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HomeMy WebLinkAboutRDA Packet 2005/08/23 Notice is hereby given that the Chairman of the Housing Authority has called and will convene a special meeting of the Housing Authority, Tuesday, August 23, 2005, at 6:00 p.m., immediately following the City Council meeting in the Council Chambers, located in the Publi 'ces Building, ,,, '"""" A~."', CO",. V,.., o.'''"m'. '" '"."''', ",,,,,.M ~ 0 "ZlZl::J Stephen C. ilia, Chairman ~V~ =..i!t_~ ~--=-~ ellY OF TUESDAY, AUGUST 23,2005 CHUlA VISTA 6:00 P.M. (immediately following the City Council meeting) COUNCIL CHAMBERS PUBLIC SERVICES BUILDING A SPECIAL MEETING OF THE HOUSING AUTHORITY MEETING .JOINTLY WITH THE REDEVELOPMENT AGENCY I CITY COUNCIL OF THE CITY OF CHULA VISTA CALL TO ORDER ROLL CALL Agency/Council/Housing Authority Members Castaneda, Davis, McCann, Rindone; Chair/Mayor Padilla ORAL COMMUNICATIONS OF THE REDEVELOPMENT AGENCY This is an opportunity for the general public to address the Redevelopment Agency on any subject matter within the Agency's jurisdiction that is not an item on this agenda. (State law, however, generally prohibits the Redevelopment Agency from taking action on any issues not included on the posted agenda.) If you wish to address the Agency on such a subject, please complete the "Request to Speak Under Oral Communications Formn available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to the meeting. Those who wish to speak, please give your name and address for record purposes and follow up action. ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussions and deliberations by the Council/Agency, staff, or members of the general public. The items will be considered individually by the Council/Agency and staff recommendation may in certain cases be presented in the alternative. Those who wish to speak, please fill out a Request to Speak form available in the lobby and submit it to the Secretary to the Redevelopment Agency or City Clerk prior to the meeting. 1. HOUSING AUTHORITY CONSIDERATION OF THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS AND CITY COUNCIL AND REDEVELOPMENT AGENCY CONSIDERATION OF SUBORDINATION AGREEMENTS The issuance of additional tax-exempt bonds for the financing of Rancho Buena Vista Apartments and the execution of related documents in substantially the form on file with the City Clerk. The City and Agency are also being asked to subordinate its loan for the development to this debt. [Community Development Director] STAFF RECOMMENDATION: a, That the Housing Authority adopt the following resolution: RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $1,715,000 FOR THE PURPOSE OF PROVIDING ADDITIONAL FINANCING FOR THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF THE RANCHO BUENA VISTA APARTMENTS PROJECT, APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF ANY AND ALL DOCUMENTS NECESSARY TO ISSUE THE BONDS AND IMPLEMENT THIS RESOLUTION b, That the City Council and Redevelopment Agency adopt the following resolution: JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA (AI APPROVING SUBORDINATION AGREEMENTS FOR THE LOW AND MODERATE INCOME HOUSING SET-ASIDE FUND LOAN IN THE AMOUNT OF $1,000,000 AND THE HOME INVESTMENT PARTNERSHIP PROGRAM LOAN IN THE AMOUNT OF $500,000 SUBORDINATING THE CITY AND AGENCY LOANS TO BOTH THE 2003 AND 2005 FINANCINGS RELATED TO RANCHO BUENA VISTA APARTMENTS AND [B] AUTHORIZING THE EXECUTION OF SAID AGREEMENTS OTHER BUSINESS OF THE REDEVELOPMENT AGENCY 2. DIRECTOR'S REPORT 3. CHAIR REPORT 4. AGENCY COMMENTS ADJOURNMENT The Special Meeting of the Housing Authority will adjourn until further notice; and the Redevelopment Agency will adjourn to an adjourned meeting on September 13, 2005, at 6:00 p.m" in the Council Chambers. AMERICANS WITH DISABiliTIES ACT The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), request individuals who require special accommodates to access, attend, and/or participate in a City meeting, activity, or service request such accommodation at least 48 hours in advance for meetings and five days for scheduled services and activities. Please contact the Secretary to the Redevelopment Agency for specific information at (619) 691-5047 or Telecommunications Devices for the Deaf (TOO) at (619) 585-5647. California Relay Service is also available for the hearing impaired. Redevelopment Agency, August 23, 2005 P~ge 2 PAGE 1, ITEM NO.: I MEETING DATE: 08/23/05 JOINT REDEVELOPMENT AGENCY / CITY COUNCIL / HOUSING AUTHORITY AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $1,715,000 FOR THE PURPOSE OF PROVIDING ADDITIONAL FINANCING FOR THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF THE RANCHO BUENA VISTA APARTMENTS PROJECT, APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF ANY AND ALL DOCUMENTS NECESSARY TO ISSUE THE BONDS AND IMPLEMENT THIS RESOLUTION JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA [A] APPROVING SUBORDINATION AGREEMENTS FOR THE LOW AND MODERATE INCOME HOUSING SET-ASIDE FUND LOAN IN THE. AMOUNT OF $1,000,000 AND THE HOME INVESTMENT PARTNERSHIP PROGRAM LOAN IN THE AMOUNT OF $500,000 SUBORDINATING THE CITY AND AGENCY LOANS TO BOTH THE 2003 AND 2005 FINANCINGS RELATED TO RANCHO BUENA VISTA APARTMENTS AND [B] AUTHORIZING THE EXECUTION OF SAID AGREEMENTS SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR REVIEWED BY: CITY MANAGER/EXECUTIVE DIRECTOR 4/5THS VOTE: YES D NO 0 BACKGROUND In 2003, the Housing Authority of the City of Chulo Visto issued Multifamily Housing Revenue Bonds in the amount of $11,687,000 to assist CIC Eastlake, L.P. (CIC), a portnership belween Pacific Southwest Community Development Corporation and Chelsea Investment Corporation, in constructing 0 150 unit offordoble housing development, known as Roncho Bueno Vista Apartments (the "Project), located at 2155 Corte Visto in the Eostlake moster plonned community (see attached). Additionally, on February 26, 2003, the City of Chula Vista approved a $500,000 loan from its HOME funds and the Redevelopment Agency of the City opproved a $1 million in loan from the Agency's Low ond Moderate Income Housing Set-Aside Fund to assist 1-1 PAGE 2, ITEM NO.: I MEltiNG DATE: 08/23/05 with the development and operation of the Project. At that time, the City and Agency entered into subordination agreements placing the City ond Agency funds behind the other investors. When originolly submitted to the City for consideration in 2003, the cost of developing Rancho Buena Vista Aportments was estimated to be $23,615,175, Today, the development budget is approximately $26,230,000, or an approximately $2.6 million increase. CIC Eastlake requested that the Housing Authority issue an additional $1.715 million in tax-exempt private activity Bonds to finance cost overruns experienced by the project. On April 19,2005, the Housing Authority of the City of Chula Vista and City Council took the necessary preliminary actions to ollow CIC Eastlake to submit an opplicotion to the State, the Colifornia Debt Limit Allocation Committee (CDLAC), ond to allow the developer to receive reimbursement out of bond proceeds for costs it incurs leading up to the octual sale of bonds. CIC Eastloke wos successful in obtaining a bond allocation from CDLAC in the oggregate principol omount not to exceed $1,715,000. At this time, the Housing Authority is asked to approve 0 bond resolution authorizing the issuance of not to exceed $1,715,000 in tax-exempt privote activity bonds to finance the project and the execution of related documents in substantiolly the form on file with the City Clerk. Due to the additionol bond issuance, the City and Agency are olso being asked to restote their subordinotion behind the 2003 financing and to subordinate its $1.5 million loan to this new 2005 debt. ENVIRONMENTAL REVIEW In occordance with the requirements of CEQA, the Environmental Review Coordinator has determined that the project is covered by Addendum (IS-03-009) to the Eastlake Replanning Program Final Subsequent Environmental Impact Report (FSEIR) 97-04 and FSEIR 86-04, plus other reloted environmental documents. The proposed project will not result in any new environmental effects that were not previously identified, nor would the proposal result in a substantial increase in severity in any impacts previously identified. RECOMMENDATION It is recommended that the Housing Authority, Redevelopment Agency, and City take the following octions: 1. That the Housing Authority adopt a resolution authorizing the issuonce of Multi-family Housing Revenue Bonds in an aggregate amount not to exceed $1,715,000 for Roncho Bueno Vista Apartments, approving and authorizing the execution and delivery of any and all documents necessary to issue the bonds and implement this resolution. 2. That the Redevelopment Agency and City Council opprove Subordinotion Agreements related to the Low ond Moderate Income Housing Set-Aside Fund loan of $ 1,000,000 1-2 PAGE 3, ITEM NO.: , MEETING DATE: 08/23/05 and the Home Investment Partnership Program loan of $500,000 subordinating the City and Agency interests to bath the 2003 and 2005 financings for Rancho Buena Visto Apartments and authorize the execution of said Agreements. BOARDS/COMMISSIONS RECOMMENDATION On Februory 26, 2003, the Housing Advisory Commission voted to recommend approval of $1.5 million in financial assistonce from the City's HOME Progrom and Redevelopment Low and Moderote Income Housing Set-oside funds for the development of Rancho Buena Vista Apartments. The Design Review Committee (DRC) held a preliminary heoring on the project on March 3, 2003. On April 14, 2003, the DRC approved the plans for development of the project. DISCUSSION PROJECT DESCRIPTION On October 7, 2003, the Housing Authority authorized the original issuonce of $11,687,000 in Multi-family Housing Revenue Bonds and the City Council and Redevelopment Agency approved $1.5 million in finoncial ossistance for the development of the 150 unit Rancho Bueno Visto Apartments at Eostlake (the "Project") for very low and low-income households. The development is located at 2155 Corte Vista, across the street from the Eastloke T erroces retail center. As a condition of the various financing sources of the project, the Developer hos entered into regulatory agreements specifying the use of the project as an affordable housing development for very low ond low-income households for 0 period of fifty-five (55) years. The project is assisting very low and low-income households at rental rates priced 40 to 50 percent below market rental rates. The development is completed with a Certificote of Occupancy pending for the lost building of 30 units. All units ore leased. CIC Eastlake, L.P. (ClC) has received over 900 applicotions for the 150 total units to be ovailable. The current woiting list for the Project runs consistently between 800 to 1,000 households. FINANCING When originally proposed in 2003, the estimated cost of developing Rancho Buena Vista Aportments was approximotely $23,615,175. Today, the development budget is approximotely $26,230,000, or an approximately $2,614,800 million increase. CIC hos requested that the Housing Authority outhorize the issuance of additional tax exempt private activity bonds not to exceed $1,715,000 to cover cost overruns for the Project. With the 1-3 PAGE 4, ITEM NO.: I MEETING DATE: 08/23/05 issuance of additional bonds, the project will be eligible to receive an additionol $732,000 in tox credit equity. As proposed, the majority of the costs of constructing the project will be supported by $13,200,000 to be paid by bond proceeds, including the odditional $1,715,000 proposed for issuance, and approximately $8,764,375 from Low Income Housing Tax Credit financing. Other resources include $1.5 million in Agency/City assistance, contributions of $1,565,000 from the developer ond partnership, and deferral of Cles $1,200,000 total development fee. BOND STRUCTURE In 2003, the Housing Authority issued !wo series of tax exempt private activity bonds, in the total aggregate principal omount of $11,686,000, to finance the construction of the Project. The first series (Series 2003A) totaled opproximotely $11,485,000 and wos roted MA by virtue of 0 credit enhoncement instrument provided by Fonnie Mae. The remoining bolance of $201,000, was issued as 0 second series (Series 2003B) is non-credit enhanced and subordinate to the first, with o slightly higher interest rate, ond was unrated. The City and Agency both entered into subordination ogreements related to this financing. At this time, the Housing Authority is being requested to issue an additional $1,715,000 in tox exempt privote octivity bonds (Series 2005A) to fino nee additional costs of the Project. This issuance will be structured similor to the Series 2003A Bonds. The bonds will be junior to the existing Series A bonds but will be rated MA by virtue of a credit enhancement instrument by Fonnie Mae. The bond proceeds will be used to payoff the existing Series B bands and to retire the additionol ~ 1.5 million construction loon used to cover project cost increoses. While the Housing Authority of the City of Chula Vista serves as the issuer of the Bonds to finance the development of the Project, the issuonce or repoyment of the Bonds does not constitute a legolliobility or obligation of the City or Housing Authority. Bonds ore allocoted by the State and can only be issued by a public ogency. The Housing Authority merely serves as 0 conduit for the bond financing. Upon issuance of the bonds, bonds are being purchased and offered by Red Copital Markets, Inc. to provide the funding of new construction costs of the Project. Security for repayment of the Bonds is limited to the project ond the revenues it generotes and ather amounts under the Indenture. Repayment of the Bonds is secured by 0 Deed of T rust and Promissory Note recorded against the property ond any future successors in interest. There is no pledge of the City's or the Housing Authority's faith, credit or taxing power. While repayment of the Bonds does not constitute 0 liobility or obligation to the Housing Authority, should CIC or a subsequent owner be unable to perform under the conditions of the Bond Indenture, the Housing Authority's finoncial rating and/or stature in the marketploce could be negatively impocted. 1-4 PAGE 5, ITEM NO.: { MEETING DATE: 08/23/05 The risk for repoyment of the bonds is minimol given thot the project is octuolly completed, the demonstrated high demond for these units, ond on anticipated low vacancy rote. All units have been leased and CIC continues to receive new interests in the project. CIC expects thot the project will have a woiting list of severol hundred fomilies upon its full lease up. With its reliable revenue base, standord costs of operation, ond the presence of other mojor finonciol commitments, such os the tox credit investments, it is anticipated thot the project will do well in the short and long-term. BOND DOCUMENTS At this time, the Housing Authority is being asked to opprove in substantially fino I form all documents related to the bond issuonce. These documents are os follows ond are on file in the Office of the City Clerk due to the substantial length of the documents, with exceptions as noted: o The Trust Indenture for the Series 2005A Bonds specifies the terms and conditions for the issuance and selling of these Bonds and the use of the Series 2005A Bond. o The Financing Agreement for the Series 2005A Bonds specifies the terms and conditions of the Series A Mortgage Loon for the Project. o The Regulatory Agreement is a document which specifies the regulations for the use and operation of the Project (see Exhibit 2). o The Subordinotion Agreement sets forth the priority of the loans on the project. o The Assignment and Intercreditor Agreement specifies how the Bonds, Fannie Mae, Housing Authority, ond the trustee for the Series 2005A will exercise remedies in the cose of defoult. o The Bond Purchase Agreement sets forth the terms upon which Red Capitol Markets, Inc will purchose and sell the Series 2005A Bonds. o The Preliminary Official Statement describes for investors the terms of the Project, CIC, the Housing Authority, Fonnie Moe, ond the Series 2005A Bonds(see Exhibit 3). SUBORDINATION OF REDEVELOPMENT AGENCY LOAN/CITY ASSISTANCE The Agency has provided a $1,000,000 residual receipts loan and the City has provided a $500,000 loan secured by promissory notes Ond deeds of trust, Currently, in priority position ore debt service on the Series 2003 A & B bonds, the deferred developer fee, the EastLake Company Note, with the Agency ond City loon in last positions. The Agency and City loons will remain in last ploce ond will be behind the additional $1,715,000 worth of debt. Fonnie Mae has agreed to provide credit enhoncement, guoranteeing a secondary source for repoyment, for both Bond Issuances, provided that the City ond Agency agree to subordinate the Agency and City Loans to the First Mortgoge Loan provided from the Series 2003A Bond proceeds and the Second Mortgage Loan provided from the 2005A Bonds. In addition, revised subordination agreements for the Series 2003A bond proceeds are necessary at this time because of a change 1-5 PAGE 6, ITEM NO.: I MEETING DATE: 08/23/05 from the construction to permanent lender for the project. Fannie Mae is requesting that the Agency ond the City execute the Subordination Agreements attached as Exhibits 4 through 7, The terms of the Subordination Agreements required by Fonnie Mae are rigorous ond must be met to obtain Fannie Mae credit enhancement. Without the subordination of its financing, the Agency and City would be unable to ottroct the necessary private financing needed to leverage their resources for the development of affordoble hausing. The subordination agreements ore presented in substantiolly final form this evening. Staff is continuing to work with Fannie Mae to ensure the agreements, when in final form, provide the Agency and City with appropriate protections even though the debt is subordinoted. By its noture, subordinated financing does hove risks ossocioted with repayment ond loss of the restrictions. These risks are significontly minimized since the Project is olready constructed, leased, and performing well. As discussed previously under the Bond Structure, it is expected thot the project will continue to do well in the long-term because of the significant demand for these units ond low voconcy rote. The presence of other major finonciol commitments, such as the tax credit investments, means that other stakeholders depend on the short and long-term success of the Project ond will also work towords its continued success. Finally should problems occur, the Agency/City would be involved in the process of resolution to protect the Agency/City interests. If CIC or a subsequent owner is unable to perform under the conditions of the Bond Indentures, Finoncing Agreement, or Regulatory Agreement, the Agency/City may need to cure any loan defaults or lose the affordability restrictions on the Project. The Subordination Agreements presented provides for certain protections to the Agency in return for its subordination consistent with Stote Heolth ond Safety Code Section 33334.14(0) (see Exhibits 4 ond 5). FISCAL IMPACT Bond finoncing is 0 self-supporting program with CIC Eostloke responsible for the payment of all costs of issuance ond other costs and repoyment of the Bonds. All costs related to the issuance of the Bonds will be paid for from Bond proceeds or profits. The Bonds will be secured by the Project ond will not constitute 0 liobility to or obligation of the City. The Housing Authority will receive compensation for its services in preparing the Bond issuance by charging an origination fee of 1/8 percent of the Bond proceeds. Additionally, stoff costs ossocioted with monitoring complionce of the regulatory restrictions ond administration of the outstanding Bonds will be reimbursed from on onnual odministrotive fee of 1/8 percent of the Bond proceeds paid to the Authority by the developer. 1-6 EXHIBITS PAGE 7, ITEM NO.: I MEETING DATE: 08/23/05 The following exhibits are attached: 1. Locotion Map 2. Bond Regulatory Agreement 3. Series 200SA Preliminary Officiol Statement 4. Subordination Agreement to First Mortgage Loan - Agency 5. Subordination Agreement to First Mortgage Loon - City 6. Subordinotion Agreement to Second Mortgage Loon - Agency 7. Subordination Agreement to Second Mortgage Loon - City The following exhibits ore on file in the Office of the City Clerk: 8. Series 2005A Indenture 9. Series 2005A Financing Agreement 10. Subordinotion Agreements 11. Series 2005A Assignment and I ntercreditor Agreement 12. Series 2005A Bond Purchase Agreement J:\COMMDEV\STAFF.REp\200S\A 113 Renche V;ste Bends B.23.05.dec 1-7 HOUSING AUTHORITY OF THE CITY OF CHULA VISTA RESOLUTION NO. A RESOLUTION AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $1,715,000 FOR THE PURPOSE OF PROVIDING ADDITIONAL FINANCING FOR THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF THE RANCHO BUENA VISTA APARTMENTS PROJECT, APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF ANY AND ALL DOCUMENTS NECESSARY TO ISSUE THE BONDS AND IMPLEMENT THIS RESOLUTION WHEREAS, pursuant to Chapter I of Part 2 of Division 24 of the California Health & Safety Code ("Housing Law"), the Housing Authority of the City of Chula Vista (the "Authority") is empowered to issue revenue bonds for the purpose of financing the acquisition, construction, rehabilitation, refinancing or development of multifamily rental housing; and WHEREAS, CIC Eastlake, L.P" a California limited partnership (the "Borrower"), on behalf of itself has acquired and constructed a ISO-unit project located in the City of Chula Vista (the "Project"); and WHEREAS, in 2003, the Authority issued its Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003A in the aggregate principal amount of $11,485,000 (the "2003 Series A Bonds") and its Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003B in the aggregate principal amount of $201,000 (the "2003 SeriesB Bonds," and together with the 2003 Series A Bonds, the "2003 Bonds") and the proceeds of the 2003 Bonds were loaned to the Borrower to finance the acquisition, construction and equipping of the Project; and WHEREAS, the Borrower has requested the Authority to issue additional multifamily housing revenue bonds and loan the proceeds of the bonds to the Borrower to provide additional financing for the acquisition, construction and equipping of the Project; and WHEREAS, the Board of Commissioners of the Authority (the "Board") desires to assist the Borrower provided that the Borrower agrees to make twenty percent (20%) of the units in the Project available for very low income persons or families, and in order to accomplish such purposes it is desirable for the Authority to provide for the financing of the Project through the issuance of bonds; and WHEREAS, the Authority will loan the proceeds of the bonds to the Borrower; and WHEREAS, Fannie Mae will, subject to the satisfaction of certain conditions, facilitate the financing of the Project by causing the issuance of a credit facility (the "Credit Facility") guaranteeing payments of principal and interest on the loan made with respect to the bonds; and WHEREAS, Government Code Section 50191 requires a local agency to file an application with the Califomia Debt Limit Allocation Committee (the "Committee") prior to the issuance of tax-exempt multifamily housing revenue bonds; and WHEREAS, the Committee has allocated to the Project $1,715,000 of the State of California 2005 State ceiling for private activity bonds under Section 146 of the Internal Revenue Codeofl986. 1-8 NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the Housing Authority of the City of Chula Vista, as follows: 1. In accordance with the Housing Law and pursuant to the Indenture (hereinafter defined), the Authority is authorized to issue the bonds to be designated "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A" in an aggregate principal amount not to exceed $1,715,000 (the "Bonds"), with an interest rate or rates, a maturity date or dates and other terms as provided in the Indenture (hereinafter defined) as finally executed for the Bonds. The Bonds shall be in the form set forth in and otherwise in accordance with the Indenture, and shall be executed by the manual or facsimile signature of the Chair or the Executive Director of the Authority and the manual or facsimile seal of the Authority shall be impressed or reproduced thereon and attested by the manual or facsimile signature of the Secretary of the Authority. 2. The form of the trust indenture (the "Indenture") for the Bonds, between the Authority and Wells Fargo Bank, National Association, as trustee (the "Trustee"), is hereby approved in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Anyone of the Chair or Executive Director or any designee thereof (each, an "Authorized Officer") is authorized to execute, and the Secretary of the Authority is authorized to attest, the Indenture in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 8 hereof. The date, maturity date or dates, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption, and other terms of the Bonds shall be as provided in the Indenture as finally executed. 3. The form of the financing agreement (the "Financing Agreement") for the Bonds, among the Authority, the Borrower and the Trustee, is hereby approved in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Any Authorized Officer is authorized to execute, and the Secretary of the Authority is authorized to attest, the Financing Agreement, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 8 hereof. 4. The form of regulatory agreement and declaration of restrictive COvenants (the "Regulatory Agreement"), among the Authority, the Trustee and the Borrower, is hereby approved in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Any Authorized Officer is authorized to execute, and the Secretary of the Authority is authorized to attest, the Regulatory Agreement, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 8 hereof. 5. The form of the assignment and intercreditor agreement (the "Assignment"), among the Authority, the Trustee and Fannie Mae, is hereby approved, in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Any Authorized Officer is authorized to execute, and the Secretary of the Authority is authorized to attest, the Assignment, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 8 hereof. 6. The Authority is authorized to sell the Bonds to Red Capital Markets, Inc. (the "Purchaser") pursuant to the terms and conditions of a bond purchase agreement (the "Purchase Contract") among the Authority, the Borrower and the Purchaser in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director, and such Purchase Contract is approved for the Bonds, Any Authorized Officer is authorized to execute, and the Secretary of the Authority is authorized to attest, the Purchase Contract, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 8 hereof'1 _ 9 7. The form of the Preliminary Official Statement for the Bonds presented at this meeting is hereby approved and the Purchaser is hereby authorized to distribute the Preliminary Official Statement to prospective purchasers of the Bonds substantially in the form hereby approved, together with such additions thereto and changes therein as are determined necessary by the Executive Director of the Authority, or his written designee, to make such Preliminary Official Statement final as of its date for purposes of Rule 15c2-12 of the Securities and Exchange Commission, including, but not limited to, such additions and changes as are necessary to reflect the terms imposed by any rating agency or Fannie Mae or to make the information therein accurate and not misleading. Each Authorized Officer is hereby authorized to execute a final Official Statement in the form of the Preliminary Official Statement, together with such changes as are determined necessary by the Authorized Officer to make such Official Statement complete and accurate as of its date. The Purchaser is further authorized to distribute the final Official Statement for the Bonds and any supplement thereto to the purchasers thereof upon its execution on behalf of the Authority as described above. 8. Any Authorized Officer executing a document approved herein, subject to the review and approval of the Authority Counsel, is authorized to approve and make such modifications, changes or additions to such document, including, but not limited to, the Indenture, the Financing Agreement, the Regulatory Agreement, the Assignment, the Purchase Contract, the Preliminary Official Statement and the final Official Statement, or other document as may be necessary or advisable provided said modifications do not materially or substantially increase the obligations or risks of the Authority thereunder, and the approval of any modification, change or addition to any of the aforementioned agreements shall be evidenced conclusively by the execution and delivery thereof by such Authorized Officer. 9. The officers, employees and agents of the Authority are authorized and directed, for and in the name and on behalf of the Authority, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements, assignments and other documents, including, but not limited to, those documents described in the Indenture and the other documents herein approved, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds and to effectuate the purposes thereof and of the documents herein approved in accordance with this resolution and resolutions heretofore adopted by the Board. Pursuant to the foregoing, any Authorized Officer is authorized and directed to execute and deliver any and all subordination agreements to evidence, as contemplated by the Indenture, the relative priority of the Bonds to other financing encumbering the Project. In the event that the Secretary of the Authority is unavailable to sign any document related to the Bonds, any Deputy Secretary of the Authority may sign on behalf of the Secretary. 10. All prior resolutions or parts thereof in conflict with this resolution are, to the extent of such conflict, repealed. I I. If any section, paragraph or provision of this resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any remaining sections, paragraphs or provisions of this resolution. 1-10 12. This resolution shall take effect immediately upon its adoption. Presented by Approved as to form by Laurie Madigan Director of Community Development ~.d 1r~ ~ Ann ore C' ttorney 1-11 AGENCY RESOLUTION NO. AND COUNCIL RESOLUTION NO. JOINT RESOLUTION OF THE CITY COUNCIL, AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA [A] APPROVING SUBORDINATION AGREEMENTS FOR THE LOW AND MODERATE INCOME HOUSING SET-ASIDE FUND LOAN IN THE AMOUNT OF $1,000,000 AND HOME INVESTMENT PARTNERSHIP PROGRAM LOAN IN THE AMOUNT OF $500,000 SUBORDINATING THE CITY AND AGENCY LOANS TO BOTH THE 2003 AND 2005 FINANCINGS RELATED TO RANCHO BUENA VISTA APARTMENTS AT EASTLAKE AND [B] AUTHORIZING THE EXECUTION OF SAID AGREEMENTS WHEREAS, CIC Eastlake, L.P., a California limited partnership (the "Borrower"), on behalf of itself has acquired and constructed a 1 50-unit project located at 2155 Corte Vista in the City of Chula Vista (the "Project"); and WHEREAS, in 2003, the Housing Authority of the City of Chula Vista (the "Issuer") issued its Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003A in the aggregate principal amount of $11,485,000 (the "2003 Series A Bonds") and the proceeds of the 2003A Bonds were loaned to the Borrower (the "First Mortgage Loan") to finance the acquisition, construction and equipping of the Project; and WHEREAS, the Authority has authorized the issuance of additional multifamily housing revenue bonds not to exceed $1,715,000 and the execution and delivery of any and all documents necessary to issue the bonds and loan the proceeds of the bonds to the Borrower (the "Second Mortgage Loan") to provide additional fmancing for the acquisition, construction and equipping of the Project; and WHEREAS, Fannie Mae will, subject to the satisfaction of certain conditions, facilitate the fmancing of the Project by causing the issuance ofa credit facility (the "Credit Facility") guaranteeing payments of principal and interest on the First and Second Mortgage loans made with respect to the Series 2003A and 2005A Bonds; and WHEREAS, on October 3, 2004 by Agency Resolution No. _ and Council Resolution No._, the City Council (the "City") and the Redevelopment Agency (the "Agency") approved a Loan Agreement and Related Restricted Covenants (the "Loan Agreement") with Borrower, pursuant to which the City would loan Five Hundred Thousand Dollars ($500,000) from its available HOME funds to Borrower (the "City Loan") and the Agency would loan One Million Dollars ($1,000,000) from its Low and Moderate Income Housing Fund to Borrower (the "Agency Loan"), for the Project in accordance with the requirements of the Loan Agreement; and and WHEREAS, the City Loan and Agency Loan are secured by a mortgage lien against the Property; WHEREAS, Fannie Mae has agreed to issue the Credit Facility provided that the City and Agency agree to subordinate their loans to the First and Second Mortgage Loans and the Reimbursement Obligations, and that the City and Agency enter into Subordination Agreements (attached as Exhibits A through D); and, WHEREAS, the Subordination Agreements assist the Agency and City in leveraging its investment by allowing Borrower to obtain a private construction loan and other outside financing; and WHEREAS, the Subordination Agreements as presented in substantially final form provides for certain protections to the Agency in return for its subordination consistent with California Health and Safety Code Section 33334.14(a). 1-12 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA AND THE BOARD OF DIRECTORS OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA DO JOINTLY RESOLVE AS FOLLOWS: 1. The form of the Subordination Agreements related to the First and Second Mortgage Loans, among Wells Fargo National Association, as Trustee, Fannie Mae, Agency and the Borrower, is hereby approved in substantially the form presented to the Agency, a copy of which when executed by the Agency shall be placed on file in the office of the City Clerk. Any Authorized Officer is authorized to execute, and the Secretary of the Agency is authorized to attest, the Subordination Agreements, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 3 hereof. 2. The form of the Subordination Agreement related to the First and Second Mortgage Loans, among Wells Fargo National Association, as Trustee, Fannie Mae, City and the Borrower, is hereby approved in substantially the form presented to the City, a copy of which when executed by the City shall be placed on file in the office of the City Clerk. Any Authorized Officer is authorized to execute, and the City Clerk is authorized to attest, the Subordination Agreements, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 3 hereof. 3. Any Authorized Officer executing the Subordination Agreements approved herein, subject to the review and approval of the City, Agency, and Issuer Counsel, is authorized to approve and make such modifications, changes or additions to such documents which do not materially or substantially increase the obligations or risks of the City or Agency thereunder or materially or substantially change the uses of the Project or other documents as may be necessary or advisable, and the approval of any modification, change or addition to any of the aforementioned agreements shall be evidenced conclusively by the execution and delivery thereof by such Authorized Officer. 4. All prior resolutions or parts thereof in conflict with this resolution are, to the extent of such conflict, repealed. 5. If any section, paragraph or provision of this resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any remaining sections, paragraphs or provisions of this resolution. 6. This resolution shall take effect immediately upon its adoption. Presented by Approved as to form by ~ Laurie Madigan Director of Community Development Ann oore Ci Attorney and Agency J:\COMMDEV\RESOS\2005\Reso Subordination Agr Rancho Buena Vista 8.23.05.doc 1-13 EXHIBIT 1 1-14 EXHIBIT 2 Stradling Yocca Carlson & Rauth Draft dated August 2, 2005 RECORDING REQUESTED BY AND ) WHEN RECORDED RETURN TO: ) ) ROBERT J, WHALEN, ESQ. ) STRADLING YOCCA CARLSON & RAUTH ) . 660 Newport Center Drive, Suite 1600 ) Newport Beach, California 92660 ) [Space above for Recorder's use.] REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS By and Among HOUSING AUTHORITY OF THE CITY OF CHULA VISTA and WELLS FARGO BANK, NATIONAL ASSOCIATION as Trustee and CIC EASTLAKE, L.P" as Borrower Dated as of September l, 2005 Relating to $1,715,000 HOUSING AUTHORITY OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS (RANCHO VISTA APARTMENTS), SERIES 2005A DOCSOCIl!20687v3/24036_003! 