the consent of the Authority and/or other parties is required by the terms of the Bond Purchase and Continuing Covenant Agreement. ANNEX 1 [__________________]16 STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Bond Purchase and Continuing Covenant Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Bond Purchase and Continuing Covenant Agreement or any collateral thereunder, (iii) the financial condition of the Authority, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the Bond Purchase and Continuing Covenant Agreement, (iv) any requirements under applicable law for the Assignee to become a lender under the Bond Purchase and Continuing Covenant Agreement or to charge interest at the rate set forth therein from time to time or (v) the performance or observance by the Authority, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under the Bond Purchase and Continuing Covenant Agreement. 1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Purchaser under the Bond Purchase and Continuing Covenant Agreement, (ii) it satisfies the requirements, if any, specified in the Bond Purchase and Continuing Covenant Agreement and under applicable law that are required to be satisfied by it in order to acquire the Assigned Interest and become a Purchaser, (iii) from and after the Effective Date, it shall be bound by the provisions of the Bond Purchase and Continuing Covenant Agreement as a Purchaser thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Purchaser thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Bond Purchase and Continuing Covenant Agreement, together with copies of the most recent financial statements delivered pursuant to Section ___ thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Assignor or any other Purchaser or any of their respective Related Parties, and (vi) attached to the Assignment and Assumption is any documentation required to be delivered by 16 Describe Bond Purchase and Continuing Covenant Agreement at option of Administrative Agent. -2- it pursuant to the terms of the Bond Purchase and Bond Purchase and Continuing Covenant Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, any Arranger, the Assignor or any other Purchaser or any of their respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Bond Purchase and Continuing Covenant Agreement, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Bond Purchase and Continuing Covenant Agreement are required to be performed by it as a Purchaser. 2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by the Assignee and the Assignor by Electronic Signature or delivery of an executed counterpart of a signature page of this Assignment and Assumption by any Approved Electronic Platform shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES), without regard to the principles of conflicts of laws thereof. EXHIBIT B ADVANCE FUNDING SCHEDULE FOR 2022A BONDS DATE OF ADVANCE PRINCIPAL AMOUNT [____] $[_____] [____] $[_____] TOTAL $[_____] EXHIBIT C [FORM OF] COMPLIANCE CERTIFICATE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY To: JPMorgan Chase Bank, National Association, as Administrative Agent under, and the Purchasers party to, the Bond Purchase and Continuing Covenant Agreement described below This Compliance Certificate is furnished to the Administrative Agent and the Purchasers pursuant to that certain Bond Purchase and Continuing Covenant Agreement dated as of _______________, 2022, among CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, as Authority, the Purchasers party thereto from time to time, and JPMorgan Chase Bank, National Association, as Administrative Agent (as extended, renewed, amended or restated from time to time, the “Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Agreement. THE UNDERSIGNED HEREBY CERTIFIES THAT: 1. I am the duly elected ____________ of the Authority; 2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Authority and its Subsidiaries during the accounting period covered by the attached financial statements; 3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate, except as set forth below; 4. The financial statements required by Section 5.08 of the Agreement and being furnished to you concurrently with this Compliance Certificate are true, correct and complete as of the date and for the periods covered thereby; and 5. The Schedule I hereto sets forth financial data and computations evidencing the Authority’s compliance with certain covenants of the Agreement, all of which data and computations are, to the best of my knowledge, true, complete and correct and have been made in accordance with the relevant Sections of the Agreement. In the event of a conflict between the attached spreadsheet and any certifications relating thereto and the Agreement and related definitions used in calculating such covenants, the Agreement and such related definitions shall govern and control. C-2 Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Authority has taken, is taking, or proposes to take with respect to each such condition or event: ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ The foregoing certifications, together with the computations set forth in Schedule I hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this ______ day of __________________ 20___. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By ____________________________________ Name _______________________________ Title ________________________________ SCHEDULE I TO COMPLIANCE CERTIFICATE [TO COME] US-DOCS\114818133.19 Attachment C Recording requested by and when recorded return to: San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attention: Director, Real Estate Department (Space Above for Recorder’s Use Only) DECLARATION OF RECIPROCAL EASEMENTS THIS DECLARATION OF RECIPROCAL EASEMENTS (this “Declaration”) is made and entered into as of the [  ] day of [  ], 2022 (“Effective Date”) by the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Declarant”), RIDA Chula Vista, LLC, a Delaware limited liability company (“RIDA”), the City of Chula Vista, a charter city of the State of California duly organized and existing under and by virtue of the Constitution and laws of the State of California (the “City”), and the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (the “JEPA”). RECITALS: A. All capitalized terms used in these Recitals, if not otherwise defined in the Recitals, shall have the meanings set forth in Article I hereof. B. Declarant is the owner in trust of the Property pursuant to the San Diego Unified Port District Act, California Harbors and Navigation Code, Appendix 1. The Property is comprised of the Hotel Parcel and the CC Parcel. C. Immediately after the execution of this Declaration: (i) Declarant and RIDA are entering into the Hotel Ground Lease, pursuant to which, among other things, Declarant leases to RIDA the Hotel Parcel and any Improvements that are located thereon as of the date hereof; (ii) pursuant to the Hotel Ground Lease, RIDA will construct the Hotel Improvements; (iii) Declarant and the JEPA are entering into the CC Site Lease, pursuant to which, among other things, Declarant leases to the JEPA the CC Parcel and any Improvements that are located thereon as of the date hereof; 2 US-DOCS\114818133.19 (iv) the JEPA and the City are entering into the CC Facility Lease, pursuant to which, among other things, the JEPA subleases to the City the CC Parcel and any Improvements (except the CC Improvements) that are located thereon as of the date hereof and the JEPA leases to the City the CC Improvements; (v) the City and RIDA are entering into the CC Sublease, pursuant to which, among other things, the City sub-subleases to RIDA the CC Parcel and any Improvements (except the CC Improvements) that are located thereon as of the date hereof and the City subleases to RIDA the CC Improvements; and (vi) in connection with, among other things, the construction of the CC Improvements by RIDA, each of Declarant, the JEPA, the City and RIDA are entering into the Project Implementation Agreement. D. It is the purpose and intent of this Declaration to subject the Property to the reciprocal easements hereinafter described for the mutual benefit of Declarant, the Owners, and each of their Permittees (as defined below). NOW, THEREFORE, Declarant does hereby impose the following easements and encumbrances upon the Property, which shall be binding upon and inure to the benefit of Declarant, the Owners and their respective Permittees, and which shall attach to and run with the Property, and shall be a limitation upon any future Owner or Owners of any part of the Property, and the Owners hereby accept such easements and encumbrances. ARTICLE I DEFINITIONS 1.1 “Applicable Laws” means any statute, law, ordinance, regulation, rule, code, order, injunction, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or political subdivision thereof, or any legislative, judicial, administrative or regulatory agency or other non-governmental regulatory authority or quasi-governmental authority (in each case, to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction, as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under such statute) and references to any section of any applicable law or other law include any successor to such section. Said “Applicable Laws” shall include, but are not limited to those prescribed by the Declarant; any applicable ordinances of the City, including the Building Code thereof; any ordinances and general rules of the Declarant, including tariffs and policies; and any applicable laws of the state of California and federal government, as any of the same now exist or may hereafter be adopted or amended. In particular and without limitation, Permittees shall have the sole and exclusive responsibility to comply with the requirements of: (i) Article 10 of District Code entitled "Stormwater Management and Discharge Control", and (ii) the Americans With Disabilities Act of 1990, including but not limited to regulations promulgated thereunder. 3 US-DOCS\114818133.19 1.2 “Authorized Parties” means the tenants, subtenants, licensees, sublicensees, occupants, contractors, subcontractors, consultants, invitees, guests and customers of a Permittee and any and all subtenants, licensees, sublicensees, occupants, contractors, subcontractors, consultants, invitees, guests and customers of a Permittee’s tenants, subtenants, sub-subtenants, licensees, sublicensees and occupants. 1.3 “Buildings” means all buildings and structures now or hereafter located in, on, under, within or upon the Property. 1.4 “Central Plant” means a central plant to be located on the CC Parcel. 1.5 “CC Improvements” means an approximately 275,000 net usable square foot convention center, together with ancillary improvements related thereto, in each case to be constructed on the CC Parcel in accordance with the Project Implementation Agreement. 1.6 “CC Facility Lease” means that certain Facility Lease, dated as of the date hereof, by and between the JEPA and the City, as the same may be amended, restated, extended, supplemented or modified from time to time, and as the same may be replaced by a substitute sublease with the CC Facility Lease Tenant of all or substantially all of the CC Parcel as permitted under the CC Facility Lease. 1.7 “CC Facility Lease Tenant” means the City and its permitted successors and assigns that are the subtenant under the CC Facility Lease, from time to time in effect. 1.8 “CC Parcel” means the land described on Exhibit A-1 and all Improvements located thereon, as the same may be modified from time to time due to condemnation. 1.9 “CC Parcel Owner” means the Owner of the CC Parcel. 1.10 “CC Site Lease” means that certain Site Lease, dated as of the date hereof, by and between Declarant and the JEPA, as the same may be amended, restated, extended, supplemented or modified from time to time, and as the same may be replaced by a substitute lease with the CC Site Lease Tenant of all or substantially all of the CC Parcel as permitted under the CC Site Lease. 1.11 “CC Site Lease Tenant” means the JEPA and its permitted successors and assigns that are the tenant under the CC Facility Lease, from time to time in effect. 1.12 “CC Sublease” means that certain Sublease Agreement (Chula Vista Bayfront Convention Center), dated as of the date hereof, by and between the City and RIDA, as the same may be amended, restated, extended, supplemented or modified from time to time, and as the same may be replaced by a substitute sub-sublease with the CC Sublease Tenant of all or substantially all of the CC Parcel as permitted under the CC Sublease (including, without limitation, any New Sublease under and as defined in the CC Sublease). 1.13 “CC Sublease Tenant” means the sub-subtenant under the CC Sublease, from time to time in effect, and any sub-subtenant under a New Sublease under and as defined in the CC Sublease. As of the date hereof, the CC Sublease Tenant is RIDA. 4 US-DOCS\114818133.19 1.14 “City” has the meaning set forth in the preamble hereto. 1.15 “Common Areas” means those portions of the CC Parcel and Hotel Parcel which are designed, improved, used or intended to be used for common use by or for the benefit of all Owners and their respective Permittees including the following: (a) lobbies; (b) truck loading docks and receiving area and platforms; (c) exterior walks and sidewalks; (d) the common utility shafts, ducts and mechanical rooms including chiller rooms and fuel farm areas; (e) the common utility Facilities; (f) the common freight elevators; (g) emergency egress stairwells; (h) the shared areas on the Building roof; and (i) the escalators and escalator connections. 1.16 “Declarant” has the meaning set forth in the preamble hereto. 1.17 “Declaration” means this Declaration of Reciprocal Easements, including all Exhibits, appendices, amendments and supplements hereto. 1.18 “Easements” means all easements granted, provided for, declared or created pursuant to or in accordance with the terms and provisions of this Declaration. 1.19 “Emergency Situation” means (a) a situation impairing or imminently likely to impair structural support for the Improvements; (b) a situation causing or imminently likely to cause bodily injury to persons or substantial physical damage to all or any material portion of the Improvements or any property within or about the Improvements; (c) a situation causing or imminently likely to cause substantial economic loss to an Owner or one or more Permittees; or (d) a situation which materially interferes with use by an Owner or one or more Permittees of the Improvements or the Easements granted hereunder. The duration of an Emergency Situation shall be deemed to include the time reasonably necessary to remedy the Emergency Situation. 1.20 “Facilities” means and includes all improvements and fixtures located on the Property, including, all annunciators, antennae, boxes, brackets, cabinets, cables, coils, computers, conduits, controls, control centers, coolers, cooling towers, couplers, devices, ducts equipment (including heating, ventilating, air conditioning and plumbing equipment), fans, fixtures, generators, hangers, heat traces, indicators, junctions, lines, machines, meters, motors, outlets, panels, pipes, pumps, radiators, risers, shafts, signage (including branding and directional), starters, switches, switchboards, systems including building automation systems and back-up building automation systems and Utility Systems, tanks, transformers, valves, wiring and the like used in providing services from time to time in any part of the Improvements, including alarm, antenna, circulation, cleaning, communication, cooling, elevator, exhaust, fire alarm systems, fire suppression, heating, life safety, plumbing, radio, recording, sanitary sewer, security (including, but not limited to, security cameras and surveillance equipment), sensing, telephone, television, transportation, ventilation, window washing equipment and platforms (if any), and electric, natural gas and water service trunk lines to the Property to the point of separation of service lines or separate metering for each of the CC Parcel and Hotel Parcel, now or hereafter being a part of or servicing the Property and all replacements thereof or additions thereto. 1.21 “Financing District” means the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance. 5 US-DOCS\114818133.19 1.22 “Hotel Improvements” means a 1,600 room resort hotel and at least 1,600 space parking structure, together with ancillary improvements related thereto, in each case to be constructed on the Hotel Parcel in accordance with the Hotel Ground Lease. 1.23 “Hotel Expansion” means the occurrence of the following: (a) the termination or expiration of the CC Site Lease, the CC Facility Lease and the CC Sublease and (b) the automatic expansion of the premises under the Hotel Ground Lease to include the CC Parcel and the Improvements located on the CC Parcel pursuant to the terms of the Hotel Ground Lease. 1.24 “Hotel Ground Lease” means that certain ground lease, dated as of the date hereof, by and between Declarant, as landlord, and RIDA, as tenant, as the same may be amended, restated, extended, supplemented or modified from time to time, and as the same may be replaced by a substitute lease with Hotel Tenant of all or substantially of the Hotel Parcel as permitted under the Hotel Ground Lease (including, without limitation, any New Lease under and as defined in the Hotel Ground Lease). 1.25 “Hotel Parcel” means the land described on Exhibit A-2 and all Improvements located thereon, as the same may be modified from time to time due to condemnation. 1.26 “Hotel Parcel Owner” means the Owner of the Hotel Parcel. 1.27 “Hotel Tenant” means the tenant under the Hotel Ground Lease, from time to time in effect, and any tenant under a New Lease under and as defined in the Hotel Ground Lease. As of the date hereof, the Hotel Tenant is RIDA. 1.28 “Improvements” means all Buildings and other improvements, including the footings, foundations, columns, piles, loading docks, fixtures, equipment, machinery, Facilities, sidewalks, walkways at ground level, driveways and landscaping now or hereafter located in, on, under, within or upon the Property, including the CC Improvements and Hotel Improvements. 1.29 “including” means “including, without limitation”, and shall be construed as a term of illustration, not a term of limitation. 1.30 “JEPA” has the meaning set forth in the preamble hereto. 1.31 “Maintenance” or “Maintain” means and includes, as the tense may indicate, use, operation, maintenance, repair, restoration, reconditioning, refurbishing, reconfiguration, inspection, testing, cleaning, painting, installation, construction and replacement of the Facilities, and the right to remove therefrom the Facilities or any such portions thereof, for, or in connection with, any of the above purposes, subject, however, in all events to any limitations set forth elsewhere in this Declaration and the rights of any third party that is not a party to this Declaration to such Facilities. The Owners, RIDA, the City, the JEPA, the Hotel Tenant, the CC Site Lease Tenant, the CC Sublease Tenant, and the CC Facility Lease Tenant acknowledge and agree, on their behalf and on behalf of their Permittees and Authorized Parties, that this Declaration shall not be interpreted to amend, modify, limit, supplement, reduce, restate or replace any “Approved Agreements”, “Contemporaneous Agreements”, or “Prior Agreements” as such terms are defined 6 US-DOCS\114818133.19 in the Project Implementation Agreement, Hotel Ground Lease, and CC Subleases (defined below). 1.32 “Owner” or “Owners” means any Person or Persons who or which at any specified time is the record title owner of the CC Parcel or any portion thereof or the Hotel Parcel or any portion thereof and their respective successors and assigns who become owners of any portion of such Parcels. As of the date hereof, the Owner of the Hotel Parcel and the CC Parcel is Declarant. 1.33 “Parcel” or “Parcels” means that portion of the Property owned by an Owner. As of the date hereof, Parcel means the CC Parcel and the Hotel Parcel, individually or collectively, as the context requires. 1.34 “Permittees” means, without limiting the generality of the foregoing, (i) in the case of the CC Parcel, each of the CC Site Lease Tenant (if any), the CC Facility Lease Tenant (if any), the CC Sublease Tenant (if any); and (ii) in the case of the Hotel Parcel, the Hotel Tenant. 1.35 “Person” means any individual, partnership, firm, association, corporation, limited liability company, trust, or any other form of business or government entity. 1.36 “Project Implementation Agreement” means that certain Project Implementation Agreement, dated as of the date hereof, by and among Declarant, the JEPA, the City, the Financing District and RIDA, as the same may be amended, restated, extended, supplemented or modified from time to time. 1.37 “Property” means the CC Parcel and the Hotel Parcel. 1.38 “Recording Office” means the office of the San Diego County Recorder. 1.39 “RIDA” has the meaning set forth in the preamble hereto. 1.40 “Utility Systems” means the Central Plant, electricity, natural gas, steam, chilled water, potable water, fire protection water, sewer (including public or private sanitary sewer systems and manholes), storm water drainage systems, grease drainage systems, trash or refuse chutes, telecommunication and data lines, closed circuit television lines, life safety and fire protection lines and systems, wireless information equipment, cable television, internet service, electrical power systems, heating, ventilation and air conditioning lines and ducts, and all other utility services commonly provided to a convention center hotel, conference center hotel, or resort hotel located in the United States, in the case of the Hotel Parcel, and convention center or conference center located in the United States of America, in the case of the CC Parcel, from time to time, and any replacement thereof. ARTICLE II EASEMENTS BENEFITING THE CC PARCEL 2.1 Grant of Easements. 7 US-DOCS\114818133.19 (a) The Hotel Parcel Owner hereby grants to the CC Parcel Owner, for the benefit of the CC Parcel, the CC Parcel Owner and its Permittees the following easements, which shall burden the Hotel Parcel in accordance with the terms and conditions set forth below: (i) A non-exclusive easement in and to all structural members, columns and beams and any other supporting components located within or constituting a part of the Hotel Parcel for the support of (1) the CC Improvements and (2) any Facilities located within the Hotel Parcel with respect to which the CC Parcel Owner is granted an easement under this Declaration, together with the right to perform Maintenance of such structural members, columns and beams and such other supporting components, and the reasonable right of ingress and egress in, on, over, across, under and through the Hotel Parcel at any and all levels as is reasonably necessary to Maintain the same; provided, that the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the Hotel Parcel by the Hotel Parcel Owner or the Hotel Tenant. (ii) A non-exclusive easement to use, for the intended purposes of and to perform Maintenance of, all Facilities at any time located on the Hotel Parcel which are connected to and used in connection with any Facilities that are at any time located on the CC Parcel (and any replacements thereof) and/or which provide or shall be necessary to provide the CC Parcel with any utilities or other services necessary for the use and operation of the CC Parcel; provided, that the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the Hotel Parcel by the Hotel Parcel Owner or the Hotel Tenant. (iii) An easement for an encroachment that is part of the CC Improvements approved by the Hotel Parcel Owner upon any part of the Hotel Parcel and an easement for a future encroachment that is part of the CC Improvements but not previously approved by the Hotel Parcel Owner; provided, that in the case of the latter, (A) (1) such encroachment shall have been approved in writing by the Hotel Parcel Owner (which approval shall not be unreasonably withheld, conditioned or delayed) or (2) such encroachment is accurately shown on the final as-built plans or the final as-built survey provided to the Hotel Parcel Owner and (B) such encroachment shall not materially and unreasonably interfere with the business or beneficial use and enjoyment of the Hotel Parcel by the Hotel Parcel Owner, or its Permittees. At the request of the Hotel Parcel Owner, the CC Sublease Tenant shall remove from the Hotel Parcel any part of any such CC Improvements or any replacement thereof in accordance with the applicable provisions of the CC Sublease. (iv) A non-exclusive easement over, on, across and through the Hotel Parcel to the extent reasonably necessary to permit the Maintenance, repair, replacement, restoration or reconstruction of the CC Improvements or as permitted pursuant to this Declaration, or to the extent reasonably necessary to assure the beneficial use and enjoyment of the Easements set forth in this Section 2.1. 8 US-DOCS\114818133.19 (b) The Hotel Parcel Owner hereby grants to the CC Parcel Owner for the benefit of the CC Parcel, the CC Parcel Owner and its Permittees, the following easements, which shall burden the Hotel Parcel in accordance with the terms and conditions set forth below: (i) A non-exclusive easement for ingress and egress by persons, material and equipment over, on, across and through the Common Areas on the Hotel Parcel to and from the CC Parcel, and for use of the Common Areas on the Hotel Parcel for their intended purposes, each to the extent reasonably necessary for the use and operation of the CC Parcel, subject to such reasonable rules and regulations governing access to and the use of such Common Areas as established by Hotel Parcel Owner from time to time and provided, that the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the Hotel Parcel by the Hotel Parcel Owner or the Hotel Tenant. (ii) A non-exclusive easement for ingress and egress by persons, material and equipment over, on, across and through those portions of the stairways located in the Common Areas and, during an Emergency Situation, the fire stairways located, from time to time, on the Hotel Parcel. (iii) A non-exclusive easement over, on, across and through the Hotel Parcel to the extent reasonably necessary during an Emergency Situation. 2.2 Ingress and Egress. All Easements granted under Section 2.1 above shall include the reasonable right of ingress and egress in, on, over, across, under and through the Hotel Parcel at any and all levels as is reasonably necessary to access, maintain, repair and replace the subject Facilities or to perform the Maintenance thereof or is otherwise reasonably necessary for the beneficial use and enjoyment or exercise of any such Easement by the CC Parcel Owner. The CC Parcel Owner or its Permittee, as applicable, shall provide reasonable advance notice to the current occupant of the Hotel Parcel prior to accessing the Hotel Parcel to Maintain such Facilities, except in the event of an Emergency Situation, in which case concurrent notice may be provided. Each Easement granted under Section 2.1 above, which provides or requires for its enjoyment, ingress and egress on, over, across or through the Hotel Parcel, shall be subject (except in an Emergency Situation, in which case concurrent notice may be provided) to such reasonable limitations as Hotel Parcel Owner may, from time to time, after consultation with the CC Parcel Owner, impose with respect to the establishment of limited paths of ingress and egress, reasonable limitations and restrictions with respect to transport of materials and equipment and limited hours of the day or days of the week during which such Easements may be used, in order to prevent any unreasonable interference with the use and operation of the Hotel Improvements and in order to assure the reasonable security of the Hotel Improvements; provided, however, that any such limitations shall not preclude or unreasonably restrict or frustrate, or unreasonably increase the cost of, the beneficial use and enjoyment or exercise of any such Easement by the CC Parcel Owner or its Permittees; provided, further, such limitation shall not apply to a Permittee of all of the Owners. The CC Parcel Owner and its Permittees, as applicable, during the course of any construction on the CC Parcel or otherwise, shall not unreasonably interfere with the operation of the business of the Hotel Parcel Owner or Hotel Tenant. 9 US-DOCS\114818133.19 2.3 Relocation of Easements. With the reasonable written consent of the Declarant and the CC Parcel Owner, the Hotel Tenant shall have the right, at its sole cost and expense, to relocate within the Hotel Parcel any Facilities and Easements which burden the Hotel Parcel and benefit the CC Parcel, other than Easements granted or created under Sections 2.1(a)(i) and 2.1(a)(iii) so long as such relocation does not have a material adverse effect on the CC Parcel or the business operations conducted on the CC Parcel. ARTICLE III EASEMENTS BENEFITING THE HOTEL PARCEL 3.1 Grant of Easements. (a) The CC Parcel Owner hereby grants to the Hotel Parcel Owner, for the benefit of the Hotel Parcel, the Hotel Parcel Owner and its Permittees, the following easements, which shall burden the CC Parcel in accordance with the terms and conditions set forth below: (i) A non-exclusive easement in and to all structural members, columns and beams, and any other supporting components located within or constituting a part of the CC Parcel for the support of (1) the Hotel Improvements and (2) any Facilities located within the CC Parcel with respect to which the Hotel Parcel Owner is granted an easement under subsection (ii) below, together with the right to perform Maintenance of such structural members, columns and beams and such other supporting components, and the reasonable right of ingress and egress in, on, over, across, under and through the CC Parcel at any and all levels as is reasonably necessary to Maintain the same provided, that the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the CC Parcel by the CC Parcel Owner or its Permittees. (ii) A non-exclusive easement to use, for the intended purposes of and to perform Maintenance of, all Facilities at any time located on the CC Parcel which are connected to and used in connection with any Facilities that are at any time located on the Hotel Parcel (and any replacements thereof) and/or which provide or shall be necessary to provide the Hotel Parcel with any utilities or other services necessary for the use and operation of the Hotel Parcel; provided, that the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the CC Parcel by the CC Parcel Owner or its Permittees. (iii) An easement for an encroachment that is part of the Hotel Improvements approved by the CC Parcel Owner upon any part of the CC Parcel and an easement for a future encroachment that is part of the Hotel Improvements but not previously approved by the CC Parcel Owner; provided, that in the case of the latter, (A) (1) such encroachment shall have been approved in writing by the CC Parcel Owner (which approval shall not be unreasonably withheld, conditioned or delayed) or (2) such encroachment is accurately shown on the final as-built plans or the final as-built survey provided to the CC Parcel Owner and (B) such encroachment shall not materially and unreasonably interfere with the business or beneficial use and enjoyment of the CC Parcel by the CC Parcel Owner, or its Permittees. At the request of the CC Parcel Owner, the 10 US-DOCS\114818133.19 Hotel Tenant shall remove from the CC Parcel any part of any such Hotel Improvements or any replacement thereof in accordance with the applicable provisions of the Hotel Ground Lease. (iv) A non-exclusive easement over, on, across and through the CC Parcel to the extent reasonably necessary to permit the Maintenance, repair, replacement, restoration or reconstruction of the Hotel Improvements as permitted pursuant to this Declaration, or to the extent reasonably necessary to assure the beneficial use and enjoyment of the Easements set forth in this Section 3.1. (b) The CC Parcel Owner hereby grants to the Hotel Parcel Owner for the benefit of the Hotel Parcel, the Hotel Parcel Owner and its Permittees, the following easements, which shall burden the CC Parcel in accordance with the terms and conditions set forth below: (i) A non-exclusive easement for ingress and egress by persons, material and equipment over, on, across and through the Common Areas on the CC Parcel, to and from the Hotel Parcel, and for use of the Common Areas on the CC Parcel for their intended purposes, each to the extent necessary for the use and operation of the Hotel Parcel, subject to such reasonable rules and regulations governing access to and the use of such Common Areas as established by CC Parcel Owner from time to time and provided, that, the use of such easement shall not unreasonably and materially interfere with the business or beneficial use and enjoyment of the CC Parcel by the CC Parcel Owner or its Permittees. (ii) A non-exclusive easement for ingress and egress by persons, material and equipment over, on, across and through those portions of the stairways located in the Common Areas and, during an Emergency Situation, the fire stairways, and service elevators, located, from time to time, on the CC Parcel. (iii) A non-exclusive easement over, on, across and through the CC Parcel to the extent reasonably necessary during an Emergency Situation. 3.2 Ingress and Egress. All Easements granted under Section 3.1 above shall include the reasonable right of ingress and egress in, on, over, across, under and through the CC Parcel at any and all levels as is reasonably necessary to access, maintain, repair and replace the subject Facilities or to perform the Maintenance thereof or as is otherwise reasonably necessary for the beneficial use and enjoyment or exercise of any such Easement by the Hotel Parcel Owner and its Permittees. The Hotel Parcel Owner or its Permittee, as applicable, shall provide reasonable advance notice to the current occupant of the CC Parcel prior to accessing the CC Parcel to Maintain such Facilities, except in the event of an Emergency Situation, in which case concurrent notice may be provided. Each Easement granted under Section 3.1 above, which provides or requires for its enjoyment, ingress and egress on, over, across or through the CC Parcel, shall be subject (except in an Emergency Situation) to such reasonable limitations as the CC Parcel Owner, may, from time to time after consultation with the Hotel Parcel Owner, impose with respect to the establishment of limited paths of ingress and egress, reasonable limitations and restrictions with respect to the transport of materials and equipment and limited hours of the day or days of the week during which such Easements may be used, in order to prevent any unreasonable interference 11 US-DOCS\114818133.19 with the beneficial use and operation of the CC Improvements and in order to assure the reasonable security of the CC Improvements; provided, however, that any such limitations shall not preclude or unreasonably restrict or frustrate, or unreasonably increase the cost of, the beneficial use and enjoyment or exercise of any such Easement by the Hotel Parcel Owner or its Permittees; provided, further this sentence shall not apply to a Permittee of all of the Owners. The Hotel Parcel Owner and its Permittees, as applicable, during the course of any construction on the Hotel Parcel or otherwise, shall not unreasonably interfere with the operation of the business of the CC Parcel Owner or its Permittees. 