1-15 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (the "Regulatory Agreement"), made and entered into as of September 1, 2005, by and among the HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (together with any successor to its rights, duties and obligations, the "Issuer"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Trustee (as such term is defined herein), and CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"), WITNESSETH: WHEREAS, the Legislature of the State of California enacted Chapter I of Part 2 of Division 24 of the Health and Safety Code (the "Act") to authorize housing authorities to issue bonds to finance the acquisition, construction, rehabilitation and development of multifamily rental housing for families and individuals of low income; and WHEREAS, the Issuer is a political subdivision (within the meaning of that term in the Regulations of the Department of Treasury and the rulings of the Internal Revenue Service prescribed and promulgated pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (the "Code")); and WHEREAS, on October 7, 2003, the governing board of the Issuer adopted a resolution (the "Resolution") authorizing the issuance of revenue bonds in connection with financing the acquisition and construction of a ISO-unit multifamily rental housing project known as the Rancho Vista Apartments located in the City of Chula Vista (the "Project"); and WHEREAS, in furtherance of the purposes of the Act and the Resolution and as a part of the Issuer's plan of financing residential rental housing, the Issuer has issued $11,485,000 aggregate principal amount of its revenue bonds designated "Housing Authority of the City of Chula Vista Variable Rate Demand Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003" (the "2003 Series A Bonds") and its $201,000 aggregate principal amount of its revenue bonds designated "Housing Authority of the City of Chula Vista Subordinate Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003B" (the "2003 Series B Bonds and together with the Series A Bonds the "2003 Bonds"), the proceeds of which were loaned to the Borrower which used the proceeds of the 2003 Bonds to finance the acquisition and construction of the Project for the public purpose of providing decent, safe and sanitary housing for families and individuals of low and moderate income; and WHEREAS, since the issuance of the 2003 Bonds, the Borrower has determined that additional financing is necessary in order to complete the Project; and WHEREAS, on August 23, 2005, the governing board of the Issuer adopted a resolution (the "Resolution") authorizing the issuance of additional revenue bonds in connection with financing the Project; and DOCSOCIl 120687v3/24036-0031 1-16 WHEREAS, in furtherance of the purposes of the Act and the Resolution and as a part of the Issuer's plan of financing residential rental housing, the Issuer has issued $1,715,000 aggregate principal amount of its revenue bonds designated "Housing Authority of the City of Chula Vista Variable Rate Demand Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A" (the "Bonds"), the proceeds of which were loaned to the Borrower which used the proceeds of the Bonds to provide additional financing for the acquisition and construction of the Project for the public purpose of providing decent, safe and sanitary housing for families and individuals of low and moderate income; and WHEREAS, the Issuer, the Trustee, and the Borrower have entered into a Financing Agreement, dated the date hereof (the "Financing Agreement"), providing the terms and conditions under which the Issuer will make the Mortgage Loan to the Borrower to finance the acquisition and construction of the Project; and WHEREAS, all things necessary to make the Bonds, when issued as provided in the Indenture, the valid, binding, and limited obligations of the Issuer according to the import thereof, and to constitute the Indenture a valid assignment of the amounts pledged to the payment of the principal of, and premium, if any, and interest on the Bonds have been done and performed, and the creation, execution, and delivery of the Indenture and the execution and issuance of the Bonds, subject to the terms thereof, in all respects have been duly authorized; and WHEREAS, the Issuer has obtained an allocation for the Project of a portion of the State of California's private activity bond volume cap, within the meaning of Section 146 of the Code, in accordance with the procedures established by the California Debt Limit Allocation Committee; and WHEREAS, the Code and the regulations and rulings promulgated with respect thereto and the Act prescribe that the use and operation of the Project be restricted in certain respects and in order to ensure that the Project will be owned and operated in accordance with the Code and the Act, the Issuer, the Trustee and the Borrower have determined to enter into this Regulatory Agreement in order to set forth certain terms and conditions relating to the acquisition, construction, equipping and operation of the Project; NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Issuer, the Trustee and the Borrower hereby agree as follows: Section 1. Definitions and Interpretation. The following terms shall have the respective meanings assigned to them in this Section I unless the context in which they are used clearly requires otherwise: "Act" - Chapter I of Part 2 of Division 24 of the California Health and Safety Code, as now in effect and as it may from time to time hereafter be amended and supplemented. "Adjusted Income" - The adjusted income of all persons who intend to reside in one residential unit as calculated in the manner determined by the Secretary of the Treasury pursuant to Section 142(d)(2)(B) of the Code. "Administration Agreement" - The administration agreement to be entered into among the Issuer, the Borrower and any entity other than Issuer, which is acting as the Program Administrator. DOCSOCIl120687v3124036-003 ] 12...1 7 "Affiliated Party" - (I) a Person whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, (2) a Person who together with the Borrower are members of the same controlled group of corporations (as defined in Section l563(a) of the Code, except that "more than 50 percent" shall be substituted for "at least 80 percent" each place it appears therein), (3) a partnership and each of its partners (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code or (4) an S Corporation and each of its shareholders (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code. "Area" - The San Diego County, California Primary Metropolitan Statistical Area. "Authorized Borrower Representative" - Any person from time to time designated as such by written certificate from the Borrower to the Trustee, and the Issuer including such persons' specimen signature. "Bonds" - Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A. "Borrower's Tax Certificate" - The certificate of the Borrower, dated as of the Closing Date, with respect to certain Project Costs delivered to the Issuer by the Borrower. "CDLAC" - The California Debt Limit Allocation Committee. "CDLAC Resolution" - Resolution No. 05-60 adopted by CDLAC on May 19,2005. "Certificate of Continuing Program Compliance" - The certificate with respect to the Project to be filed by the Borrower with the Program Administrator, which shall be substantially in the form attached hereto as Exhibit B. "City" - The City of Chula Vista. "Closing Date" - The date on which the Bonds are issued and delivered to the purchasers thereof. "Completion Date" - The date on which the Project is completed as set forth in the certificate regarding the Completion Date that is delivered pursuant to Section 2(c) hereof. "Costs of Issuance" - The costs of issuing the Bonds as further described in the Indenture. "Credit Facility" - Initially, the Letter of Credit issued by Provident Bank to the Trustee or any Substitute Credit Facility in effect at the time, which shall include the Credit Enhancement Instrument (Stand-by) issued by Fannie Mae on the date of Loan Conversion, as any such facility may be amended, supplemented or restated from time to time. "Credit Provider" - So long as the Letter of Credit is in effect, Provident Bank and its successors and assigns, or so long as the Credit Enhancement Instrument (Stand-by) is in effect, Fannie Mae and its successors and assigns. DOCSOC1l120687v3124036-0031 12,18 "Financing Agreement" - The Financing Agreement, dated as of the date hereof, by and among the Issuer, the Borrower and the Trustee, as amended or supplemented from time to time. "Income Certification" - The Income Computation and Certification Form in substantially the form attached hereto as Exhibit C. "Indenture" - The Trust Indenture, dated as of the date hereof, between the Issuer and the Trustee, pursuant to which the Bonds have been issued, as amended or supplemented from time to time. "Issuer's Annual Fee" - The Issuer's annual fee equal to $ payable by the Borrower in equal semiannual installments on June 1 and December 1 of each year, commencing [December I, 2005], in arrears, as provided in Section 4.2 of the Financing Agreement. "Median Income for the Area" - The median gross income for the Area as most recently determined by the Secretary of Treasury pursuant to Section l42(d)(2)(B) of the Code. "Person" - Any natural person, firm, partnership, association, limited liability company, corporation, company or public body. "Program Administrator" - The Issuer, or such other entity as is appointed by the Issuer from time to time to act in such capacity hereunder. "Program Administrator's Fee" - The administrative fee of the Program Administrator as set forth in the Administration Agreement. "Project" - The Project Facilities and the Project Site. "Project Costs" - To the extent authorized by the Code, the Regulations and the Act, any and all costs incurred by the Borrower with respect to the acquisition and construction of the Project, whether paid or incurred prior to or after the sixtieth day preceding August 23, 2005, including, without limitation, costs for site preparation, the planning of housing ,and related facilities and improvements, the acquisition of property, the removal or demolition of existing structures, the construction of housing and related facilities and improvements, and all other work in connection therewith, and all costs of financing, including, without limitation, the cost of consultant, accounting and legal services, other expenses necessary or incident to determining the feasibility of the Project, administrative and other expenses necessary or incident to the Project and the financing thereof (including reimbursement to any municipality, county or entity for expenditures made for the Project) and all other costs approved by Bond Counsel. "Project Facilities" - The buildings, structures and other improvements on the Project Site, and all fixtures and other property owned by the Borrower and located on, or used in connection with, such buildings, structures and other improvements constituting the Project. "Project Site" - The parcel or parcels of real property described in Exhibit "A", which is attached hereto and by this reference incorporated herein, and all rights and appurtenances thereunto appertaining. "Qualified Project Costs" - The Project Costs (excluding Costs of Issuance) incurred not more than 60 days prior to August 23, 2005 which either constitute land or property of a character DOCSOC/t 120687v3/24036-0031 1~19 subject to the allowance for depreciation under Section 167 of the Code or are chargeable to a capital account with respect to the Project for federal income tax and financial accounting purposes, or would be so chargeable either with a proper election by the Borrower or but for the proper election by the Borrower to deduct those amounts within the meaning of Regulation I.l03-8(a)(l)(i); provided, however, that only such portion of interest accrued during construction of the Project shall constitute a Qualified Project Cost as bears the same ratio to all such interest as the Qualified Project Costs bear to all Project Costs paid from Bond proceeds and interest earnings thereon; and provided further that interest accruing after the Completion Date shall not be a Qualified Project Cost; and provided still further that if any portion of the Project is being constructed by an Affiliated Party (whether as a general contractor or a subcontractor), "Qualified Project Costs" shall include only the actual out-of-pocket costs incurred by such Affiliated Party in constructing the Project (or any portion thereof) within the meaning of Section 147(d)(2) of the Code, as provided in the Tax Certificate. "Qualified Project Period" - The period beginning on the first date on which ten percent of the units in the Project are occupied and ending on the latest of the following dates: (a) the date which is 55 years after the date on which fifty percent of the units in the Project are occupied, (b) the first day on which no tax exempt bonds with respect to the Project are Outstanding, or (c) the date on which any assistance provided with respect to the Project under Section 8 of the United States Housing Act of 1937 terminates. "Security Instrument" - The Multifamily Deed of Trust Assignment of Rents, Security Agreement and Fixture Filing, dated as of the Loan Conversion, together with all riders and exhibits, securing the Mortgage Note and the obligations of the Borrower to the Credit Provider under the Credit Facility, executed by the Borrower with respect to the Mortgaged Property, as it may be amended, supplemented or restated from time to time, or any security instrument executed in substitution therefor, as such substitute security instrument may be amended, supplemented or restated from time to time. "Servicer" - The multifamily mortgage loan servicer designated from time to time by the Credit Provider. "Trustee" - Wells Fargo Bank, National Association, or its successors or assigns at any time serving as trustee under the Indenture. "Very Low Income Tenants" - Individuals or families with an Adjusted Income that does not exceed 50 percent of the Median Income for the Area as adjusted for household size as set forth below. In no event, however, will the occupants of a residential unit be considered to be Very Low Income Tenants if all the occupants are students, as defined in Section 15 I (c)(4) of the Code, as such may be amended, no one of which is entitled to file a joint federal income tax return. Currently, Section l51(c)(4) defines a student as an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional on-farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. DOCSOCIl120687v3/24036-0031 1~20 Household Size Adjustment to 50% of Median Income for the Area I 2 3 4 5 6 7 8 70% 80% 90% 100% 108% 116% 124% 132% "Very Low Income Units" - The dwelling units in the Project designated for occupancy by Very Low Income Tenants pursuant to Section 4(a) of this Regulatory Agreement. Such terms as are not defined herein shall have the meanings assigned to them in the Indenture. Unless the context clearly requires otherwise, as used in this Regulatory Agreement, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. This Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the pUlposes set forth herein and to sustain the validity hereof. The defined terms used in the preamble and recitals of this Regulatory Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all defined terms shall be determined by reference to this Section I notwithstanding any contrary definition in the preamble or recitals hereof. The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. Section 2. Acquisition. Construction, EquipVing and Completion of the Proiect. The Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Borrower has incurred a substantial binding obligation to acquire, construct and equip the Project, pursuant to which the Borrower is obligated to expend at least five percent of the net sale proceeds of the Bonds. (b) The Borrower's reasonable expectations respecting the total cost of the acquisition, construction and equipping of the Project and the disbursement of Bond proceeds are accurately set forth in the Borrower's Tax Certificate attached to the Tax Certificate which has been delivered to the Issuer, (c) The Borrower shall construct the Project and will proceed with due diligence to complete the acquisition, construction and equipping of the Project and expects to expend the full amount of the proceeds of the Mortgage Loan for Project Costs prior to September 1,2008. Upon DOCSOCIl120687v3/24036-0031 1 ~21 completion of the Project, the Borrower shall deliver to the Issuer a certificate executed by the Borrower certifying the date the Project is completed, which the Borrower shall cause to be recorded in the real property records of the Counly of San Diego. (d) The statements made in the various certificates delivered by the Borrower to the Issuer or the Trustee are true and correct. (e) Money on deposit in any fund or account in connection with the Bonds, whether or not such money was derived from other sources, shall not be used by or under the direction of the Borrower, in a manner which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code, and the Borrower specifically agrees that the investment of money in any such fund shall be restricted as may be necessary to prevent the Bonds from being "arbitrage bonds" under the Code. (f) The Borrower (and any person related to it within the meaning of Section 147(a)(2) of the Code) will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds from the sale of the Bonds to be applied in a manner contrary to the requirements of the Indenture, the Financing Agreement or this Regulatory Agreement. Section 3. Residential Rental Prol'ertv. The Borrower shall own, manage and operate the Project as a "qualified residential rental project" (within the meaning of Section 142(d) of the Code) until the expiration of the Qualified Project Period. To that end, and for the term of this Regulatory Agreement, the Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows; (a) The Project is being acquired, constructed and equipped for the purpose of providing multifamily residential rental property, and the Borrower shall own, manage and operate the Project as a project to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with applicable provisions of Section 142(d) of the Code and Section 1.l03-8(b) of the Regulations, and the Act, and in accordance with such requirements as may be imposed thereby on the Project from time to time. (b) All of the dwelling units in the Project will be similarly constructed units, and, to the extent required by the Code and the Regulations, each dwelling unit in the Project will contain complete separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink; provided that any Very Low Income Tenant may, but shall not be obligated to, provide a refrigerator for the unit to be occupied. (c) None of the dwelling units in the Project will at any time be utilized on a transient basis, or will ever be used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement house or trailer court or park. (d) No part of the Project will at any time be owned or used as a condominium or by a cooperative housing corporation nor shall the Borrower take any steps in connection with a conversion to such ownership or uses. Other than obtaining a final subdivision map on the Project DOCSOCIl120687v3/24036-0031 1h2 and a Final Subdivision Public Report from the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion of the Project to a condominium or cooperative ownership except with the prior written approving opinion of Bond Counsel that the interest on the Bonds will not become taxable thereby under Section 103 of the Code. (e) All of the dwelling units will be available for rental on a continuous basis to members of the general public and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that dwelling units are required to be leased or rented to Very Low Income Tenants and to holders of Section 8 certificates or vouchers. (f) The Project Site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the Project Facilities will comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. (g) No dwelling unit in any building or structure in the Project which contains fewer than five units shall be occupied by the Borrower or by persons related to or affiliated with the Borrower. (h) Should involuntary noncompliance with the provisions of Section 1.1 03-8(b) of the Regulations be caused by fire, seizure, requisition, foreclosure, transfer of title by deed in lieu of foreclosure, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer from enforcing the requirements of the Regulations, or condemnation or similar event, the Borrower covenants that, within a "reasonable period" determined in accordance with the Regulations, it will either prepay the Mortgage Note or apply any proceeds received as a result of any of the preceding events to reconstruct the Project to meet the requirements of Section 142(d) of the Code and the Regulations. (i) The Borrower shall not discriminate on the basis of race, religion, creed, color, ethnic group identification, sex, source of income (e.g. AFDC, SSI), mental or physical disability, age, national origin or marital status in the rental, lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the operation and management of the Project. U) Following the expiration or termination of the Qualified Project Period, Very Low Income Units shall remain available to the Very Low Income Tenants then occupying such units at the date of expiration or termination of the Qualified Project Period at a rent not greater than the rent determined pursuant to Section 4(a) below until the earliest of any of the following occurs: (i) The household's income exceeds 140 percent of the income at which such household would qualify as a Very Low Income Tenant. (ii) The household voluntarily moves or is evicted for "good cause." For these purposes, "good cause" means the nonpayment of rent or allegation of facts necessary to prove major, or repeated minor, violations of material provisions of the lease agreement which detrimentally affect the health and safety of other persons or the structure, the fiscal integrity of the Project, or the purposes or special programs of the Project. DOCSOC1l120687v3124036-0031 1hs (iii) Sixty (60) years after the commencement of the Qualified Project Period. (iv) The Borrower pays relocation assistance and benefits to such tenant as provided in Government Code Section 7264(b). (k) During the three-year period prior to the expiration of the Qualified Project Period, the Borrower shall continue to make available to Very Low Income Tenants Very Low Income Units that have been vacated to the same extent that other units in the Project are made available to the general public. . (I) The Issuer may but shall not be required to monitor the Borrower's compliance with the provisions of subparagraph G) above. Section 4. Verv Low Income Tenants. Pursuant to the requirements of Section 142(d) of the Code and applicable provisions of the Act, the Borrower hereby represents, as of the date hereof, and warrants, covenants and agrees as follows: (a) During the Qualified Project Period, not less than twenty percent (20%) of the units in the Project shall be designated as Very Low Income Units and shall be continuously occupied by or held available for occupancy by Very Low Income Tenants at monthly rents paid by the Very Low Income Tenants which do not exceed one-twelfth of the amount obtained by multiplying 30% times 50% of the Median Income for the Area, as adjusted for household size utilizing the percentages set forth above under the definition of Very Low Income Tenant less a reasonable deduction for utilities paid by the tenant, as determined by the Issuer, and assuming the following unit sizes and household sizes: Unit Size Studio One Bedroom Two Bedrooms Three Bedrooms Household Size One Person Two Persons Three Persons Four Persons Such Very Low Income Units shall be of comparable quality and offer a range of sizes and number of bedrooms comparable to those units which are available to other tenants and shall be distributed throughout the Project. A unit occupied by a Very Low Income Tenant who at the commencement of the occupancy is a Very Low Income Tenant shall be treated as occupied by a Very Low Income Tenant until a recertification of such tenant's income in accordance with Section 4(c) below demonstrates that such tenant no longer qualifies as a Very Low Income Tenant and thereafter any residential unit of comparable size in the Project is occupied by a new resident other than a Very Low Income Tenant. Moreover, a unit previously occupied by a Very Low Income Tenant and then vacated shall be considered occupied by a Very Low Income Tenant until reoccupied, other than for a temporary period, at which time the character of the unit shall be redetermined. In no event shall such temporary period exceed thirty-one (31) days. (b) Immediately prior to a Very Low Income Tenant's occupancy of a Very Low Income Unit, the Owner will obtain and maintain on file an Income Certification from each Very DOCSOC1l120687v3124036-0031 9 1-24 Low Income Tenant occupying a Very Low Income Unit, dated immediately prior to the initial occupancy of such Very Low Income Tenant in the Project. In addition, the Owner will provide such further information as may be required in the future by the State of California, the Issuer, the Act, Section 142(d) of the Code and the Regulations, as the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to obligations issued under Section 142(d) of the Code. The Owner shall verify that the income provided by an applicant is accurate by taking one or more of the following steps as a part of the verification process: (I) obtain a federal income tax return for the most recent tax year, (2) obtain a written verification of income and employment from the applicant's current employer, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income satisfactory to the Issuer or (4) such other information as may be reasonably requested by the Issuer. Copies of the most recent Income Certifications for Very Low Income Tenants commencing or continuing occupancy of a Very Low Income Unit shall be attached to the quarterly report to be filed with the Issuer as required in (d) below. (c) Immediately prior to the first anniversary date of the occupancy of a Very Low Income Unit by one or more Very Low Income Tenants, and on each anniversary date thereafter, the Owner shall recertify the income of the occupants of each Very Low Income Unit by obtaining a completed Income Certification based upon the current income of each occupant of the unit. In the event the recertification demonstrates that such household's income exceeds 140% of the income at which such household would qualify as Very Low Income Tenants, such household will no longer qualify as Very Low Income Tenants and to the extent necessary to comply with the requirements of Section 4(a) above, the Owner will rent the next available unit of comparable size to one or more Very Low Income Tenants. (d) Not later than ten (10) days after the commencement of the Qualified Project. Period, and within ten days of the last day of each quarter thereafter during the term of this Regulatory Agreement, the Borrower shall advise the Issuer of the status of the occupancy of the Project by delivering to the Program Administrator and the Issuer a Certificate of Continuing Program Compliance. (e) The Borrower will maintain complete and accurate records pertaining to the Very Low Income Units, and will permit, upon 24 hours notice, any duly authorized representative of the Issuer, the Program Administrator, the Trustee, Credi t Provider, the Department of the Treasury or the Internal Revenue Service to inspect the books and records of the Borrower pertaining to the Project, including those records pertaining to the occupancy of the Very Low Income Units and Low Income Units. (f) The Borrower shall submit to the Secretary of the Treasury annually on the anniversary date of the start of the Qualified Project Period, or' such other date as is required by the Secretary, a certification that the Project continues to meet the requirements of Section l42(d) of the Code, and shall provide a copy of such certification to the Issuer and the Program Administrator. (g) Prior to renting any Very Low Income Units, the Borrower shall prepare and present to the City a marketing plan for the Very Low Income Units. The Borrower may begin leasing the Very Low Income Units following the City Manager's approval of the marketing plan, DOCSOC/1120687v3/24036-0031 1!Jj25 which consent shall not be unreasonably conditioned, delayed or withheld. The Borrower shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. The Borrower agrees to contact the San Diego County Housing Authority for a list of persons who ltre recipients of, or who are applying for, Section 8 certificates or vouchers whenever a Very Low Income Unit becomes available but not more frequently than every four weeks. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that are more burdensome than criteria applied to all other prospective tenants. (h) The Very Low Income Units shall be of a comparable quality and offer a range of sizes and number of bedrooms comparable to the units that are available to other tenants. (i) The Borrower shall not collect any additional fees or payments from a Very Low Income Tenant except security deposits or other deposits required of all tenants or for services or items requested by a tenant. The Borrower shall not collect security deposits or other deposits from Section 8 certificate or voucher holders in excess of those allowed under the Section 8 Program. The Borrower shall not discriminate against Very Low Income Tenant applicants on the basis of source of income (i.e., AFDC or S8I), and the Borrower shall consider a prospective tenant's previous rent history of at least one year as evidence of the ability to pay the applicable rent. G) Each lease pertaining to a Very Low Income Unit shall contain a provision to the effect that the Borrower has relied on the Income Certification and supporting information supplied by the Very Low Income Tenant in determining qualification for occupancy of the Very Low Income Unit and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. Each lease will also contain a provision that failure to cooperate with the annual recertification process reasonably instituted by the Borrower pursuant to Section 4(c) above may at the option of the Borrower disqualify the unit as a Very Low Income Unit or provide grounds for termination of the lease. (1<) The Borrower will execute and deliver to the Issuer an Administration Agreement applicable to the Project at the request of the Issuer. (I) Prior to the completion of construction of the Project, the Borrower agrees to provide to the Issuer and any Program Administrator a copy of the form of application and lease to be provided to prospective Very Low Income Tenants. The term of the lease shall be not less than thirty (30) days. (m) The Borrower shall notify the Issuer and any Program Administrator of any change in leasing agents or managers for the Project. Section 5. Tax Status of the Bonds. The Borrower and the Issuer each represents, as of the date hereof, and warrants, covenants and agrees that: (a) It will not knowingly take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the exclusion from gross income for federal income tax purposes or the exemption from California personal income taxation of the interest on the Bonds and, if it should take or permit, or omit to take or cause to be taken, any such action, it will DOCSOCIl120687v3/24036-0031 1~h take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof; (b) It will take such action or actions as may be necessary, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, to comply fully with the Act and all applicable rules, rulings, policies, procedures, Regulations or other official statements promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service pertaining to obligations issued under Section 142(d) of the Code to the extent necessary to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds; and (c) The Borrower, at the Borrower's expense, will file of record such documents and take such other steps as are necessary, in the written opinion of Bond Counsel filed with the Issuer and the Trustee, in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project, including, but not limited to, the execution and recordation of this Regulatory Agreement in the real property records of the County of San Diego. The Borrower hereby covenants to notify any subsequent owner of the Project of the requirements and restrictions contained in this Regulatory Agreement in any documents transferring any interest in the Project to another person to the end that such transferee has notice of such restrictions, and to obtain the agreement from any transferee to abide by all requirements and restrictions of this Regulatory Agreement; provided that the covenants contained in this paragraph shall not apply to Credit Provider should Credit Provider become the owner of the Project by foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan. Section 6. Modification of Special Tax Covenants. The Borrower, the Trustee and the Issuer hereby agree as follows; (a) To the extent any amendments to the Act, the Regulations or the Code shall, in the written opinion of Bond Counsel filed with the Issuer, the Credit Provider, the Borrower and the Trustee, impose requirements upon the ownership or operation of the Project more restrictive than those imposed by this Regulatory Agreement which must be complied with in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds, this Regulatory Agreement shall be deemed to be automatically amended to impose such additional or more restrictive requirements. (b) To the extent any amendments to the Act, the Regulations or the Code shall, in the written opinion of Bond Counsel filed with the Issuer, the Credit Provider, the Borrower and the Trustee, impose requirements upon the ownership or operation of the Project less restrictive than imposed by this Regulatory Agreement, this Regulatory Agreement may be amended or modified to provide such less restrictive requirements but only by written amendment approved and signed by the Issuer, the Trustee and the Borrower, approved by the Credit Provider and approved by the written opinion of Bond Counsel that such amendment will not affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. (c) The Borrower, the Issuer and, if applicable, the Trustee shall execute, deliver and, if applicable, file of record any and all documents and instruments, necessary to effectuate the intent of this Section 6, and each of the Borrower and the Issuer hereby appoints the Trustee as its true and lawful attorney-in-fact to execute, deliver and, if applicable, file of record on behalf of the DOCSOC1l120687v3124036-0031 1.!..227 Borrower or the Issuer, as is applicable, any such document or instrument (in such form as may be approved in writing by Bond Counsel) if either the Borrower or the Issuer defaults in the performance of its obligations under this subsection (c); provided, however, that the Trustee shall take no action under this subsection (c) without first notifying the Borrower or the Issuer, or both of them, as is applicable, unless directed in writing by the Issuer or the Borrower and without first providing the Borrower or the Issuer, or both, as is applicable, an opportunity to comply with the requirements of this Section 6. Section 7. Indemnification. The Borrower hereby releases the Issuer, the Trustee and the Program Administrator and their officers and employees from, and covenants and agrees to indemnify, hold harmless and defend the Issuer, the Trustee and the Program Administrator and their respective officers, members, directors, officials, agents and employees and each of them (each, an "indemnified party") from and against any and all claims, losses, costs, damages, demands, expenses, taxes, suits, judgments, actions and liabilities of whatever nature, joint and several (including, without limitation, costs of investigation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments), directly or indirectly (a) by or on behalf of any person arising from any cause whatsoever in connection with transactions . contemplated hereby or otherwise in connection with the Project, the Bonds, or the execution or amendment of any document relating thereto; (b) arising from any act or omission of the Borrower or any of its agents, servants, employees or licensees, in connection with the Mortgage Loan or the Project; (c) arising in connection with the issuance and sale, resale or reissuance of any Bonds or any certifications or representations made by any person other than the Issuer or the party seeking indemnification in connection therewith and the carrying out by the Borrower of any of the transactions contemplated by the Bonds, the Indenture, the Financing Agreement and this Regulatory Agreement; (d) arising in connection with the operation of the Project, or the conditions, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; and (e) arising out of or in connection with the Trustee's acceptance or administration of the trusts created by the Indenture and the exercise of its powers or duties thereunder or under the Financing Agreement, this Regulatory Agreement or any other agreements in connection therewith to which it is a party; except (I) in the case of the foregoing indemnification of the Trustee, the Program Administrator or any of their respective officers, members, directors, agents and employees, to the extent such damages are caused by the negligence or willful misconduct of such person, and (2) in the case of the foregoing indemnification of the Issuer or any of its officers, members, directors, officials, agents and employees, to the extent such damages are caused by the gross negligence or willful misconduct of such person. In the event that' any action or proceeding is brought against any indemnified party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall assume the investigation and defense thereof, including the employment of counsel selected (i) by the Borrower and reasonably approved by the indemnified party, when the indemnified party is other than the Issuer, and (ii) by the Issuer when the indemnified party is the Issuer or any of its officers, members, directors, officials, agents and employees; and the Borrower shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that an affected indemnified party shall have the right to review and approve or disapprove any such compromise or settlement. Each indemnified party shall have the right if such indemnified party shall conclude in good faith that a conflict of interest exists to employ separate counsel in any such action or proceeding and participate in the DOCSOCl1120687v3n4036-0031 13 1-28 investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such separate counsel. The Borrower also shall pay and discharge and shall indemnify and hold hannless !be Trustee, the Issuer and the Program Administrator from (i) any lien or charge upon payments by the Borrower to the Trustee, !be Issuer or !be Program Administrator hereunder and (ii) any taxes (including, wi!bout limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges in respect of any portion of the Project. If any such claim is asserted, or any such lien or charge upon payments, or any such taxes, assessments, impositions or other charges, are sought to be imposed, !be Issuer or the Program Administrator shall give prompt notice to the Borrower and the Borrower shall have the sole right and duty to assume, and will assume, !be defense thereof, wi!b full power to litigate, compromise or settle the same in its sole discretion. Notwi!bstanding any transfer of the Project to another owner in accordance with the provisions of the Financing Agreement, !be Security Agreement and this Regulatory Agreement, the transferor shall remain obligated to indemnify each indemnified party pursuant to this Section for all matters arising prior to the date of transfer and with respect to the Issuer for all matters arising on or after !be transfer date if such subsequent owner fails to indemnify the Issuer, unless the Issuer consents at the time of transfer to indemnification under this Section 7 from such subsequent owner. In no event, however, shall any such consent by any indemnified party hereunder be deemed to constitute the consent of any other indemnified party. Notwithstanding the foregoing, the Credit Provider nor any successor in interest to the Credit Provider, will assume or take subject to any liability for the indemnification obligations of the Borrower for acts or omissions of the Borrower prior to any transfer of title to !be Credit Provider, whether by foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan; the Borrower shall remain liable under the indemnification provisions of the Regulatory Agreement for its acts and omissions prior to any transfer of title to the Credit Provider, as applicable. The Credit Provider shall indemnify the Issuer and !be Trustee following acquisition of !be Project by the Credit Provider by foreclosure, deed in lieu of foreclosure or comparable conversion to the Mortgage Loan, during, and only during, any ensuing period that the Credit Provider owns and operates !be Project, provided that the liability of the Credit Provider shall be strictly limited to acts and omissions of the Credit Provider occurring during the period of ownership and operation of the Project by the Credit Provider. The Credit Provider's obligation, as applicable, to provide indemnification shall be contingent upon the Credit Provider's receipt of written notice from any party asserting a right to indemnification in time sufficient to enable the Credit Provider to defend any action, claim or proceeding in a manner which is not prejudicial to the Credit Provider's rights. the Credit Provider shall have no indemnification obligations with respect to the Bonds or the Mortgage Loan Documents. In addition thereto, subject to Section 17 hereof, the Borrower will pay upon demand all of the fees and expenses paid or incurred by !be Trustee, the Issuer or the Program Administrator in enforcing the provisions hereof. The provisions of this Section 7 shall survive the term of the Bonds and this Regulatory Agreement and the resignation or removal of the Trustee. The obligations of the Borrower under this Section are independent of any other contractual obligation of !be Borrower to provide indemnity to the parties named herein or otherwise, and the DOCSOCIl120687v3n4036-0031 1..!.~9 obligation of the Borrower to provide indemnity hereunder shall not be interpreted, construed or limited in light of any other separate indemnification obligation of the Borrower. Any indemnified party shall be entitled simultaneously to seek indemnity under this Section and any other provision under which it is entitled to indemnity. Section 8. Consideration. The Issuer has issued the Bonds and loaned the proceeds thereof to the Borrower to finance the Project, all for the purpose, among others, of inducing the Borrower to acquire, construct, equip and operate the Project. In consideration of the issuance of the Bonds by the Issuer, the Borrower has entered into this Regulatory Agreement and has agreed to restrict the uses to which the Project can be put on the terms and conditions set forth herein. Section 9. Reliance. The Issuer and the Borrower hereby recognize and agree that the representations, warranties, covenants and agreements set forth herein may be relied upon by all persons interested in the legality and validity of the Bonds, and in the exclusion from gross income for federal income tax purposes and the exemption from California personal income taxes of the interest on the Bonds. In performing their duties and obligations hereunder, the Issuer, the Trustee and the Program Administrator may rely upon statements and certificates of the Borrower and the Very Low Income Tenants, and upon audits of the books and records of the Borrower pertaining to the Project. In addition, the Issuer, the Program Administrator and the Trustee may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Issuer, the Program Administrator and the Trustee under this Regulatory Agreement in good faith and in conformity with such opinion; provided, however, if there are conflicting opinions among the counsel selected by such parties, the opinion of Bond Counsel shall govern the interpretation and enforcement of this Regulatory Agreement. In determining whether any default or lack of compliance by the Borrower exists under this Regulatory Agreement, the Trustee shall not be required to conduct any investigation into or review of the operations or records of the Borrower and may rely solely on any notice or certificate delivered to the Trustee by the Borrower, the Issuer or the Program Administrator with respect to the occurrence or absence of a default. Section 10. Sale or Transfer of the Proiect: Syndication. The Borrower intends to hold the Project for its own account, has rio current plans to sell, transfer or otherwise dispose of the Project, and hereby covenants and agrees not to sell, transfer or otherwise dispose of the Project, or any portion thereof (other than for individual tenant use as contemplated hereunder and replacement of personal property), without obtaining the prior written consent of the Issuer, which consent shall be given upon receipt by the Issuer of (i) such certifications from the Borrower or the Trustee as are reasonably deemed necessary by the Issuer to establish that the Borrower shall not be in default under this Regulatory Agreement or under the Financing Agreement or, if any such defaults exist, the purchaser or assignee undertakes to cure such defaults to the satisfaction of the Issuer; (ii) a written instrument by which the Borrower's purchaser or transferee has assumed in writing and in full the Borrower's duties and obligations under this Regulatory Agreement and under the Administratipn Agreement, (iii) an opinion of counsel for the transferee that the transferee has duly assumed the obligations of the Borrower under this Regulatory Agreement and the Administration Agreement and that such obligations and this Regulatory Agreement and the Administration Agreement are binding on the transferee, (iv) documentation from the transferee reflecting the transferee's experience with owning and/or operating multifamily housing projects such as the Project and with use and occupancy restrictions similar to those contained in this Regulatory Agreement, and (v) an opinion of Bond Counsel addressed to the Issuer and the Trustee to the effect that such transfer will not cause DOCSOC1l120687v3124036-0031 15 1-30 interest on any Bond to become includable in the gross income of the recipients thereof for federal income tax purposes. No transfer of the Project shall operate to release the Borrower from its obligations under this Regulatory Agreement with respect to any action or inaction taken prior to such transfer. Consent of the Issuer and delivery of items (i), (ii), (iii) and (v) of the preceding paragraph shall be required for any transfer of the Project by the Credit Provider, or its designee, subsequent to the purchase at foreclosure or transfer pursuant to deed in lieu of foreclosure as described in the preceding sentence. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Borrower, and shall be ineffective to relieve the Borrower of its obligations under this Regulatory Agreement. Not less than 20 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Borrower shall deliver to the Issuer and the Trustee a notice in writing explaining the nature of the proposed transfer. The Borrower shall not syndicate the Project unless, prior to such syndication, an opinion of counsel acceptable to the Issuer is delivered to the Issuer to the effect that (i) the terms and conditions of the syndication do not reduce or limit any of the requirements of the Act or regulations adopted or documents executed pursuant to the Act, (ii) no requirements of the Issuer shall be subordinated to the syndication agreement and (iii) the syndication shall not result in the provision of fewer assisted units, or the reduction of any benefits or services, than were in existence prior to the syndication agreement. Section II. Term. Except as provided in Section 3U), (k), (I) and Section 7 above, which provisions shall continue beyond the Qualified Project Period, and, except as provided in the second paragraph of this Section II, this Regulatory Agreement and all and several of the terms hereof shall become effective upon its execution and delivery and shall remain in full force and effect during the Qualified Project Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Bonds and expiration of the Indenture, the Financing Agreement, the Mortgage Note and the Security Instrument. Notwithstanding any other provisions of this Regulatory Agreement to the contrary, this entire Regulatory Agreement, or any of the provisions or sections hereof, may be terminated upon agreement by the Issuer, the Trustee and the Borrower only if there shall have been received by the Issuer an opinion of Bond Counsel that such termination will not adversely affect the exclusion from gross income for federal income tax purposes or the exemption from State personal income taxes of the interest on the Bonds. The terms of this Regulatory Agreement to the contrary notwithstanding, this Regulatory Agreement, and each and all of the terms hereof, shall terminate and be of no further force and effect in the event of involuntary noncompliance with the provisions of this Regulatory Agreement caused by (a) foreclosure of the Security Instrument or deli very of a deed in lieu of foreclosure, or (b) fire, seizure, requisition, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer and the Trustee from enforcing the provisions of this Regulatory Agreement or condemnation or a similar event, but only if within a reasonable period thereafter the Bonds are paid in full and retired or amounts received as a consequence of such event are used to provide a project that meets the requirements of the Code set forth in this Regulatory Agreement; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure on the Project or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any Affiliated Party obtains an ownership interest in the Project for federal income tax purposes. Upon the termination of the terms of this Regulatory DOCSOC1l120687v3124036-0031 11~1 Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms. Section 12. Covenants to Run With the Land. The Borrower hereby subjects the Project (including the Project Site) to the covenants, reservations and restrictions set forth in this Regulatory Agreement. The Issuer, the Trustee and the Borrower hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Borrower's successors in title to the Project; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. No breach of any of the provisions of the Regulatory Agreement shall defeat or render invalid the lien of the Security Instrument. Section 13. Burden and Benefit. The Issuer, the Trustee and the Borrower hereby declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Borrower's legal interest in the Project is rendered less valuable thereby. The Issuer, the Trustee and the Borrower hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Proj ect by Very Low Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Bonds were issued. Section 14. UniformilV; Common Plan. The covenants, reservations and restrIctIons hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use, development and improvement of the Project Site. Section IS. Enforcement. If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in this Regulatory Agreement, and if such default remains uncured for a period of 60 days after written notice thereof shall have been given by the Issuer, the Trustee to the Borrower, the Credit Provider, and the Servicer (or such longer period if the Borrower provides the Issuer with an opinion of Bond Counsel to the effect that such extension will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds), then the Trustee, subject to the provisions of Section 9 hereof and acting on its own behalf or on behalf of the Issuer, or the Issuer shall declare an "Event of Default" to have occurred hereunder, and, at its option, may take anyone or more of the following steps: (i) by mandamus or other suit, action or proceeding at law or in equity, require the Borrower to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee hereunder; (ii) have access to and inspect, examine and make copies of all of the books and records of the Borrower pertaining to the Project; DOCSOC/1120687v3/24036-0031 17 1-32 (iii) with the prior written consent of the Credit Provider so long as the Credit Facility is in effect, take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower hereunder. The Borrower hereby agrees that specific enforcement of the Borrower's agreements contained herein is the only means by which the Issuer may fully obtain the benefits of such agreements made by the Borrower herein, and the Borrower therefore agrees to the imposition of the remedy of specific performance against it in the case of any Event of Default by the Borrower hereunder. The Trustee shall have the right, in accordance with this Section 15 and the provisions of the Indenture, upon notice to but without the consent or approval of the Issuer, to exercise any or all of the rights or remedies of the Issuer hereunder. All fees, costs and expenses of the Trustee (including, without limitation, reasonable attorneys fees) incurred in taking any action pursuant to this Section 15 shall be the sole responsibility of the Borrower. After the Indenture has been discharged, or if the Trustee fails to act under this Section 15, the Issuer may act on its own behalf to declare an "Event of Default" to have occurred and to take anyone or more of the steps specified hereinabove to the same extent and with the same effect as if taken by the Trustee. After the date on which no Bonds remain outstanding as provided in the Indenture, the Trustee shall no longer have any duties or obligations under this Regulatory Agreement, and all references to the Trustee herein shall be deemed references to the Issuer. The rights of the Trustee under this Section are in addition to all rights conferred upon the Trustee under the Indenture and in no way limit those rights. All monetary obligations of the Borrower that may arise under this Regulatory Agreement shall be subject and subordinate to the repayment of amounts owed by the Borrower under the Mortgage Loan Documents. Section 16. Recording and Filing. The Borrower shall cause this Regulatory Agreement and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County of San Diego and in such other places as the Issuer or the Trustee may reasonably request. The Borrower shall pay all fees and charges incurred in connection with any such recording. Section 17. PaYment of Fees. The Borrower shall pay to the Issuerthe Issuer's Annual Fee through the end of the Qualified Project Period. To the extent that there are unforeseen and unusual costs and expenses and the moneys available under the Indenture are insufficient therefor, the Borrower hereby agrees to pay all reasonable costs and expenses of the Trustee and the Issuer in connection with the Bonds and the financing of the Project as such costs and expenses become due and payable. Notwithstanding any prepayment of the Mortgage Loan and notwithstanding a discharge of the Indenture, throughout the term of the Qualified Project Period, the Borrower shall continue to pay the Issuer's Annual Fee in equal semiannual installments on each June 1 and December I, and, so long as the Bonds are outstanding, to the Trustee reasonable compensation for any services rendered by it hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The foregoing provisions of this Section 17 shall in no way limit amounts DOCSOCllI20687v3/24036-0031 1 !,.833 payable by the Borrower under Section 7 hereof, or arising after an Event of Default in connection with the Issuer's, the Trustee's enforcement of the provisions of this Regulatory Agreement. Section 18. Governin!! Law. This Regulatory Agreement shall be governed by the laws of the State of California. Except as expressly provided herein and in the Agreement, the Trustee's rights, duties and obligations hereunder are governed in their entirety by the terms and provisions of the Indenture. Section 19. Amendments. Except as provided in Section 6(a) hereof, this Regulatory Agreement shall be amended only with the written consent of the Credit Provider by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County. The parties hereto acknowledge that for so long as the Bonds are outstanding, the Credit Provider and the owners of the Bonds are third party beneficiaries to this Regulatory Agreement. Section 20. Consents of the Credit Provider: Applicability of Rider. The written consents of the Credit Provider as required under this Regulatory Agreement shall not be required if the Credit Provider is not the provider of credit enhancement for the Bonds or is in default under the Credit Facility. During any period when the Credit Facility provided by Fannie Mae is in effect and no default in payment has occurred thereunder and is continuing, the provisions of the Fannie Mae Rider attached hereto as Exhibit F shall apply and, during such period, the terms, provisions and conditions of the Regulatory agreement shall be subject in all respects to the terms, conditions and provisions of Exhibit F. Section 21. Trustee Actin!! Solelv in Such Capacity. In accepting its obligations hereunder, each of the Trustee acts solely as trustee for the benefit of the owners of the Bonds for which it is acting as trustee, and not in its individual capacity; and the duties, powers, rights and liabilities of the Trustee in acting hereunder shaH be subject to the provisions of the Indenture. Section 22. Compliance bv Borrower. Unless it acts as the Program Administrator, the Trustee shall not be responsible for monitoring or verifying compliance by the Borrower with its obligations under this Regulatory Agreement. The Program Administrator shall assume such responsibilities under the terms of any Administration Agreement. Section 23. Notice. All notices, certificates or other communications shall be sufficiently given and (except for notices to the Trustee, which shall be deemed given only when actually received by the Trustee) shall be deemed given on the date personaHy delivered or on the second day following the date on which the same have been mailed by certified mail, return receipt requested, postage prepaid, addressed as follows: Issuer, Housing Authority of the City of Chula Vista 430 Davidson Street, Suite B Chula Vista, California 91910 Attention: Executive Director Program Administrator: Housing Authority of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Executive Director DOCSOCIl120687v3/24036-0031 19 1-34 Trustee: 707 Wilshire Boulevard, 17th Floor Los Angeles, CA 90071 Attention: Corporate Trust Services Borrower: CIC Eastlake, L.P. c/o Chelsea Investment Corporation 215 South Highway 101, Suite 200 Solana Beach, CA 92075 Attention: Wallace C. Dieckman Telephone: (858) 259-2624, Ext. 103 with copies to: Pillsbury Winthrop Shaw Pittman LLP 50 Freemont Street San Francisco, CA 94105 Attention: Gary Downs, Esq. Telephone: (415) 983-1835 Fax: (415) 983-1200 Fannie Mae: Fannie Mae 3900 Wisconsin Avenue, NW Drawer AM Washington, D.C. 20016-2899 Attention: Director, Multifamily Asset Management Telephone: (202) 752-2854 Facsimile: (202) 752-3542 RE: $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A; Red Mortgage Capital, Inc. [For courier to all Fannie Mae addresses use 4000 Wisconsin Avenue, N.W. and delete Drawer AM] with a copy to: O'Melveny & Myers 400 South Hope Street Los Angeles, California 90071 Attention: Debbie J. Gezon Telephone: (213) 430-6492 Facsimile: (213) 430-6407 provided, however, that any notice required to be delivered to the Credit Provider pursuant to Section 2.17(1)(1) will also be sent to: DOCSOC1l120687v3124036-0031 20 1-35 Fannie Mae 3900 Wisconsin Avenue, N.W. Washington, DC 20016-2899 Attention: Director, Fiscal Agency Relations and Treasury Backoffice Telephone: (202) 752-7916 Facsimile: (202) 752-6087 Servicer: Red Mortgage Capital, Inc. Two Miranova Place, 12th Floor Columbus, OR 43215 Telephone: (703) 610-1400 Facsimile: (703) 610-1430 with a copy to: the Credit Provider at the address specified above Any of the foregoing parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, documents or other communications shall be sent. Copies of notices sent by any party hereto shall be sent concurrently to the Servicer. Section 24. CDLAC Requirements. The acquisition, construction and operation of the Project and the financing thereof are and shall be in compliance with the conditions set forth in Exhibit A to the CDLAC Resolution, a copy of which is attached hereto as Exhibit D, which conditions are incorporated herein by reference and are made a part hereof. The Issuer shall have the right, but not the obligation, to monitor and enforce the Borrower's compliance with the provisions of this Section 24. The Borrower shall prepare and submit to CDLAC on each anniversary of the Closing Date, and on such other date as is reasonably requested by CDLAC, a Certificate of Compliance in substantially the form attached hereto as Exhibit E, executed by an authorized representative of the Borrower. CDLAC shall be a third-party beneficiary of this Regulatory Agreement for purposes of enforcing the terms of the CDLAC Resolution. CDLAC shall have the right to enforce the terms of the CDLAC Resolution through an action for specific performance or any other available remedy; provided, however, that CDLAC shall not take any action or enforce any remedy that would be materially adverse to the interests of the owner of the Bonds or the Credit Provider and any such action or enforcement shall otherwise be subject to the terms, conditions and limitations applicable to the enforcement ofremedies under this Regulatory Agreement. Section 25. Third-PartY Beneficiary. The parties to this Regulatory Agreement recognize and agree that the terms of this Regulatory Agreement and the enforcement of those terms are essential to the security of the Credit Provider and are entered into for the benefit of the Credit Provider. The Credit Provider shall accordingly have contractual rights in this Regulatory Agreement and shall be entitled (but not obligated) to enforce, separately or jointly with the Issuer and/or the Trustee, or to cause the Issuer or the Trustee to enforce, the terms of this Regulatory Agreement. In addition, the Credit Provider is intended to be and shall be a third-party beneficiary of this Regulatory Agreement, and the Credit Provider shall have the right (but not the obligation) to enforce the terms of this Regulatory Agreement insofar as this Regulatory Agreement sets forth obligations of the Borrower. DOCSOC/1120687v3124036-003 J 1~~6 Section 26. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 27. Multiole Countemarts. This Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 28. Personal Obligation of Borrower: Limitations on Recourse to Borrower. Notwithstanding any provisions of this Regulatory Agreement to the contrary, all obligations of the Borrower under this Regulatory Agreement for the payment of money and all claims for damages against the Borrower occasioned by breach or alleged breach by the Borrower of its obligations under this Regulatory Agreement, including indemnification obligations, shall be unsecured by, and subordinated in priority and right to, payment and in all other respects to the obligations and liens, rights (including, without limitation, the right to payment) and interests arising or created under the Mortgage Loan Documents. This Regulatory Agreement shall not be deemed to create a lien or security interest of any kind in the Project in favor of the Issuer, the Trustee or any other person with respect to any monetary obligations of the Borrower arising under this Regulatory Agreement, and no such person shall have recourse to the Project or have the right to enforce such obligations other than directly against the Borrower as provided in Section 15 of this Regulatory Agreement. Except as otherwise provided in Section 7 of this Regulatory Agreement, no subsequent Borrower shall be liable or obligated for the breach or default of any obligation of the Borrower under this Regulatory Agreement on the part of any prior Borrower. Such obligations shall be personal to the Person who was the Borrower at the time the default or breach was alleged to have occurred, and such Person shall remain liable for any and all damages occasioned by the default or breach even after such Person ceases to be the Borrower. Notwithstanding anything contained in any other provision of this Regulatory Agreement to the contrary, the Borrower's obligations under Sections 7 and 17 hereof shall be and remain the joint and several full recourse obligations of the Borrower and each general partner of the Borrower, which, subject to the provisions of the first paragraph of this Section 28, are payable from and enforceable against any and all income, assets and properties of the Borrower and each general partner of the Borrower; provided that in no event shall Borrower or any partner of Borrower be personally liable for the payment of the principal, interest or any premium on the Mortgage Loan or the Bonds, which shall be non-recourse to Borrower and shall be enforced solely against the Project and other property securing such obligations, in each case subject to and in accordance with the terms and conditions of the Mortgage Loan Documents. DOCSOCIl120687v3/24036-0031 1~~7 IN WITNESS WHEREOF, lhe Issuer, the Trustee and lhe Borrower have executed this Regulatory Agreement by duly aulhorized representatives, all as of the date first written hereinabove. HOUSING AUTHORITY OF THE CITY OF CHULA VISTA By: Its; Executive Director ATTEST: Secretary DOCS00987720\24036.0030 DOCSOC!l120687v3124036-0031 Sol 1-38 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Its: Authorized Officer DOCSOCIl120687v3/24036-003! S-2 1-39 CIC EASTLAKE, L.P., a California limited partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California non-profit public benefit. corporation, its Managing General Partner By: Brian F. Biber Its: Executive Director By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager DOCSOC/1120687v3124036-0031 f.:\o STATE OF CALIFORNIA ) ) ss COUNTY OF SAN DIEGO ) On September _, 2005 before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(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. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC DOCSOC\987720\24036.0030 DOCSOC/J 120687v3/24036-0031 N-! 1-41 STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On September _, 2005 before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(s) is/are subscribed to the within instrwnent and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrwnent the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC DOCSOCIl120687v3n4036-0031 f-:42 STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On September _. 2005 before me, , Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by his/her/their signature(s) on the inslrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC DOCSOCIl120687v3/24036-0031 f~43 EXHIBIT A Project Site Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot 1 of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16,2003. DOCSOCIl120687v3124036-0031 A-I 1-44 EXHmlT B CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE The undersigned, , being duly authorized to execute this certificate on behalf of CIC EASTLAKE, L.P. (the "Borrower"), hereby represents and warrants that: 1. The undersigned has read and is thoroughly familiar with the provisions of the following documents associated with the Borrower's participation in the Housing Authority of the City of Chula Vista, California (the "Issuer") Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A, such documents including: (a) the Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement") dated as of September 1, 2005 among the Borrower, the Issuer and Wells Fargo Bank, National Association (the "Trustee"); (b) the Mortgage Note dated 1, 2005 from the Borrower to the Issuer representing the Borrower's obligation to repay the Mortgage Loan; and (c) the financing Agreement. 2. As of the date of this certificate, the following percentages of residential units in the Project (i) are occupied by Very Low Income Tenants (as such term is defined in the Regulatory Agreement) at monthly rents in compliance with the Regulatory Agreement or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Very Low Income Tenant vacated such unit; as indicated: 1 Bedroom 2 Bedroom 3 Bedroom Total Occupied by Very Low Income Tenants: _ % Unit Nos.: Held vacant for occupancy continuously since last occupied by a Very Low Income Tenant: _% Unit Nos,: 3. The Borrower hereby certifies that the Borrower is not in default under any of the terms of the above documents and no event has occurred which, with the passage of time, would constitute an event of default thereunder, with the exception of the following [state actions being taken to remedy default]. CIC EASTLAKE, L.P., a California limited partnership By: Authorized Borrower Representative DOCSOCIl120687v3/24036-0031 1~45 EXHIBIT C INCOME COMPUTATION AND CERTIFICATION NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income in accordance with the method set forth in the Department of Housing and Urban Development ("BUD") Regulations (24 CFR 5.609). You should make certain that this form is at all times up to date with the HUD Regulations. All capitalized terms used herein shall have the meaning set forth in the Regulatory Agreement. Re: [Address of Apartment Building] IlWe, the undersigned state that I1we have read and answered fully, frankly and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who intend to reside in the unit: I Name of Members of the Household 2 Relationship to Head of Household 3 4 5 Social Security Number Age Place of Employment HEAD SPOUSE DOCSOCIl120687v3/24036-0031 C-l 1-46 Income Computation 6. The total anticipated income, calculared in accordance with this paragraph 6, of all persons (except children under 18 years) listed above for the 12-month period beginning the earlier of the date that I/we plan to move into a unit or sign a lease for a unit is $ Included in the total anticipated income listed above are: (a) The full amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses, and other compensation for personal services; (b) The net income from the operation of a business or profession. Expenditures for business expansion or amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation of assets used in a business or profession may be deducted, based on straight line depreciation, as provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from the operation of a business or profession will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested in the operation by the family; (c) Interest, dividends, and other net income of any kind from real or personal property. Expenditures for amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation is permitted only as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an investment will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested by the family. Where the family has net family assets in excess of $5000, annual income shall include the greater of the actual income derived from all net family assets or a percentage of the value of such assets based on the current passbook savings rate, as determined by the Department of Housing and Urban Development; (d) The full amount of periodic amounts received from Social Security, annuities, insurance policies, retirement funds, pensions, disability or death benefits, and other similar types of periodic receipts, including a lump-sum amount or prospective monthly amounts for the delayed start of a periodic amount except deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts; (e) Payments in lieu of eamings, such as unemployment and disability compensation, worker's compensation and severance pay except lump-sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses (excluding payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay); (D Welfare assistance. If the welfare assistance payment includes an amount specifically designated for shelter and utilities that is subject to adjustment by the DOCSOCI1120687v3/24036-003! C-2 1-47 welfare assistance agency in accordance with the actual cost of shelter and utilities, the amount of welfare assistance income to be included as income shall consist of: (I) The amount of the allowance or grant exclusive of the amount specifically designated for shelter or utilities; plus (2) The maximum amount that the welfare assistance agency could in fact allow the family for shelter and utilities. If the family's welfare assistance is ratably reduced form the standard of need by applying a percentage, the amount calculated under this paragraph shall be the amount resulting from one application of the percentage; (g) Periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling; (h) All regular pay, special pay and allowances of a member of the Armed Forces except the special pay to a family member serving in the Armed Forces who is exposed to hostile fire. Excluded from such anticipated income are: (a) Income from employment of children (including foster children) under the age of 18 years; (b) Payments received for the care of foster children or foster adults (usually persons with disabilities, unrelated to the tenant family, who are unable to live alone); (c) Lump-sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains and settlement for personal or property losses except payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation and severance pay; (d) Amounts received by the family that are specifically for, or in reimbursement of, the cost of medical expenses for any family member; (e) Income of a live-in aide, as defined by 24 CFR ~5.403; (f) The full amount of student financial assistance paid directly to the student or to the educational institution; (g) The special pay to a family member serving in the Armed Forces who is exposed to hostile fire; (h) (I) Amounts received under training programs funded by the Department of Housing and Urban Development; (2) Amounts received by a person with a disability that are disregarded for a limited time for purposes of Supplemental Security Income eligibility and DOCSOC1l120687v3/24036~OO31 1~'-48 benefits because they are set aside for use under a Plan to Attain Self- Sufficiency (PASS): (3) Amounts received by a participant in other publicly assisted programs which are specifically for or in reimbursement of out-of-pocket expenses incurred (special equipment, clothing, transportation, child care, etc.) and which are made solely to allow participation in a specific program; (4) Amounts received under a resident service stipend. A resident service stipend is a modest amount (not to exceed $200 per month) received by a resident for performing a service for the Public Housing Authority or owner, on a part- time basis, that enhances the quality of life in the development. Such services may include, but are not limited to, fire patrol, hall monitoring, lawn maintenance, and resident initiatives coordination. No resident may receive more than one such stipend during the same period of time; (5) Incremental earnings and benefits resulting to any family member from participation in qualifying State or local employment training programs (including training programs not affiliated with a local government) and training of a family member as resident management staff. Amounts excluded by this provision must be received under employment training programs with clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment training program; (i) Temporary, nonrecurring or sporadic income (including gifts); U) Reparation payments paid by a foreign government pursuant to claims filed under the laws of that government by persons who were persecuted during the Nazi era; (k) Earnings in excess of $480 for each full-time student 18 years old or older (excluding the head of household and spouse); (1) Adoption assistance payments in excess of $480 per adopted child; (m) Deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts. (n) Amounts received by the family in the form of refunds or rebates under State or local law for property taxes paid on the dwelling unit; (0) Amounts paid by a State agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home; or (p) Amounts specifically excluded by any other Federal statute from consideration as income for purposes of determining eligibility or benefits under a category of assistance programs that includes assistance under any program to which the exclusions set forth in 24 CFR g5.609(c) apply. DOCSOCIJ 120687v3/24036-0031 1 <2-! 