3.3 Relocation of Easements. With the reasonable written consent of the Declarant and the Hotel Parcel Owner, the CC Sublease Tenant shall have the right, at its sole cost and expense, to relocate within the CC Parcel any Facilities and Easements which burden the CC Parcel and benefit the Hotel Parcel, other than easements granted or created under Sections 3.1(a)(i) and 3.1(a)(iii), so long as such relocation does not have a material adverse effect on the Hotel Parcel or the business operations conducted on the Hotel Parcel. ARTICLE IV INDEMNIFICATION 4.1 Indemnification. (a) Permittees Indemnification of Declarant and the Owners. The Permittees shall at all times indemnify, defend and save harmless the Declarant and the Owners from and against and pay in full any and all claims, loss, damage or expense (collectively, “Claims”) that Declarant or Owners sustain, incur or are liable for arising out of (A) the actions of the Permittees and their Authorized Parties with respect to this Declaration or the failure by the Permittees or their Authorized Parties to perform their respective obligations under this Declaration, excepting, in each case, any Claims resulting from the sole negligence or willful misconduct of the Declarant or any Owner; and (B) injury or death of persons resulting in any manner from the actions of any of the Permittees or their Authorized Parties with respect to this Declaration or from the failure by the Permittees or their Authorized Parties to perform their respective obligations under this Declaration, excepting, in each case, any Claims resulting from the sole negligence or willful misconduct of the Declarant or any Owner. (b) CC Sublease Tenant’s and Hotel Tenant’s Indemnification of the City and JEPA. CC Sublease Tenant and Hotel Tenant shall at all times indemnify, defend and save harmless the City and the JEPA from and against and pay in full any and all Claims that the City or JEPA sustain, incur or are liable for arising out of (A) the actions of CC Sublease Tenant, Hotel Tenant and their Authorized Parties with respect to this Declaration or the failure by CC Sublease Tenant, Hotel Tenant or their Authorized Parties to perform their respective obligations under this Declaration, excepting, in each case, any Claims resulting from the sole negligence or willful misconduct of the City or the JEPA; provided, that the sole negligence or willful misconduct of the City shall not be attributable to the JEPA and vice versa, the sole negligence or willful misconduct of the JEPA shall not be attributable to the City; and (B) injury or death of persons resulting in any manner from the actions of any of CC Sublease Tenant, Hotel Tenant or their Authorized Parties with respect to this Declaration or from the failure by CC Sublease Tenant, 12 US-DOCS\114818133.19 Hotel Tenant or their Authorized Parties to perform their respective obligations under this Declaration, excepting, in each case, any Claims resulting from the sole negligence or willful misconduct of City or the JEPA; provided, that the sole negligence or willful misconduct of the City shall not be attributable to the JEPA and vice versa, the sole negligence or willful misconduct of the JEPA shall not be attributable to the City. For purposes of this Section 4.1, the action of the Authorized Parties of a Permittee shall be attributable to such Permittee. This Section 4.1 shall survive the expiration or termination of this Declaration. ARTICLE V TERM 5.1 Term. The term of this Declaration (“Term”) shall commence on the Effective Date and end on the date that is the earlier of the following dates (“Expiration Date”), unless terminated earlier as provided in Section 5.2 below: (a) Specified Expiration Date (as defined below); (b) termination or expiration of the Hotel Ground Lease and the CC Site Lease, the CC Facility Lease, and the CC Sublease (collectively, the “CC Leases”) that is not the result of the Hotel Expansion; or (c) the Hotel Expansion. “Specified Expiration Date” means the fifth (5th) anniversary of the Effective Date; provided, that Declarant may extend the Specified Expiration Date if the Board of Port Commissioners (“Board”) approves through an ordinance (“Consenting Ordinance”) the execution, delivery, and recordation of a notice, in the form attached hereto as Exhibit B, that extends the Specified Expiration Date to the sixty-sixth (66 th) anniversary of the Effective Date (the “Extension Notice”). If the Board approves the execution, delivery, and recordation of the Extension Notice through a Consenting Ordinance , Declarant shall record and file with the Recording Office the Extension Notice within fifteen (15) days after the Consenting Ordinance becomes effective, and following recordation of the Extension Notice, the Specified Expiration Date shall mean the sixty-sixth (66th) anniversary of the Effective Date. During the Term of this Declaration all the easements, rights, benefits, burdens, covenants, agreements, and reservations set forth herein, shall run with the land and shall inure to the benefit of the CC Parcel Owner and its Permittees with respect to the Hotel Parcel, and the Hotel Parcel Owner and its Permittees with respect to the CC Parcel, and be binding upon the Owners and their successors and assigns, with the same full force and effect, for all purposes, as though set forth at length in each and every future conveyance of the Property or any part thereof. 5.2 Termination: If the Permittees, each in their sole discretion, collectively determine that the easements granted herein are no longer required and will no longer be required for the conduct of their business at any time during the Term, then the Permittees shall provide written notice to the Declarant that Permittees desire to terminate this Declaration and shall promptly furnish to the Declarant a good and sufficient Quitclaim Deed of all of the Permittees’ right, title, and interest in and to this Declaration. Notwithstanding the foregoing, if none of the Permittees use the Easements for a consecutive period of five (5) years (other than any periods of inactivity attributable to an event of force majeure, casualty or condemnation affecting the Property or the initial construction of the Improvements), the Declarant shall have the right to terminate this Declaration and require that the Permittees promptly furnish the Declarant a good and sufficient Quitclaim Deed of all of the Permittees’ right, title, and interest in and to this Declaration. 13 US-DOCS\114818133.19 ARTICLE VI GENERAL TERMS 6.1 Rights of Permittees. A Permittee shall have the right from time to time to permit its Authorized Parties to use and enjoy the benefit of the Easements granted for such Permittee’s use and benefit under this Declaration, subject to the terms of this Declaration; provided, that none of the Authorized Parties shall have the right to use any such Easement in excess of the scope of use permitted therefor under this Declaration. 6.2 Use of Easements. (a) Each Permittee performing work in connection with the Easements shall at all times take any and all safety measures reasonably required to protect the other Owner and all Permittees from injury or damage caused by or resulting from the performance of such work. If any work is undertaken or takes place when the improvements of any Permittee shall be open to the public, the Permittee performing such work shall take reasonable safety precautions in the context of the work being undertaken including erecting or causing to be erected an adequate and attractive construction barricade where reasonably appropriate, substantially enclosing the area of its work. (b) Each Permittee covenants and agrees that, in connection with the use or enjoyment of any Easement, such Permittee shall, at its sole cost and expense, promptly repair, replace or restore, in accordance with any approved plans, any and all Improvements that are thereby proximately damaged or destroyed. (c) Each Permittee covenants and agrees that Permittee shall be responsible for the conduct of its Authorized Parties in using the Easements. 6.3 Demolition. Nothing herein shall prohibit any Owner, RIDA, the City, or the JEPA (together with its permitted successors and assigns, each, a “Demolishing Party”) from demolishing, or causing, requiring, or permitting the demolition of, all or any portion of any Improvement located on either Parcel as permitted under the Hotel Ground Lease, Site Lease, Facility Lease, Project Implementation Agreement, and Sublease, as applicable. If the CC Leases expire or are terminated and the Central Plant is in a workable condition and still in use by the Hotel Improvements and if the CC Parcel Owner desires to demolish the Central Plant, then the Owners and the Hotel Tenant shall negotiate reasonably and in good faith to agree how to cost effectively enable the continued operation of the Hotel Improvements without interruption due to the demolition of the Central Plant while giving due consideration to the interest of the CC Parcel Owner in maximizing the beneficial use of the CC Parcel. 6.4 Compliance with Applicable Laws. The Permittees, and the Authorized Parties of the Permittees, shall each comply with all Applicable Laws in connection with their use of the Property, respectively. 14 US-DOCS\114818133.19 6.5 No Limitation. The foregoing provisions of this Article VI shall not be deemed to limit any of the rights that either of the Owners may have against the Permittees pursuant to any other agreements with the Permittees, including without limitation, the Hotel Ground Lease, the CC Leases, the Project Implementation Agreement, Approved Agreements, Contemporaneous Agreements, and Prior Agreements, or against any third parties. ARTICLE VII DEFAULTS 7.1 Events of Default. Failure by Declarant, Owner(s), or Permittee to perform or fulfill any obligation required of it under this Declaration, where such failure continues for thirty (30) days after written notice thereof from the Declarant, Owner or Permittee, as applicable, shall constitute an “Event of Default”; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and the Declarant, Owner, or Permittee, as the case may be, diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an “Event of Default” hereunder. 7.2 Remedies upon an Event of Default by Permittee . Upon the occurrence of an Event of Default by a Permittee, the Declarant or Owner, as applicable, may pursue any available remedy at law or in equity to enforce their rights under or with respect to this Declaration, including: (a) By mandamus or other suit or proceeding at law or in equity to enforce any rights against the Permittee, and to compel the Permittee, to perform and carry out its duties under this Declaration; (b) By suit in equity to enjoin any actions or things which are unlawful or violate the rights of the Declarant, or Owner, as applicable; or (c) By a suit in equity to require the Permittee to perform. No remedy herein conferred upon or reserved to the Declarant or Owners is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by law or equity. 7.3 Remedies upon an Event of Default by Declarant or Owner. Upon the occurrence of an Event of Default by Declarant or Owner, a Permittee may pursue the following remedies to enforce their rights under or with respect to this Declaration: (a) By mandamus to compel the Declarant or Owner, as applicable, to perform and carry out its duties under this Declaration; 15 US-DOCS\114818133.19 (b) By suit in equity to enjoin any actions or things which are unlawful or violate the rights of a Permittee; or (c) By a suit in equity to require the Declarant or Owner to perform. In no event shall Permittee seek, or be entitled to receive, monetary damages as a result of any Event of Default by Declarant or Owner. Notwithstanding the foregoing or anything to the contrary in this Declaration, in no event shall Declarant, Owner or Permittee have the right to terminate this Declaration in connection with any Event of Default. ARTICLE VIII NOTICES 8.1 Notices. All notices, demands, or other communications required, permitted or desired to be served hereunder shall be in writing and shall be deemed delivered when delivered by reputable overnight courier service, hand delivered in person or mailed as certified or registered mail, postage prepaid, return receipt requested, addressed as below stated: To Hotel Parcel Owner: Executive Director San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Port Attorney 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) To CC Parcel Owner: Executive Director San Diego Unified Port District 16 US-DOCS\114818133.19 Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Port Attorney 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) To RIDA: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 To City: Attn: City Manager City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 With a copy to: City Attorney City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 To JEPA: JEPA PO Box 5296 Chula Vista, CA 91912 With a copy to: Executive Director San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) 17 US-DOCS\114818133.19 With a copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Port Attorney 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Attn: City Manager City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 With a copy to: City Attorney City of Chula Vista 276 4th Avenue Chula Vista, CA 91910 8.2 Delivery and Receipt. Any notice, demand, or other communication delivered as provided above in Section 8.1 shall be deemed received one (1) business day after being delivered to a reputable overnight courier service if sent for and guaranteeing next business day delivery, and any notice, demand, election or other communication mailed as provided above in Section 8.1 shall be deemed received three (3) business days after deposit in the United States mail, or upon actual receipt, whichever is earlier. Addresses for service of notice may be changed by written notice served as hereinabove provided at least ten (10) days prior to the effective date of any such change. Nothing herein contained, however, shall be construed to preclude service of any notice, demand, or other communication in the same manner that service of a summons of legal process may be made. All notices, demands, or other communications made to an Owner hereunder shall be made concurrently to such Owner’s Permittees. ARTICLE IX GENERAL 9.1 Further Assurances. From time to time after the date hereof, each Owner and Permittee shall furnish, execute and acknowledge, without charge (except where elsewhere provided herein) the following: (1) such other instruments, documents, materials and information as the other Owner or Permittee may reasonably request in order to confirm to such requesting Owner or Permittee the benefits contemplated hereby, but only so long as any such request does 18 US-DOCS\114818133.19 not restrict, modify, supplement, expand, reduce, or abridge the benefits granted the other Owner or Permittee; provided, however, each Owner may elect to obtain approval of the Board of Port Commissioners as a condition to exercising this authority. 9.2 Severability. The illegality, invalidity or unenforceability of any covenant, restriction, condition, limitation or any other provision of this Declaration shall not impair or affect in any manner the validity, enforceability or effect of the remaining provisions of this Declaration, all of which shall remain in full force and effect to the fullest extent not prohibited by Applicable Laws. 9.3 Headings. The headings of Articles in this Declaration are for convenience of reference only and shall not in any way limit or define the content, substance or effect of the Articles. 9.4 Amendment. Except with respect to an Extension Notice pursuant to Section 5.1, which shall only require the signature of the Declarant to give it effect, this Declaration may be amended only by an instrument signed by the then Owner of the Hotel Parcel, the then Owner of the CC Parcel, the Hotel Tenant (if any), the CC Site Lease Tenant (if any), the CC Facility Lease Tenant (if any), and the CC Sublease Tenant (if any). Any amendments hereof (including any extensions and renewals hereof), whenever made, shall be superior to any and all liens, to the same extent as this Declaration as if such amendment or modification had been executed concurrently herewith. Any amendment of this Declaration shall be recorded and filed with the Recording Office. 9.5 Defined Terms. Terms used in this Declaration, unless elsewhere defined in this Declaration, shall have the meanings set forth in Article I of this Declaration. 9.6 Non-Use. Without limiting Section 5.2, Easements created hereunder shall not be presumed abandoned by non-use or the occurrence of damage or destruction to a portion of the Improvements subject to an Easement unless the Owner benefited by such Easement states in writing its intention to abandon the Easement. 9.7 Governing Law. The parties hereto acknowledge that this Declaration has been negotiated, executed and delivered in the City of San Diego, County of San Diego and State of California. This Declaration shall, in all respects, be governed, construed, applied and enforced in accordance with the laws of the State of California, including matters affecting title to all real property described herein. Any action involving this Declaration shall be brought and maintained solely in a court of San Diego County, California or a Federal court sitting in the State of California. 9.8 No Third Party Beneficiaries. This Declaration is not intended to give or confer any benefits, rights, privileges, claims, actions or remedies to any other person or entity as a third party beneficiary. 9.9 Incorporation by Reference. Each provision of the Recitals to this Declaration and each Schedule, diagram and appendix attached hereto is hereby incorporated in this 19 US-DOCS\114818133.19 Declaration by reference and hereby made a part hereof and comprises an integral part of this Declaration. 