9 7. Do the persons whose income or contributions are included in item 6 above (a) have savings, stocks, bonds, equity in real property or other form of capital investment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Indian trust land)? Yes No; or (b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the last two years at less than fair market value? Yes No (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $5,OOO? Yes No (d) If the answer to (c) above is yes, state: (I) the combined total value of all such assets: $ (2) the amount of income expected to be derived from such assets in the 12-month period beginning on the date of initial occupancy in the unit that you propose to rent: $ , and (3) the amount of such income, if any, that was included in item 6 above, $- 8. (a) Are all of the individuals who propose to reside in the unit full-time students*? Yes No *A full-time student is an individual emolled as a full-time student during each of5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and cuniculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional on farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. (b) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return? Yes No 9. Neither myself nor any other occupant of the unit I1we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the "Borrower"), has any family relationship to the Borrower; or owns directly or indirectly any interest in the DOCSOCl1120687v3n4036-0031 c-s 1-50 Borrower. For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual. 10. This certificate is made with the knowledge that it will be relied upon by the Borrower to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein is true, correct and complete and based upon information I/we deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. II. I/we will assist the Borrower in obtaining any information or documents required to verify the statements made herein, including either an income verification from my/our present employer(s) or copies of federal tax returns for the immediately preceding calendar year. 12. I/we acknowledge that I/we have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a material breach of my/our agreement with the Borrower to lease the unit and will entitle the Borrower to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other appropriate proceedings. I/we declare under penalty of perjury that the foregoing is true and correct. Executed this _ day of in the County of San Diego, California. Applicant Applicant [Signature of all persons (except children under the age of 18 years) listed in number 2 above required] DOCSOCIJ 120687v3/24036-0031 C-6 1-51 FOR COMPLETION BY BORROWER ONLY: 1. Calculation of eligible income: a. Enter amount entered for entire household in 6 above: $ b. (I) If the answer to. 7 (c) above is yes, enter the total amount entered in 7 (d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ ) (2) Multiply the amount entered in 7(d)(I) times the current passbook savings rate as determined by HUD to determine what the total annual earnings on the amount in 7 (d)( I) would be if invested in passbook savings ($ ), subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ ); (3) Enter at right the greater of the amount calculated under (1) or (2) above: $ c. TOTAL ELIGIBLE INCOME (Line 1.a plus line 1.b(3)): $ 2. The amount entered in line 1.c: Qualifies the applicant(s) as a Very Low Income Tenant(s) Does not qualify the applicant(s) as a Very Low Income Tenant Qualifies the applicant(s) as a Low Income Tenant(s). Does not qualify the applicant(s) as a Low Income Tenant(s). 3. Number of apartment unit assigned: _ Bedroom Size Rent: $ 4. This apartment unit [was/was not] last occupied for a period of 31 or more consecutive days by persons whose aggregate anticipated annual income as certified in the above manner upon their initial occupancy of the apartment unit qualified them as Very Low Income Tenants. DOCSOC11120687v3124036-0031 ' c-? 1-52 5. Method used to verify applicant(s) income: Employer income verification. Copies of tax returns. Other ( ) Authorized Borrower Representative DOCSOC/1120687v3124036-0031 C-8 1-53 INCOME VERlFICATION (for emoloved oersons) The undersigned employee has applied for a rental unit located in a project financed under the Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bond Program for persons of lower income. ,Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. Annual wages Overtime Bonuses Commissions Other Income Total current income I hereby certify that the statements above are true and complete to the best of my knowledge. Signature Date Title I hereby grant you permission to disclose my income to in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bond Program. Signature Date Please send to: DOCSOCIl120687v3/24036-0031 C-2. 1-54 INCOME VERIFICATION (for self-emoloved oersons) I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge. Signature Date DOCSOCII120687v3/24036-0031 ,c,,:W5 EXHIBIT D CDLAC RESOLUTION RESOLUTION NO. 01-176 (OUALIFIED RESIDENTIAL RENTAL PROJECT) EXHIBIT A I. Applicant, Housing Authority of the City of Chula Vista 2. Application #: 03-147 3. Project Sponsor: CIC Eastlake, L.P. (SDS Eastlake LLC and James J. Schmid, an individual) 4. Project Name: Rancho Vista Apartments Project 5. Type of Project: New Construction 6. Location: Chula Vista, California 7. Credit Enhancement Provider, Red Mortgage Capital, Inc./Fannie Mae 8. The Credit Enhancement Provider at the time of issuance will be the same as represented in the application: Applicable 9. Total Number of Units: 149 plus I manager unit 10. Total Number of Restricted Rental Units: 149 11. The term of the income and rental restrictions for the Project will be at least 55 years. 12. The Project will utilize Gross Rents as defined in Section 2 of the Committee's Procedures: Applicable 13. Income and Rental Restrictions: For the entire term of the income and rental restrictions, the Project will have: At least 30 Qualified Residential units rented or held vacant for rental for persons or families whose income is at 50% or below of the Area Median Income; and At least 119 Qualified Residential units rented or held vacant for rental for persons or families whose income is at 60% or below of the Area Median Income. 14. For acquisition/construction projects, a minimum of $7,500 in hard construction costs will be expended for each Project unit. Not Applicable 15. A minimum of $1 ,500,000 of public funds will be expended for the Project. Applicable DOCSOC/1120687v3n4036-0031 D-l 1-56 16. At a minimum, the financing for the Project shall include a Taxable Tail in the amount of $0. Taxable debt may only be utilized for Project related expenses, not for the cost of issuance, for which the Project Sponsor could otherwise have used tax-exempt financing. Not Applicable 17. If the Project received points for having large family units, for the entire term of the income and rental restrictions, the Project will have at least 89 three-bedroom or larger units. Not Applicable 18. For a period of ten (10) years after the Project is placed in use, the Project will offer to Project residents an after school program on-site or there must be an after school program available to Project residents within \4 mile of the Project. Applicable 19. For a period of ten (10) years after the Project is placed in use, the Project will offer to Project residents a licensed day care facilily on-site or there must be a licensed day care facilily available to Project residents within \4 mile of the Project. Not Applicable 20. For a period of ten (10) years after the Project is placed in use, the Project will offer to Project residents, educational classes pursuant to a written agreement with a third party provider on-site or there must be educational classes (pursuant to a written agreement with a third party provider) available to Project residents within ';.I mile of the Project. Not Applicable 21. For a period of ten (10) years after the Project is placed in use, the Project will offer to Project residents, (describe service) on-site or such service must be available to the Project residents within \4 mile of the Project. Applicable 22. All projects that receive points for being a Federally Assisted At-Risk Project, will renew all Section 8 HAP Contracts or equivalent Project-based subsidies for their full term, and will seek additional renewals, if available, throughout the Project's useful life. Not Applicable 23. All projects that receive points for being a Federally Assisted At-Risk Project based on an expiring Low Income Housing Tax Credit Regulatory Agreement shall have a plan in place to re-certify the incomes of the existing tenants and shall not cause involuntary displacement of any tenant whose income may exceed the Project's income limits. Not Applicable. 24. The Project will utilize building materials that will increase energy efficiency by at least 15% above the energy standards set forth by the California Energy Commission Title 24, Part 6 of the California Code of Regulations (Title 24 energy standards). Applicable 25. The Project will incorporate the following energy efficient items: I. Appliances with the Energy Star rating for refrigerators, dishwashers, furnaces, air conditioners and windows. Applicable 2. Natural gas for cooking and space heating. Applicable 3. Occupancy sensors to turn off lights for all bathrooms, garages and storage spaces. Not Applicable DOCSOCII120687v3/24036-0031 f~S7 4. Fluorescent light fixtures for at least 75% of light fixtures. Applicable DOCSOC/l120687v3124036-0031 D-3 1-58 EXHmIT E CDLAC COMPLIANCE CERTIFICATE Project Name: Rancho Vista Apartments CDLAC Application No.: 05-069 Pursuant to Section 13 of Resolution No. 05-60 (the "Resolution"), adopted by the California Debt Limit Allocation Committee (the "Committee") on May 19, 2005, I, , an officer of the Project Sponsor, hereby certify under penally of perjury that, as of the date of this Certification, the above-mentioned Project is in compliance with all of the terms and conditions set forth in the Resolution. I further certify that I have read and understand Section 3 of the Resolution, which specifies that once the Bonds are issued, the terms and conditions set forth in the Resolution shall be enforceable by the Committee through an action for specific performance or any other available remedy (as further explained in Section 12 of the Resolution). CIC EASTLAKE, L.P., a California limited partnership By: Authorized Borrower Representative DOCSOC1l120687v3124036-0031 E-! 1-59 EXHIBIT F FANNIE MAE RIDER TO REGULA TORY AGREEMENT TillS FANNIE MAE RIDER TO REGULATORY AGREEMENT ("Rider") is attached to and forms a part of the REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS ("Regulatory Agreement"), dated as of September 1, 2005, by and among CIC Eastlake, L.P. ("Borrower"), its successors and assigns, the Housing Authority of the City of Chula Vista ("Issuer"), Wells Fargo Bank, National Association ("Trustee"), as Trustee. 1. Definitions. All capitalized terms used in this Rider have the meanings given to those terms in the Regulatory Agreement or the Indenture, as applicable. 2. Annlicabilitv. This Rider shall amend and supplement the Regulatory Agreement. In the event any provision of this Rider conflicts with the Regulatory Agreement, this Rider shall supersede the conflicting provision of the Regulatory Agreement. This Rider shall apply in spite of the fact that the covenants, reservations and restrictions of the Regulatory Agreement run with the land and may be deemed applicable to any successor in interest to the Borrower. 3. Oblil!ations not Secured bv the Mortl!al!ed Pronertv. The Regulatory Agreement shall not constitute a mortgage, equitable mortgage, deed of trust, deed to secure debt or other lien or security interest in the Mortgaged Property. None of the obligations of the Borrower or any subsequent owner of the Mortgaged Property under the Regulatory Agreement shall be secured by a lien on, or security interest in, the Mortgaged Property. All such obligations are expressly intended to be and shall remain unsecured obligations. The occurrence of an event of default under the Regulatory Agreement shall not impair, defeat or render invalid the lien of the Security Instrument. 4. Subordination. The terms, covenants and restrictions of the Regulatory Agreement, other than those set forth in Sections 3, 4, 5 and 6, are and shall at all times remain subject and subordinate, in all respects, to the liens, rights and interests created under the Mortgage Loan Documents. Upon a conveyance or other transfer of title to the Mortgaged Property by foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan, the Person who acquires title to the Mortgaged Property pursuant to such foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan (unless such Person is the Borrower or a Person related to the Borrower within the meaning of Section 1.103-10(e) of the Regulations, in which event the Regulatory Agreement shall remain in full force and effect in its entirety) shall acquire such title free and clear of the terms, covenants and restrictions of the Regulatory Agreement, other than those set forth in Sections 3, 4, 5 and 6 and, from and after the date on which such Person acquires title to the Mortgaged Property, the terms, covenants and restrictions of the Regulatory Agreement, other than those set forth in Sections 3, 4, 5 and 6, shall automatically terminate and be of no force and effect: provided that Sections 3, 4, 5 and 6 shall also terminate and be of no force or effect under the circumstances set forth in Section 11 of the Regulatory Agreement. 5. Oblil!ations Personal. The Issuer agrees that no owner of the Mortgaged Property (including Fannie Mae) subsequent to the Borrower will be liable for, assume or take title to the Mortgaged Property subject to: DOCSOCIJ 120687v3/24036-0031 E-l 1-60 (a) any failure of any prior owner of the Mortgaged Property to perform or observe any representation or warranty, affirmative or negative covenant or other agreement or undertaking under the Regulatory Agreement; and (b) the payment of any compensation or any accrued unpaid fees, costs, expenses or penalties otherwise owed by any prior owner of the Mortgaged Property under the Regulatory Agreement. Borrower and each subsequent owner of the Mortgaged Property shall be responsible under the Regulatory Agreement for its own acts and omissions occurring during the period of its ownership of the Mortgaged Property. All such liability and obligations shall be and remain personal to such person even after such person ceases to be the owner of the Mortgaged Property. 6. Sale or Transfer. (a) Restrictions Not Applicable to Certain Transfers. All provIsIOns of the Regulatory Agreement regarding the sale or transfer of the Mortgaged Property or of any interest in the Borrower, including any requirement, limitation or condition precedent for any of (i) the consent of the Issuer or the Trustee to such transfer, (ii) an agreement by any transferee to abide by the requirements and restrictions of the Regulatory Agreement, (iii) transferee criteria or other similar requirements, (iv) an opinion of legal counsel and (v) the payment of any assumption fee, transfer fee, penalty or other charges, shall not apply to any of the following: (I) any transfer of title to the Mortgaged Property to Fannie Mae or to a third party by foreclosure, deed in lieu of foreclosure or comparable conversion of any lien on the Mortgaged Property or to any subsequent transfer by Fannie Mae (or a third party) following such foreclosure, deed in lieu of foreclosure or comparable conversion; (2) any execution and delivery of a mortgage, deed of trust, deed to secure debt or other lien by the Borrower to secure any additional indebtedness of the Borrower which is originated by a lender for sale to Fannie Mae or guaranteed or otherwise credit enhanced by Fannie Mae; and (3) provided that no Bonds are then Outstanding or all Bonds are to be simultaneously fully paid, redeemed or defeased, any execution and delivery of a mortgage, deed of trust, deed to secure debt or other lien by the Borrower to secure any indebtedness incurred by the Borrower which effectively refinances the Mortgage Loan. (b) Fannie Mae Rights to Consent Not Impaired. Nothing contained in the Regulatory Agreement shall affect any provision of the Security Instrument or any of the other Credit Facility Agreement or Mortgage Loan Documents which requires the Borrower to obtain the consent of Fannie Mae as a precondition to sale, transfer or other disposition of, or any direct or indirect interest in, the Mortgaged Property or of any direct or indirect interest in the Borrower, excluding transfers permitted by the Security Instrument. (c) Conclusive Evidence. Any written consent to a sale or transfer obtained from the Issuer shall constitute conclusive evidence that the sale or transfer is not a violation of the transfer provisions of the Regulatory Agreement. DOCSOCII120687v3/24036-0031 E-2 1-61 7. Damal!e. Destruction or Condemnation of the Mortl!al!ed Property. In the event that the Mortgaged Property is damaged or destroyed or title to the property, or any part thereof, is taken through the exercise or the threat of the exercise of the power of eminent domain, the Borrower shall comply with all applicable requirements of the Security Instrument and the other Mortgage Loan Documents. 8. Relrulatory Al!reement Default. Notwithstanding anything contained in the Regulatory Agreement to the contrary: (a) The occurrence of an event of default under the Regulatory Agreement shall not impair, defeat or render invalid the lien of the Security Instrument. (b) The occurrence of an event of default under the Regulatory Agreement shall not be or be deemed to be a default under the Mortgage Loan Documents, except as may be otherwise specified in the Mortgage Loan Documents. (c) Upon any default by the Borrower under the Regulatory Agreement, the Assignment shall govern the remedies and other actions which the Issuer may take on account of such default. 9. Amendments. Unless the Assigned Rights (as that term is defined in the Assignment) are held solely by the Trustee pursuant to Section 2.6(2) of the Assignment, the Issuer shall not consent to any amendment, supplement to, or restatement of the Regulatory Agreement without the prior written consent of Fannie Mae. 10. Termination. The Regulatory Agreement may be terminated upon agreement by the Issuer, the Trustee, the Credit Provider and the Borrower upon receipt of an opinion of a nationally recognized bond counsel acceptable to the Trustee that such termination will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income purposes. So long as the Bonds have been redeemed or are redeemed within a reasonable period thereafter, the Regulatory Agreement shall terminate and be of no further force or effect from and after the date of any transfer of title to the Mortgaged Property by foreclosure, deed in lieu of foreclosure or comparable conversion of any lien on the Mortgaged Property; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained in the Regulatory Agreement shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any related person (within the meaning of Section 1.103-1O(e) of the Regulations) obtains an ownership interest in the Mortgaged Property for federal income tax purposes. 11. Third-Party Beneficiary. The parties to the Regulatory Agreement recognize and agree that the terms of the Regulatory Agreement and the enforcement of those terms are essential to the security of Fannie Mae and are entered into for the benefit of various parties, including Fannie Mae. Fannie Mae shall accordingly have contractual rights in the Regulatory Agreement and shall be entitled (but not obligated) to enforce, separately or jointly with the Issuer and/or the Trustee, or to cause the Issuer or the Trustee to enforce, the terms of the Regulatory Agreement. In addition, the Borrower and the Issuer intend that Fannie Mae be a third-party beneficiary of the Regulatory Agreement. DOCSOCIl ]20687v3/24036-oo31 E-3 1-62 12. Conies of Notices under the Rel!Ulatorv A2I'eement. Copies of all notices under the Regulatory Agreement shall be sent to the Loan Servicer at the address set forth below or to such other address as the Loan Servicer may from time to time designate: Red Mortgage Capital, Inc. Two Miranova Place, 12th Floor Columbus, OR 43215 Telephone: (703) 610-1400 Facsimile: (703) 610-1430 13. Notices. Any notice to be given to Fannie Mae shall be sent to Fannie Mae at the address set forth below or to such other address as Fannie Mae may from time to time designate: Fannie Mae 3900 Wisconsin Avenue, NW Drawer AM Washington, DC 20016-2899 Attention: Director, Multifamily Asset Management Telephone: (202) 752-2854 Facsimile: (202) 752-3542 RE: $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A; Red Mortgage Capital, Inc. [For courier use 4000 Wisconsin Avenue, N.W. and delete Drawer AM] BORROWER'S INITIALS: ISSUER'S INITIALS: TRUSTEE'S INITIALS: DOCSOC1I120687v3124036-0031 E-4 1-63 Section 1 . Section 2 . Section 3 . Section 4 . Section 5 . Section 6 . Section 7 . Section 8 . Section 9 . Section 10 . Section 11 . Section 12 . Secti on 13 . Section 14 . Section 15 . Section 16 . Section 17 . Section 18 . Section 19 . Section 20 . Section 21 . Section 22 . Section 23 . Section 24 . Section 25 . Section 26 . Section 27 . Section 28 . Signatures Table of Contents Page Definitions and Interpretati on.....................................,..................................................2 Acquisition, Construction, Equipping and Completion of the Project ..........................6 Residential Rental Property........................................................................................... 7 Very Low Income Tenants ............................................................................................9 Tax Status of the Bonds...............................................................................................11 Modification of Special Tax Covenants ......................................................................12 Indemnification..................................................................................................,........ .13 CQnsideration.............................................................................................................. .15 Reliance...................................................................................................................... .15 Sale or Transfer of the Project; Syndication................................................................15 Term ................. ,.. ................... .......... ..... ....... ....... .... ............ .................... ....................16 Covenants to Run With the Land ................................................................................17 Burden and Benefit...................... ....... .......... ................... ................. ............ ............ ...17 Uniformity; Common Plan ..........................................................................................17 Enforcement..............................,.............................................................................. ...17 Recording and Filing ...................................................................................................18 Payment of Fees ..................................................... .................................. ...................18 Governing Law............. .............................. .............. .... ............................... ......... .......19 Amendments ....................... ... ............ .... ... ..... ........ ... ..... .... ......................... ..... ... .........19 Consents of the Credit Provider; Applicability of Rider .............................................19 Trustee Acting Solely in Such Capacity......................................................................19 Compliance by Borrower ............................................................................................19 Notice ............ ...... ....... ........ ............. ... ........... ... ... ..... ............ .... ...... ....... ...... .... ... ....... ..19 CDLAC Requirements ................... .......... ............ ...................... ........................;...... ..21 Third-Party Beneficiary.............................................................................................. .21 Severability................................................................................................................. .22 Multiple Counterparts................................................................................................. .22 . Personal Obligation of Borrower; Limitations on Recourse to Borrower...................22 ................................................................................................................................... Sol EXHIBIT A - PROJECT SITE....................................................................................................... A-I EXHlBIT B - CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE.........................B_l EXHIBIT C - INCOME COMPUTATION AND CERTIFICATION ...........................................C-l EXHIBIT D - CDLAC RESOLUTION.......................................................................................... D-l EXHIBIT E - CDLAC COMPLIANCE CERTIFICATE................................................................E_l EXHIBIT F - FANNIE MAE RIDER TO REGULATORY AGREEMENT .................................F-l DOCSOC1I120687v3124036_003 ] I 1-64 ~ @.~ ~~] ~::;~ .E::: 5- Q -" 11'.2 c c-= s .ij:i .. ~.. ~~S .~~.~ E.:!l..: =-".: :~~j .2 B 5 ~~~ '''>_"0 l~! .~~ ; Q!.J ~ iU E c:: -5..=.= .~~.~ fr.8~ ;;:3": ~.~~ ~]~ = J:1.',) ~~~ H! ~U c.ll'=::l = o:l.-, :::>.:::- "':i:::!:::; :-( = ~ .Q g:~ .~t~ . . ~~] ~!; "'7~>, ,"., 0 == u..., "" ~~1l ~:~i iH ~.di ..;2t.: .~ Q ~~~ ~'~ ~ "'-'- .J3.:: ; e ~.~ 2":;':: .5 ~~ .~ ~~ ~~~ '" ,".- .~ 52 =-"0 ~g~ a';;;~ '~I~ ':': !3 ,;:: 'J_ Ilil :ilE~~ j~U ~~~:~ .~~ E ~ ::~I <;;' '" ;g~ ~.~ -,-,'-; EXHIBIT 3 PRELIMINARY OFFICIAL STA TEMENT DATED AUGUST 30,2005 NEW ISSUE - BOOK-ENTRY ONLY RATING: S&P: "_" (See "RATING" herein) . In. t~~ opi,!i(:Jn of Stradling .YaceD Carlson &. Rauth,. a Profe.rsion~l Corporation.. Newport Beach! California, Bond Co~ns~J, und~r ~sring statutes, r~gulations, rulings and JudicIal derulOns and assunung the accuracy of certam repres~ntatlons and compliance with eertam roy~nants and reqUlrements descnbed herein, interest on the Bonds is e.r:clud~d from gross income for federal income ta:r purposes, e.r:cept for interest on any Bondfor any period during which such Bond is held by a "substantial user" of the facilities fi~ce,! with the proc~eds of the Bonds or a "related pers~n" within the meaniTJ8. of Se.n.ion 147( a~ of the Inrer:wl. ~e\lenue Code of 1986, as amended, and interest all the Bonds IS an Item of teU preference for the purposes of calculatmg the federal alte17latlYe mml11llUn tax Imposed on indIViduals and rorporutions. In the fimher opinio'l of Bond Counsel, interest on the Bonds is exempt from State of California personal income ta.'C.. Bond COlUIsel expresses no opinion regarding any other ta.t cOllSequences related to the ownership or dispositioll of or the accrual or receipt of interest 011 the Bonds. See "TAX MATTERS" herein. $1,715,000. Housing Authority of the City of ChuJa Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A E&N DRAFT' 08. I 6.05 Dated: Dale of Issuance DUe: As shown on the inside front cover The ,Housing ~uthority of the City of Chula Vista (the "Issuer'') 5s issuing tl?-e .above-captioned b~nds (the, "Bonds") under ~ Trust ~de:nture, dated as of September t, 2005 (the 'Indenture '), between the Issuer and Wells Fargo Bank, Nal.1onal ASSOClabon, as trustee (the 'Trustee '). The Bonds WIll bear Interest from their dated date to the earlier of maturity or June I, 2024 (the "Initial Remarketing Date") at the rates set forth on the inside cover hereof. The Bonds Outstanding on the Initial Remarketing Date are subject to mandatory tender and remarketing and the interest rate on such Bonds will be adjusted to a new rate. See "THE BONDS-Mandatory Purchase of Bonds on Initial Remarketing Date." Interest on the Bonds will be payable semiannually on June 1 and December 1 of each year (each, an "Intercst Payment Date''), commencing December 1 2005. The Bonds are iSsuable as fully registered Bonds in minimum denominations of $5,000 principal amount or any integral multiple thereof. The Bonds will initially be ~egistered in the name o~ Cede & Cp., as re,gistere~ owner and nominee for The Depository T~t Com~any, New York, Ne..y York ("DTC"). Purchasers of ~e Bonds (the "Beneficial Owners") WIll not reCeIve phYSIcal delivery of the Bonds. As long as Cede & CO. IS the registered owner as nommee of DTC, payment of the pnnclpal of and interest on the Bonds will be made directly to such registered owner which will, in turn, remit such payments to DTC Participants (as defined herein) and Indirect Participams (as defined herein) for subsequent disbwseme:nt to the Beneficial Owners. See '7HE BONDS-Book-Entry Only System." The Bonds are: being issued by the Issuer to fund a subordinate loan (the "Mortgage Loan'') to CIe Eastla.ke, L.P., a California limited Partnership (the "Borrower'') pursuant to a Financing Agreement, dated as of the date of the Indenture (the "Financing Agreement''), among the Issuer, the Borrower and the Trustee. The proceeds of the Mortgage Loan will provide additional financing for the costs of acquiring, constructing and equipping a multifamily rental housinl= development known as the Rancho Vista Apartments located .in Chula '-:'ista, ~alifumia (the "Project:'): ~e ?roject is required to be oc.cupied by p~ons and families of low Income to the extent required by federal tax law, the Issuer and m connectIOn Wlth the Borrower's partlClpatlOn m the Low lncome Housmg Tax Credit Program. See "THE BORROWER AND THE PROJECT" herein and Appendix C hereto. Payment of the principal of and interest on the BondS will be secured. to the extent described herein, by the Mortgage Loan and by certain other resources and assets constituting the Trust Estate under the Indenture. In addition, certain required payments due under the Multifamily Note (the "Mortgage Note") evidencing the Mortgage Loan will be enhanced by ("Fannie Mae" or the "Credit Provider'') pursuant to, and subject to the limitations of, the Credit Enhancement Instrument (Stand-By) issued by Fannie Mae (the "Credit Facility") to the Trostee. The Credit Facility will also provide liquidity support for the Bonds Outstanding on the Initial Remarkecing Date. A form of the Credit Facility is attached hereto at Appendix E. PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS IS NOT GUARANTEED BY FANNIE MAE. FANNIE MAE'S OBLIGATIONS WILL BE CONTAINED IN THE CREDIT FACILITY, SO LONG AS THE CREDIT FACILITY IS IN EFFECT, AND WILL BE LIMITED SOLELY TO ITS OBLIGATIONS THEREUNDER AS DESCRIBED GENERALLY HEREIN. THE OBLIGATIONS OF FANNIE MAE UNDER THE CREDIT FACILITY WILL BE OBLIGATIONS SOLELY OF FANNIE MAE. THE OBLIGATIONS OF FANNIE MAE UNDER THE CREDIT FACILITY WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED STOCKHOLDER~OWNED CORPORATION, AND WILL NOT BE BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. THE BONDS ARE NOT A DEBT OF THE UNITED STATES OF AMERICA OR ANY OTHER AGENCY OR INSTRUMENTALITY THEREOF OR OF FANNIE MAE. THE BONDS ARE NOT GUARANTEED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. Additional financing for the Project has previously been provided by a loan (the "Senior Mortgage Loan'') of the proceeds of the Issuer's Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A originally issued in the aggregate principal amount of $11,485,000 (the "Senior Bonds''). The obligation of the Borrower to repay the Mortgage Loan described herein is subordinate in right of payment to the Senior Mortgage Loan. Nevertheless, the Trust Estate pledged under Indenture, including payments of Available Cash Aow (as defined herein) made under the Mortgage Note (except as provided in the Subordination Agreement (as defined herein), the proceeds of draws on the Credit Facility and the proceeds of remarketing the Bonds offered hereby, are pledged first and solely to the holders of the Bonds. Exc~t as provided In the Subordination Agreement, nothing in the documents executed with respect to the Senior Mortgage Loan (the "Senior Mortgage Loan Documents'') prohiblts the current application of such amounts to payments due with rcspect to the Bonds. See "INIRODUCTION-Senior Bonds" and "-Subordination to Senior Bonds" herein. However, if Available Cash Row is not sufficient to satisfy the Borrower's payment obligations under the Mortgage Note, the Credit Provider, in its discretion, can cause a mandatory redemption of the Bonds. Any such redemption will be at a price equal 10 the principal amount of the Bonds being redeemed, plus accrued interest thereon to the date of redemption, without premium. The Bonds are also subject to optional, mandatory sinking fund and special mandatory redemption prior to maturity at the times and to the extent described herein. See "THE BONDS-Redemption" herein. Persons who purchase Bonds ill a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. See "BONDHOLDERS' RISKS" herein. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF TIIE REVENUES, RECEiPTS AND OTHER MONEYS PLEDGED THEREFORE UNDER TIIE INDENTURE. TIIE BONDS ARE NOT A DEBT OF THE STATE, TIIE ISSUER (EXCEPT TO TIIE LIMITED EXTENT SET FORm IN TIIE INDE1'ITIJRE) OR OF ANY OTHER POLITICAL SUBDIVISION OF TIIE STATE, AND NEITHER THE STATE, THE ISSUER (EXCEPT TO THE LIMITED EXTENT SET FORm IN TIIE INDENTURE) NOR ANY OTHER POLmCAL SUBDIVISION OF THE STATE IS LIABLE FOR THE PAYMENT OF THE BONDS. NEITHER TIIE FAITH AND CREDIT OF THE STATE, THE ISSUER NOR OF ANY OTIIER POLITICAL SUBDIVISION OF THE STATE ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INfEREST ON THE BONDS. TIIE ISSUER HAS NO TAXING POWER. . THIS OFFICIAL STATEMENT DESCRIBES THE BONDS ONLY WHILE THE BONDS BEAR INTEREST AT A RESET RATE AND ARE SECURED BY TIIE CREDIT FACILITY DESCRIBED HEREIN. L'lVESTORS SHOULD NOT RELY ON THIS OFFICIAL STATEMENT IF TIIE INTEREST RATE ON THE BONDS IS ADJUSTED TO A VARIABLE RATE OR TO THE FIXED RATE, OR IF THE BONDS ARE SECURED BY A CREDIT FACll.ITY OTHER THAN THE CREDIT FACILITY DESCRIBED HEREIN. This cover page contains certain information fur quick reference only. It is not. a complete summary of the Bonds or the financing. Investors must read the entire Official Statement to obtain information essential to the making of an informed investment decision. -. The Bonds are offered when, as and if issued and received by the UndelWriter, subject to the approving opinion of Stradling Yocca Carlson &. Rallth, a Professional Corporation, Newport Beach, California, Bond Counsel. In connection with the initial issuance of the Bunds, certain legal matters will be passed upon for the Issuer by the City Attorney, for the Credit Proyider by its legal deparlment anti by its special counsel, O'Melveny &. Myers UP,jor the Borrower by Pillsbury Winthrop Shaw Pitt"la1! UP, San FrCUlCisco, California, and forthe Underwriter by Eichller &. Norris PLLC, Washington, D. C. It IS expected that the Bonds will be available for deliyery to The Depository Trust Company in New York, New York, on or about Septemher 13,2005. Dated: September _, 2005 '" Preliminary; subject to change. -!i~l25.~ 1-65 AMOUNTS, MATURITIES AND INTEREST RATES $ % Term Bonds due ,Price: _%, CUSIP: 17132A $ % Term Bonds due ,Price: _%, CUSIP: 17132A (Price includes accrued interest from the dated date of the Bonds set forth on the cover hereof.) (The Bonds maturing on are subject to mandatory tender for purchase on the Initial Remarketing Date specified on the cover hereof at a price equal to the principal amount of the Bonds plus accrued interested thereon to the Initial Remarketing Date as described under the heading ''THE BONDS-Mandatory Purchase of Bonds on Initial Remarketing Date" herein.) 1-66 No dealer, broker, salesperson or other person has been authorized by the Issuer, the Borrower, the Trustee, the Credit Provider, the Loan Servicer, the Underwriter or the Remarketing Agent to give any information or to make any representations other than those contained in this Official Statement and, if given or made, such other information or representation must not be relied upon as having been authorized by any of the foregoing. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the Bonds by any person in any jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale. The information in this Official Statement has been obtained from the Issuer, the Borrower, the Credit Provider, the Loan Servicer and DTc and other sources which are believed to be reliable but is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation of, the Issuer (except with respect to the information under the captions ''THE ISSUER" and "NO LITIGATION-The Issuer"), the Borrower (except with respect to the information under the captions ''THE BORROWER AND THE PROJECT" and "NO LITIGATION-The Borrower"), the Trustee, the Credit Provider (except with respect to the information under the caption ''THE CREDIT PROVIDER"), the Loan Servicer (except with respect to the information under the heading ''THE LOAN SERVICER"), the Underwriter or the Remarketing Agent. In particular, none of the Issuer (except with respect to the information under the captions ''THE ISSUER" and "NO LITIGATION-The Issuer"), the Borrower (except with respect to the information under the captions ''THE BORROWER AND THE PROJECT" and "NO LITIGATION-The Borrower"), the Credit Provider (except with respect to the information under the caption ''THE CREDIT PROVIDER") or the Loan Servicer (except with respect to the information under the heading ''THE LOAN SERVICER"), has provided or approved any information in this Official Statement, and such entities take no responsibility for any other information contained in this Official Statement. Without limiting the foregoing, none of the Issuer, the Credit Provider or the Loan Servicer make any representation as to the suitability of the Bonds for any investor, the feasibility or performance of the Project, or compliance with any securities, tax or other laws or regulations. The Credit Provider's role with respect to the Bonds is limited to entering into the Credit Facility described herein with the Trustee. The information and expression of opinion herein are subject to change without notice and neither the delivery of this Official Statement nor any sale hereunder shall, under any circumstances, create any implication that there has been no change in the information contained herein since the date hereof. IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE BONDS OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. 1-67 TABLE OF CONTENTS Page INTRODUCTION ....................................... ..... .......... ............... ......................... .......... .... ..... ..... ................. I THE ISSUER... ......... ..... ........ ..... ...................... ................. ........... ....... ................... ................... .... .... .......... 7 THE BONDS ...............................................................................................................................................8 SECURITY FOR THE BONDS................................................................................................................ 17 BONDHOLDERS' RISKS. ......... ..................... .... ........ .......... .................... ... ......... ........ ... ..... ... ......... ....... 19 THE CREDIT PROVIDER ........ ......................... ...... ...... ........ ................. ....... ........... ............... ........ ........ 23 ESTIMATED SOURCES AND USES OF FUNDS ................................................................................. 26 THE BORROWER AND THE PROJECT................................................................................................ 26 SUMMARY OF CERTAIN PROVISIONS OF THE MORTGAGE NOTE............................................ 28 THE LOAN SER VIcER ..... ........ ............................... ..... ...... .............. ..... ..... .......... ............................. ..... 35 TAX MATTERS .......................................................................................................................................36 NO LITIGATION........... ..... ..... ... ....... ........... .... ........ ..... .... ........ .... .... ............... ............. ......... ... ........ .......37 ENFORCEABILITY OF REMEDIES ...................................................................................................... 37 CONTINUING DISCLOSURE.......... ............. ............. ............................. ..... .......................... ........... ...... 38 VERIFICATION OF CASH FLOWS AND SUFFICIENCY OF CASH FLOW..................................... 38 RATING .. ....... ... ..... ...... ...... ........ ... ......... ................... ....... ..... .... ...... .... ... ............ ... .............. ........ .... ... ... ....39 UNDERWRITING ....................................................................................................................................39 CERTAIN LEGAL MATTERS ................................................................................................................39 MULTIPLE ROLES ..... ............ .... ....... .......... ........................ ..................... ..... ............. ................... ..........39 MISCELLANEOUS ..................................................................................................................................40 APPENDIX A CERTAIN DEFINITIONS APPENDIX B SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT SUMMARY OF CERTAIN PROVISIONS OF THE FINANCING AGREEMENT FORM OF CREDIT FACILITY FORM OF OPINION OF BOND COUNSEL FORM OF CONTINUING DISCLOSURE AGREEMENT SUMMARY OF CERTAIN PROVISIONS OF THE REIMBURSEMENT AGREEMENT APPENDIX D APPENDIX E APPENDIX F APPENDIX G APPENDIX H 1-68 OFFICIAL STATEMENT relating to $1,715,000* Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A INTRODUCTION The following introductory statement is subject in all respects to more complete information contained elsewhere in this Official Statement. The order and placement of materials in this Official Statement, which includes the cover page and Appendices hereto, are not to be deemed to be a detennination of relevance, materiality or relative importance, and this Official Statement, including the cover page and Appendices hereto, must be considered in its entirety. All capitalized terms used in this Official Statement that are not otherwise defined herein will have the meanings ascribed to them in the Indenture, the Financing Agreement, the Regulatory Agreement, the Reimbursement Agreement and the Credit Facility (as each such term is defined herein). This Official Statement and the Appendices hereto set forth certain information relating to the issuance by the Housing Authority of the City of chula Vista (the "Issuer") of the above-<:aptioned bonds (the "Bonds"). The Bonds are being issued pursuant to Chapter 1 of Part 2 of Division 24 of the California . Health and Safety Code (the "Act"), under a Trust Indenture, dated as of September 1, 2005 (the "Indenture"), between the Issuer and Wells Fargo Bank, National Association, as trustee (the "Trustee"), and a resolution of the Issuer authorizing issuance and sale of the Bonds and execution and delivery of all related documents required to be executed and delivered by the Issuer (the "Bond Resolution"). The proceeds of the Bonds will fund a Mortgage Loan (the "Mortgage Loan") to be made by the Issuer to cIc Eastlake, L.P., a California limited partnership (the "Borrower"). The proceeds of the Mortgage Loan will provide additional financing for the costs of acquiring, constructing and equipping a multifamily rental housing development known as the Rancho Vista Apartments located in Chula Vista, California (the "Project"). Additional financing for the Project has previously been provided by a loan (the "Senior Mortgage Loan") of the proceeds of the Issuer's Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A originally issued in the aggregate principal amount of $11,485,000 (the "Senior Bonds"). The obligation of the Borrower to repay the Mortgage Loan described herein is subordinate in right of payment to the Senior Mortgage Loan. See "Senior Bonds" and "Subordination to Senior Bonds" below. Fannie Mae ("Fannie Mae" or the "Credit Provider") will provide credit enhancement for the Mortgage Loan, pursuant to, and subject to the limitations of, a Credit Enhancement Instrument (Stand- By), dated the Closing Date (the "Credit Facility"), provided by the Credit Provider to the Trustee. The Credit Facility will also provide liquidity support for the Bonds Outstanding on the Initial Remarketing Date. See ''THE CREDIT PROVIDER" herein and Appendix E hereto. The obligation of the Borrower to reimburse the Credit Provider for any funds provided by the Credit Provider under the Credit Facility * Preliminary; subject to change. 1-69 will be set forth in a Reimbursement Agreement, dated as of the date of the Indenture (the "Reimbursement Agreement"), between the Borrower and the Credit Provider. The Mortgage Loan will be evidenced by a Multifamily Note (the "Mortgage Note") executed by the Borrower. See "SUMMARY OF CERTAIN PROVISIONS OF THE MORTGAGE NOTE" herein. The Mortgage Note will be payable to the Issuer and will be secured by, among other things, a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Security Instrument") from the Borrower to the Issuer and the Credit Provider. The Mortgage Note and the Security Instrument will be assigned by the Issuer to the Trustee and Fannie Mae, as their interests may appear, and will continue to be part of the Trust Estate securing the Bonds. Pursuant to an Assignment and Intercreditor Agreement, dated as of the date of the Indenture (the "Assignment"), by and among the Issuer, the Credit Provider and the Trustee and acknowledged by the Borrower, the right, power and authority to make all decisions in connection with the Mortgage Loan and under the Mortgage Loan Documents will be vested exclusively in the Credit Provider. The Credit Facility will provide credit support for certain payments due under the Mortgage Note (designated in the Credit Facility as "Required Mortgage Payments") and liquidity support for the Bonds. The Credit Facility will be a stand-by facility, providing coverage in the event that the Borrower fails to make a Required Mortgage Payment. The Credit Facility will also cover the risk of disgorgement in bankruptcy. Required Mortgage Payments, if made timely and in full, are intended to be sufficient to pay the principal of and interest on the Bonds. The Credit Provider will have no obligation under the Credit Facility to pay premium, if any, on the Bonds. The Credit Provider's obligation to make payments under the Credit Facility will be absolute, unconditional and irrevocable. Such obligation will be a general, unsecured obligation of the Credit Provider. If the Credit Provider fails to perform such obligation, the Trustee will receive only payments and other recoveries on the Mortgage Loan itself, and a delinquency or default on the Mortgage Loan at that time would seriously and adversely affect monthly payments to the Trustee. The interest rate on the Mortgage Note (the "Mortgage Note Rate") has been established at a rate, (subject to adjustment on the Initial Remarketing Date) and the monthly payments under the Mortgage Note have been scheduled, such that the monthly payments of principal and interest on the Mortgage Note will be sufficient, together with other money on deposit with the Trustee pursuant to the Indenture, and certain Investment Income, to pay, when due, the semi-annual interest or principal and interest on the Bonds, the fees of the Credit Provider, fees of the Loan Servicer and the ''Third Party Fees" (which include the Trustee's Annual Fee, the Rebate Analyst's Annual Fee, if any, and the Issuer's Annual Fee), but only to the extent that the Third Party Fees are included in the Mortgage Note Rate. The Trustee will accumulate and invest the monthly payments on the Mortgage Loan for application semiannually to payments of interest or principal and interest, as due, on the Bonds and for the payment of certain fees. The Credit Provider has not prepared, reviewed or verified, makes no representation or warranty with respect to, does not certify to, and assumes no responsibility or liability for, any calculations used to establish such schedule of payments or distributions, the assumptions used in making such calculations, their mathematical accuracy or for the sufficiency of payments or any investment income on which they are based to pay the principal of and interest on the Bonds when due, any fees, including any Third Party Fees, when due, or any other amounts at any time. PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS IS NOT GUARANTEED BY FANNIE MAE. FANNIE MAE'S OBLIGATIONS WILL BE CONTAINED IN THE CREDIT FACILITY, SO LONG AS THE CREDIT FACILITY IS IN EFFECT, AND WILL BE LIMITED SOLELY TO ITS OBLIGATIONS THEREUNDER AS DESCRIBED GENERALLY HEREIN. THE OBLIGATIONS OF FANNIE MAE UNDER THE CREDIT FACILITY WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED 12r-70 STOCKHOLDER-OWNED CORPORATION, AND WILL NOT BE BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. THE BONDS ARE NOT A DEBT OF THE UNITED STATES OF AMERICA OR ANY OTHER AGENCY OR INSTRUMENTALITY THEREOF OR OF FANNIE MAE. THE BONDS ARE NOT GUARANTEED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. TillS OFFICIAL STATEMENT DESCRIBES THE BONDS ONLY WHILE THE BONDS BEAR INTEREST AT A RESET RATE AND ARE SECURED BY THE CREDIT FACILITY DESCRIBED HEREIN. INVESTORS SHOULD NOT RELY ON TillS OFFICIAL STATEMENT IF THE INTEREST RATE ON THE BONDS IS ADJUSTED TO A VARIABLE RATE OR TO THE FIXED RATE, OR IF THE BONDS ARE SECURED BY A CREDIT FACILITY OTHER THAN THE CREDIT FACILITY DESCRIBED HEREIN. In order to assure compliance with the applicable provisions of the Code and applicable laws, the Borrower, the Trustee and the Issuer have entered into a Regulatory Agreement and Declaration of Restrictive Covenants, dated as of the date of the Indenture (the "Regulatory Agreement"), which requires that certain of the residential rental units in the Project be occupied by persons and families of low income. See Appendix C hereto. The Project is subject to additional affordable housing restrictions in connection with the Subordinate City Loan (as defined herein) and the participation in the Low Income Housing Tax Credit Program. See ''THE BORROWER AND THE PROJECT" herein. Any failure of the Borrower to comply with the terms of the Regulatory Agreement may cause interest on the Bonds to be included in the gross income for federal income tax purposes, possibly retroactively as well as prospectively. See ''TAX MATTERS." The Bonds are not subject to acceleration or redemption solely because of a default by the Borrower under the Regulatory Agreement or because interest on the Bonds becomes includable in the gross income of the owners thereof for federal income tax purposes. In addition, the interest rate on the Bonds will not be adjusted in the event that interest payable on the Bonds becomes includable in the gross income Qf the owners thereof for federal income tax purposes. Red Capital Markets, Inc. (the "Remarketing Agent") will serve as remarketing agent with respect to the Bonds under a Remarketing Agreement, dated as of the date of the Indenture (the "Remarketing Agreement"), by and between the Remarketing Agent and the Borrower. The Borrower has previously secured various subordinate loans as described under the heading ''THE BORROWER AND THE PROJECT-Additional Financing" herein. Each such loan is subordinate to the Mortgage Loan financed with the proceeds of the Bonds. Nevertheless, a default with respect to any such loan shall constitute a default under the Mortgage Note and the Security Instrument and entitle the Credit Provider (as holder of the Mortgage Loan rights), in its discretion, to direct or invoke any remedies available to it at law or in equity, including but not limited to, the remedy of acceleration set forth in the Mortgage Note. The Credit Provider can cause a mandatory redemption of the Bonds in whole or in part upon a default under the Security Instrument. Any such redemption will be at a price equal to the principal amount of the Bonds being redeemed, plus accrued interest thereon to the date of redemption, without premium. See ''THE BONDS-Redemption" herein. Persons who purchase Bonds at a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. See "BONDHOLDERS' RISKS" herein. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES, RECEIPTS AND OTHER MONEYS PLEDGED THEREFORE UNDER THE INDENTURE. THE BONDS ARE NOT A DEBT OF THE STATE, THE ISSUER (EXCEPT TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) OR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE, AND NEITHER THE STATE, THE ISSUER (EXCEPT TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) NOR ANY OTHER POLITICAL P-71 SUBDIVISION OF THE STATE IS LIABLE FOR THE PAYMENT OF THE BONDS. NEITHER THE FAITH AND CREDIT OF THE STATE, THE ISSUER NOR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS. THE ISSUER HAS NO T AXJNG POWER. The Bonds are subject to optional, mandatory sinking fund and special mandatory redemption prior to maturity at the times and to the extent described herein. See ''THE BONDS-Redemption" herein. Persons who purchase Bonds at a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. See "BONDHOLDERS' RISKS" herein. On the Initial Remarketing Date specified on the cover hereof, the Bonds Outstanding on such date are subject to mandatory tender for purchase and remarketing. If the Bonds are remarketed on the Initial Remarketing Date, the terms of the Bonds after such date may differ materially from the description provided in this Official Statement. Therefore, prospective purchasers of the Bonds on and after the Initial Remarketing Date cannot rely on this Official Statement, but rather must rely upon any disclosure documents prepared in connection with such remarketing. Senior Bonds Additional financing for the Project has previously been provided by a loan (the "Senior Mortgage Loan") of the proceeds of the Issuer's Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A originally issued in the aggregate principal amount of $11,485,000 (the "Senior Bonds"). Senior Bonds in the original aggregate principal amount of $1,195,000 bear interest at a per annum rate of 4.20% and mature on June 1, 2013. Senior Bonds in the original aggregate principal amount of $10,290,000 bear interest at a per annum rate of 5.00% and mature on June I, 2036. The interest rate on the Senior Bonds maturing on June 1, 2036 will be reset on June I, 2024 (the "Senior Bonds Initial Remarketing Date). The Borrower also was loaned the proceeds of the Issuer's Subordinate Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003B, originally issued in the aggregate principal amount of $201,000 (the "Series 2003B Bonds"). The Series 2003B Bonds will be redeemed in whole on the date of issuance of the Bonds described herein. The Senior Bonds are outstanding in the aggregate principal amount of $ under and pursuant to a Trust Indenture, dated as of October 1, 2003 (the "Senior Indenture"), by and between the Issuer and Wells Fargo Bank, National Association, as trustee (the "Senior Trustee"). The Senior Mortgage Loan was originated pursuant to a Financing Agreement, dated as of the date of the Senior Indenture (the "Senior Financing Agreement"), by and among the Issuer, the Senior Trustee and the Borrower. The Senior Mortgage Loan is evidenced by a Multifamily Note (the "Senior Mortgage Note") executed by the Borrower. The Senior Mortgage Note is payable to the Issuer and is secured by, among other things, a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Senior Security Instrument") from the Borrower to the Issuer and Fannie Mae (the "Senior Credit Provider"). The Senior Credit Provider provides credit enhancement for the Senior Mortgage Loan, pursuant to, and subject to the limitations of, a Credit Enhancement Instrument (Stand-By) (the "Senior Credit Facility") provided by the Senior Credit Provider to the Senior Trustee. The Senior Financing Agreement, the Senior Mortgage Note, the Senior Security Instrument and all other documents evidencing, securing or otherwise executed and delivered in connection with the Senior Mortgage Loan are referred to herein as the "Senior Mortgage Loan Documents." 14-72 Payments of principal of and interest on the Senior Bonds are expected to be made from payments made by the Borrower under the Senior Mortgage Note. In addition, certain required payments due under the Senior Mortgage Note will be enhanced by the Senior Credit Provider pursuant to, and subject to the limitations of, the Senior Credit Facility. The Senior Credit Facility will also provide liquidity support for the Senior Bonds Outstanding on the Senior Bonds Initial Remarketing Date. Payments under the Senior Mortgage Note and the Senior Credit Facility, along with other amounts pledged as security for the Senior Bonds under the Senior Indenture as referred to herein as the "Senior Trust Estate." Amounts constituting the Senior Trust Estate are not available to repay the Bonds. The Senior Bonds are not offered hereby. The obligation of the Borrower to repay the Mortgage Loan securing the Bonds is subordinate in right of payment to the Senior Mortgage Loan securing the Senior Bonds. See "Subordination to Senior Bonds" below. Subordination to Senior Bonds Introduction. Pursuant to a Subordination Agreement, dated as of the date of the Indenture (the "Subordination Agreement") by and among the Senior Credit Provider, the Credit Provider, the Senior Trustee, the Trustee and the Borrower, upon and during the continuation of a Wrongful Dishonor with respect to the Senior Credit Facility (a "Senior Wrongful Dishonor"), the obligation of the Borrower to repay the Mortgage Loan securing the Bonds is subordinate in right of payment to the Senior Mortgage Loan securing the Senior Bonds as described below. See "Senior Bonds" above for a description of the Senior Bonds and the Senior Mortgage Loan. As described in this Official Statement, the Bonds are secured by payments made by the Borrower under the Mortgage Note. In addition, certain required payments due under the Mortgage Note will be enhanced by the Credit Provider pursuant to, and subject to the limitations of, the Credit Facility. The Credit Facility will also provide liquidity support for the Bonds Outstanding on the Initial Remarketing Date. Payments under the Mortgage Note and the Credit Facility, along with other amounts pledged as security for the Bonds under the Indenture as referred to herein as the ''Trust Estate." Except as provided in the Subordination Agreement, amounts constituting the Trust Estate are not available to repay the Senior Bonds. The Financing Agreement, the Mortgage Note, the Security Instrument and all other documents evidencing, securing or otherwise executed and delivered in connection with the Mortgage Loan are referred to herein as the "Mortgage Loan Documents." Subordination. Pursuant to the Subordination Agreement, during the continuation of a Senior Wrongful Dishonor, the Senior Credit Provider and the Senior Trustee (as their interests may appear, the "Senior Lender") and the Credit Provider and the Trustee (as their interests may appear, the "Lender") have agreed that (i) the indebtedness evidenced by the Mortgage Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in the Subordination Agreement, to the prior payment in full of the indebtedness evidenced by the Senior Mortgage Loan Documents, and (ii) the Security Instrument and the other Mortgage Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Senior Security Instrument and the other Senior Mortgage Loan Documents and to all advances made pursuant to the Senior Security Instrument (including but not limited to, all sums advanced for the purposes of (x) protecting or further securing the lien of the Senior Security Instrument, curing defaults by the Borrower under the Senior Mortgage Loan Documents or for any other purposes expressly pennitted by the Senior Security Instrument, or (y) constructing, renovating, repairing, furnishing, fixturing or equipping the Project). 15-73 Pursuant to the Subordination Agreement, upon and during the continuation of a Senior Wrongful Dishonor, payments under the Mortgage Note can only be made from amounts constituting "Available Cash Flow." Available Cash Flow means for any period, Gross Revenues for such period less the sum of (i) Expenses of the Property for such period, and (ii) without duplication, all amounts due on the Senior Mortgage Loan Obligations for such period. "Gross Revenues" shall mean all receipts, revenues, income and other moneys received by or on behalf of the Borrower and derived from the ownership or operation of the Project, .and all rights to receive the same, whether in the form of accounts, accounts receivable, contract rights or other rights, and the prOCeeds of such rights, and whether now owned or held or hereafter coming into existence and proceeds received upon the foreclosure sale of the Project. Gross Revenues shall not include loan proceeds, equity or capital contributions, or tenant security deposits being held by Borrower in accordance with the applicable law. "Expenses of the Property" shall mean, for any period, the current expenses, paid or accrued, of operation, maintenance and current repair of the Project, as calculated in accordance with GAAP, and shall include, without limiting the generality of the foregoing, salaries, wages, employee benefits, cost of materials and supplies, costs of routine repairs, renewals, replacements and alterations occurring in the usual course of business, costs and expenses properly designated as capital expenditures (e.g. repairs which would not be payable from amounts on deposit in a repair and replacement fund held pursuant to the Senior Mortgage Loan Documents), a management fee (however characterized) not to exceed 4% of Gross Revenues, costs of billings and collections, costs of insurance, and costs of audits. Expenses of the Property shall not include the Issuer fees in respect of the Bonds or any payments, however characterized, on account of any subordinate financing in respect of the Project or other indebtedness, allowance for depreciation, amortization or other non-<:ash items, gains and losses or prepaid expenses not customarily prepaid, and partner fees, however characterized, payable under Borrower's partnership agreement. Application of Funds. Pursuant to the Subordination Agreement, until the Trustee receives notice of the occurrence of an event of Default under the Senior Mortgage Loan Documents (a "Senior Mortgage Loan Default''), the Trustee shall be entitled to retain for its own account all payments made under or pursuant to the Mortgage Loan Documents. After the Borrower receives notice (or otherwise has actual knowledge) of a Senior Mortgage Loan Default, it will not make any payments under or pursuant to the Mortgage Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Security Instrument) without the Senior Lender's prior written consent. The Lender has agreed that, after it receives notice of a Senior Mortgage Loan Default, it will not accept any payments under or pursuant to the Mortgage Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Security Instrument) without the Senior Lender's prior written consent. Pursuant to the Subordination Agreement, if, after the Lender receives notice (or otherwise acquires actual knowledge) of a Senior Mortgage Loan Default, the Lender receives any payments under the Mortgage Loan Documents, or if the Lender receives any other payment or distribution of any kind from the Borrower or from any other Person in connection with the Mortgage Loan or the Subordinate Loan Documents which the Lender is not pennitted by the Subordination Agreement to retain for its own account, the Lender has agreed that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Lender, will be promptly remitted, in kind, to the Loan Servicer on behalf of the Senior Lender, properly endorsed to the Loan Servicer, to be applied to the principal of, interest on and other amounts due under Senior Mortgage Loan Documents in such order and in such manner as the Senior Lender shall detennine in its sole and absolute discretion. Mortgage Loan Default. Pursuant to the Subordination Agreement, if an event of Default under the Mortgage Loan Documents (a "Mortgage Loan Default") occurs and is continuing, the Lender has 16-74 agreed that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Project under the Mortgage Loan Documents or exercise any other rights or remedies it may have under the Mortgage Loan Documents, including, but not limited to accelerating the Mortgage Loan and/or the Bonds (and enforcing any "due on sale" provision included in the Mortgage Loan Documents), collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder. Senior Mortgage Loan Default. Pursuant to the Subordination Agreement, the Borrower and the Lender have agreed that a Mortgage Loan Default shall constitute a Senior Mortgage Loan Default under the Senior Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Senior Mortgage Loan Documents in the same manner as in the case of any other Senior Mortgage Loan Default. Pursuant to the Subordination Agreement, the Senior Lender shall not be required to give the Lender notice of a Senior Mortgage Loan Default, and no such notice shall be required prior to the exercise by the Senior Lender of any of its rights or remedies under the Senior Mortgage Loan Documents and the Subordination Agreement with respect to the Senior Mortgage Loan Default. Pursuant to the Subordination Agreement, the Lender has agreed that, notwithstanding any contrary provision contained in the Mortgage Loan Documents, a Senior Mortgage Loan Default shall not constitute a default under the Mortgage Loan Documents (if no other default has occurred under the Mortgage Loan Documents) until either (i) the Senior Lender has accelerated the maturity of the Senior Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Senior Security Instrument to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Senior Security Instrument. At any time after a Senior Mortgage Loan Default becomes a default under the Mortgage Loan Documents, the Lender shall be pennitted to pursue its remedies for default under the Mortgage Loan Documents, subject to the restrictions and limitations of the Subordination Agreement Agreement. If at any time the Borrower cures any Senior Mortgage Loan Default to the satisfaction of the Senior Lender, any default under the Mortgage Loan Documents arising from such Senior Mortgage Loan Default shall be deemed cured and the Mortgage Loan shall be retroactively reinstated as if such Senior Mortgage Loan Default had never occurred. Taking and Casualty. Pursuant to the Subordination Agreement, the Lender has agreed that its rights (under the Mortgage Loan Documents or otherwise) to participate in any proceeding or action relating to the taking and/or a casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a taking or a casualty shall be and remain subordinate in all respects to Senior Lender and the Lender shall be bound by any settlement or adj ustment of a claim resulting from a taking or a casualty made by the Senior Lender. AI] proceeds received or to be received on account of a taking or a casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Senior Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Senior Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Senior Mortgage Loan shall be paid to, and may be applied by, the Lender in accordance with the applicable provisions of the Mortgage Loan Documents. If, after the occurrence of a Senior Mortgage Loan Default, the Senior Lender acquires title to the Project pursuant to a deed in lieu of foreclosure, the lien of the Security Instrument shall automatically tenninate upon the Senior Lender's acquisition of title, provided that (i) the Lender shall have been given written notice of the Senior Mortgage Loan Default, and (ii) the Subordinate Lender shall not have cured the Senior Mortgage Loan Default within the 30-day period after its receipt of the notice referred to in clause (i), which notice may be given at any time. fL75 Subordination Agreement Controls. Pursuant to the Subordination Agreement, the Borrower and the Lender have each agreed that upon and during the continuation of a Senior Wrongful Dishonor, in the event of any conflict or inconsistency between the terms of the Mortgage Loan Documents and the terms of the Subordination Agreement, the terms of the Subordination Agreement shall control. Conclusion. Notwithstanding the foregoing, except as provided in the Subordination Agreement, the Trust Estate pledged under Indenture, including payments of Available Cash Flow made under the Mortgage Note, the proceeds of draws on the Credit Facility and the proceeds of remarketing the Bonds offered hereby, are pledged first and solely to the holders of the Bonds. Except as provided in the Subordination Agreement, nothing in the Senior Mortgage Loan Documents prohibits the current application of such amounts to payments due with respect to the Bonds. However, if Available Cash Flow is not sufficient to satisfy the Borrower's payment obligations under the Mortgage Note, the Credit Provider, in its discretion, can cause a mandatory redemption of the Bonds. Any such redemption will be at a price equal to the principal amount of the Bonds being redeemed, plus accrued interest thereon to the date of redemption, without premium. See ''THE BONDS-Redemption" herein. Persons who purchase Bonds at a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. See "BONDHOLDERS' RISKS" herein. Copies of Documents Brief descriptions of the Bonds, the security for the Bonds, the Issuer, the Credit Provider, the Borrower and the Project are included in this Official Statement together with summaries of the Indenture, the Financing Agreement, the Regulatory Agreement, the Note and the Reimbursement Agreement. Such descriptions do not purport to be comprehensive or definitive. Forms of the Credit Facility and the Disclosure Agreement are attached to this Official Statement. All references herein to the Indenture, the Financing Agreement, the Regulatory Agreement, the Note, the Reimbursement Agreement, the Disclosure Agreement, the Credit Facility and other documents are qualified in their entirety by reference to such documents. References herein to the Bonds are qualified in their entirety by reference to the forms thereof included in the Indenture. Copies of all of the foregoing documents are available for inspection in the designated office of the Trustee, Wells Fargo Bank, National Association, 707 Wilshire Boulevard, 17th Floor, Los Angeles, CA 90017, Attention: Corporate Trust Department, Attention: Corporate Trust Department. THE ISSUER The information under this heading has been provided solely by the Issuer and has not been independently verified by the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. No representation whatsoever as to the accuracy, adequacy or completeness of such information is made by the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. The City of Chula Vista, incorporated in 1911, is a municipal corporation and charter city organized and existing under the laws of the State of California. The City established the Issuer pursuant to the terms of the Act. Under the Act, the Issuer is empowered to issue revenue bonds for the purpose, among others, of financing multifamily rental housing for persons of low and moderate income. The Bonds are limited obligations of the Issuer and are not payable from the Issuer's general funds. TheIssuer has no taxing power. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES, RECEIPTS AND OTHER MONEYS PLEDGED THEREFORE 18-76 UNDER THE INDENTURE. THE BONDS ARE NOT A DEBT OF THE STATE, THE ISSUER (EXCEPT TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) OR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE, AND NEITHER THE STATE, THE ISSUER (EXCEPT TO THE LIMITED EXTENT SET FORTH IN THE INDENTURE) NOR ANY OTHER POLITICAL SUBDIVISION OF THE STATE IS LIABLE FOR THE PAYMENT OF THE BONDS. NEITHER THE FAITH AND CREDIT OF THE STATE, THE ISSUER NOR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON THE BONDS. THE ISSUER HAS NO TAXING POWER. The Issuer takes no responsibility for the financial feasibility of the Project and makes no representation, direct or indirect, that the Project will be able to generate sufficient income to pay debt service on the Loan and operating expenses. THE INFORMATION IN TffiS OFFICIAL STATEMENT, EXCEPT FOR THE INFORMATION SET FORTH UNDER TffiS HEADING AND THE HEADING "NO LITIGATION-THE ISSUER" HAS NOT BEEN PROVIDED BY THE ISSUER. THE ISSUER HAS NOT ASSUMED AND HAS NO RESPONSffiILITY FOR THE INFORMATION CONTAINED HEREIN AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OF SUCH INFORMATION, EXCEPT FOR THE INFORMATION SET FORTH UNDER TffiS HEADING AND THE HEADING "NO LITIGATION-THE ISSUER." THE BONDS General The Bonds are issuable only as fully registered bonds, without coupons, in Authorized Denominations. The Bonds are dated as of the Dated Date set forth on the cover hereof and will mature as set forth on the inside front cover hereof. The Bonds will initially bear interest at the Reset Rate set forth on the inside front cover hereof commencing on the Dated Date and terminating on the Initial Remarketing Date. On the Initial Remarketing Date, the Bonds Outstanding on such date will be subject to mandatory tender and remarketing as described under the heading "Mandatory Tender and Purchase of Bonds on Initial Remarketing Date" below. Interest on the Bonds will be calculated on the basis of a 360-day year consisting of twelve 30-day months. Interest on the Bonds will be payable on each Interest Payment Date. The interest on the Bonds will be calculated from the Interest Payment Date next preceding the date of authentication of the Bonds, provided that if the date of authentication is an Interest Payment Date for which interest has been paid or is after the Record Date, but prior to the next Interest Payment Date, the Bonds will bear interest from such Interest Payment Date. If the date of authentication is prior to the Record Date for the first Interest Payment Date, the Bonds will bear interest from the Dated Date of the Bonds. Notwithstanding the foregoing, if, at the time of authentication of any Bond, interest on the Bond is in default, the Bond will bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment or, if no interest has theretofore been paid on the Bond, from the Dated Date of the Bond. The Bonds will be delivered in fully registered form only and, when issued and delivered, will be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC"). Ownership interest in the Bonds may be purchased in book-entry form only. Ultimate purchasers of Bonds will not receive physical certificates representing their interest in the 1-977 Bonds. So long as the Bonds are registered in the name of Cede & Co., as nominee of DTC, references herein to the Bondholders will mean Cede & Co. and will not mean the ultimate purchasers of the Bonds. Payments of the principal of and interest on the Bonds while under the Book-Entry Only System will be made in accordance with the rules, regulations and procedures established by DTc in connection with such Book-Entry Only System. See ''THE BONDS-Book-Entry Only System" herein. Mandatory Purchase of Bonds on Initial Remarketing Date Not less than 30 days preceding the Initial Remarketing Date, the Trustee shall give written notice to the holders of the Bonds then Outstanding by mail, at their respective addresses appearing on the Bond Register specifying (i) the Initial Remarketing Date, (ii) that all Outstanding Bonds are subject to mandatory tender for purchase on the Initial Remarketing Date, (lli) that all Outstanding Bonds must be tendered to the Trustee for purchase not later than 12:00 noon, New York time on the Initial Remarketing Date, (iv) that Bondholders will not have the right to elect to retain their Bonds, (v) that all Outstanding Bonds will be purchased on the Initial Remarketing Date (or not later than 3 Business Days after the Initial Remarketing Date, in the event that the Trustee does not, after a remarketing, have sufficient funds on the Initial Remarketing Date to purchase all of the Outstanding Bonds) at a price equal to the principal amount of the Outstanding Bonds plus interest accrued to the Initial Remarketing Date, and (vi) that any Bonds not tendered (an "Undelivered Bond") will nevertheless be deemed to have been tendered and will cease to bear interest from and after the Initial Remarketing Date. Accrued interest payable to the Initial Remarketing Date on the Outstanding Bonds shall be paid to the owners of the Outstanding Bonds as of the Record Date in the same manner as if the Outstanding Bonds were not purchased. The principal portion of the purchase price of the Outstanding Bonds shall be payable only upon surrender of such Bonds pursuant to the Indenture. An Undelivered Bond shall be treated as a lost Bond and shall be deemed tendered. An Undelivered Bond shall not bear interest from and after the Initial Remarketing Date, and shall not be otherwise entitled to any rights under, or be secured by the lien of, the Indenture, but shall have only the right to receive the amount due as a result of the purchase of the Bonds pursuant to the Indenture. Notwithstanding the foregoing, during any period that the Bonds are Book Entry Bonds, (i) any notice given to Bondholders as described under this heading shall be given only to the entity designated in the Letter of Representations, as required the Indenture and (ll) it shall not be necessary for any Bonds to be physically delivered on the date specified for purchase of such Bonds, but such purchase shall be made as if such Bonds had been so delivered, and the purchase price of such Bonds shall be paid to DTC. The purchase price of the Bonds will be paid, first, from