9.10 No Waiver. No provision of this Declaration shall be deemed to have been waived by any party hereto unless such waiver is in writing signed by the party making such waiver. The failure of any party subject hereto to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Declaration, shall not be deemed a waiver thereof or permit a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. One or more written waivers of any default in the performance of any provision of this Declaration shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provision contained herein. The consent or approval by an Owner or Declarant to or of any act or request requiring consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. Unless expressly herein provided to the contrary, the rights and remedies given to an Owner or Declarant by this Declaration shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the others, or of any other right or remedy at law or in equity which an Owner or Declarant might otherwise have by virtue of a default under this Declaration, and the exercise of one such right or remedy by an Owner or Declarant shall not impair such Owner’s or Declarant’s standing to exercise any other right or remedy. 9.11 Additional Easements. If it becomes clear that additional easements relating to the ordinary use and operation of the Property are necessary or desirable to effectuate the purposes of this Declaration for the benefit of any Permittee (or Owner if such Owner does not have a Permittee), the Owners and such Permittee (if any) shall reasonably cooperate to determine, create and grant such additional easements as are reasonably necessary to effectuate same; provided, that such proposed additional easements will neither (a) materially interfere with the beneficial use and occupancy of any portion of the Improvements by the non-requesting Owner, (b) materially affect access to, or operation of, any portion of the Improvements by the non-requesting Owner, nor (c) materially increase the operating costs of, or create any additional expense for, any non-requesting Owner. In the event any such new easements are created, this Declaration and the Exhibits hereto shall be amended by designating and describing such easements and such amendment shall be signed by the Owners to effectuate the grant or creation of such additional easements, and shall be recorded and filed with the Recording Office and shall have the same force, effect and priority as if such new easements were originally contained herein. No Owner shall have the right, without the prior written consent of the other Owner, to grant or otherwise convey an easement that burdens such granting Owner’s Parcel for the benefit of any property not within the Property if, or to the extent, such easement would materially adversely affect any Easement or the other Owner’s Parcel. 9.12 Standard of Approval and Consent. Unless expressly provided herein to the contrary, all consents and approvals of any of the Owners or Declarant shall be in such Declarant’s or Owner’s sole and absolute discretion. Any disapproval of or failure to consent to any matter hereunder shall be in writing and shall state in reasonable detail the reason or reasons therefore, other than where consent is subject to the sole and absolute discretion of the party whose consent is required. Whenever an Owner or Declarant is requested to consent to or approve of any matter with respect to which its consent or approval is required by this Declaration, such consent or 20 US-DOCS\114818133.19 approval, if given, shall be given in writing and shall be given within thirty (30) days of the delivery of written request therefor, unless a shorter or longer response period is required or permitted under this Declaration, and if no response is received within such thirty (30) day period (or such shorter or longer period of time required or permitted under this Declaration), then a second written request shall be given and if no response is received within ten (10) days after delivery of such second request, such request shall be deemed rejected. 9.13 No Merger of Estates. Notwithstanding any ownership, directly or indirectly, in all or any portion of the Hotel Parcel or the CC Parcel in one person or entity, it is the intent and understanding of the parties hereto that all such properties and estates during the Term shall remain separate and distinct from each other and shall not be merged with such other estates and properties by reason of such common ownership. A merger of any of such estates and properties can only be effected by termination or expiration of this Declaration or a written instrument signed by the then owner of such estates and properties. 9.14 Interpretation. Ambiguities in this Declaration shall not be construed against the party drafting this Declaration, notwithstanding any contrary rule of construction or interpretation at law or in equity. Each of the Permittees acknowledge and agree that this Declaration shall not amend, modify, limit, replace, supplement, reduce, or restate any of the obligations of the Permittees under the Hotel Lease, CC Site Lease, CC Facility Lease, CC Sublease, Project Implementation Agreement, Approved Agreements, Prior Agreements, Contemporaneous Agreements, or any other agreement between the parties to this Declaration. 9.15 No Public Dedication. Nothing in this Declaration shall be deemed to be a gift or dedication of any portion of the Hotel Parcel or CC Parcel to the general public or for the general public or for any public purposes whatsoever, it being the intention of the Declarant and the Owners that this Declaration shall be strictly limited to and for the purposes herein expressed. 9.16 Breach Shall Not Defeat Mortgage. A breach of any of the terms, conditions, covenants or restrictions of this Declaration shall not defeat, render invalid or impair any of the Easements granted hereunder or the lien of any mortgage made in good faith and for value. 9.17 Breach Shall Not Permit Termination. No breach of this Declaration shall entitle any Owner to cancel, rescind or otherwise terminate this Declaration or any portion hereof, but such limitation shall not affect, in any manner, any other right or remedies which any Owner may have hereunder by reason of any breach of this Declaration. 9.18 No Partnership. Nothing in this Declaration nor any acts of any Owner or Permittee shall be deemed or construed by any Person to create the relationship of principal and agent or of partners, or of joint venturers, or of any association between the Owner(s) and Permittee(s). 9.19 No Liability after a Transfer. In the event of any transfer or transfers of any Owner’s interest in a Parcel, the transferor shall (i) require any transferee to assume all obligations of such Owner under this Declaration and (ii) be automatically relieved of any and all obligations on the part of such Owner arising from and after the date of such transfer. In the event a Person ceases to be a Permittee under this Declaration, then such Person shall be automatically relieved 21 US-DOCS\114818133.19 of any and all obligations on the part of such Permittee arising from and after the date of such cessation, but such Person shall remain liable for all prior obligations occurring or arising or accruing prior to the date of such cessation. 9.20 Divestiture of Title. In the event of any conveyance or divestiture of title to any portion of or interest in any portion of the Property: (a) the Owner who is divested of title shall be entirely freed and relieved of all covenants and obligations thereafter accruing hereunder from and after such conveyance or divestiture but only with respect to any such portion or interest conveyed or divested, and (b) the grantee or the person or persons or other entity or entities who succeed to title shall be deemed to have assumed all of the covenants and obligations of the Owner of such portion or interest from and after such conveyance or divestiture until such grantee or successor is itself freed and relieved therefrom as hereinabove provided in this Section 9.20, and then any such grantee’s or successor’s grantee or successor shall be so bound. 9.21 Counterparts. This Declaration may be signed in several counterparts, each of which shall be deemed an original, and all such counterparts shall constitute one and the same instrument. This Declaration shall be deemed fully executed when each Declarant, Owner, Hotel Tenant, CC Sublease Tenant, CC Site Lease Tenant, and CC Facility Lease Tenant that exists as of the Effective Date, has executed signature pages to this document and they have all been appended hereto. [REMAINDER OF PAGE IS LEFT INTENTIONALLY BLANK; SIGNATURES APPEAR ON FOLLOWING PAGES.] 4845-7471-7362.2 33156939.5 US-DOCS\114818133.19 IN WITNESS WHEREOF, the undersigned have caused this Declaration of Reciprocal Easements to be duly executed as of the day and year first above written. Declarant and Owners: SAN DIEGO UNIFIED PORT DISTRICT, a public corporation APPROVED AS TO FORM AND LEGALITY: GENERAL COUNSEL By:______________________ Name: ___________________ Its:______________________ Thomas A. Russell A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC 2 US-DOCS\114818133.19 ACCEPTED AND AGREED: RIDA CHULA VISTA, LLC By: Name: _______________________________ Its: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC 3 US-DOCS\114818133.19 ACCEPTED AND AGREED: CITY OF CHULA VISTA By: Name: _______________________________ Its: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC 4 US-DOCS\114818133.19 ATTEST: Secretary A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC 5 US-DOCS\114818133.19 ACCEPTED AND AGREED: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority APPROVED AS TO FORM AND LEGALITY: By:____________________________ Joe Stuyvesant, Executive Director Thomas A. Russell, Co-Counsel, General Counsel, San Diego Unified Port District _____________________________________ Glen R. Googins, Co-Counsel, City Attorney, City of Chula Vista A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC US-DOCS\114818133.19 List of Exhibits Exhibit A-1 Description of CC Parcel Exhibit A-2 Description of Hotel Parcel Exhibit B Form of Extension Notice US-DOCS\114818133.19 Exhibit A-1 - Description of CC Parcel [To come.] US-DOCS\114818133.19 Exhibit A-2 - Description of Hotel Parcel [To come.] US-DOCS\114818133.19 Exhibit A-3 - Form of Extension Notice Recording requested by and when recorded return to: San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attention: Director, Real Estate Department (Space Above for Recorder’s Use Only) EXTENSION NOTICE This EXTENSION NOTICE (this “Extension Notice”) is made and entered into as of the [  ] day of [  ], 2022 (“Effective Date”) by the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Declarant”), pursuant to Section 5.1 of that certain Declaration of Reciprocal Easements, dated as of [  ], 2022 (the “Effective Date”) and recorded on [  ], 2022 as Instrument No. [  ] in the office of the San Diego County Recorder (the “Declaration”), by and among the Declarant, RIDA Chula Vista, LLC, a Delaware limited liability company, the City of Chula Vista, a charter city of the State of California duly organized and existing under and by virtue of the Constitution and laws of the State of California, and the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority. This Extension Notice constitutes the “Extension Notice” under and as defined in Section 5.1 of the Declaration. On [  ], 2022, the Board of Port Commissioners passed Ordinance [___], which became effective on [  ], 2022 (“Consenting Ordinance”). The Consenting Ordinance directed the Executive Director of Declarant or his designated representative to execute, deliver, and record this Extension Notice. A copy of the Consenting Ordinance is attached hereto as Exhibit 1. Upon recordation of this Extension Notice, the Specified Expiration Date (as defined in the Declaration) shall be the sixty-sixth (66th) anniversary of the Effective Date. [Signature Page Follows] US-DOCS\114818133.19 Declarant: SAN DIEGO UNIFIED PORT DISTRICT, a public corporation APPROVED AS TO FORM AND LEGALITY: GENERAL COUNSEL By:______________________ Name: ___________________ Its:______________________ Thomas A. Russell A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF __________ ) On _____________, 20__ before me, ____________________, a Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. _____________________________ SIGNATURE OF NOTARY PUBLIC US-DOCS\114818133.19 Exhibit 1 Consenting Ordinance (to be attached prior to execution.) US-DOCS\129507714.2 Attachment D Comments to GDC Draft 5/5/2022 WHEN RECORDED PLEASE MAIL TO: Attn: Phil Brandt Marriott International, Inc. 10400 Fernwood Road Dept. 52/923 Bethesda, MD 20817 SPACE ABOVE THIS LINE FOR RECORDER’S USE CONVENTION CENTER AGREEMENT THIS CONVENTION CENTER AGREEMENT (this “Agreement”) is executed as of ____________ ___, 202__ by: (i) SAN DIEGO UNIFIED PORT DISTRICT (together with its successors and permitted assignees, the “Port ”), a public corporation; (ii) THE CITY OF CHULA VISTA (the “City”), (iii) CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (the “Authority”), a joint exercise of powers authority whose members are the City and the Port, (iv) MARRIOTT INTERNATIONAL, INC. (“Manager”), a Delaware corporation, and relates to certain land subleased, and improvements sub-subleased by, RIDA CHULA VISTA, LLC (“Developer”), a Delaware limited liability company. R E C I T A L S A. The Port is the trustee of certain state tidelands owned by the State of California (the “Site”) as more particularly described on Exhibit A, upon which a 275,000 net usable square foot convention center shall be constructed (the “Convention Center”, together with the Site, the “Facility”). The Convention Center will be constructed on the Site. B. The Port leased the Site to the Authority pursuant to the Site Lease. The Authority will own the Convention Center, which is to be constructed by Developer pursuant to, among other agreements, the Project Implementation Agreement and operated by Developer pursuant to the Sublease. C. The Authority subleased the Site, and leased the Convention Center, collectively, the Facility, to the City pursuant to the Facility Lease. D. The City sub-subleased the Site, and subleased the Convention Center, to Developer pursuant to the Sublease. C. Manager and Developer entered into the Management Agreement under which Manager will operate the Convention Center. 2 US-DOCS\129507714.2 NOW, THEREFORE, in consideration of the promises in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Port, the City, the Authority, and Manager agree as follows: 1. Definitions. Capitalized terms used but not defined in this Agreement have the meanings in the Management Agreement. The following terms used in this Agreement have the meanings given below: “Convention Center” is defined in Recital A. “Ground Lease” means, collectively, (i)that certain Lease to Developer of Property Located at ______________, Chula Vista, California dated _______, 202__, a memorandum of which was recorded on ____________, 202__, in the Official Records of the San Diego County Recorder’s Office as document #____________________ (as the same may be amended or modified) and (ii) any New Lease (as defined in the Ground Lease) entered into within the timeframes prescribed in the Ground Lease. “Facility” is defined in Recital A. “Facility Lease” means that certain Facility Lease (Chula Vista Bayfront Convention Center) dated ________ by and between the Authority, as lessor, and the City, as lessee, a memorandum of which was recorded on ____________, 202__, in the Official Records of the San Diego County Recorder’s Office as document #____________________ (as the same may be amended or modified), and pursuant to which the Authority will sublease the Site and lease the Convention Center to the City. “Management Agreement” means that certain management agreement, dated December 17, 2018, between Developer, as “Owner” and Manager under which Manager will operate the Hotel, as may be amended. “Marriott Mezzanine Loan Documents” shall refer to those certain mezzanine loan documents entered into on or about the date hereof, with GPR Mezz, LLC, a Delaware limited liability company, as mezzanine borrower, and MARRIOTT INTERNATIONAL CAPITAL CORPORATION, a Delaware corporation, as the mezzanine lender. “Project Implementation Agreement” means that certain Project Implementation Agreement by and among the City, The Bayfront Project Special Tax Financing District, the Port, the Authority, and Developer, dated ________, a memorandum of which was recorded on ____________, 202__, in the Official Records of the San Diego County Recorder’s Office as document #____________________ (as the same may be amended or modified). “Site” is defined in Recital A. “Site Lease” means that certain Site Lease (Chula Vista Bayfront Convention Center) dated ________, by and between the Port, as lessor, and the Authority, as lessee, a memorandum of which was recorded on ____________, 202__, in the Official Records of the San Diego County Recorder’s Office as document #____________________ (as the same may be amended or modified), pursuant to which the Port will lease the Site to the Authority. 3 US-DOCS\129507714.2 “Sublease” means (i) that certain Sublease Agreement (Chula Vista Bayfront Convention Center) dated ________ by and between the City, as lessor, and Developer, as lessee, which was recorded on ____________, 202__, in the Official Records of the San Diego County Recorder’s Office as document #____________________ (as the same may be amended or modified, the “Sublease”), pursuant to which the City will sub-sublease the Site and sublease the Convention Center to Developer, and (ii) any New Sublease (as defined in the Sublease) entered into within the timeframes prescribed in the Sublease.. 2. Notices of Default. If Developer defaults under the Sublease, and the City notifies Developer of the default, then the City, will also give Manager a copy of such notice concurrently with the delivery of such notice to Developer. In addition, if Developer defaults under the Management Agreement and Manager notifies Developer of the default, then Manager will also give the Authority, the City, and the Port a copy of such notice concurrently with Manager's delivery of such notice to Developer. 