the proceeds of remarketing the Bonds and, second, to the extent the remarketing proceeds are insufficient, from a draw on the Credit Facility. Redemption The Bonds are subject to redemption prior to maturity only as set forth in the Indenture. All redemptions shall be in Authorized Denominations. Optional Redemption. Optional Redemption Prior to Initial Remarketing Date. The Bonds are not subject to optional redemption prior to U.fl78 The Bonds shall be subject to optional redemption only upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents. Optional redemption shall occur on the fIrst day of any month for which timely notice of redemption can be given during the periods and at the respective redemption prices set forth below (expressed as percentages of the principal amounts of the Bonds called for redemption), plus accrued interest, if any, to the Redemption Date: Redemption Dates (Both Dates Inclusive) Redemption Prices (Expressed as a Percentage) 102% 101 100 Optional Redemption After Initial Remarketing Date. If the Bonds then Outstanding are remarketed on the Initial Remarketing Date or, if applicable, any subsequent Remarketing Date for a Remarketing Period: (i) of 10 years or more, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents; such redemption shall occur on the fIrst day of any month on or after the seventh anniversary of the Remarketing Date, at a redemption price equal to (a) 102% of the principal amount of such Bonds if the redemption occurs in the period beginning on the seventh anniversary of the Remarketing Date and ending on the day prior to the eighth anniversary of the Remarketing Date, (b) 101 % of the principal amount of such Bonds if the redemption occurs in the period beginning on the eighth anniversary of the Remarketing Date and ending on the day prior to the ninth anniversary of the Remarketing Date and (c) 100% of the principal amount of such Bonds if the redemption occurs on or after the ninth anniversary of the Remarketing Date, in each case together with accrued interest to the Redemption Date; (ii) less than 10 years but not less than four years, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents; such redemption shall occur on the fIrst day of any month on or after the second anniversary of the most recent Remarketing Date, at a redemption price equal to (a) 102% of the principal amount of such Bonds if the redemption occurs in the period beginning on the second anniversary of the Remarketing Date and ending on the day prior to the third anniversary of the Remarketing Date, (b) 10 1 % of the principal amount of such Bonds if the redemption occurs in the period beginning on the third anniversary of the Remarketing Date and ending on the day prior to the fourth anniversary of the Remarketing Date and (c) 100% of the principal amount of such Bonds if the redemption occurs on or after the fourth anniversary of the Remarketing Date, in each case together with accrued interest to the Redemption Date; (iii) greater than one year but less than four years, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents, on the first day of any month on or after the fIrst anniversary of the Remarketing Date at a redemption price equal to 100.5% of the principal amount of such Bonds plus accrued interest to the Redemption Date; or 114-79 (iv) of one year or less, such Bonds shall not be subject to optional redemption prior to the next succeeding Remarketing Date or maturity date of such Bonds, as appropriate. General Requirements. Optional redemption pursuant to the Indenture is not pennitted unless (i) the redemption is effected solely with Available Moneys or (ii) the Credit Provider provides its prior written consent to a redemption with other than Available Moneys. Notwithstanding any other provision of the Indenture to the contrary, optional redemption of the Bonds shall not be pennitted unless, on or before the Redemption Date, the Trustee has on hand Available Moneys in an amount sufficient to pay the End Period Payment on the Redemption Date. Neither the Issuer, the Credit Provider nor the Loan Servicer shall have any responsibility or liability to provide funds to be included in the End Period Payment. Special Mandatory Redemption. The Bonds are subject to special mandatory redemption as provided in the Indenture. Unless otherwise specified in any paragraph below, each special mandatory redemption will be (a) effected on the earliest practicable Redemption Date for which timely notice of redemption can be given pursuant to the Indenture following the occurrence of the event requiring such redemption and (b) at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued interest on such Bonds to the Redemption Date. Bonds subject to special mandatory redemption in part will be redeemed in Authorized Denominations; if the Trustee receives an amount for the special mandatory redemption of the Bonds which is not equivalent to an Authorized Denomination, Bonds will be redeemed in an amount equal to the next lowest whole integral of an Authorized Denomination to the amount received by the Trustee, with any excess to be held in the Redemption Account. (a) Casualty or Condemnation. The Bonds will be redeemed in whole or in part, at the direction of the Credit Provider in the event and to the extent that proceeds of insurance from any casualty to, or proceeds of any award from any condemnation or any award as part of a settlement in lieu of condemnation of, the Project (in any such events, "Proceeds") are not applied in accordance with the Financing Agreement and the Mortgage Loan Documents, after payment of the expenses, if any, of collecting the Proceeds, to restoring or repairing the Project or, with the prior written consent of the Credit Provider, otherwise used for improvements to the Project, or applied to the reimbursement of amounts owed to the Credit Provider pursuant to the Reimbursement Agreement. Such special mandatory redemption will be: (i) (A) in whole following the involuntary destruction or loss of the Project in its entirety or nearly in its entirety, (B) funded with the Proceeds, with funds on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) and with funds provided by the Borrower pursuant to the Financing Agreement; provided, however, that the Trustee will be enti.tled to an Advance under the Credit Facility, in accordance with its terms, to the extent that the sum of the Proceeds, funds on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) and funds provided by the Borrower pursuant to the Financing Agreement are insufficient to redeem all of the Bonds Outstanding and (C) deemed a corresponding involuntary prepayment of the Mortgage Loan; or (ii) (A) in part following the involuntary destruction or loss of the Project in part, (B) funded with the Proceeds, (C) in a principal amount equal to the next lowest whole integral of an Authorized Denomination to which such Proceeds can be rounded with any remaining Proceeds to be held in the Redemption Account and (D) deemed a corresponding involuntary prepayment of the Mortgage Loan in part. tz80 (b) Cenain Defaults. The Bonds will be redeemed in whole or in part at the written direction, or with the prior written consent, of the Credit Provider given to the Trustee and in the amount specified by the Credit Provider if the redemption is in part, upon the occurrence of an Event of Default under (and respectively as defined in) the Security Instrument, the Credit Facility Agreement or the Financing Agreement. (c) From Excess Cash Flow Distributions. The Bonds will be redeemed in whole or in part, in the event and to the extent that funds are transferre,d to the Redemption Account pursuant to the Indenture. Mandatory Sinking Fund Redemption. The Bonds maturing on shall be subject to mandatory sinking fund redemption in part, by lot, prior to maturity, from sinking fund installments on the dates and in the amounts set forth in the below table. The redemption price shall be equal to 100% of the principal amount of Bonds to be redeemed (and, therefore, without premium), plus accrued interest to the Redemption Date. Maturity Date Principal Amount Maturity Date Principal Amount .Maturity Amount. The Bonds maturing on shall be subject to mandatory sinking fund redemption in part, by lot, prior to maturity, from sinking fund installments (a) on and before the Initial Remarketing Date on the dates and in the amounts set forth in the below table, and (b) after the Initial Remarketing Date in principal amounts to be detennined by the Remarketing Agent and the Loan Servicer upon the remarketing of the Outstanding Bonds on the Initial Remarketing Date, so as to maintain payments on the Mortgage Loan, and amortization of principal of the Mortgage Loan, consistent with a term equivalent to the number of months r~maining to the maturity date of the Mortgage Loan. The redemption price shall be equal to 100% of the principal amount of Bonds to be redeemed (and, therefore, without premium), plus accrued interest to the Redemption Date. Maturity Date Principal Amount Maturity Date Principal Amount 1881 *The balance of the Bonds maturing on such date. will be subject to mandatory tender on Not less than two Business Days prior to each Remarketing Date, the Loan Servicer shall prepare and provide to the Trustee, the Borrower, the Remarketing Agent and the Credit Provider an amortization schedule for the Mortgage Note showing substantially level monthly debt service on the Mortgage Note, based on the principal amount of the Mortgage Note outstanding on the applicable Remarketing Date and the interest rate established under the Mortgage Note in connection with the remarketing of the Bonds. Based on that amortization schedule, the Remarketing Agent shall provide to the Trustee, the Borrower, the Loan Servicer and the Credit Provider a schedule showing the sinking fund installments for the Bonds beginning on each Interest Payment Date following the Remarketing Date. The amortization schedule shall become effective on the applicable Remarketing Date and shall be binding on the Trustee, the Issuer, the Borrower, the Loan Servicer, the Credit Provider and the Bondholders, absent manifest error in the amortization schedule. Adjustment for Redemptions From Other Than Sinking Fund Installments. If less than all of the Bonds of a specific maturity have been redeemed other than from sinking fund installments applicable to such Bonds, the principal amount of the Bonds of such maturity to be redeemed in each year from sinking fund installments will be decreased pro rata among all sinking fund installments applicable to such Bonds. Notice of Redemption. The Trustee will give notice of redemption of any Bonds in the name and on behalf of the Issuer by mail not less than 15 nor more than 20 days prior to the specified Redemption Date, to the Registered Owner of each Bond to be redeemed at the address of such Registered Owner as shown on the Bond Register. Notwithstanding the foregoing, so long as the Book-Entry System is maintained in effect, the Trustee must give notice of redemption only to the entity designated in the Representation Letter. The Trustee may give notice of redemption prior to the receipt of all funds necessary to effect the redemption, provided that redemption will not occur unless and until the Trustee has on deposit and available or, if applicable, has received, all of the funds necessary to effect the redemption; otherwise, such redemption will be cancelled. The Trustee will cause a second notice of redemption to be sent by mail within 10 days after the thirtieth day after the Redemption Date to any Bondholder who has not submitted its Bond to the Trustee for payment on or before the thirtieth day following the Redemption Date. Validity of Proceedings for the Redemption of Bonds. Neither failure to give or receive any notice described above, failure to give notice timely nor any defect in any notice (or in its content, as required by the Indenture or in the manner in which notice is given) shall affect the validity or sufficiency of any proceedings for the redemption of the Bonds to be redeemed. Revocation of Notice of Redemption; Cancellation of Redemption. The Trustee shall revoke any notice of optional redemption if the requirements of the Indenture relating thereto have not been satisfied. The Trustee shall revoke any notice of optional or special mandatory redemption if the Trustee does not, on a Redemption Date, have sufficient funds, as pennitted or required by the Indenture, to redeem the Bonds to be redeemed on such Redemption Date. The Trustee shall give notice of revocation by the same means.as is described above for the giving of notice of redemption, or by Electronic Means confirmed in writing. The redemption shall be canceled once the Trustee has given notice of revocation. 1M82 Notwithstanding notice having been given in the manner described above, any redemption of Bonds shalI be canceled at the direction of the Credit Provider if the Credit Provider has notified the Trustee in writing that a default under any Reimbursement Agreement has occurred. Redemption Payments. Notice of redemption having been given in the manner described above, and all conditions precedent to redemption having been satisfied, the Bonds so called for redemption will become due and payable on the Redemption Date, and interest on the Bonds will cease to accrue from and after the Redemption Date and the holders of the Bonds so called for redemption will thereafter no longer have any security or benefit under the Indenture except to receive payment of the redemption price for such Bonds upon surrender of such Bonds to the Trustee. Except during any period in which the Bonds are subject to the Book-Entry System: (a) no payment shall be made by the Trustee with respect to any Bond calIed for redemption until such Bond is presented for payment or cancellation or the Trustee receives the items required by the Indenture with respect to any mutilated, lost, stolen or destroyed Bond; and (b) if less than the entire principal amount of a Bond is called for redemption, the Issuer will execute, and the Trustee will authenticate and deliver, upon the surrender of such Bond to the Trustee, without charge by the Issuer or the Trustee to the Bondholder, in exchange for the unredeemed principal amount of such Bond, a new Bond or Bonds of the same interest rate, maturity and term, in any Authorized Denomination, in aggregate principal amount equal to the unredeemed balance of the principal amount of the Bond so surrendered. During any period in which the Bonds are subject to the Book-Entry System, the rules, regulations and practices governing the Book-Entry System will govern whether and the extent to which the Trustee will make payments on any Bond called for redemption with or without surrender of the Bond (or portion of the Bond) to be redeemed, and the circumstances (if any) under which the Issuer will be required to execute, and the Trustee will authenticate and deliver, a new Bond in exchange for the unredeemed portion of any Bond called for redemption in part. AlI moneys held by or on behalf of the Trustee for the redemption of particular Bonds will be held in trust for the account of the holders of the Bonds. to be redeemed, as provided in and in accordance with the Indenture. CUSIP number identification with appropriate dollar amounts for each CUSIP number also will accompany all redemption payments. Selection of Bonds To Be Redeemed Upon Partial Redemption of Bonds. If less than alI of the Outstanding Bonds are called for redemption (other than mandatory sinking fund redemption), Bonds to be redeemed shall be selected by the Trustee on a reasonably proportionate basis, in minimum amounts of $5,000, from among all the then existing maturities of the Bonds Outstanding. If less than alI of the Outstanding Bonds of a series are calIed for redemption, Bonds of each series to be redeemed shall be selected by the Trustee on a reasonably proportionate basis, in minimum amounts of $5,000, from among alI the then existing maturities of the Outstanding Bonds of such series. "Reasonably proportionate basis" will be detennined and effectuated as nearly as practicable by multiplying the total amount of money available to redeem Bonds by the ratio which the principal amount of Bonds Outstanding in each maturity bears to the principal amount of all of the Bonds Outstanding, and within a maturity by lot or in such other manner as the Trustee shalI, in its sole discretion, deem fair. In the case of an optional redemption from an optional prepayment of the Mortgage Loan, the Trustee will make its selection immediately folIowing receipt of notice of the optional prepayment. In the case of a special mandatory redemption, the Trustee will make such selection immediately folIowing; (a) a transfer of funds pursuant to the Indenture with respect to a special mandatory redemption from excess cash under the Indenture; or 11'583 (b) receipt of funds with respect to a special mandatory redemption as a result of (i) a casualty or condemnation or (ii) certain defaults specified in the Indenture and described above under the heading "Special Mandatory Redemption-Certain Defaults" above. With respect to any special mandatory redemption in part pursuant to the Indenture described in paragraphs (a) or (b) under the heading "Special Mandatory Redemption" above, the sufficiency of the scheduled cash flow from the monthly payments to be made under the Mortgage Note and Investment Income with respect to the General Account to pay the principal of and interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate) when due and payable following such redemption must, if necessary, be established by a then current Cash Flow Projection which must be verified by a Verification Report (upon each of which the Trustee may rely), each prepared and delivered to the Trustee, the Credit Provider and the Loan Servicer, at the Borrower's expense, at least 15 days prior to the Redemption Date. Absent a Cash Flow Projection, the Bonds to be redeemed shall be redeemed proportionately. In the event that any Bonds of the same maturity are to be redeemed in part, the Trustee will assign to each Bond then Outstanding a distinctive number for each $5,000 of the principal amount of such Bond and from the numbers so assigned to such Bonds, the Trustee will randomly select as many numbers as, at $5,000 for each number, will equal the principal amount of such Bonds to be redeemed. The Bonds within a maturity that are to be redeemed will be the Bonds to which are assigned the numbers selected by the Trustee, but only so much of the principal amount of each such Bond of a denomination of more than $5,000 will be redeemed as will equal $5,000 for each number assigned to it and so selected. Bonds may be redeemed only in Authorized Denominations. For the purposes of this provision as provided in the Indenture, Bonds which have theretofore been selected for redemption will not be deemed Outstanding. If there is called for redemption less than the entire principal amount of a Bond, the Issuer will execute and the Trustee will authenticate and deliver, upon surrender of such Bond, without charge to the holder of such Bond, in exchange for the unredeemed principal amount of such Bond, Bonds of the same maturity, interest rate, principal amount and tenor in any Authorized Denomination in the amount of the unredeemed principal of the surrendered Bond. Purchase of Bonds in Lieu of Redemption. Unless otherwise expressly provided in the Indenture, if at any time Available Moneys are held in any Fund or Account to be used to redeem Bonds, in lieu of such redemption the Borrower may, in writing and with the written consent of the Credit Provider, direct the Trustee to use part or all of such moneys to purchase Bonds which would otherwise be subject to redemption from such moneys. The purchase price of such Bonds (excluding accrued interest, but including any brokerage and other charges) will not exceed the applicable redemption price of the Bonds which would be redeemed but for the operation of the Indenture, with accrued interest on any such Bond to be paid from the same Fund or Account from which accrued interest would be paid upon the redemption of such Bond. Any such purchase must be completed prior to the time notice would otherwise be required to be given to redeem the Bonds and may not occur, without the consent of the Trustee, after a Record Date. All Bonds so purchased will be canceled by the Trustee and the face amount of the Bonds so purchased will be applied as a credit against the Issuer's obligation to redeem such Bonds from such moneys. Savings resulting from the purchase of Bonds at less than their respective redemption prices will be used to purchase or redeem additional Bonds to the extent pennitted by the Indenture. The Borrower may, at the expense of the Borrower, direct the Trustee to request the submission of tenders following notice to Bondholders requesting such submission prior to making the purchases authorized by the Indenture. Notice of acceptance of tenders will be given by first-class mail, postage prepaid, to all registered Bondholders or, in the case of Book-Entry Bonds, to DTC, or any successor Securities Depository. The Borrower may specify the maximum and minimum period of time which will transpire between the date upon which such notice is to be given and the date upon which such tenders are to be accepted. No tenders will be considered or accepted at any price exceeding the price specified in the Indenture. The Trustee will accept bids with the lowest price and in the event the moneys available for purchase pursuant to such tenders are not sufficient to pennit acceptance of all tenders and if 11-684 there are tenders at an equal price above the amount of moneys available for purchase, then the Trustee will select by lot, in such manner as it will detennine in its discretion, the Bonds tendered which will be purchased. Book-Entry Only System The information under this heading has been provided solely by DTC and has not been independently verified by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. No representation whatsoever as to the accuracy, adequacy or completeness of such information is made by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. The Depository Trust Company ("DTC"), New York, New York, will act as securities depository for the Bonds. The Bonds will be issued as fully registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTc. One fully registered Bond certificate will be issued for each issue of the Bonds, each in the aggregate principal amount of such issue and will be deposited with DTC. DTC, the world's largest depository, is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17 A of the Securities Exchange Act of 1934. DTc holds and provides asset servicing for over two million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments from over 85 countries that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTc is a wholly owned subsidiary of The Depository Trust & Clearing Corporation ("DTCc"). DTCc, in turn, is owned by a number of Direct Participants of DTC and Members of the National Securities Clearing Corporation, Government Securities Clearing Corporation, MBS Clearing Corporation and Emerging Markets Clearing Corporation (NSCC, GSCC, MBSCC and EMCC, also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). DTc has Standard & Poor's highest rating: AAA. The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com. Purchases of the Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confIrmation from DTc of their purchase. Beneficial Owners are, however, expected to receive written confIrmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on 1H'85 behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the Bonds, except in the event that use of the book-entry system for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which mayor may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Bonds, such as redemptions, tenders, defaults and proposed amendments to the Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices able provided direct! y to them. Redemption notices shall be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC's practice is to detennine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to Bonds unless authorized by a Direct Participant in accordance with DTC's Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.' s consenting or voting rights to those Direct Participants to whose accounts Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal, redemption price and interest payments on the Bonds will be made to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail information from the Issuer or the Trustee, on each payment date in accordance with their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC (nor its nominee), the Trustee or the Issuer, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, redemption price (if applicable) and interest to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is the responsibility of the Issuer or the Trustee, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to Beneficial Owners is the responsibility of Direct and Indirect Participants. DTC may discontinue providing its services as depository with respect to the Bonds at any time by giving reasonable notice to the Issuer or the Trustee. Under such circumstances, in the event that a successor depository is not obtained, Bond certificates are required to be printed and delivered. 11"886 The Issuer may decide to discontinue use of the system of book-entry transfers through DTC (or a successor depository). In that event, the Bond certificates will be printed and delivered. SECURITY FOR THE BONDS Pledge of Trust Estate In order to secure the payment of the principal of, redemption premium, if any, and interest on, and the purchase price of, the Bonds according to their tenor and effect, to secure, on a parity basis, all obligations owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents, and to secure the performance and observance by the Issuer of the covenants expressed or implied in the Indenture and in the Bonds, the Issuer has assigned and granted a security interest in and to the property described in paragraphs (i) through (v) below to the Trustee and its successors in trust, for the benefit of the Bondholders, and to the Credit Provider, and its successors and assigns, as their interests may appear, subject to the provisions of the Assignment and subject to the provisions of the Indenture pennitting the application of such property for the purposes set forth in the Indenture: (i) all right, title and interest of the Issuer in and to the Financing Agreement, the Mortgage Loan, including the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents, and all amendments, modifications, supplements, renewals and restatements of the foregoing, reserving, however, the Reserved Rights; (ii) all rights to receive payments on the Mortgage Note and under the other Mortgage Loan Documents, including all proceeds of insurance or condemnation awards; (iii) all right, title and interest of the Issuer in and to the Net Bond Proceeds and the accrued interest, if any, derived from the sale of the Bonds, and all Funds, Accounts and Investments under the Indenture (including, but not limited to, moneys, documents, securities, investments, instruments and general intangibles on deposit or otherwise held by the Trustee under the Indenture), including Investment Income, but excluding moneys in the Fees Account, the Rebate Fund and the Costs of Issuance Deposit Account of the Costs of Issuance Fund (including within such exclusion Investment Income retained in the Costs of Issuance Deposit Account of the Costs of Issuance Fund and Investment Income retained in the Rebate Fund); (iv) all documents, securities, instruments and general intangibles and any and all other rights and interests in property, whether tangible or intangible, from time to time by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned or transferred as and for additional security under the Indenture for the Bonds by the Issuer, or by anyone on its behalf, or with its written consent, to the Trustee, which is authorized by the Indenture to receive any and all such property at any and all times, and to hold and apply the same subject to the terms of the Indenture; and (v) all of the proceeds of the foregoing, including, but not limited to, Investments and Investment Income (except as excluded in paragraph (iii) above). Subordination to Senior Bonds See "INTRODUCTION-Senior Bonds" and "-Subordination to Senior Bonds" herein for a description of the Senior Bonds and the subordination of the Bonds to the Senior Bonds. 1}'j87 Credit Facility General. The Credit Facility is an irrevocable obligation of Fannie Mae to make advances to the Trustee on a stand-by basis. The form of the Credit Facility is attached to this Official Statement as Appendix E. Each purchaser of the Bonds should be aware that the Credit Facility does not guarantee payment of principal of, premium, if any, or interest on the Bonds. The Credit Facility provides that only payments corresponding to the "Required Mortgage Payments" (as defined in the Credit Facility) due under the Mortgage Note will be made by Fannie Mae if not made by the Borrower. The Credit Facility will also provide liquidity support for the Bonds Outstanding on the Initial Remarketing Date to the extent remarketing proceeds are insufficient. Indenture Provisions Relating to Credit Facility. The Trustee is required to present Certificates (as defined in the Credit Facility) to the Credit Provider as required by and in accordance with the Credit Facility in order to receive Advances under, and as and to the extent provided in and pennitted by, and in the amounts available under, the Credit Facility. For purposes of detennining the amount of any Advance, the Trustee will, at the direction of the Credit Provider, fIrst apply any amounts then on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and Fees Account) for such purposes. The Trustee will not, without the prior written consent of the Registered Owners of all of the Bonds then Outstanding, transfer, assign or release the Credit Facility until the principal of and interest on the Bonds will have been paid or duly provided for in accordance with the terms of the Indenture, except (a) to a successor Trustee or (b) to the Credit Provider upon expiration or other tennination of the Credit Facility in accordance with its terms, including expiration on its stated expiration date or (c) upon payment under the Credit Facility of the full amount payable under the Credit Facility. If, at any time during the term of the Credit Facility, a successor Trustee is appointed and qualified under the Indenture and the Credit Facility is not assignable or transferable to the successor Trustee, the resigning Trustee will request the Credit Provider to deliver a new Credit Facility, substantially identical to the Credit Facility, to the successor Trustee. The resigning Trustee will continue to serve as Trustee under the Indenture until such time as the new Credit Facility is delivered to the successor Trustee. If the resigning Trustee fails to make this request, the successor Trustee will do so before accepting its appointment. Upon delivery of the new Credit Facility to the successor Trustee, the prior Credit Facility will be returned to the Credit Provider and canceled, and the new Credit Facility will thereafter be subject to all of the provisions of the Indenture relating to the Credit Facility and will be deemed for all purposes of the Indenture to be the Credit Facility then in effect. Replacement Credit Facility. At the request of the Credit Provider, the Trustee shall exchange the Credit Facility with the Credit Provider for a new Credit Facility (a "Replacement Credit Facility"), provided that such exchange shall not adversely affect the rating then in effect for the Bonds. FANNIE MAE'S OBLIGATIONS WITH RESPECT TO THE BONDS ARE SOLELY AS PROVIDED IN THE CREDIT FACILITY. THE OBLIGATIONS OF FANNIE MAE UNDER THE CREDIT FACILITY WILL BE OBLIGATIONS SOLELY OF FANNIE MAE, A FEDERALLY CHARTERED STOCKHOLDER-OWNED CORPORATION, AND WILL NOT BE BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. THE BONDS ARE NOT A DEBT OF THE UNITED STATES OF AMERICA OR ANY OTHER AGENCY OR INSTRUMENTALITY THEREOF OR OF FANNIE MAE. THE BONDS ARE NOT GUARANTEED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA. 1zdl8 BONDHOLDERS' RISKS The following is a summary of certain risks associated with the purchase of the Bonds. This summary is not intended to be a comprehensive or exhaustive list of the risk factors associated with the Bonds. Bond Ratings Based on Credit Facility The rating on the Bonds is based on the Credit Facility and the creditworthiness of the Credit Provider. The main credit risk is that the Credit Provider will fail to perform under the Credit Facility. Early Redemption A variety of factors described herein may result in an early redemption of the Bonds. The possibility of an early redemption could affect the ability of the Bonds to be valued or sold at a premium. Early redemption would also cause a loss of any premium otherwise owing to the holder of any Bond. See ''THE BONDS-Redemption" herein. No Acceleration or Redemption Upon Loss of Tax Exemption The Borrower has covenanted and agreed to comply with the provisions of the Code relating to the exclusion from gross income for federal income tax purposes of the interest payable on the Bonds. The financing documents contain provisions and procedures designed to assure compliance with such covenant. See ''TAX MATTERS" herein. However, the Borrower's covenant to comply with the requirements of the Code is nonrecourse to the Borrower, and the Borrower's liability is limited to the revenues and assets comprising the Project. Furthermore, the Borrower's failure to comply with such provisions will not constitute a default under the Mortgage Loan and will not give rise to a redemption or acceleration of the Bonds (unless the Credit Provider detennines, at its option and in its sole and absolute discretion, that such failure will constitute such a default) and is not the basis for an increase in the rate of interest payable on the Bonds. Consequently, interest on the Bonds may become includable in gross income for purposes of federal income taxation retroactive to the date of issuance of the Bonds by reason of the Borrower's failure to comply with the requirements of federal tax law, and neither the Issuer, the Trustee nor the Bondholders will have remedies available to them to mitigate the adverse economic effects to the Bondholders of such inclusion by reason of the Borrower's noncompliance. Bankruptcy of Borrower In the event of a bankruptcy filing by or against t)1e Borrower, all or a portion of any payments made to Bondholders within 91 days of the filing of such bankruptcy could be recovered from Bondholders by the order of a bankruptcy judge finding that such payments to Bondholders were "preferential" payments within the meaning of Section 547 of the United States Bankruptcy Code. In the event Bondholders were ordered to return payments previously received, Bondholders' recourse, through the Trustee, would be to the obligations of the Credit Provider to the Trustee as and to the extent provided in the Credit Facility. The United States Bankruptcy Code automatically stays enforcement of any liens, such as the Security Instrument, against the property of a bankrupt estate, even if such liens arose prior to the filing of the bankruptcy petition. In the event of the bankruptcy of the Borrower, the Trustee's ability to enforce the provisions of the Security Instrument would be substantially impaired, absent relief by the bankruptcy court from the automatic stay. In the event of such a stay, Bondholders recourse, through the Trustee, 12.ll9 would be to the obligations of the Credit Provider to the Trustee as and to the extent provided in the Credit Facility. Performance of the Project No assurance can be given as to the future performance of the Project. The economic feasibility of the Project depends in large part upon the ability of the Borrower to attract sufficient numbers of residents and to maintain substantial occupancy throughout the term of the Bonds at sufficient rents. Occupancy of the Project may be affected by competition from existing housing facilities (including facilities owned by an affiliate of the Borrower) or from housing facilities which may be constructed in the area served by the Project (including facilities constructed by affiliates of the Borrower). Restrictions imposed under the Code on tenant income and the rent that can be charged could have an adverse effect on the Borrower's ability to satisfy its obligations under the Mortgage Loan Documents, especially if operating expenses should increase beyond what the Borrower had anticipated. A default by the Borrower under the Financing Agreement, including the failure by the Borrower to pay on the date due any amounts required to be paid by the Borrower under the Financing Agreement, the Mortgage Note, the Security Instrument or the Reimbursement Agreement, may result in a mandatory redemption or acceleration of the Bonds. No premium will be paid on the Bonds in the event of such a redemption or acceleration. See ''THE BONDS-Redemption" herein. Environmental Matters There are potential risks relating to environmental liability associated with the ownership of real property. If hazardous substances are found to be located on a property, the owner of such property may be held liable for costs and other liabilities relating to such hazardous substances. In the event of a foreclosure of the Project or active participation in the management of the Project by the Trustee on behalf of the Bondholders, the Trustee (and, indirectly, the Bondholders) may be held liable for costs and other liabilities related to hazardous substances, if any, on the site of the Project on a strict liability basis and such costs might exceed the value of such property. Estimated Rental RevenueNacancies The economic feasibility of the Project depends in large part upon its being substantially occupied at rentals adequate to cover all operating expenses and debt service. Although representatives of the Borrower believe, based on surveys of the area where the Project is located, that a substantial number of persons currently need housing facilities such as the Project, occupancy of the Project may be affected by competition from existing housing facilities or from housing facilities which may be constructed in the area served by the Project, including new housing facilities which the Borrower, or its affiliates, may construct. While the Borrower believes the Project is needed, no assurance can be given that there may not be difficulties in keeping it substantially occupied in future years. Furthermore, no assurance can be given that the low-income tenants are able to afford the rental rates of the Project, albeit at below-market rental rates. The rental rates are capped at the levels described under the heading ''THE BORROWER AND THE PROJECT-Income and Rent Restrictions" herein, thus greatly restricting the rents that may be charged to tenants of the Project. The prospective tenant pool contains only persons whose income is at or below the levels described under the heading ''THE BORROWER AND THE PROJECT-Income and Rent Restrictions" herein. These rent and affordability restrictions may adversely affect the revenues of the Project. 