3. Effect of Termination of the Site Lease, Facility Lease, and/or the Sublease. A. The Designated Owner’s Rights under Management Agreement. If the Management Agreement is in effect, then, for purposes of the Convention Center only, upon any termination of (i) the Site Lease, Manager will recognize the Port as “Owner” under the Management Agreement, (ii) the Facility Lease (but the Site Lease remains in effect), Manager will recognize the Authority as “Owner” under the Management Agreement, (iii) the Sublease (but the Site Lease and Facility Lease remain in effect), Manager will recognize the City as “Owner” under the Management Agreement, and, in each case, Manager will remain bound by all of the terms of the Management Agreement; except that Manager will have no such obligation to recognize the Port, Authority or City (whichever is required to be recognized as “Owner”, hereinafter referred to as the “Designated Owner”; provided that should Manager no longer be required to recognize Developer or a Designated Owner as an “Owner” under the Management Agreement due to the termination of the Sublease, Facility Lease, or Site Lease, then Developer or such Designated Owner may be referred to herein as a “Predecessor Owner”) if such Designated Owner does not qualify as a permitted transferee under Section 10.02.A of the Management Agreement, or, if, within 20 days after the termination date of the Site Lease, Facility Lease or Sublease (as the case may be), the Designated Owner fails to cure all outstanding Defaults on behalf of “Owner” under the Management Agreement that: (i) are of a continuing nature; (ii) exist as of the termination date of the Site Lease, Facility Lease or Sublease (as the case may be); (iii) are not personal to a Predecessor Owner; and (iv) are reasonably susceptible to cure by the Designated Owner; provided, however, the foregoing shall not apply when: (1) pursuant to Section 23.1 of the Project Implementation Agreement, the Port is required, notwithstanding any such termination, to recognize (or to continue to recognize) the Sublease as a direct lease between (a) Developer and (b) the Port, the Authority or the City or (2) the Premises (as defined under the Ground Lease) includes the Site and the Improvements (as each such term is defined under the Sublease). By way of example and without limitation, the following financial obligations accruing before the date of termination of the Site Lease, Facility Lease or Sublease (as applicable) are “personal” to a Predecessor Owner and will not be obligations of the Designated Owner: unpaid management fees, the reimbursement of the Key Money, funds advanced by Manager in order to fund a pre-termination deficiency under the Management Agreement, any transfer fee due in connection with a Permitted Transfer by a Predecessor Owner, damages (including attorney’s fees) awarded to Manager by a court or arbitral body for claims against a Predecessor Owner, costs of any pre-termination environmental remediation, and any obligations under the Marriott Mezzanine Loan Documents and/or with respect to a Mortgage. The obligations of Manager to recognize a Designated Owner may occur more than once; e.g., if the Sublease is terminated (but the Site Lease and Facility Lease are not), then Manager will be compelled to recognize the City as “Owner” (subject to the terms and conditions above). If subsequent to that, the Site Lease is terminated, then Manager will be compelled to 4 US-DOCS\129507714.2 recognize the Port as “Owner” (subject to the terms and conditions above). Notwithstanding the foregoing, the Manager will no longer be obligated to recognize a Designated Owner in circumstances where the Sublease, Site Lease or Facility Lease is terminated but a “New Lease” is given in replacement of such lease to a financing lender and within 75 days of termination of the Sublease, Site Lease or Facility Lease, as the case may be. In that circumstance, Manager may recognize the financing lender or its nominee, and this Agreement will remain in full force and effect treating the “New Lease” as the Sublease, Site Lease or Facility Lease, as the case may be. B. Limitations on Designated Owner Obligations. Notwithstanding anything to the contrary stated in this Agreement, the Designated Owner will not be: 1. liable for any act, omission, default, misrepresentation or breach of warranty of a Predecessor Owner or any obligations accruing prior to the termination of the Site Lease, Facility Lease, or Sublease, as applicable (except for defaults under the Management Agreement cured by the Designated Owner under Section 3.A); 2. subject to any offset, defense, claim or counterclaim which Manager might be entitled to assert against a Predecessor Owner; 3. unless paid over to the Designated Owner, bound by any payment made by Manager to a Predecessor Owner; 4. unless disclosed to the Designated Owner in a notice delivered to the Designated Owner by a Predecessor Owner or Manager, bound by any waiver or forbearance by a Predecessor Owner or any amendment or modification of the Management Agreement, or waiver of the terms thereof, hereafter made, or consent or acquiescence by a Predecessor Owner; further provided that the Designated Owner will not be bound by any waiver, forbearance, amendment or other modification to the Management Agreement that has the effect of materially increasing a Predecessor Owner’s obligations or materially reducing a Predecessor Owner’s rights, or materially increasing Manager’s rights or materially reducing Manager’s obligations, unless the Designated Owner expressly consents to the same in writing (such consent not to be unreasonably withheld, conditioned or delayed); 5. bound by any warranties or indemnities given or required to be given by a Predecessor Owner under the terms of the Management Agreement; 6. liable for constructing or causing the construction of any improvements on the Site or for funding any obligation of a Predecessor Owner to Manager for payment or reimbursement of any expense incurred by Manager in connection the construction of such improvements; 7. liable for any deposit, reserve fund, capital, advance or other monies that Manager may have given to a Predecessor Owner, or paid on behalf of a Predecessor Owner, unless such deposit, reserve fund, capital, advance or other monies are paid over to the Designated Owner; or 8. liable under the Management Agreement if Manager is not obligated to recognize such Designated Owner because of a “New Lease” granted to a financing lender or its nominee. Without affecting the provisions of Section 3.A, nothing contained in this Section 3.B will prevent the Designated Owner from being required to cure any prior state of events which continues after the termination date of the Site Lease, Facility Lease or Sublease, as the case may be, to the extent that such 5 US-DOCS\129507714.2 state of events would have imposed liability on the Designated Owner, as “Owner” under the Management Agreement, had it occurred on or after the termination date of the Site Lease, Facility Lease or Sublease (as applicable). By way of example, Working Capital, Inventories, Fixed Asset Supplies and the FF&E Reserve must be maintained at the levels required under the Management Agreement even if any shortfall in such amounts began prior to the termination date of the Site Lease, Facility Lease or Sublease (as applicable). Additionally, the Designated Owner would be obligated to repair physical damage to the Convention Center in accordance with the provisions of the Management Agreement notwithstanding that such damage may have occurred prior to the termination date of the Site Lease, Facility Lease or Sublease (as applicable). C. Manager’s Rights under Management Agreement. If the Management Agreement is in effect and Manager is not in default thereunder beyond any applicable notice and cure periods, then (i) a default under the Facility Lease, Site Lease or Sublease will not result in a termination of the Management Agreement; (ii) the termination of the Facility Lease, Site Lease or Sublease will not result in the termination of the Management Agreement, and except as may be required by law, the Designated Owner will not name Manager in any action or proceeding to terminate the Facility Lease, Site Lease or Sublease; and (iii) upon any early termination of the Facility Lease, Site Lease or Sublease, the Designated Owner will recognize the Management Agreement and Manager’s rights thereunder and will assume all obligations of “Owner” under the Management Agreement that continue or arise after the termination date of the Sublease subject to the terms and conditions of Section 3.B. D. Additional Assurances. The provisions of this Section 3 will be self-operative and effective without the necessity of execution of any new management agreement or other document on the part of any party hereto or the respective heirs, legal representatives, successors or assigns of any such party. Each Designated Owner and Manager agrees, however, to execute and deliver upon the request of the other, any instrument or certificate which in the reasonable judgment of the requesting party, as applicable, may be necessary or appropriate to evidence such attornment, including a new management agreement on the same terms and conditions as the Management Agreement for the unexpired term of the Management Agreement. 4. Performance by Manager and Payment Defaults. A. Performance by Manager. The City will accept performance by Manager of Developer’s obligations under the Sublease as if the same were performed by Developer in accordance with the terms of the Sublease. B. Payment Defaults. If there is a payment default by Developer under the Sublease after all notices have been given and cure periods have expired as provided for in the Sublease, with respect to which the City gives notice to Manager under Section 2, and if Manager elects to cure the payment default under the terms of the Sublease, then unless Developer is contesting the payment default alleged by the City, Developer authorizes Manager to make such payment directly to the City from funds otherwise to be distributed to Developer under the Management Agreement. 5. Termination. If a casualty or condemnation occurs that affords Developer the right, in its discretion, to terminate the Sublease pursuant to Sections 5.1(d) or 5.2(b) of the Sublease, then Developer agrees, in addition to the conditions to such termination specified in Sections 5.1(d) and 5.2(b) of the Sublease, the following condition must also be satisfied in order for any termination to be effective: (a) the 6 US-DOCS\129507714.2 Management Agreement shall have terminated or (b) Manager shall have consented to the termination of the Management Agreement and the Sublease. 6. Performance by Designated Owner and Payment Defaults. A. Performance by Designated Owner. Manager will accept performance by the Designated Owner of its Predecessor Owner’s obligations under the Management Agreement as if the same were performed by the applicable Predecessor Owner in accordance with the terms of the Management Agreement. B. Payment Defaults. If there is a payment default by Developer or a Designated Owner under the Management Agreement after all notices have been given and cure periods have expired as provided for in the Management Agreement, with respect to which Manager gives notice to the City in the event the Sublease is still in effect, the Authority in the event the Facility Lease, but not the Sublease, is still in effect, or the Port in the event the Site Lease, but not the Facility Lease or the Sublease, is still in effect, under Section 2, and if the City, the Authority, or the Port District, as applicable, elects to cure the payment default under the terms of the Management Agreement, then unless Developer or the applicable Designated Owner is contesting the payment default alleged by Manager, Developer and each Designated Owner authorizes the City, the Authority, or Port District, as applicable, to make such payment directly to Manager and such payments will immediately become due and payable by Developer or the relevant Designated Owner as a rental obligation under the Sublease, Facility Lease, or Site Lease, as applicable. 7. Bankruptcy. In the event of Developer’s bankruptcy, and notwithstanding a rejection by or on behalf of Developer of the Sublease or the Management Agreement, each of the Port, the Authority, and the City agrees that the terms of this Agreement will remain in full force and effect between the Port, the Authority, the City, and Manager. This provision constitutes an independent agreement between the Port, the Authority, the City and Manager and is intended by the parties to survive any rejection of the Sublease or the Management Agreement in bankruptcy. 8. Initial Construction. Manager acknowledges that Port, the Authority, and the City have no obligation with respect to initial construction of the Convention Center (other than the obligation to request Facility Lease Advance Rent or Sublease Advance Rent, the obligation to keep and record a Sublease Advance Rent Register, and the obligation to pay over to any Subleases Advance Rent paid to the City to the Authority) and, for so long as each of the Site Lease, Facility Lease, and Sublease remain in effect, the maintenance and repair of the Convention Center. Manager hereby agrees to fully and forever release the Port, the Authority, and the City from any liability arising from the initial construction, maintenance and repair of the Convention Center and expressly waives the provisions of Section 1542 of the California Civil Code which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." ___________ Initials of Manager Signatory 7 US-DOCS\129507714.2 9. Limitation on the Designated Owner’s Liability. Without impacting the effect of the liability limitations set forth in the Management Agreement, the Designated Owner shall have no obligation, nor shall it incur any liability, beyond the Designated Owner’s interest in the Facility (whether fee interest, leasehold interest, or otherwise), and Manager shall look exclusively to such interest of the Designated Owner as a limit for the payment and discharge of any obligations imposed upon the Designated Owner hereunder or under the Management Agreement or for recovery of any judgment from the Designated Owner, and in no event shall the Designated Owner or any of their respective officers, directors, shareholders, agents, administrators, representatives, servants, employees or partners ever be personally liable for such judgment. For sake of clarity, if the Sublease, Facility Lease or Site Lease is terminated, the Management Agreement remains in effect, and the applicable Designated Owner is recognized as “Owner” pursuant to this Agreement, then such Designated Owner’s assets (other than its interest in the Facility) will not be subject to, or, unless the Designated Owner so chooses (in its sole discretion), a source of payment of, any liability or obligation that may be owed by the Designated Owner to Manager pursuant to the Management Agreement (as modified by this Agreement). It is the intent of this provision to create the same result as would apply if Designated Owner were a single purpose limited liability company whose sole assets were the Facility and the proceeds thereof. Under no circumstances would the general fund of the Port, the Authority, or the City be subject to a claim or liability under the Management Agreement (as modified by this Agreement) except to the extent (and solely to the extent) that any proceeds from the sale or assignment of the Port, Authority, or City’s interest in the Site Lease, Facility Lease, or the Sublease, respectively, in the Facility are received by the Port, the Authority, or the City, as applicable, after the relevant party is recognized as the “Designated Owner” and added to the such party’s general fund. 10. Notices. Notices and other communications under this Agreement must be (i) in writing; (ii) delivered by hand against receipt, by certified or registered mail, postage prepaid, return receipt requested or by a nationally recognized overnight delivery service; and (iii) sent to the address below or another address designated by the party. Any notice will be deemed received when delivery is received or refused at the address below or the other address designated by the party. To the Port: San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attn: Executive Director Phone: (619) 686-6200 with copy to: San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attn: Port Attorney Phone: (619) 686-6200 To the Authority: To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attn: City Manager 8 US-DOCS\129507714.2 With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attn: City Attorney To the Port District: San Diego Unified Port District 3165 Pacific Highway San Diego, California 92101-1128 Attn: Executive Director (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: San Diego Unified Port District 3165 Pacific Highway San Diego, California 92101-1128 Attn: Port Attorney (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) To the City: City of Chula Vista 276 Fourth Avenue Attn: City Manager with copy to: City of Chula Vista 276 Fourth Avenue Attn: City Attorney To Manager: Marriott International Capital Corporation c/o Marriott International, Inc. Department 52/923.28 10400 Fernwood Road Bethesda, Maryland 20817 Attention: Treasurer, Dept. No. 52/924.11 With a copy to: c/o Marriott International, Inc. 10400 Fernwood Road Bethesda, Maryland 20817 Attention: Associate General Counsel – Corporate Transactions, Dept. No. 52/923.23 Effective as of September 1, 2022: 9 US-DOCS\129507714.2 c/o Marriott International, Inc. Department 52/923.28 7750 Wisconsin Ave Bethesda, MD 20814 Attention: Treasurer, Dept. No. 52/924.11 With a copy to: c/o Marriott International, Inc. 7750 Wisconsin Ave Bethesda, MD 20814 Attention: Associate General Counsel – Corporate Transactions, Dept. No. 52/923.23 11. Miscellaneous. A. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which constitute one and the same instrument. The submission of an unsigned copy of this Agreement to either party is not an offer or acceptance. B. Recordation of Agreement. The terms of this Agreement run with the Site and will benefit and bind the respective successors, heirs, legal representatives and assigns of the parties that are recognized and qualify as a Designated Owner. Any party to this Agreement may at any time require or cause this Agreement to be recorded in the jurisdiction where the Convention Center is located, provided that upon request following termination of the Management Agreement, each party agrees to execute and consents to the recording of an instrument sufficient to remove this Agreement from title to the Site. C. Interpretation of Agreement. The Port, the Authority, the City, and Manager intend that this Agreement excludes all implied terms to the maximum extent permitted by law. Headings of, Sections and subsections are only for convenience and are in no way to be used to interpret the Sections or subsections to which they refer. Any Recitals, Sections, Exhibits and Schedules to this Agreement are incorporated by reference and are part of this Agreement. Words indicating the singular include the plural and vice versa as the context may require. References to days, months and years are to calendar days, calendar months and calendar years, unless otherwise specifically provided. References that a person “will” do something mean that the person has an obligation to do that thing. References that a person “may” do something mean that the person has the right, but not the obligation, to do that thing. References that a person “will not” or “may not” do something mean that the person is prohibited from doing that thing. Examples used in this Agreement and references to “includes” and “including” are illustrative and not exhaustive. D. Amendment of Site Lease, Facility Lease, Sublease, or Management Agreement. If any of the Site Lease, Facility Lease, or Sublease (as the case may be), or Management Agreement is amended, modified or supplemented, the Site Lease, Facility Lease, or Sublease (as the case may be), or Management Agreement, as so amended, modified or supplemented will continue to be subject to the provisions of this Agreement without the necessity of any further act by (i) with respect to the Site Lease, the Port, (ii) with respect to the Facility Lease, the Authority, (iii) with respect to the Sublease, the City, and Manager. Nothing in this Section 11.D will in any way expand any of the Port’s, the Authority’s, or the City’s obligations hereunder with specific reference to Section 3.A(iv) hereof. 10 US-DOCS\129507714.2 E. Entire Agreement; Amendment of this Agreement; Severability. This Agreement may only be changed by a document manually executed with a non-electronic signature of the authorized representative of the Port, the Authority, the City, and Manager and, so long as the Sublease remains in effect, consented to by Developer. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then (i) the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those to which it is held invalid or enforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law; and (ii) the Port, the Authority, the City, and Manager will negotiate in good faith to modify this Agreement to implement their original intent as closely as possible in a mutually acceptable manner. F. Applicable Law. This Agreement will be construed under and governed by the laws of the State of California. G. Waiver. The failure or delay of either party to insist on strict performance of any of the terms of this Agreement, or to exercise any right or remedy, will not be a waiver for the future. Any waiver must be manually executed with a non-electronic signature by the party giving the waiver. H. Non-Exclusive Remedies & Rights. Each remedy and right in this Agreement is in addition to and not in substitution for any other remedy or right in this Agreement or under applicable law or in equity. I. Attorney's Fees. In the event of any legal action or proceeding between the parties hereto being initiated as a result of this Agreement, then the prevailing party in such action or proceeding will be entitled to recover its reasonable attorneys' fees and expenses arising from any such action or proceeding from the non-prevailing party. J. Permitted Transferee. Manager agrees that as of the date of this Agreement, each of the Port, the Authority, and the City qualifies as a permitted transferee under Section 10.02.A of the Management Agreement. Each of the Port, the Authority, and the City will continue to qualify as a permitted transferee so long as no change occurs in the Port’s, the Authority’s, or the City’s ownership or status, respectively, that would cause any of the Port, the Authority, or the City, respectively, to be, be controlled by, or be an Affiliate of (i) a Competitor; (ii) a Specially Designated National or Blocked Person; or (iii) a convicted felon or Person otherwise known in the community as being of bad moral character. K. Priority. The parties acknowledge that the memorandum of the Site Lease, the memorandum of the Facility Lease, and the Sublease were recorded prior to the Memorandum of Management Agreement and each of the Port, the Authority, and the City reserves all rights afforded to it under the laws of the State of California due to such priority under its respective agreement to which it is a party. Nothing in this Agreement will alter the relative priority of the Site Lease, Facility Lease, or Sublease (as the case may be), and the Management Agreement. Furthermore, Manager agrees that Manager’s rights under the Management Agreement will be subordinate to the terms of any amendment or other modification to the Site Lease, Facility Lease, or Sublease (as the case may be) approved in writing by Manager (such approval not to be unreasonably withheld, conditioned or delayed). [SIGNATURES FOLLOW ON NEXT PAGE] Signature Page – Convention Center Agreement US-DOCS\129507714.2 IN WITNESS WHEREOF, the Port, the Authority, the City, and Manager have caused this Agreement to be executed under seal as of the day and year first written above. THE PORT: SAN DIEGO UNIFIED PORT DISTRICT, a public corporation By: Name: Title: STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN DIEGO ) I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the San Diego Unified Port District, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the San Diego Unified Port District. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ Signature Page – Convention Center Agreement US-DOCS\129507714.2 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY: Print Name: Thomas A. Russell, Co-Counsel, General Counsel Print Title: San Diego Unified Port District STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN DIEGO ) I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the Chula Vista Bayfront Facilities, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the Chula Vista Bayfront Financing Authority. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ Signature Page – Convention Center Agreement US-DOCS\129507714.2 CITY OF CHULA VISTA Print Name: Print Title: APPROVED AS TO FORM AND LEGALITY: Glen R. Googins, Co-Counsel, City Attorney City of Chula Vista [NOTARY ACKNOWLEDGMENTS FOLLOW ON NEXT PAGE] Signature Page – Convention Center Agreement US-DOCS\129507714.2 STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN DIEGO ) I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the City of Chula Vista, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the City of Chula Vista. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN DIEGO ) I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the City of Chula Vista, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the City of Chula Vista. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ Signature Page – Convention Center Agreement US-DOCS\129507714.2 MANAGER: MARRIOTT INTERNATIONAL, INC., a Delaware corporation By: Name: Title: STATE OF MARYLAND ) ) ss: COUNTY OF MONTGOMERY ) I hereby certify that on this ___ day of _____________, 202___, before me, the undersigned officer, personally appeared ____________, who acknowledged herself/himself to be the _________________ of Marriott International, Inc., and that he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by him or herself as ________________ of Marriott International, Inc. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ US-DOCS\129507714.2 EXHIBIT A SITE [See Attached] RIDA Acknowledgement US-DOCS\129507714.2 DEVELOPER’S AGREEMENT In exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in connection with the execution and delivery of that certain Convention Center Agreement dated as of ___________ __, 202__ (the “Convention Center Agreement”) by and between the San Diego Unified Port District, as the “Port”, the City of Chula Vista, as the “City”, and the Chula Vista Bayfront Facilities Financing Authority (the “Authority”), a joint exercise of powers authority whose members are the City and the Port, and Marriott International, Inc., as “Manager”, from which the undersigned (“Developer”) is receiving material benefit, Developer (i) agrees that the performance by the City under the Convention Center Agreement in accordance with the terms thereof will not be deemed a breach of any of its obligations to Developer under the Sublease; (ii) agrees that the performance by Manager under the Convention Center Agreement in accordance with the terms thereof will not be deemed a breach of any of its obligations to Developer under the Management Agreement; (iii) agrees that any payments by Manager to the City referenced in Section 4.B of the Convention Center Agreement which are made in accordance with the terms thereof satisfies Manager’s obligations under the Management Agreement to distribute such funds to Developer; (iv) releases Manager from any and all obligations relating to such payments referenced in Section 4.B of the Convention Center Agreement which are made in accordance with the terms thereof; and (v) releases the City from any and all obligations relating to such payments referenced in Section 6.B of the Convention Center Agreement which are made in accordance with the terms thereof, and such payments will be added to Developer’s payment obligations under the Sublease that are then due and owing. Subject to the terms of the previous sentence, this agreement by Developer is irrevocable until the Sublease or Management Agreement terminate. Developer, as “Owner” under the Management Agreement and sub-sublessee of the Site, and sublessee of the Convention Center, under the Sublease, and the City and Manager by accepting this Developer’s Agreement, acknowledge and agree for themselves and their respective heirs, representatives, successors and assigns, that: (a) the Convention Center Agreement does not constitute a waiver by the City or Developer of any of their respective rights under the Sublease, nor does the Convention Center Agreement in any way release the City or Developer from their respective obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of the Sublease; and (b) the provisions of the Sublease remain in full force and effect and must be complied with by Developer and the City. Date: __________________, 202__ DEVELOPER: RIDA CHULA VISTA, LLC, a Delaware limited liability company By: Name: Title: [NOTARY ACKNOWLEDGMENT FOLLOWS ON NEXT PAGE] RIDA Acknowledgement US-DOCS\129507714.2 STATE OF _______________________ ) ) ss: CITY/COUNTY OF _______________ ) I hereby certify that on this __________ day of 202__, before me, the undersigned officer, personally appeared _________________________________________, who acknowledged herself/himself to be the ___________________ of RIDA Chula Vista, LLC, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of RIDA Chula Vista, LLC. IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal. Notary Public My Commission expires: ________________________ Prepared by J.P. Morgan Page 3 BOND DEBT SERVICE Chula Vista Bayfront Facilities Financing Authority Revenue Bonds, Series 2022A (Federally Taxable) and 2022B (Tax-Exempt) *** Preliminary, Subject to Change (Rates as of 5/3/2022) May 15 Quarterly Funding Date/ June 1 Payment Dates Accelerated Funding Schedule *** Period Ending Principal Coupon Interest Debt Service 06/01/2022 163,229.85 163,229.85 06/01/2023 8,286,348.28 8,286,348.28 06/01/2024 20,806,351.18 20,806,351.18 06/01/2025 24,597,778.33 24,597,778.33 06/01/2026 28,908,267.99 28,908,267.99 06/01/2027 382,216,305 ** % 28,716,439.91 410,932,744.91 382,216,305 111,478,415.54 493,694,720.54 Attachment E Taxable Net Proceeds Draw Schedule (Series 2022 A) Construction Bond Funding Cumulative Net Proceeds from Cumulative Draw Dates Advance Dates Need Funding Need Advances Advance Proceeds Over (Under) 4/30/2022 17,992,195 17,992,195 (17,992,195) 5/31/2022 5/17/2022 3,847,036 21,839,231 35,000,000 35,000,000 13,160,769 6/30/2022 2,584,233 24,423,464 35,000,000 10,576,536 7/31/2022 4,119,607 28,543,071 35,000,000 6,456,929 8/31/2022 8/15/2022 9,685,119 38,228,190 32,000,000 67,000,000 28,771,810 9/30/2022 7,572,012 45,800,202 67,000,000 21,199,798 10/31/2022 9,232,424 55,032,626 67,000,000 11,967,374 11/30/2022 11/15/2022 9,234,748 64,267,373 33,000,000 100,000,000 35,732,627 12/31/2022 13,400,225 77,667,598 100,000,000 22,332,402 1/31/2023 10,942,891 88,610,489 100,000,000 11,389,511 2/28/2023 2/15/2023 9,730,143 98,340,632 38,000,000 138,000,000 39,659,368 3/31/2023 14,150,855 112,491,486 138,000,000 25,508,514 4/30/2023 14,063,544 126,555,030 138,000,000 11,444,970 5/31/2023 5/15/2023 12,292,905 138,847,935 39,000,000 177,000,000 38,152,065 6/30/2023 12,597,245 151,445,180 177,000,000 25,554,820 7/31/2023 14,356,369 165,801,549 177,000,000 11,198,451 8/31/2023 8/15/2023 17,011,673 182,813,221 45,000,000 222,000,000 39,186,779 9/30/2023 14,757,693 197,570,914 222,000,000 24,429,086 10/31/2023 12,875,263 210,446,177 222,000,000 11,553,823 11/30/2023 11/15/2023 13,357,867 223,804,044 38,000,000 260,000,000 36,195,956 12/31/2023 11,800,600 235,604,644 260,000,000 24,395,356 1/31/2024 12,950,635 248,555,279 260,000,000 11,444,721 2/29/2024 2/15/2024 10,960,406 259,515,685 5,000,000 265,000,000 5,484,315 3/31/2024 5,484,315 265,000,000 265,000,000 - 265,000,000 265,000,000 Attachment F DRAFT Page 1 of 3 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY RESOLUTION 20xx-xxx RESOLUTION MAKING FINDINGS REGARDING VIRTUAL MEETINGS OF THE BOARD OF DIRECTORS OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY IN ACCORDANCE WITH THE RALPH M. BROWN ACT AND CALIFORNIA ASSEMBLY BILL 361 WHEREAS, the Chula Vista Bayfront Facilities Financing Authority (“Authority”) was formed through that certain Joint Exercise of Powers Agreement between the City of Chula Vista (“City”) and the San Diego Unified Port District (“District”) dated as of May 1, 2014 and filed in the Office of the District Clerk as Document No. 61905 (“Original Authority Agreement”), as amended and restated by that certain Amended and Restated Joint Exercise of Powers Agreement between the City and District dated July 25, 2019 and filed in the Office of the District Clerk as Document No. 70245 (“Authority Agreement”); and WHEREAS, the District and the City (each, a “Member of the Authority”) are the sole members of the Authority; and WHEREAS, pursuant to Section 4.C(1) of the Authority Agreement, the Authority Board shall hold its regular meetings at such times and at such locations as may be established by the Bylaws or by resolution of the Authority Board; and WHEREAS, the Bylaws of the Authority do not establish a schedule for the regular meetings; and WHEREAS, on December 13, 2021, the Authority Board adopted Resolution No. 2021-004 which provides that the Authority Board shall hold a regular meeting every Wednesday of each month, commencing January 1, 2022, and establishes the location of the regular meetings as the City of Chula Vista located at 276 Fourth Avenue, Chula Vista, California 91910 for the first and third meetings of each month and the San Diego Unified Port District, Don L. Nay Administration Building located at 3165 Pacific Highway, San Diego, California 92101 for the second, fourth, and fifth meetings of each month; and WHEREAS, Resolution No. 2021-004 did not change the time of the regular meetings which continues to be 3:00 pm; and WHEREAS, on April 13, 2022, the Authority Board adopted Resolution No. 2022-004 which added May 12, 2022 and May 13, 2022 as regular meetings and established the location of the May 12, 2022 and May 13, 2022 at the San Diego 20xx-xxx Page 2 of 3 Unified Port District, Don L. Nay Administration Building located at 3165 Pacific Highway, San Diego, California 92101; and WHEREAS, California Assembly Bill 361 (AB 361) enacted certain exceptions to the Ralph M. Brown Act (Brown Act) to allow virtual and hybrid meetings of the public agencies when there is a proclaimed state of emergency and state or local officials are recommending measures to promote social distancing; and WHEREAS, the May 11, 2022 Authority Board meeting will be held at San Diego Unified Port District, Don L. Nay Administration Building located at 3165 Pacific Highway, San Diego, California 92101; and WHEREAS, on March 4, 2020, the Governor of California declared a state of emergency related to COVID-19 which still remains in effect; and WHEREAS, the District declared a state of emergency on March 18, 2020 which remains in effect; and WHEREAS, in addition to other social distancing recommendations by state, federal, and local agencies, on September 23, 2021, Wilma J. Wooten, the Public Health Officer for the County of San Diego, issued a Health Officer Teleconference Recommendation which recommends continued virtual Brown Act meetings to help prevent the spread of COVID-19; and WHEREAS, staff recommends that the Authority Board adopt the resolution making the finding that, based on continued state, federal, and local recommendations for social distancing, the meetings of the Authority Board held in accordance with the Brown Act are permitted to use the exceptions to Brown Act rules set forth in AB 361; and further, that this authorization expires if not renewed at the following regular meeting of the Authority Board that is not cancelled. NOW THEREFORE, BE IT RESOLVED by the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority (“Authority Board”) as follows: The Authority Board hereby finds that, based on continued state, federal, and local recommendations for social distancing, the meetings of the Authority Board held in accordance with the Ralph M. Brown Act (“Brown Act”) are permitted to use the exceptions to Brown Act rules set forth in California Assembly Bill 361; and further, that this authorization shall expire if not renewed at the following regular meeting of the Authority Board that is not cancelled. APPROVED AS TO FORM AND LEGALITY: CO-COUNSEL 20xx-xxx Page 3 of 3 _____________________ Thomas A. Russell, General Counsel, San Diego Unified Port District _____________________ Glen R. Googins, City Attorney, City of Chula Vista PASSED AND ADOPTED by the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority, this 11th day of May 2022, by the following vote: Stradling Yocca Carlson & Rauth Draft of 5/4/22 4884-0112-9245v5/024036-0079 RESOLUTION NO. ________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AND CONTINUING COVENANT AGREEMENT, A FOURTH AMENDED AND RESTATED REVENUE SHARING AGREEMENT AND CERTAIN OTHER AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS SERIES 2022; AND AUTHORIZING ADDITIONAL ACTIONS RELATED THERETO WHEREAS, the Chula Vista Bayfront Facilities Financing Authority (the “Authority”) has previously adopted Resolution No. 2021-001 (the “Approving Resolution”) on June 28, 2021 approving the issuance by the Authority of revenue bonds in one or more series in an aggregate principal amount not to exceed $400,000,000 (the “Authority Bonds”), approving the form and authorizing the execution of various documents in connection with the issuance of the Authority Bonds and authorizing the filing of judicial validation proceedings relating to the issuance of the Authority Bonds and approving additional actions related thereto; and WHEREAS, capitalized terms used herein and not defined shall have the meanings giving to such terms in the Approving Resolution, unless the context clearly requires otherwise; WHEREAS; by the default judgment entered on October 26, 2021 in the Superior Court of the State of California for the County of San Diego in the action entitled San Diego Unified Port District; Chula Vista Bayfront Facilities Financing Authority; Bayfront Project Special Tax Financing District; and City of Chula Vista v. All Persons Interested in the Matter etc., Case No. 37-2021-00028959-CU-MC-CTL (the “Validation Action”) the Authority Bonds and the agreements, resolutions and ordinances described therein (the “Validated Agreements”) have been judicially validated and the Authority Bonds and the Validated Agreements have been determined to be valid, legal and binding obligations of the parties thereto in accordance with their terms and the judgment in the Validation Action is now final and not subject to appeal; and WHEREAS, the Approving Resolution approved the sale of the Authority Bonds pursuant to a public sale with J.P. Morgan Securities LLC (the “Underwriter”) and in Section 4 thereof delegated authority to the Authorized Officers to make and consent to certain changes to one or more of the Authority Agreements and/or the Related Bayfront Documents to facilitate the financing and construction of the Phase 1A Infrastructure Improvements and the Convention Center (“the Delegated Authority”), including to respond to market conditions related to the structuring and marketing of the Authority Bonds as identified by the Underwriter; and 2 4884-0112-9245v5/024036-0079 WHEREAS, the Underwriter has recommended to the Authority that due to market conditions, the method of sale of the Authority Bonds be changed from a public sale to a private sale of the Authority Bonds to JPMorgan Chase Bank, National Association and one or more additional purchasers of the Authority Bonds, if any (collectively, the “Purchasers”); and WHEREAS, consistent with the authorization previously provided by the Approving Resolution and the Validation Action, and the recommendation of the Underwriter based on market conditions, the Authority desires to change the method of sale of the Authority Bonds from a public sale to a private sale of the Authority Bonds to the Purchasers by entering into a Bond Purchase and Continuing Covenant Agreement (the “Bond Purchase and Continuing Covenant Agreement”) by and among the Authority, JPMorgan Chase Bank, National Association, as Administrative Agent (“the Administrative Agent”) and the Purchasers named therein; and WHEREAS, to address the use and application of certain revenues of the City of Chula Vista, California (the “City”) and the San Diego Unified Port District (the “Port District”) and the residual revenues to be transferred to the Authority pursuant to the terms of the Indenture, the Authority, the City and the Port District entered into a Third Amended and Restated Revenue Sharing Agreement; and WHEREAS, to reflect certain changes to the use and application of the revenues set forth in the Third Amended and Restated Revenue Sharing Agreement, the Authority, the City and the Port District intend to enter into a Fourth Amended and Restated Revenue Sharing Agreement (the “Fourth Amended RSA”); and WHEREAS, Marriott International, Inc. (“Marriott”), who will be the operator of the Convention Center and Hotel, has requested that the Authority, the City, the Port District, RIDA Chula Vista, LLC and Marriott enter into a Convention Center Agreement (the “Convention Center Agreement”) to delineate certain rights of the parties thereto with respect to the Convention Center and under the leases related thereto; and WHEREAS, RIDA, the private lenders to RIDA (the “Permitted Lenders”), Marriott and the Administrative Agent have requested certain changes to certain of the Validated Agreements which changes have been reviewed and approved by Co-General Counsel to the Authority who, in accordance with Section 4 of the Approving Resolution, have determined that such changes are consistent with and within the scope of the Delegated Authority; and WHEREAS, the Authority desires to enter into a Declaration of Reciprocal Easements (the “Declaration”) in order to facilitate the construction and operation of the Convention Center; and WHEREAS, the Board of Directors desires to authorize the Authorized Officers to enter into an interest rate lock agreement (the “Rate Lock Agreement”) following the date of adoption of this Resolution and prior to the date of issuance of the Authority Bonds if it is determined that a Rate Lock Agreement is in the best interest of the Authority to provide certainty as to the interest rate on the Authority Bonds; and 3 4884-0112-9245v5/024036-0079 WHEREAS, the Board of Directors of the Authority (the “Board of Directors”) has been presented with the form of the Bond Purchase and Continuing Covenant Agreement, the Fourth Amended RSA, the Convention Center Agreement, the Declaration and the Rate Lock Agreement (collectively, the “Agreements”) and the Board of Directors has examined and approved the form of each of the Agreements; WHEREAS, the Board of Directors desires to authorize and direct the execution and delivery of each of the Agreements to which it is a party or signatory thereto and performance of the Authority’s obligations thereunder; and WHEREAS, the Board of Directors desires to authorize the Authorized Officers to enter into an interest rate lock agreement (the “Rate Lock Agreement”) following the date of adoption of this Resolution and prior to the date of issuance of the Authority Bonds if it is determined that a Rate Lock Agreement is in the best interest of the Authority to provide certainty as to the interest rate on the Authority Bonds; and WHEREAS, the Board of Directors desires to authorize all actions necessary for the administration and operation of the Authority in accordance with the Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019 (the “JEPA Agreement”) pursuant to which the Authority was established; and WHEREAS, the proposed actions by the Board of Directors authorized herein, approving the execution of the Agreements and other documents related to the issuance of the Authority Bonds, were previously analyzed in the Final Environmental Impact Report (FEIR) for the Chula Vista Bayfront Master Plan (UPD #83356-EIR-658; SCH #2005081077; Clerk Document No. 56562), certified by the Port District on May 18, 2010 (Resolution No. 2010-78), the Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on August 13, 2013 (Resolution No. 2013-138), the Second Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on April 10, 2018 (Resolution No. 2018-0069), and the Third Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on December 8, 2020 (Resolution No. 2020-116); and the proposed actions of the Board of Directors are not a separate “project” for California Environmental Quality Act (“CEQA”) purposes but are a subsequent discretionary approval related to a previously approved project (CEQA Guidelines § 15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles Comm. College Dist. (2012) 206 Cal.App.4th 1036.); and additionally, pursuant to CEQA Guidelines Sections 15162 and 15163, and based on the review of the entire record, including without limitation, the FEIR and Addendums, the Authority finds that the proposed actions of the Board of Directors described herein do not require further environmental review as: 1) no substantial changes are proposed to the project and no substantial changes have occurred that require major revisions to the FEIR and Addendums due to the involvement of new significant environmental effects or an increase in severity of previously identified significant effects; 2) no new information of substantial importance has come to light that (a) shows the project will have one or more significant effects not discussed in the FEIR and Addendums, (b) identifies significant impacts would not be more severe than those analyzed in the FEIR and Addendums, or (c) shows that mitigation measures or alternatives are now feasible that were identified as infeasible and those mitigation measures or alternatives would reduce significant impacts, and 3) no changes to mitigation measures or alternatives have been identified or are required; and 4 4884-0112-9245v5/024036-0079 pursuant to CEQA Guidelines §15162(b), the Authority finds that no further analysis or environmental documentation is necessary and that the proposed actions by the Authority Board of Directors are merely a step-in furtherance of the original project for which environmental review was performed and no supplemental or subsequent CEQA has been triggered, and no further environmental review is required; and WHEREAS, this Resolution is being adopted at a regular meeting of the Board of Directors; WHEREAS, based on the foregoing and on the additional information provided in the staff report prepared in connection with the adoption of this Resolution and presented at the meeting at which this Resolution is being adopted, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the execution and performance of the Agreements and the undertaking of the other actions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the Authority is now duly authorized and empowered, pursuant to each and every requirement of law, to undertake the actions described herein ds for the purpose, in the manner and upon the terms herein provided; NOW, THEREFORE, the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority does hereby resolve as follows: SECTION 1. All of the recitals set forth above are true and correct and the Board of Directors so finds. SECTION 2. The forms of the Agreements presented to the Board of Directors at this meeting, are hereby approved, and each of the Executive Director and Treasurer of the Authority, and their written designees (each, an “Authorized Officer”) acting alone, is authorized and directed to fill in any blanks in the Agreements and attach any blank exhibits following the guidance set forth in the Agreements, execute and deliver the Agreements, in substantially said forms, with such changes as may be made in accordance with the delegation authority provided in the following paragraph. The Board of Directors hereby delegates to each Authorized Officer the authority to make and consent to changes to one or more of the Agreements to facilitate the financing and construction of the Phase 1A Infrastructure Improvements and the Convention Center which an Authorized Officer determines are needed (i) to eliminate any inconsistencies among any of the Agreements; (ii) to cure any ambiguity or defective provision in any of the Agreements; (iii) to comply with the conditions to funding in the Bond Purchase and Continuing Covenant Agreement; (iv) to reflect the final terms of the sale of the Authority Bonds to the Purchasers; (v) to facilitate the required private financing for the Convention Center and/or Hotel or are otherwise necessary to facilitate the issuance of the Authority Bonds and the construction of the Phase 1A Infrastructure Improvements, the Convention Center and/or Hotel; and/or (vi) to finalize the terms of the Rate Lock Agreement for up to $400,000,000 of Authority Bonds based on market conditions on the date that the interest rate is locked thereunder; provided, however that such changes shall not (w) increase the indemnification obligations of the Authority beyond those in the agreements authorized in the prior paragraph; (x) result in an additional contribution 5 4884-0112-9245v5/024036-0079 of funds by the Authority (except to a de minimis amount (not to exceed $500,000 in total)); (y) materially increase the obligations of the Authority beyond those of the agreements authorized in the prior paragraph; or (z) exceed any of the limitations set forth in Section 5 of the Approving Resolution with respect to the Authority Bonds. Approval of any of the foregoing changes shall be based on the advice of the Co-General Counsel to the Authority, and be approved by an Authorized Officer through the Authorized Officer’s execution (or as to documents to which the Authority is not a party, such Authorized Officer’s written consent) of the Agreement incorporating the changes proposed, and shall be conclusively evidenced by the delivery by the Authority of the executed Agreement with the changes included. SECTION 3. In accordance with Section 6591(f) of the Act, the Authority Bonds shall be sold by private sale to the Purchasers as described in this Resolution and in the Bond Purchase and Continuing Covenant Agreement. SECTION 4. The Board of Directors hereby finds and determines that the changes to the Validated Agreements are all consistent with the Delegated Authority and the Authority’s prior approval of the Validated Agreements remains in full force and effect. SECTION 5. Each of the Authorized Officers, acting alone, is authorized to all actions necessary for the administration and operation of the Authority in accordance with the JEPA Agreement, including but not limited to, the purchase of policies of insurance. SECTION 6. The Authorized Officers, and other officers, employees and agents of each of the Members of the Authority, are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable in order to consummate the transactions herein authorized and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, including, but not limited to, certificates or agreements required pursuant to the terms of the Bond Purchase and Continuing Covenant Agreement or by the City or the Port District as a condition to their consummating the transactions described herein related to the Authority Bonds. All actions heretofore taken by the Authorized Officers and other officers and agents of the Authority, including officers and agents of the Members of the Authority, acting with respect to the CVBMP and the matters described herein are hereby approved, confirmed and ratified. SECTION 7. This Resolution shall take effect from and after its date of adoption. 