11290 Estimated Project Expenses; Management The success of the Project depends upon economic conditions, successful management of the Project and other factors. Furthermore, should management of the Project in the future prove to be inefficient, increases in operating expenses might exceed increases in rents which can be supported by market conditions. The economic feasibility of the Project also depends to a large extent on operating expenses. No assurances can be given that moneys available to the Borrower from operation of the Project will be sufficient to make the required payments on the Financing Agreement and the Mortgage Note. Competing Facilities The Issuer, the Borrower and its affiliates and others may develop, construct and/or operate other facilities that could compete with the Project for tenants. Any competing facilities, if so constructed, could adversely affect occupancy and revenues of the Project. Secondary Markets and Prices The Underwriter will not be obligated to repurchase any of the Bonds, and no representation is made concerning the existence of any secondary market. There can be no assurance that any secondary market will develop following the completion of the offering of the Bonds. Further, there can be no assurance that the initial offering prices for the Bonds will continue for any period of time. Nonrecourse Obligation The Borrower's obligations under the Financing Agreement and the Mortgage Loan Documents, including the Security Instrument and the Mortgage Note, are strictly nonrecourse obligations. With limited exceptions, the Borrower has no obligation to fund operating deficits, to cover any losses in the event of a default on the Bonds or otherwise to invest its own funds in the Project or to continue the Project in operation. Energy Shortages and Allocations There may be shortages or increases in the cost of fuel, natural gas, electric power or allocations thereof by suppliers or governmental regulatory bodies in the area of the Project. In the event such shortages, price increases or allocations occur, the operation of the Project may be adversely affected. The Borrower is unable to predict the extent, if any, to which such shortages, price increases or allocations will occur or the degree to which such events will influence the ability of the Borrower to meet its objectives. Delayed Purchase on Failed Remarketing of Bonds In the event that the Trustee does not, after a remarketing, have sufficient funds on the Initial Remarketing Date to purchase all of the Outstanding Bonds, the Trustee shall present a certificate for an advance under the Credit Facility. If the request is paid by the Credit Provider not later than three Business Days after the Initial Remarketing Date, such event shall not be an Event of Default under the Indenture. Additional Bonds and Subordinate Financing 1zj91 The Borrower may obtain additional financing for the Project at a future date. Such additional financing could be in the form of additional bonds issued by the Issuer. Additional Bonds could be issued on a parity basis with the Bonds pursuant to a supplemental trust indenture provided that the issuance thereof was not materially adverse to the interest of the Bondholders. Such additional financing could also be in the form of a conventional loan the payment obligations with respect to which would be subordinate to or in some cases could be on a parity with the Borrower's payment obligations under the Mortgage Loan. In either case, the increased repayment obligations of the Borrower could increase the likelihood of an early redemption of the Bonds. Any such redemption would be at a price equal to the principal amount of the Bonds to be redeemed, plus accrued interest to the date of redemption, without premium. Senior Loan Default and Subordinate Conventional Loan Default As provided in the Subordination Agreement, the obligation of the Borrower to repay the Mortgage Loan described herein is subordinate in right of payment to the Senior Mortgage Loan. See "INTRODUCTION--Senior Bonds," "--Subordination to Senior Bonds" herein. Moreover, a default with respect to the Senior Mortgage Loan or any of the Subordinate Conventional Loans shall constitute a default under the Mortgage Loan Documents giving Fannie Mae the right to exercise all rights or remedies under the Mortgage Loan Documents in the same manner as in the case of any other default under the Mortgage Loan. See "INTRODUCTION-Senior Bonds," "_ Subordination to Senior Bonds" and "SUMMARY OF CERTAIN PROVISIONS OF THE MORTGAGE NOTE" herein. In such an event, Fannie Mae, in its discretion, can cause a mandatory redemption of the Bonds. Any such redemption will be at a price equal to the principal amount of the Bonds being redeemed, plus accrued interest thereon to the date of redemption, without premium. See ''THE BONDS-Redemption" herein. Persons who purchase Bonds at a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. THE CREDIT PROVIDER The infonnation under this heading has been provided solely by Fannie Mae and has not been independently verified by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, the Loan Servicer or any of their respective counsel, members, officers or employees. No representation whatsoever as to the accuracy, adequacy or completeness of such infonnation is made by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, the Loan Servicer or any of their respective counsel, members, officers or employees. Fannie Mae is a federally chartered and stockholder owned corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 1716 et seq. It is the largest investor in home mortgage loans in the United States. Fannie Mae was originally established in 1938 as a United States government agency to provide supplemental liquidity to the mortgage market and became a stockholder owned and privately managed corporation by legislation enacted in 1968. Fannie Mae purchases, sells, and otherwise deals in mortgages in the secondary market rather than as a primary lender. It does not make direct mortgage loans but acquires mortgage loans originated by others. In addition, Fannie Mae issues mortgage backed securities ("MBS"), primarily in exchange for pools of mortgage loans from lenders. Fannie Mae receives guaranty fees for its guarantee of timely payment of principal of and interest on MBS certificates. Fannie Mae is subject to regulation by the Secretary of Housing and Urban Development ("RUD") and the Director of the independent Office of Federal Housing Enterprise Oversight within 13492 HUD ("OFHEO"). Approval of the Secretary of Treasury is required for Fannie Mae's issuance of its debt obligations and MES. The President of the United States may appoint five members of Fannie Mae's Board of Directors, and the other thirteen are elected by the holders of Fannie Mae's common stock. Since May 25, 2004, the date of Fannie Mae's most recent annual shareholder's meeting, the President has declined to exercise his authority to appoint directors, and those five Board positions will remain open unless and until the President names new appointees The securities of Fannie Mae are not guaranteed by the United States and do not constitute a debt or obligation of the United States or any agency or instrumentality thereof other than Fannie Mae. Information on Fannie Mae and its [mancial condition is contained in Fannie Mae's most current annual report on Form lO-K, quarterly reports on Form lO-Q and current reports on Form 8-K that are filed with the SEC. The SEe filings are available at the SEC's website at www.sec.gov. The periodic reports filed by Fannie Mae with the SEC are also available on Fannie Mae's web site at http://www.fanniemae.comlir/sec or from Fannie Mae at the Office of Investor Relations at 202-752- 7115. On December 21,2004, Fannie Mae's Board of Directors ("Board") announced the retirement of Chairman and Chief Executive Officer Franklin D. Raines and the resignation of Vice Chairman and Chief Financial Officer J. Timothy Howard. The Board further announced that the Audit Committee of the Board dismissed KPMG LLP as the company's independent auditor. On January 4, 2005, the Audit Committee of the Board approved the engagement of Deloitte & Touche LLP ("Deloitte") as Fannie Mae's independent auditor. Deloitte will serve as the company's auditor for each of the fiscal years 2001, 2002, 2003, 2004 and 2005. Stephen B. Ashley, a member of the Board, currently is serving as the non-executive Chairman of the Board. On June I, 2005, the Board announced that it had selected Daniel H. Mudd, the former Chief Operating Officer of Fannie Mae, to be the new President and Chief Executive Officer. Mr. Mudd had been serving as the interim Chief Executive Officer since the retirement of Mr. Raines. Executive Vice President Robert Levin currently is serving as the interim Chief Financial Officer. On December 15, 2004, the Office of the Chief Accountant of the Securities and Exchange Commission (the "SEC") issued a statement (the "Statement") regarding a review of certain accounting issues relating to Fannie Mae, including determinations by the SEe that Fannie Mae should (i) restate its financial statements to eliminate the use of hedge accounting under Financial Accounting Standard No. 133, Accounting for Derivative Instruments and Hedging Activities ("FAS 133"), (ii) evaluate the accounting under Financial Accounting Standard No. 91, Accounting for Nonrefundable Fees and Costs Associated with Originating or Acquiring Loans and Initial Direct Costs of Leases ("F AS 91 ") and restate its financial statements filed with the SEC if the amounts required for correction are material, and (iii) re- evaluate the information prepared under generally accepted accounting principles ("GAAP") and non- GAAP information that Fannie Mae previously provided to investors. On December 16, 2004, Fannie Mae filed a Current Report on Form 8-K with the SEe that includes a copy of the Statement. As a result of the SEe's findings, Fannie Mae will restate its financial results from 200 1 through June 30, 2004 to comply fully with the SEC's detennination. In a Form 12b-25 filed with the SEe on November 15, 2004, Fannie Mae estimated that a loss of hedge accounting under FAS 133 for all derivatives could result in its recording into earnings a net cumulative loss on derivative transactions of approximately $9.0 billion as of September 30, 2004. (Fannie Mae estimates that as of December 31, 2004, this net cumulative after-tax loss was approximately $8.4 billion.) Fannie Mae also stated that there would be a corresponding decrease to retained earnings and, accordingly, regulatory capital. In a Form 12b-25 filed with the SEe on March 17,2005, Fannie Mae stated that if Fannie Mae does not qualify for 1'2-:93 hedge accounting for mortgage commitments accounted for as derivatives since its July 1, 2003 adoption of Financial Accounting Standard No. 149, Amendment of Statement 133 on Derivative Instruments and Hedging Activities ("FAS 149"), Fannie Mae estimates that Fannie Mae would be required to record in earnings a net cumulative after-tax loss related to these commitments of approximately $2.4 billion as of December 31, 2004. Fannie Mae is working to detennine the effect of the restatement, including the effect on each prior reporting period. Fannie Mae expects that the impact will be material to its reported GAAP and core business results for many, if not all, periods and will vary substantially from period to period based on the amount and types of derivatives held and fluctuations in interest rates and volatility. Fannie Mae's restated financial statements also will reflect corrections as a result of Fannie Mae's misapplication of F AS 91 for each prior reporting period described above. Fannie Mae also will consider the impact, if any, of the SEC's decision on F AS 91 for periods prior to those described above. Accordingly, on December 17, 2004, the Audit Committee of the Board concluded that its previously filed interim and audited financial statements and the independent auditors' reports thereon for the periods from January 200 1 through the second quarter of 2004 should no longer be relied upon because such financial statements were prepared applying accounting practices that did not comply with GAAP. Fannie Mae has not yet filed its quarterly reports on Form lO-Q for the quarters ended September 30,2004, March 31, 2005 and June 30, 2005 or Fannie Mae's annual report on Form 10-K for the year ended December 31, 2004. The financial information regarding Fannie Mae's anticipated results of operations for the quarter ended September 30, 2004 that was contained in its Form 12b-25 filed on November 15, 2004 and in a Form 8-K filed on November 16, 2004 was prepared applying the same policies and practices, and should also not be relied upon. The Audit Committee has discussed the matters described above and in a Form 8-K filed with the SEe on December 22, 2004 with KPMG LLP, Fannie Mae's independent auditor through December 21,2004. On September 20, 2004, OFHEO delivered its report to the Board of its findings to date of the agency's special examination. Among other matters, the OFHEO report raises a number of questions and concems about Fannie Mae's accounting policies and practices with respect to FAS 91 and FAS 133. On February 23, 2005, Fannie Mae announced that OFHEO notified the Board and management of several additional accounting and internal control issues and questions that OFHEO identified in its ongoing special examination, and directed that these matters be included in the internal reviews by the Board and management and reviewed by Deloitte. OFHEO indicated that it has not completed its review of all aspects of these issues, but has identified policies that it believes appear to be inconsistent with generally accepted accounting principles as well as internal control deficiencies that raise safety and soundness concerns. The issues and questions include the following areas: securities accounting, loan accounting, consolidations, accounting for commitments, and practices to smooth certain income and expense amounts. OFHEO also raised concerns regarding journal entry controls, systems limitations, and database modifications, as well as FAS 149 and new developments relating to FAS 91. A summary of the additional questions raised in OFHEO's ongoing special examination of Fannie Mae has been filed as an exhibit to a Form 8-K that Fannie Mae filed with the SEC on February 23, 2005. The Board and Fannie Mae's management are addressing the issues and questions raised by OFHEO. In addition, the Board designated its Special Review Committee to review the findings of OFHEO's September 2004 special examination report. This review, led by former Senator Warren Rudman of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison ("Paul Weiss"), is focused on: accounting issues, including accounting policies, procedures and controls regarding F AS 91 and F AS 133; organization, structure and governance, including Board oversight and management responsibilities and resources; and executive compensation. Paul Weiss' work continues as it examines these areas and other issues that may arise in the course of its review, reporting regularly to the Board. Fannie Mae will report to OFHEO regarding each of these issues and will continue to work with OFHEO to resolve these matters as part of Fannie Mae's ongoing internal reviews and restatement process. In light of the 1Ml4 foregoing, Fannie Mae's management has initiated a comprehensive review of accounting routines and controls, the financial 'reporting process and the application of GAAP, which will include the issues OFHEO has identified, as well as issues identified by Fannie Mae's management and/or Deloitte. Fannie Mae's management, working with accounting consultants, will develop a view on these issues, which then will be reviewed with the Audit Committee of the Board, Deloitte and OFHEO. Upon conclusion of this review, Fannie Mae's financial statements will be restated where necessary and submitted to Deloitte for review as part of its audit. Fannie Mae is providing periodic updates to the SEe and the New York Stock Exchange on the restatement. In addition, the SEC and the U.S. Attorney's Office for the District of Columbia are conducting ongoing investigations into these matters. OFHEO is required to review Fannie Mae's capital classification quarterly, and as of September 30,2004 and December 31, 2004, classified Fannie Mae as "significantly undercapitalized." As a result of this classification, Fannie Mae submitted a capital restoration plan to OFHEO in January 2005, and on February 23, 2005, Fannie Mae announced that OFHEO approved Fannie Mae's proposed capital restoration plan. Under the plan, Fannie Mae details how Fannie Mae expects to meet its minimum capital requirement on an ongoing basis, as well as achieve OFHEO's 30 percent surplus capital requirement by September 30, 2005. A summary of the capital restoration plan was filed as an exhibit to a Form 8-K that Fannie Mae filed with the SEe on February 23, 2005. On May 19, 2005, OFHEO classified Fannie Mae as "adequately capitalized" as of March 31, 2005. OFHEO has noted that this classification is subject to revision pending the outcome of ongoing accounting reviews, and that this classification does not amend any existing capital restoration plans currently in place between Fannie Mae and OFHEO. In a Form 12b-25 filed with the SEC on August 9, 2005, Fannie Mae reported that, based on its current assessment, Fannie Mae is not likely to complete and file its Annual Report on Form lO-K for the year ended December 31, 2004, which will contain restated financial information, prior to the second half of 2006. Fannie Mae also reported in that Form 12b-25 that Fannie Mae is uncertain whether Deloitte will be able to opine on either the effectiveness of Fannie Mae's internal control over financial reporting or management's process for assessing the effectiveness of internal control over financial reporting as of December 31, 2004 or December 31, 2005. Fannie Mae also reported in that 12b-25 that current NYSE listing standards allow the NYSE to continue to list the securities of a listed company for up to nine months after a company is delinquent in filing its Annual Report on Form 10-K (until December 16, 2005, in the case of Fannie Mae). The NYSE, in its sole discretion, also may extend the listing of a company's securities for another three months after that date, depending on the company's circumstances. Under the rules of the NYSE, Fannie Mae would have a right to a review of any decision to delist its securities by a committee of the NYSE Board of Directors. Form 8-K's that Fannie Mae files with the SEC on or prior to the date of this Official Statement are incorporated herein by reference. Fannie Mae makes no representation as to the contents of this Official Statement, the suitability of the Bonds for any investor, the feasibility of performance of any project, or compliance with any securities, tax or other laws or regulations. Fannie Mae's role with respect to the Bonds is limited to issuing and discharging its obligations under the Credit Facility and exercising the rights reserved to it in the Indenture and the Reimbursement Agreement. Plls ESTIMATED SOURCES AND USES OF FUNDS The anticipated sources and uses of proceeds of the Bonds, together with other moneys, at Bond Closing are estimated to be as follows: Sources of Funds: Bond Proceeds Borrower Contribution Total Uses of Funds: Bond Program Fund Bond Costs of Issuance Credit Enhancement Costs Borrower Legal and Title Costs Transfer to Borrower to Reimburse Development Fees and Loans Total THE BORROWER AND THE PROJECT The infonnation under this heading has been provided solely by the Borrower and has not been independently verified by the Issuer, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. No representation whatsoever as to the accuracy, adequacy or completeness of such infonnation is made by the Issuer, the Underwriter, the Remarketing Agent, Fannie Mae, the Loan Servicer or any of their respective counsel, members, officers or employees. The Borrower The Borrower is CIC Eastlake, L.P., a California limited partnership. Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation is the managing general partner of the Borrower (the "Managing General Partner"). SDS Eastlake, LLC, a California limited liability company is the co-general partner of the Borrower (the "Co-General Partner"). The Co-General Partner and its affiliates have been involved in the multifamily housing industry for 17 years, having built, owned and/or managed 35 apartment complexes comprised of approximately 3,443 units located in the states of California and Arizona. The Project The Project is located on an 8.25-acre site at 2155 Corte Vista, Chula Vista, California. The Project consists of 150 residential, multifamily apartment units, contained in five, three-story, wood-framed, garden style residential apartment buildings. Construction of the Project was completed on April 12, 2005 and attained 90% occupancy for 90 days prior to the date of issuance of the Bonds. The Project has 345 parking spaces. Amenities at the Project include two tot lots, half basketball court, swimming pool, five shaded picnic and barbeque areas and a community center, which includes a multi-purpose community room, computer room, kitchen, rental office, a laundry room and storage space. The projected rent structure as of September, 2005 (the most recent month for which such information is 12196 available), unit mix and approximate square footage for the various units in the Project are summarized in the following table: Average Rent Unit Type Average Sq. Feet No. of Units (less utilities) 2 Bedroom - 1 Bath 868 30 $806 2 Bedroom - 2 Bath 880 30 806 3 Bedroom - 2 Bath 1,109 80 927 4 Bedroom - 2 Bath 1,233 10 1,027 The Project is managed by CIC Management, Inc. (the "Manager"). The Manager and its affiliates have been involved in managing multifamily housing projects for 16 years and currently manage 25 apartment complexes comprised of approximately 2,175 units located in the states of California and Arizona. Income and Rent Restrictions The Project is required to be occupied in part by persons or families whose incomes satisfy certain requirements of the Internal Revenue Code of 1986, as amended (the "Code"), the applicable income tax regulations issued under the Code, the Act and the Issuer as set forth in the Regulatory Agreement. See Appendix C hereto. In addition, in connection with the low-income housing tax credits anticipated to be granted for the Project, the Borrower will execute a low-income housing agreement in compliance with the requirements of Section 42 of the Code (the "Low-income Housing Agreement"). The Low-income Housing Agreement requires the low-income housing tax credit income targeting and rent restrictions for the Project under Section 42 of the Code for the initial IS-year compliance period, plus an additional IS-year period, subject to a few exceptions. The Low-income Housing Agreement for the Project will, among other things, require that 100% of the completed and occupied dwelling units in the Project be occupied by tenants whose gross income is at or below 60% of area median gross income and that annual rent charged with respect to the units be limited to 30% of 60% of area median gross income as provided in Section 42(g)(2) of the Code throughout the extended use period as defined in the Code. Finally, in connection with the Subordinate Agency Loan and the Subordinate City Loan described under the heading "Additional Financing" below, there will be executed an Affordable Housing Agreement dated as of the date of the Indenture (the "Affordable Housing Agreement") by and among the Borrower, the Redevelopment Agency of the City of Chula Vista and the City of Chula Vista. The Affordable Housing Agreement will, among other things, require that (a) 30 dwelling units in the Project be occupied by tenants whose gross income is at or below 50% of area median gross income and that annual rent charged with respect to the units be limited to 30% of 50% of area median gross income, (b) 119 dwelling units in the Project be occupied by tenants whose gross income is at or below 60% of area median gross income and that annual rent charged with respect to the units be limited to 30% of 60% of area median gross income and (c) the remaining dwelling units in the Project be occupied by tenants whose gross income is at or below 120% of area median gross income and that annual rent charged with respect to the units be limited to 30% of 120% of area median gross income. Additional Financing In addition to the Bonds and the Senior Bonds, the Borrower has secured a permanent loan from the Redevelopment Agency of the City of Chula Vista in the approximate principal amount of $1,000,000 1~7 (the "Subordinate Agency Loan") to provide permanent financing with respect to the Project. The Borrower has also secured a permanent loan from the City of Chula Vista in the approximate principal amount of $500,000 (the "Subordinate City Loan") to provide permanent fmancing with respect to the Project. Each of the Subordinate Agency Loan and the Subordinate City Loan (together, the "Subordinate Conventional Loans") are subordinate to the Mortgage Loan financed with the proceeds of the Bonds. Nevertheless, a default with respect to either of the Subordinate Conventional Loans shall constitute a default under the Mortgage Note and the Security Instrument. Upon such a default, the Credit Provider, in its discretion, can cause a mandatory redemption of the Bonds. Any such redemption will be at a price equal to the principal amount of the Bonds being redeemed, plus accrued interest thereon to the date of redemption, without premium. See ''THE BONDS-Redemption" herein. Persons who purchase Bonds at a price in excess of their principal amount risk the loss of any premium paid in the event the Bonds are redeemed prior to maturity. See "BONDHOLDERS' RISKS" herein. SUMMARY OF CERTAIN PROVISIONS OF THE MORTGAGE NOTE The following is a summary of certain provisions of the Mortgage Note, which is qualified in its entirety by reference to the Mortgage Note, a copy of which may be obtainedfrom the Trustee. The Mortgage Loan is evidenced by a Mortgage Note. The Mortgage Note is a nonrecourse obligation of the Borrower (subject to certain enumerated exceptions to nonrecourse liability as provided in the Mortgage Note) to repay the Mortgage Loan and will be secured by the Security Instrument. Defined Terms Capitalized terms used under this heading which are not defined herein shall have the meanings assigned thereto in the Mortgage Note. General In the Note, the Borrower has agreed to pay to the Issuer and its successors, assigns and transferees, or order, the principal sum equal to the principal amount of the Bonds Outstanding, together with interest on the unpaid principal balance at the following rates of interest (in each instance, the "Mortgage Note Rate," the components of which are more fully described below): (a) the per annum interest rate set forth in the Mortgage Note for the period beginning on the Closing Date to the first day of the month immediately preceding the Initial Remarketing Date (the "Initial Adjustment Date"). Effective as of the Initial Adjustment Date, the Mortgage Note Rate shall be a per annum rate equal to the Remarketing Rate which takes effect on the Initial Remarketing Date plus such additional basis points of interest ("Additional Basis Points") as shall be necessary to ensure that (a) the payments under the Mortgage Note will at all times be sufficient to pay when due the principal and interest on the Bonds and (b) the Mortgage Note Rate will be sufficient to (I) cover Set Rate Interest and (2) produce a Pass-Through Rate sufficient to cover Third Party Fees to the extent included, in accordance with the Financing Agreement, in, and payable out of, the Mortgage Note Rate, (collectively, as to clauses (a) and (b), the "Required Mortgage Note Rate Coverage"), all as shown in a then current Cash Flow Projection and Verification Report. If the Bonds Outstanding are remarketed on a Remarketing Date after the Initial Remarketing Date, the Mortgage Note Rate shall, effective as of the first day of the month immediately preceding such Remarketing Date, be a per annum rate equal to the Remarketing Rate which takes effect on such Remarketing Date plus such Additional Basis Points as shall be necessary to ensure that the Mortgage Note Rate produces the Required Mortgage Note Rate Coverage, all as shown in then current Cash Flow Projection and Verification Report. 1369 8 Interest shall begin to accrue on the Mortgage Note on the Closing Date and shall accrue continuously thereafter until the Mortgage Note is paid in full. The principal of and interest on the Mortgage Note shall be payable monthly, as follows: the Mortgage Note shall be payable interest only, in arrears, at the Mortgage Note Rate, in consecutive monthly installments, such monthly installments of interest to be due and payable on the fIrst day of each month beginning on the date specifIed in the Mortgage Note (the "Amortization Commencement Date"), until the entire indebtedness evidenced by the Mortgage Note is paid in full, provided that any remaining indebtedness, including principal, accrued interest and any and all other sums due under the Mortgage Note, shall, if not sooner paid, be due and payable on the date specified in the Mortgage Note (the "Maturity Date"), provided, further, that the outstanding principal balance of the Mortgage Note shall, based on a then current Cash Flow Projection and Verification Report, be reamortized as of each Remarketing Date, so as to change the amount of each subsequent installment of principal and interest to the amount necessary to amortize the then remaining principal balance of the Mortgage Note at an interest rate equal to the adjusted Mortgage Note Rate over a period of 360 months minus the number of months in which regularly scheduled monthly installments of principal and interest shall have become due commencing with the Amortization Commencement Date through the first day of the month immediately preceding such Remarketing Date, with the fIrst such revised payment being due on the rrrst day of the month in which such Remarketing Date occurs, provided, however, that all remaining indebtedness evidenced by the Mortgage Note, if not sooner paid, shall be due and payable on the Maturity Date, but, in any event, not later than the date set forth in the Mortgage Note. The Borrower shall not make any regularly scheduled payment of interest or principal and interest earlier than the date such payment is due. Mortgage Note Rate The Mortgage Note shall bear interest at the Mortgage Note Rate in effect from time to time, computed as described above. The Mortgage Note Rate comprises: (i) a fixed pass-through rate of interest (the "Pass-Through Rate"), which is the applicable fixed rate of interest per annum described below; and (ii) the Set Rate Interest described below. Pass- Through Rate. The Pass-Through Rate is, beginning on and including the Closing Date to but not including the first day of the month immediately preceding the Initial Remarketing Date, the per annum rate set forth in the Mortgage Note, which Pass-Through Rate includes an amount, expressed as a percentage, sufficient to pay Third Party Fees to the extent included, in accordance with the Financing Agreement in, and payable out of, the Mortgage Note Rate, and thereafter, the Pass-Through Rate shall be equivalent to the Mortgage Note Rate in effect from time to time, as described above, minus Set Rate Interest. Set Rate Interest. Set Rate Interest comprises a percentage equivalent to the Facility Fee payable to the Credit Provider and the Servicing Fee payable to the Loan Servicer. Set Rate Interest accrues from and including the Closing Date, to, but not including, the date the Mortgage Note is paid in full, and is payable on the first day of each month, in arrears, as part of the Mortgage Note Rate, to and including the date the Mortgage Note is paid in full. Set Rate Interest payable on the frrst day of each month to and including the date the Mortgage Note is paid in full, shall, as part of the Mortgage Note Rate, be paid to and received by the Loan Servicer, and retained by the Loan Servicer as to the Servicing Fee component of Set Rate Interest and remitted to the Credit Provider as to the Facility Fee component of Set Rate Interest. 13i99 Remarketing Fees, Costs and Expenses At least seven (7) Business Days prior to each Remarketing Date, the Borrower shall pay to the Trustee an amount equal to the estimated fees, costs and expenses to be incurred in connection with the remarketing of the Bonds Outstanding on the Remarketing Date. In the event that the Borrower shall fail to pay the estimated remarketing fees, costs and expenses (or actual remarketing fees, costs and expenses in excess of such estimate as provided in the Mortgage Note) on or prior to the date such payment is due, such failure shall, at the option of the Loan Servicer or the Credit Provider, constitute a default under the Mortgage Note, in which event the then outstanding principal balance of the Mortgage Note, together with an additional amount equal to -all interest on such principal balance which has accrued and has not been paid and all interest which would (if the amount so declared to be due were not paid) accrue on such principal balance to and including the first day of the month immediately following the month in which the amount so declared to be due is paid, and all other amounts then due and payable under the Mortgage Note, shall become immediately due and payable. Prepayment ALTHOUGH THE BORROWER MAY HAVE THE RIGHT TO PREPAY THE MORTGAGE LOAN IN ACCORDANCE WITH THE MORTGAGE NOTE, THE REIMBURSEMENT AGREEMENT MAY LIMIT THE BORROWER'S EXERCISE OF THESE RIGHTS WITHOUT THE WRITTEN CONSENT OF THE CREDIT PROVIDER OR DURING CERTAIN PERIODS. THE BORROWER MAYBE REQUIRED TO PAY A TERMINATION FEE TO THE CREDIT PROVIDER. PREPAYMENTS ARE SUBJECT TO LOAN SERVICING UNDER THE REIMBURSEMENT AGREEMENT. SEE THE REIMBURSEMENT AGREEMENT FOR ALL DETAILS. No prepayments, in whole or in part, are pennitted prior to the last business day of the month set forth in the Mortgage Note, except (a) involuntary prepayments, (b) prepayments from (1) insurance proceeds or (2) the proceeds of any condemnation award, in either case, in connection with a special mandatory redemption of the Bonds, in whole or in part, pursuant to the Indenture, or (d) other prepayments expressly pennitted or required by the Mortgage Note. On or after the last business day of the month set forth in the Mortgage Note, the Borrower may, at the option of the Borrower, voluntarily prepay the Mortgage Note, in whole, but not in part (it being understood and agreed that the right to optionally prepay the Mortgage Note other than with Available Moneys shall be subject to, and evidenced by, the prior written consent of the Credit Provider provided to the Trustee and the Loan Servicer). If the Bonds Outstanding are remarketed on a Remarketing Date (including the Initial Remarketing Date) for a term of not less than 10 years, the Borrower may, at the Borrower's option, make a voluntary prepayment of the outstanding principal balance of the Mortgage Note, in whole, but not in part, on the last Business Day of any month during the period beginning on the last Business Day of the second month preceding the seventh anniversary of the most recent Remarketing Date and ending on the last Business Day of the second month preceding the next scheduled Remarketing Date, upon payment of an amount equal to 100% of the principal amount to be prepaid together with accrued interest on such principal amount to the fIrst day of the month following the date of such voluntary prepayment and any other sums due the Loan Servicer or the Credit Provider at the time of such voluntary prepayment (it being understood and agreed that the right to optionally prepay the Mortgage Note other than wholly with Available Moneys shall be subject to, and evidenced by, the prior written consent of the Credit Provider provided to the Trustee and the Loan Servicer). 1-3100 If the Bonds Outstanding are remarketed on a Remarketing Date (including the Initial Remarketing Date) for a term of more than 4 years but less than 10 years, the Borrower may, at the Borrower's option, make a voluntary prepayment of the outstanding principal balance of the Mortgage Note, in whole, but not in part, on the last Business Day of any month during the period beginning on the last Business Day of the second month preceding the second anniversary of the most recent Remarketing Date and ending on the last Business Day of the second month preceding the next scheduled Remarketing Date, upon payment of an amount equal to 100% of the principal amount to be prepaid together with accrued interest on such principal amount to the fIrst day of the month following the date of such voluntary prepayment and any other sums due to the Loan Servicer or the Credit Provider at the time of such voluntary prepayment (it being understood and agreed that the right to optionally prepay the Mortgage Note other than wholly with Available Moneys shall be subject to, and evidenced by, the prior written consent of the Credit Provider provided to the Trustee and the Loan Servicer). If the Bonds Outstanding are remarketed on a Remarketing Date (including the Initial Remarketing Date) for a term of more than 1 year but less than 4 years, the Borrower may, at the Borrower's option, make a voluntary prepayment of the outstanding principal balance of the Mortgage Note, in whole, but not in part, on the last Business Day of any month during the period beginning on the last Business Day of the second month preceding the first anniversary of the most recent Remarketing Date and ending on the last Business Day of the second month preceding the next scheduled Remarketing Date, upon payment of an amount equal to 100% of the principal amount to be prepaid together with accrued interest on such principal amount to the fIrst day of the month following the date of such voluntary prepayment and any other sums due the Loan Servicer or the Credit Provider at the time of such voluntary prepayment (it being understood and agreed that the right to optionally prepay the Mortgage Note other than wholly with Available Moneys shall be subject to, and evidenced by, the prior written consent of the Credit Provider provided to the Trustee and the Loan Servicer). If the Bonds Outstanding are remarketed for a term not exceeding 1 year, the Mortgage Note may not be voluntarily prepaid prior to the last Business Day of the second month preceding the next scheduled Remarketing Date. Notwithstanding any other provision of the Mortgage Note to the contrary, the Mortgage Note is, at the option and written direction of the Credit Provider (as holder of the Mortgage Loan Rights), subject to involuntary prepayment by the Borrower, at any time, in whole, upon acceleration of payment of the Mortgage Note or acceleration of the Bonds, or in whole or in part, in amounts sufficient, and in time, to pay, when due, the redemption price of Bonds to be redeemed or paid upon any special mandatory redemption of Bonds pursuant to the Indenture. If the Borrower makes a prepayment for any reason, including, without limitation, an optional prepayment, as pennitted by the terms of the Mortgage Note, and an involuntary prepayment, the Borrower shall pay, in addition to paying the principal of the Mortgage Note to be prepaid, as an additional obligation under the Mortgage Note, the following: (i) all accrued and unpaid interest due on the Mortgage Note through the date of prepayment or, if the prepayment is in whole, all accrued and unpaid interest due on the Mortgage Note to the fIrst day of the month following the date of prepayment; (ii) all other amounts due and payable under the Mortgage Loan Documents as of the date of prepayment including, but not limited to, all amounts which the Loan Servicer or the Credit Provider has advised the Borrower are due and payable at the time of such prepayment; (iii) any Termination Fee due under the Reimbursement Agreement; 1-5:1 01 (iv) all other amounts due and payable upon such prepayment and the corresponding redemption of a corresponding principal amount of Bonds under the Bond Documents including premium, if any, payable to the Bondholders of the Bonds to be redeemed and interest to accrue on the principal amount of the Bonds to be redeemed to the date of redemption; and (v) an amount sufficient to pay all fees, costs and expenses in connection with such prepayment and redemption and, in the case of redemption in whole, to pay all other amounts payable under the Mortgage Note, the Indenture and the Financing Agreement. Acceleration Nonpayment. If any installment or other amount due under the Mortgage Note is not plild when due, the entire outstanding principal balance of the Mortgage Note and all accrued interest on such principal balance shall, at the direction of the Credit Provider, as holder of the Mortgage Loan Rights, or any successor in interest to the Credit Provider, at once become due and payable. Limits on Personal Liability Except as otherwise described under this heading or in any of the other Mortgage Loan Documents, the Borrower shall have no personal liability under the Mortgage Note, the Security Instrument or any other Mortgage Loan Document for the repayment of the Mortgage Note or for the performance of any other obligations of the Borrower under the Mortgage Loan Documents, and the Issuer's only recourse for the satisfaction of the Mortgage Note and the performance of such obligations shall be the Issuer's exercise of its rights and remedies with respect to the Mortgaged Property and any other collateral held by the Issuer as security for the Mortgage Note. This limitation on the Borrower's liability shall not limit or impair the Issuer's enforcement of its rights against any guarantor of the Mortgage Note or any guarantor of any other obligations of the Borrower. The Borrower shall be personally liable to the Issuer for the repayment of a portion of the Mortgage Note equal to any loss or damage suffered by the Issuer as a result of (I) failure of the Borrower to pay to the Issuer upon demand after an Event of Default under the Security Instrument, all Rents to which the Issuer is entitled under the Security Instrument and the amount of all security deposits collected by the Borrower from tenants then in residence; (2) flillure of the Borrower to apply all insurance proceeds and condemnation proceeds as required by the Security Instrument; (3) failure of the Borrower to comply with certain provisions of the Security Instrument relating to the delivery of books and records, statements, schedules and reports; (4) fraud or written material misrepresentation by the Borrower, Key Principal or any officer, director, partner, member or employee of the Borrower in connection with the application for or creation of the Mortgage Loan or any request for any action or consent by the Issuer; or (5) failure to apply Rents and Profits, first, to the payment of reasonable operating expenses (other than Mortgaged Property management fees that are not currently payable pursuant to the terms of an Assignment of Management Agreement or any other agreement with the Issuer executed in connection with the Mortgage Loan) and then to amounts ("Debt Service Amounts") payable under the Mortgage Note, the Security Instrument or any other Mortgage Loan Document (except that the Borrower will not be personally liable (i) to the extent that the Borrower lacks the legal right to direct the disbursement of such sums because of a bankruptcy, receivership or similar judicial proceeding, or (ii) with respect to Rents and Profits that are distributed in any calendar year if the Borrower has paid all operating expenses and Debt Service Amounts for that calendar year). The Borrower shall become personally liable to the Issuer for the repayment of all of the principal of and interest on the Mortgage Note and for the payment, performance and observation of all obligations, covenants and agreements of the Borrower contained in the Security Instrument, including the payment of hJ02 all sums advanced by or on behalf of Issuer to protect the security of the Security Instrument under the Security Instrument, upon the occurrence of any of the following Events of Default: (I) the Borrower's acquisition of any property or operation of any business not pennitted by the Security Instrument; or (2) a Transfer (as that term is defined in the Security Instrument) that is an Event of Default under the Security Instrument. . To the extent that the Borrower has personal liability as described under this heading, the Issuer may exercise its rights against the Borrower personally without regard to whether the Issuer has exercised any rights against the Mortgaged Property or any other security, or pursued any rights against any guarantor, or pursued any other rights available to the Issuer under the Mortgage Note, the Security Instrument, any other Mortgage Loan Document or applicable law. If the Borrower is a married person, then the Borrower agrees that Issuer may look to all of the Borrower's community property and separate property to satisfy the Borrower's recourse obligations described under this heading. Events of Default The failure by the Borrower to pay when due any amount payable by the Borrower under the Mortgage Note or to perform or observe any covenant or obligation of the Borrower contained in the Mortgage Note, the Security Instrument or any other Mortgage Loan Document shall, at the option of the Credit Provider (as holder of the Mortgage Loan Rights), constitute an "Event of Default" under the Mortgage Note, whatever the reason for such failure and whether it shall be voluntary or involuntary, or within or without the control of the Borrower, or be impeded by operation of law or by any judgment or order of any court or any order, rule or regulation of any governmental body. Cross Default A default by the Borrower in the payment or performance of any obligation of the Borrower contained in (a) any of the Bond Documents, (b) any of the other Mortgage Loan Documents, (c) the Reimbursement Agreement, (d) any subordinate financing, (e) the Regulatory Agreement or any other regulatory or restrictive agreement recorded against the Mortgaged Property in connection with the allocation to the Mortgaged Property of federal low income housing tax credits, or (f) any form of public, quasi-public, public/private or private debt and/or equity infusion, grant, subsidy, tax relief or abatement, plan program or other form of assistance, not cured within any applicable cure period, shall, at the option of the Credit Provider (as holder of the Mortgage Loan Rights), constitute a default under the Mortgage Note, the Security Instrument and each of the other Mortgage Loan Documents and entitle the Credit Provider (as holder of the Mortgage Loan Rights), at its option, in its discretion, to direct or invoke any remedies set forth in the Mortgage Note, including, but not limited to, any remedy set forth in the Mortgage Note or as otherwise afforded by law or in equity. A default under the Mortgage Note shall, at the Credit Provider's option, in the Credit Provider's discretion, constitute a default under the Reimbursement Agreement. Certain Defaults The Borrower has acknowledged and agreed that any default by the Borrower under or violation of the provisions of the Regulatory Agreement, or any failure of the Borrower to perform any obligation, covenant or agreement or breach of any covenant, agreement or warranty contained in the Regulatory Agreement, not cured within any applicable cure period, shall constitute a default by the Borrower under the Mortgage Note and the Security Instrument and, at the option of the Credit Provider (as holder of the Mortgage Loan Rights), the entire outstanding principal balance, accrued interest and any other sums due under the Mortgage Note shall become immediately due and payable in full. The Borrower has further acknowledged and agreed that, (a) a default under or violation of the provisions of (I) the Senior h~03 Mortgage Note, evidencing the Senior Mortgage Loan, (2) the Senior Security Instrument, or (3) the Senior Financing Agreement (the Senior Mortgage Note, the Senior Security Instrument, the Senior Financing Agreement and all other instruments documenting, evidencing and securing the Senior Mortgage Loan are referred to, collectively, as the "Senior Mortgage Loan Documents"), (b) a default under or violation of the provisions of (1) the Promissory Note (the "Subordinate Agency Note"), dated October 1, 2003, executed by the Borrower to the order of the Redevelopment Agency of the City of Chula Vista ("Agency") in the original principal amount of $1,000,000, evidencing the Subordinate Agency Loan, (2) the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Subordinate Agency Security Instrument"), dated October I, 2003, executed by the Borrower to secure the Subordinate Agency Note, (3) the Affordable Housing Agreement (the "Subordinate AHA"), dated as of October 1, 2003, by and between the Borrower, the Agency and City of Chula Vista ("City") entered into with respect to the Subordinate Agency Loan, or (4) the Loan Agreement and Related Restricted Covenants (the "Subordinate Loan Agreement") dated as of October 1, 2003 by and among the Agency, the City and Borrower (the Subordinate Agency Note, the Subordinate Agency Security Instrument, the Subordinate AHA, the Subordinate Loan Agreement and all other instruments documenting, evidencing and securing the Subordinate Agency Loan are referred to, collectively, as the "Subordinate Agency Loan Documents"), (c) a default under or violation of the provisions of (1) the Promissory Note (the "Subordinate City Note"), dated October 1, 2003, executed by the Borrower to the order of the City in the original principal amount of $500,000, evidencing a loan made by City to the Borrower in the original principal amount of $500,000 (the "Subordinate City Loan"), (2) the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Subordinate City Security Instrument"), dated October 1, 2003, executed by the Borrower to secure the Subordinate City Note, (3) the Subordinate AHA or (4) the Subordinate Loan Agreement (the Subordinate City Note, the Subordinate City Security Instrument, the Subordinate AHA, the Subordinate Loan Agreement and all other instruments documenting, evidencing and securing the Subordinate City Loan are referred to, collectively, as the "Subordinate City Loan Documents"), (d) any failure of the Borrower to perform any obligation, covenant or agreement, or breach of any covenant, agreement or warranty, contained in the Senior Mortgage Loan Documents, the Subordinate Agency Loan Documents or the Subordinate City Loan Documents, or (e) any failure of the Borrower to perform any obligation, covenant or agreement or breach by the Borrower of any covenant, agreement or warranty contained in, or the exercise by the Agency or the City of any rights in violation of, any subordination agreement entered into with respect to the Subordinate Agency Loan or the Subordinate City Loan (collectively, the "Subordination Agreements"), which is not"cured within any applicable cure period, shall constitute a default under the Mortgage Note and the security instrument and entitle the Credit Provider, (as holder of the mortgage loan rights), at its option, in its discretion, to direct or invoke any remedies available to it at law or in equity, including but not limited to, the remedy of acceleration set forth in the Mortgage Note. Any and all amounts advanced or expended by the Loan Servicer or by the Credit Provider, at their respective options, to cure a default under the Senior Mortgage Loan Documents, the Subordinate Agency Loan Documents or the Subordinate City Loan Documents or otherwise to pay any fees or fulfill any other payment obligation of the Borrower shall be deemed to have been advanced pursuant to and shall become additional indebtedness of the Borrower under and secured by the lien of the Security Instrument. Tax Event The occurrence of a Tax Event shall, at the option of the Credit Provider, in its sole and absolute discretion, constitute a default under the Mortgage Note. 1:lc1 04 THE LOAN SERVICER The information under this heading has been provided solely by the Loan Servicer and has not been independently verified by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae or any of their respective counsel, members, officers or employees. No representation whatsoever as to the accuracy, adequacy or completeness of such information is made by the Issuer, the Borrower, the Underwriter, the Remarketing Agent, Fannie Mae or any of their respective counsel, members, officers or employees. Red Mortgage Capital, Inc. (the "Loan Servicer"), an Ohio corporation, is a mortgage banking firm specializing in FHA-insured construction and permanent mortgage loans, Fannie Mae forward commitments and permanent mortgage loans, and both Fannie Mae and FHA bond credit enhancements for multifamily and seniors housing projects across the United States. The Loan Servicer also is approved by GNMA to issue modified pass-through securities. The Loan Servicer is one of the most active FHA mortgagees and GNMAissuers for HUD insured project loans and one of the top Fannie Mae DUSTM lenders (by annual volume) in the country. As of June 30, 2005, the Loan Servicer serviced more than 1,000 multifamily and seniors housing project loans totaling nearly $6.8 billion, which includes over 340 FHA-insured mortgage loans totaling more than $1.5 billion and almost 600 Fannie Mae mortgage loans totaling more than $4.6 billion. The Loan Servicer will perform mortgage-servicing functions with respect to the Mortgage Loan on behalf of and in accordance with Fannie Mae requirements. The servicing arrangements between Fannie Mae and the Loan Servicer for the servicing of the Mortgage Loan are solely between Fannie Mae and the Loan Servicer, and neither the Issuer nor the Trustee is deemed to be party thereto or has any claim, right, obligation, duty or liability with respect to the servicing of the Mortgage Loan. The Loan Servicer will be obligated, pursuant to its arrangements with Fannie Mae and Fannie Mae's servicing requirements, to perform diligently all services and duties customary to the servicing of mortgages, as well as those specifically prescribed by Fannie Mae. Fannie Mae will monitor the Loan Servicer's performance and has the right to remove the Loan Servicer with or without cause. The duties performed by the Loan Servicer include general loan servicing responsibilities, collection and remittance of principal and interest payments, administration of mortgage escrow accounts and collection of insurance claims. The selection (or replacement) of the Loan Servicer is in the sole and absolute discretion of Fannie Mae. The servicing arrangements between the Loan Servicer and Fannie Mae are subject to amendment or termination from time to time without the consent of the Issuer, the Trustee or the Borrower, and none of the Trustee, the Issuer or the Borrower have any rights under, and none is a third-party beneficiary of, the servicing arrangements between the Loan Servicer and Fannie Mae. The Loan Servicer is an approved DUS seller/servicer under Fannie Mae's Delegated Underwriting and Servicing product line. The Loan Servicer makes no representation as to the contents of this Official Statement, the suitability of the Bonds for any investor, the feasibility of performance of the Project or compliance with any securities, tax or other laws or regulations. The Loan Servicer's role is limited to underwriting and servicing the Mortgage Loan. 1 ~71 05 1-106 TAX MATTERS In the opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California ("Bond Counsel"), under existing statutes, regulations, rulings and judicial decisions, and assuming certain representations and compliance with certain covenants and requirements described herein, interest on the Bonds is excludable from gross income for federal income tax purposes, except for interest on any Bond for any period during which such Bond is held by a "substantial user" of any facilities financed with the proceeds of the Bonds or by a "related person" as such terms are used in Section 147(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and interest on the Bonds is an item of tax preference for purposes of calculating the federal alternative minimum tax imposed on individuals and corporations. Bond Counsel is also of the opinion that interest on the Bonds is exempt from State of California personal income tax. A complete copy of the proposed form of the opinion of Bond Counsel is set forth in Appendix F hereto. The opinions expressed by Bond Counsel are based on an analysis of existing statutes, regulations, rulings and judicial decisions. Such opinions may be affected by actions taken (or not taken) or events occurring (or not occurring) after the date hereof. Bond Counsel has not undertaken to detennine or to inform any person, whether any such actions or events are taken or do occur. The Indenture, the Financing Agreement, the Regulatory Agreement, and the Tax Certificate pennit certain actions to be taken or to be omitted if a favorable opinion of Bond Counsel is provided with respect thereto. Bond Counsel expresses no opinion as to the exclusion from gross income for federal income tax purposes of interest on any Bond if any such action is taken of omitted based upon the opinion or advice of counsel other than Stradling Yocca Carlson & Rauth. Additionally, Bond Counsel's opinions are based upon certain representations made by the Issuer, the Borrower and others and are subject to the condition that the Issuer and the Borrower comply with certain covenants and the requirements of the Code and Regulations that must be satisfied subsequent to the issuance of the Bonds to assure that interest on the Bonds will remain excludable from gross income for federal income tax purposes. Failure to comply with such requirements may cause interest on the Bonds to be included in gross income for federal income tax purposes retroactive to the date of issuance of the Bonds. The Issuer and the Borrower each have covenanted to comply with all such requirements. Although Bond Counsel has rendered an opinion that interest on the Bonds is excluded from gross income for federal income tax purposes, as described above, the ownership of the Bonds and the accrual or receipt of interest on the Bonds may otherwise affect the tax liability of certain persons. Bond Counsel expresses no opinion regarding any such tax consequences. Accordingly, all potential purchasers of the Bonds should consult their tax advisors before purchasing any of the Bonds with respect to collateral tax consequences. NO LITIGATION The Issuer There is, to the best knowledge of the Issuer, no action, suit or proceeding known to be pending or threatened, restraining or enjoining the execution or delivery of the Bonds, the Indenture, the Financing Agreement, the Regulatory Agreement, the Credit Facility or in any way contesting or affecting the validity of the foregoing or the Bond Resolution. 1 ~~ 07 The Borrower There is not now pending or threatened any proceeding or litigation against the Borrower affecting the ability of the Borrower to enter into or deliver the Financing Agreement, the Regulatory Agreement, the Mortgage Note, the Security Instrument or any other Mortgage Loan Documents, seeking to restrain or enjoin the Borrower's participation in the transactions, or contesting the existence or powers of the Borrower with respect to the transactions described in this Official Statement. ENFORCEABILITY OF REMEDIES The remedies available to the Trustee and the Owners of the Bonds upon an Event of Default under the Financing Agreement, the Regulatory Agreement or the Indenture are in many respects dependent upon regulatory and judicial actions which are often subject to discretion and delay. Under existing law and judicial decisions, including specifically the Federal Bankruptcy Code (Title 11 of the United States Code), the remedies provided for under the Federal Bankruptcy Code, the Financing Agreement, the Regulatory Agreement or the Indenture may not be readily available or may be limited. In addition, the Financing Agreement and the Regulatory Agreement provide that the obligations of the Borrower contained in such agreements (other than certain obligations to the Issuer and the Trustee individually and not on behalf of the Owners of the Bonds) will be limited obligations payable solely from the income and assets of the Borrower and that no limited partner of the Borrower will have any personal liability for the satisfaction of any obligation of the Borrower under such agreements or of any claim against the Borrower arising out of such agreements or the Indenture. The various legal opinions to be delivered in connection with the delivery of the Bonds, the Indenture, the Financing Agreement, the Regulatory Agreement and the Security Instrument will be qualified to the extent that the enforceability of certain legal rights related to the Bonds, the Indenture, the Financing Agreement and the Regulatory Agreement are subject to limitations imposed by such things as the exercise of judicial discretion in accordance with general principles of equity (whether applied by a court of law or a court of equity), including judicial limitations on rights to specific performance and bankruptcy, insolvency, reorganization. The Issuer has consented to the distribution of this Official Statement by the Underwriter to prospective purchasers of the Bonds, and this Official Statement has been approved by the Borrower (as to the portions thereof relating to the Borrower and the Project, including restrictions thereon) for distribution by the Underwriter to prospective purchasers of the Bonds. CONTINUING DISCLOSURE The Borrower will enter into a Continuing Disclosure Agreement with the Trustee, dated as of the date of the Indenture (the "Disclosure Agreement"), obligating the Borrower to send, or cause to be sent, certain financial information with respect to the Project to certain information repositories annually and to provide notice, or cause notice to be provided, to the Municipal Securities Rulemaking Board and a state information repository, if any, of certain enumerated events for the benefit of the Beneficial Owners and Holders of any of the Bonds, in order to allow the Underwriter to meet the requirements of Section (b)(5)(i) of Securities Exchange Commission Rule 15c2-I2, as amended (the "Rule"). A failure by the Borrower to comply with the provisions of the Disclosure Agreement will not constitute a default under the Indenture or Financing Agreement (although Bondholders will have any available remedy at law or in equity for obtaining necessary disclosures). Nevertheless, such a failure to comply is required to be reported in accordance with the Rule and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Bonds in the 1"3~ 08 secondary market. Consequently, such a failure may adversely affect the transferability and liquidity of the Bonds. The form of the Disclosure Agreement is attached hereto as Appendix G. VERIFICATION OF CASH FLOWS AND SUFFICIENCY OF CASH FLOW Prior to the issuance of the Bonds, the mathematical accuracy of certain computations included in the schedules provided by the Underwriter on behalf of the Issuer relating to the computation of cash flows for the projected payments of principal and interest in the Mortgage Loan and the sufficiency of such payments together with certain amounts held under the Indenture for the payment of the principal of and interest on the Bonds and certain fees will have been verified by Causey Demgen & Moore Inc. (the "Verification Agent"j: The Verification Agent has restricted its procedures to verifying information on which the computations are based and, accordingly, has not expressed an opinion on the data used, the reasonableness of the assumptions or the achievability of the projected outcome. Fannie Mae does not guarantee the payment of the principal of, premium, if any, or interest on, the Bonds or the return on any investment. The interest rate on the Mortgage Loan has been established at a rate such that payments on the Mortgage Loan and any interest eamed on such payments during the period they are on deposit with the Trustee are expected by the Borrower, on the basis of a Cash Flow Projection prepared by Red Capital Markets, Inc. and verified by the Verification Agent, to be sufficient to pay the principal of and interest on the Bonds, the Servicing Fee of the Loan Servicer, the Fannie Mae Facility Fee and Third Party Fees (to the extent included in the Mortgage Note Rate). The Cash Flow Projection takes into consideration the projected investment earnings in certain moneys on deposit in various Funds and Accounts under the Indenture. In the event that the investment earnings on any investment is less than the return anticipated in the Cash Flow Projections or if there is an error in the Cash Flow Projections, there may not be sufficient amounts available to pay the principal of and interest on the Bonds. This could result in a payment default in the Bonds even though there is no default under the Mortgage Loan or under the Credit Facility. Fannie Mae has no obligation to fund any such shortfall. The remedies of the Trustee are limited in this event. Fannie Mae has not prepared, reviewed or verified, makes no representation or warranty with respect to, does not certify to, and assumes no responsibility or liability for, any Cash Flow Projection or Verification Report, the calculations used in any Cash Flow Projection, the assumptions used in making such calculations, the mathematical accuracy of such calculations or the sufficiency of any payments (and any projected investment income) based on any Cash Flow Projection to pay the principal of and interest on the Bonds when due, any fees, including any Third Party Fees, when due, or any other amounts at any time. RATING Standard & Poor's Ratings Services, a Division of The McGraw-Hili Companies, Inc. (the "Rating Agency") has assigned the rating set forth on the cover hereof to the Bonds. Any desired explanation of the significance of the rating should be obtained from the Rating Agency. Certain information and materials not included in this Official Statement were furnished to the Rating Agency. Generally, rating agencies base their ratings on the information and materials so furnished and on investigations, studies and assumptions by the rating agencies. The rating is not a recommendation to buy, sell or hold the Bonds. There is no assurance that a particular rating will be maintained for any given period of time or that it will not be lowered or withdrawn entirely if, in the judgment of the Rating Agency originally establishing the rating, circumstances so warrant. Neither the Underwriter nor the Issuer has undertaken responsibility either to bring to the attention of the registered Owner of the Bonds any proposed revision or withdrawal of the rating of the Bonds or to oppose any such proposed revision or withdrawal. Any such change in or withdrawal of such rating could have an adverse effect on the market price of the Bonds if a registered Owner attempts to sell the same. 1>td09 1-110 1-111 UNDERWRITING Red Capital Markets, Inc. (the "Underwriter") has agreed to purchase the Bonds at a price of 100% of the principal amount thereof pursuant to the Bond Purchase Agreement by and among the Issuer, the Underwriter and the Borrower, and will be paid an underwriter's fee equal to $25,000, plus $ to reimburse the Underwriter for certain expenses and the fees and expenses of its counsel. The initial public offering prices may be changed from time to time by the Underwriter. The Underwriter may offer and sell the Bonds to certain dealers (including dealers depositing Bonds into investment trusts) and certain dealer banks and banks acting as agents at prices lower than the public offering price stated on the cover of this Official Statement. CERTAIN LEGAL MATTERS Certain legal matters relating to the authorization and validity of the Bonds will be subject to the approving opinion of Stradling Y ceca Carlson & Rauth, a Professional Corporation, Newport Beach, California, Bond Counsel, which will be furnished at the expense of the Borrower upon delivery of the Bonds in substantially the form set forth as Appendix F (the "Bond Opinion"). Bond Counsel has not been engaged by the Issuer to prepare or review the Official Statement and Bond Counsel undertakes no responsibility for the accuracy, completeness or fairness of the Official Statement or other offering materials with respect to the Bonds. In connection with the initial issuance of the Bonds, certain legal matters will be passed upon for the Issuer by the City Attomey, for the Credit Provider by its legal department and by its special counsel, O'Melveny & Myers LLP, for the Borrower by Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, and for the Underwriter by Eichner & Norris PLLC, Washington, D.C. Bonds. Payment of the fees of certain above-mentioned parties is contingent upon the closing of the MULTIPLE ROLES Several entities of Red Capital Group and its parent, National City Corporation, have various roles in the planned financing of the Project. With respect to the Bonds and the Senior Bonds, Red Capital Markets, Inc. will act as the tax credit syndicator, Underwriter and Remarketing Agent. With respect to the Senior Bonds, Provident Community Development Company, LLC was the construction lender, and provided the Investment Agreement pursuant to which amounts in the Program Fund were invested and is the general partner of the limited partner of the Borrower. With respect to the Bonds and the Senior Bonds, Red Mortgage Capital, Inc. will be the Fannie Mae DUS lender and servicer on the transaction. By purchasing a Bond, the purchaser thereof consents to any conflict of interest that could arise by reason of the different capacities in which Red Capital Group and its parent, National City Corporation and their affiliated subsidiaries will act in connection with the Bonds, the Senior Bonds, the Subordinate Bonds and the Project. MISCELLANEOUS This Official Statement is submitted in connection with the sale of the securities referred to herein and may not be reproduced or used, as a whole or in part, for any other purpose. Any statements in this Official Statement involving matters of opinion, whether or not expressly so stated, are intended as such 1.d 12 and not as representations of fact. This Official Statement is not to be construed as a contract or agreement between the Issuer and the purchasers or Owners of any of the Bonds. The use of this Official Statement has been approved by the Issuer and the Borrower. [Remainder of Page Left Blank Intentionally] 1<tZ11 3 [Issuer's Signature Page to the Official Statement] HOUSING AUTHORITY OF THE CITY OF CHULA VISTA By Its Executive Director 1soi 14 [Borrower's signature page to Official Statement] CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a . California non-profit public benefit corporation, its Managing General Partner By Brian F. Biber, Executive Director By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By JarnesJ.Schmid,11anager 1~11 5 APPENDIX A CERTAIN DEFINITIONS The following is only a summary and does not purport to be a complete statement of the defined terms contained in the various documents entered into with respect to the Bonds. Reference is made to the full text of the documents herein described for the complete terms thereof "Account" means any Account within a Fund. "Act of Bankruptcy" means any proceeding instituted under the Bankruptcy Code or other applicable insolvency law by or against the Issuer. "Advance" means an advance under the Credit Facility, as defined in the Credit Facility. "Authorized Borrower Representative" means any person who, at any time and from time to time, may be designated as the Borrower's authorized representative by written certificate furnished to the Issuer, the Loan Servicer, the Credit Provider and the Trustee containing the specimen signature of such person and signed on behalf of the Borrower by or on behalf of any authorized general partner of the Borrower if the Borrower is a general or limited partnership, by any authorized managing member of the Borrower if the Borrower is a limited liability company, or by any authorized officer of the Borrower if the Borrower is a corporation, which certificate may designate an alternate or alternates. The Trustee may conclusively presume that a person designated in a written certificate filed with it as an Authorized Borrower Representative is an Authorized Borrower Representative until such time as the Borrower files with it (with a copy to the Issuer, the Loan Servicer and the Credit Provider a written certificate identifying a different person or persons to act in such capacity. "Authorized Denomination" means $5,000 or any integral multiple of $5,000. "A vailable Moneys" means, as of any date of detennination, (a) the proceeds of the Bonds and remarketing proceeds (other than funds provided by the Borrower, any general partner of the Borrower or any guarantor of the Borrower's obligations relating to the Mortgage Loan or the Bonds, if applicable, or the Issuer), (b) moneys received by the Trustee pursuant to the Credit Facility, (c) any other amounts with respect to which the Trustee has received an Opinion of Counsel to the effect that (i) the use of such amounts to make payments on the Bonds would not violate Section 362(a) of the Bankruptcy Code or that relief from the automatic stay provisions of such Section 362(a) would be available from the bankruptcy court and (ii) payments of such amounts to the Bondholders would not be avoidable as preferential payments under Section 547 of the Bankruptcy Code should the Issuer or the Borrower, or any guarantor of the foregoing, become a debtor in proceedings commenced under the Bankruptcy Code, and (d) Investment Income derived from the investment of moneys described in clause (a), (b) or (c). "Bankruptcy Code" means Title 11 of the United States Code, entitled "Bankruptcy," as in effect now and in the future, or any successor statute. "Beneficial Owner" means the beneficial owner of any Bond held in book-entry form or the Registered Owner of any Bond held in certificated form. "Bond Counsel" means (a) on the Closing Date, the law fIrm or law fIrms delivering the approving opinion(s) with respect to the Bonds or (b) after the Closing Date, any law fIrm selected by the Issuer and acceptable to the Credit Provider, of nationally recognized standing in matters pertaining to the 1-116 excludability from gross income, for federal income tax purposes, of the interest payable on bonds issued by states and political subdivisions. "Bond Documents" means the Indenture, the Financing Agreement, the Regulatory Agreement, the Bond Purchase Agreement, the Assignment, the Credit Facility, the Tax Certificate, the Disclosure Agreement and the Remarketing Agreement, and all other documents, agreements and instruments executed and delivered in connection with the issuance, sale, delivery and/or remarketing of the Bonds, as each such document, agreement or instrument may be amended, modified, supplemented or restated from time to time. "Borzdholder," "holder," "Owner," "owner," "Registered Owner" or "registered owner" means, with respect to any Bond, the Registered Owner of the Bond. "Bond Payment Date" means any (a) Interest Payment Date, (b) other date on which interest is payable, including any Redemption Date, each Maturity Date and the date of acceleration of the Bonds and (c) date on which principal of the Bonds is payable. "Bond Purchase Agreement" means the Bond Purchase Agreement relating to the Bonds by and among the Underwriter, the Issuer and the Borrower. "Bond Purchase Fund" means the Bond Purchase Fund created by