6 4884-0112-9245v5/024036-0079 ADOPTED AND APPROVED this 11th day of May, 2022, by the following vote: AYES: NOES: ABSTENTIONS: ABSENT: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District __________________________________ Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista 1 Tamisha Woods From:Sally Raney <sraney@portofsandiego.org> Sent:Tuesday, May 10, 2022 1:41 PM To:Adam Meyer; Ann Moore; Anthony Gordon; Ali Zaidi; CityClerk; Dan Malcolm; Diane Howell; Donna Morales; Eric Crockett; Elizabeth Alonso; Francisco Estrada; Glen Googins; Gwynn Soebbing; Joe Stuyvesant; Karen Porteous; Kerry Bigelow; Kelly Broughton; Kimberly Elliott; Margret Hernandez; Maria Kachadoorian; Marion Reynoso; Mary Salas; Michael Shirey; Natalie Flores; Rafael Castellanos; Robert DeAngelis; Shaun Sumner; Steve C. Padilla; Stella Karl-Ruiz; Stephanie Shook; Tiffany Allen; tcruz@chulavistaca.gov; Thomas A. Russell; Tyshar Turner; Connie Bellatti; William Valle Cc:Frank Herbst; Catherine Nazal; Janet Graham; Robert Hartman; Commissioner Services Staff Subject:05-11-22 Chula Vista Bayfront Facilities Financing Authority - Additional Agenda Related Materials Hello, below is a link to additional agenda-related information in preparation for the May 11, 2022, Chula Vista Bayfront Facilities Financing Authority meeting for your reference. https://pantheonstorage.blob.core.windows.net/administration/05-11- 22%20Chula%20Vista%20Bayfront%20Facilities%20Financing%20Authority%20ARMS%20Memo.pdf Regards, Sally Raney (she/her/hers) Deputy District Clerk, Office of the District Clerk 3165 Pacific Highway, San Diego, CA 92101 (o) 619.686.6399 (c) 619.380.0120 connect: Port administration offices are open Monday-Thursday and every other Friday from 8am-5pm. This email may contain public information and may be viewed by third parties pursuant to the Cal. Public Records Act. Warning: External Email Agenda Related Memorandum CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY MEMORANDUM Date: May 11, 2022 To: Each Member of the Board of Directors From: Adam Meyer Authority Staff, Assistant Director, Real Estate San Diego Unified Port District Tiffany Allen Authority Staff, Deputy City Manager & Director City of Chula Vista Subject: May 11, 2022 Meeting Agenda – Chula Vista Bayfront Attachment N (Revised Authority Resolution) was not attached to the Agenda Related Materials memo that was circulated yesterday because it was not final. Attached is Attachment N. If you have any questions, please contact Adam Meyer at 619-400-4766 or via email at ameyer@portofsandiego.org or Tiffany Allen at 619-691-5179 or via email at tallen@chulavistaca.gov. Attachments: Revised Authority Resolution 4884-0112-9245v7/024036-0079 RESOLUTION NO. ________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF A BOND PURCHASE AND CONTINUING COVENANT AGREEMENT, A FOURTH AMENDED AND RESTATED REVENUE SHARING AGREEMENT AND CERTAIN OTHER AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS SERIES 2022; AND AUTHORIZING ADDITIONAL ACTIONS RELATED THERETO WHEREAS, the Chula Vista Bayfront Facilities Financing Authority (the “Authority”) has previously adopted Resolution No. 2021-001 (the “Approving Resolution”) on June 28, 2021 approving the issuance by the Authority of revenue bonds in one or more series in an aggregate principal amount not to exceed $400,000,000 (the “Authority Bonds”), approving the form and authorizing the execution of various documents in connection with the issuance of the Authority Bonds and authorizing the filing of judicial validation proceedings relating to the issuance of the Authority Bonds and approving additional actions related thereto; and WHEREAS, capitalized terms used herein and not defined shall have the meanings given to such terms in the Approving Resolution, unless the context clearly requires otherwise; WHEREAS; by the default judgment entered on October 26, 2021 in the Superior Court of the State of California for the County of San Diego in the action entitled San Diego Unified Port District; Chula Vista Bayfront Facilities Financing Authority; Bayfront Project Special Tax Financing District; and City of Chula Vista v. All Persons Interested in the Matter etc., Case No. 37-2021-00028959-CU-MC-CTL (the “Validation Action”) the Authority Bonds and the agreements, resolutions and ordinances described therein (the “Validated Agreements”) have been judicially validated and the Authority Bonds and the Validated Agreements have been determined to be valid, legal and binding obligations of the parties thereto in accordance with their terms and the judgment in the Validation Action is now final and not subject to appeal; and WHEREAS, the Approving Resolution approved the sale of the Authority Bonds pursuant to a public sale with J.P. Morgan Securities LLC (the “Underwriter”) and in Section 4 thereof delegated authority to the Authorized Officers to make and consent to certain changes to one or more of the Authority Agreements and/or the Related Bayfront Documents to facilitate the financing and construction of the Phase 1A Infrastructure Improvements and the Convention Center (“the Delegated Authority”), including to respond to market conditions related to the structuring and marketing of the Authority Bonds as identified by the Underwriter; and WHEREAS, the Underwriter has recommended to the Authority that due to market conditions, the method of sale of the Authority Bonds be changed from a public sale to a private Attachment N 2 4884-0112-9245v7/024036-0079 sale of the Authority Bonds to JPMorgan Chase Bank, National Association and one or more additional purchasers of the Authority Bonds, if any (collectively, the “Purchasers”); and WHEREAS, consistent with the authorization previously provided by the Approving Resolution and the Validation Action, and the recommendation of the Underwriter based on market conditions, the Authority desires to change the method of sale of the Authority Bonds from a public sale to a private sale of the Authority Bonds to the Purchasers by entering into a Bond Purchase and Continuing Covenant Agreement (the “Bond Purchase and Continuing Covenant Agreement”) by and among the Authority, JPMorgan Chase Bank, National Association, as Administrative Agent (“the Administrative Agent”) and the Purchasers named therein; and WHEREAS, to address the use and application of certain revenues of the City of Chula Vista, California (the “City”) and the San Diego Unified Port District (the “Port District”) and the residual revenues to be transferred to the Authority pursuant to the terms of the Indenture, the Authority, the City and the Port District entered into a Third Amended and Restated Revenue Sharing Agreement; and WHEREAS, to reflect certain changes to the use and application of the revenues set forth in the Third Amended and Restated Revenue Sharing Agreement, the Authority, the City and the Port District intend to enter into a Fourth Amended and Restated Revenue Sharing Agreement (the “Fourth Amended RSA”); and WHEREAS, Marriott International, Inc. (“Marriott”), who will be the operator of the Convention Center and Hotel, has requested that the Authority, the City, the Port District, RIDA Chula Vista, LLC and Marriott enter into a Convention Center Agreement (the “Convention Center Agreement”) to delineate certain rights of the parties thereto with respect to the Convention Center and under the leases related thereto; and WHEREAS, RIDA, the private lenders to RIDA (the “Permitted Lenders”), Marriott and the Administrative Agent have requested certain changes to certain of the Validated Agreements and certain other changes have been made to the Validated Agreements to reflect the private sale and the final terms of the Authority Bonds, which changes have been reviewed and approved by Co-General Counsel to the Authority who, in accordance with Section 4 of the Approving Resolution, have determined that such changes are consistent with and within the scope of the Delegated Authority; and WHEREAS, the Authority desires to enter into a Declaration of Reciprocal Easements (the “Declaration”) by and among the City, the Port District, RIDA and the Authority in order to provide reciprocal easements to facilitate the construction and operation of the Convention Center and the hotel portion of the RHCC Project; and WHEREAS, the Board of Directors desires to authorize the Authorized Officers to enter into an interest rate lock agreement with JPMorgan Chase Bank, National Association (the “Rate Lock Agreement”) following the date of adoption of this Resolution and prior to the date of issuance of the Authority Bonds if it is determined that a Rate Lock Agreement is in the best interest of the Authority to provide certainty as to the interest rate on the Authority Bonds; and 3 4884-0112-9245v7/024036-0079 WHEREAS, the Board of Directors of the Authority (the “Board of Directors”) has been presented with the form of the Bond Purchase and Continuing Covenant Agreement, the Fourth Amended RSA, the Convention Center Agreement and the Declaration (collectively, the “Agreements”) and the Board of Directors has examined and approved the form of each of the Agreements; WHEREAS, the Board of Directors desires to authorize and direct the execution and delivery of each of the Agreements to which it is a party or signatory thereto and performance of the Authority’s obligations thereunder; and WHEREAS, the Board of Directors desires to authorize all actions necessary for the administration and operation of the Authority in accordance with the Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019 (the “JEPA Agreement”) pursuant to which the Authority was established; and WHEREAS, the proposed actions by the Board of Directors authorized herein, approving the execution of the Agreements and other documents related to the issuance of the Authority Bonds, were previously analyzed in the Final Environmental Impact Report (FEIR) for the Chula Vista Bayfront Master Plan (UPD #83356-EIR-658; SCH #2005081077; Clerk Document No. 56562), certified by the Port District on May 18, 2010 (Resolution No. 2010-78), the Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on August 13, 2013 (Resolution No. 2013-138), the Second Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on April 10, 2018 (Resolution No. 2018-0069), and the Third Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on December 8, 2020 (Resolution No. 2020-116); and the proposed actions of the Board of Directors are not a separate “project” for California Environmental Quality Act (“CEQA”) purposes but are a subsequent discretionary approval related to a previously approved project (CEQA Guidelines § 15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles Comm. College Dist. (2012) 206 Cal.App.4th 1036.); and additionally, pursuant to CEQA Guidelines Sections 15162 and 15163, and based on the review of the entire record, including without limitation, the FEIR and Addendums, the Authority finds that the proposed actions of the Board of Directors described herein do not require further environmental review as: 1) no substantial changes are proposed to the project and no substantial changes have occurred that require major revisions to the FEIR and Addendums due to the involvement of new significant environmental effects or an increase in severity of previously identified significant effects; 2) no new information of substantial importance has come to light that (a) shows the project will have one or more significant effects not discussed in the FEIR and Addendums, (b) identifies significant impacts would not be more severe than those analyzed in the FEIR and Addendums, or (c) shows that mitigation measures or alternatives are now feasible that were identified as infeasible and those mitigation measures or alternatives would reduce significant impacts, and 3) no changes to mitigation measures or alternatives have been identified or are required; and pursuant to CEQA Guidelines §15162(b), the Authority finds that no further analysis or environmental documentation is necessary and that the proposed actions by the Board of Directors are merely a step-in furtherance of the original project for which environmental review was performed and no supplemental or subsequent CEQA has been triggered, and no further environmental review is required. Furthermore, the proposed actions of the Board of Directors were in connection with the Coastal Development Permit (CDP) for the Resort Hotel and Convention Center, Parking, Infrastructure and Phase 1A Improvements (CDP- 4 4884-0112-9245v7/024036-0079 2019-03; Clerk Document No. 70152) approved by the Board on June 18, 2019 (Resolution No. 2019-080). The proposed Board of Directors actions are consistent with the project in the CDP. No additional action under the California Coastal Act is required at this time; and WHEREAS, this Resolution is being adopted at a regular meeting of the Board of Directors; WHEREAS, based on the foregoing and on the additional information provided in the staff report prepared in connection with the adoption of this Resolution and presented at the meeting at which this Resolution is being adopted, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the execution and performance of the Agreements and the undertaking of the other actions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the Authority is now duly authorized and empowered, pursuant to each and every requirement of law, to undertake the actions described herein for the purpose, in the manner and upon the terms herein provided; NOW, THEREFORE, the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority does hereby resolve as follows: SECTION 1. All of the recitals set forth above are true and correct and the Board of Directors so finds. SECTION 2. The forms of the Agreements presented to the Board of Directors at this meeting, are hereby approved, and the Executive Director of the Authority, and any person designated to act on the Executive Director’s behalf in accordance with Section 7.1 of the Bylaws of the Authority (each, an “Authorized Officer”) acting alone, is authorized and directed to fill in any blanks in the Agreements and attach any blank exhibits following the guidance set forth in the Agreements, and execute and deliver the Agreements, in substantially said forms, with such changes as may be made in accordance with the delegation authority provided in the following paragraph. The Board of Directors hereby delegates to each Authorized Officer the authority to make and consent to changes to one or more of the Agreements to facilitate the financing and construction of the Phase 1A Infrastructure Improvements and the Convention Center which an Authorized Officer determines are needed (i) to eliminate any inconsistencies among any of the Agreements; (ii) to cure any ambiguity or defective provision in any of the Agreements; (iii) to comply with the conditions to funding in the Bond Purchase and Continuing Covenant Agreement; (iv) to reflect the final terms of the sale of the Authority Bonds to the Purchasers; (v) to facilitate the required private financing for the Convention Center and/or Hotel or are otherwise necessary to facilitate the issuance of the Authority Bonds and the construction of the Phase 1A Infrastructure Improvements, the Convention Center and/or Hotel; and/or (vi) to finalize the terms of the Rate Lock Agreement for up to $400,000,000 of Authority Bonds based on market conditions on the date that the interest rate is locked thereunder; provided, however that such changes shall not (w) increase the indemnification obligations of the Authority beyond those in the agreements authorized in the prior paragraph; (x) result in an additional contribution of funds by the Authority (except to a de minimis amount (not to exceed $500,000 in total)); (y) materially increase the 5 4884-0112-9245v7/024036-0079 obligations of the Authority beyond those of the agreements authorized in the prior paragraph; or (z) exceed any of the limitations set forth in Section 5 of the Approving Resolution with respect to the Authority Bonds. Approval of any of the foregoing changes shall be based on the advice of the Co-General Counsel to the Authority, and be approved by an Authorized Officer through the Authorized Officer’s execution (or as to documents to which the Authority is not a party, such Authorized Officer’s written consent) of the Agreement incorporating the changes proposed, and shall be conclusively evidenced by the delivery by the Authority of the executed Agreement with the changes included. SECTION 3. In accordance with Section 6591(f) of the Act, the Board of Directors hereby determines and directs that the Authority Bonds shall be sold by private sale to the Purchasers as described in this Resolution and in the Bond Purchase and Continuing Covenant Agreement. SECTION 4. In accordance with the Government Code Section 5922, the Board of Directors hereby finds and determines that the Rate Lock Agreement is necessary and appropriate as a means to cap the interest rate on the Authority Bonds prior to their issuance and that it is designed to reduce the amount of interest rate risk with respect to the Authority Bonds. The Board of Directors has also given due consideration to the creditworthiness of JPMorgan Chase Bank, National Association as the counterparty. The Executive Director, and his written designees, are authorized to determine when to execute the Rate Lock Agreement and to execute the Rate Lock Agreement in order to fix the interest rates for each series of Authority Bonds prior to their issuance. SECTION 5. The Board of Directors hereby finds and determines that the changes to the Validated Agreements are all consistent with the Delegated Authority and the approvals contained herein and the Authority’s prior approval of the Validated Agreements remains in full force and effect. SECTION 6. The Executive Director, and any of the other Authorized Officers designated by the Executive Director, are authorized to take all actions necessary for the administration and operation of the Authority in accordance with the JEPA Agreement and the Bylaws and any policies adopted by the Authority, including but not limited to, the purchase of policies of insurance. SECTION 7. The Executive Director, and any of the other Authorized Officers designated by the Executive Director, are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable in order to consummate the transactions herein authorized and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, including, but not limited to, certificates or agreements required pursuant to the terms of the Bond Purchase and Continuing Covenant Agreement or by the City or the Port District as a condition to their consummating the transactions described herein related to the Authority Bonds. All actions heretofore taken by the Authorized Officers and other officers and agents of the Authority, including officers and agents of the Members of the Authority, acting with respect to the matters described herein are hereby approved, confirmed and ratified. SECTION 8. This Resolution shall take effect from and after its date of adoption. 6 4884-0112-9245v7/024036-0079 ADOPTED AND APPROVED this 11th day of May, 2022, by the following vote: AYES: NOES: ABSTENTIONS: ABSENT: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District __________________________________ Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista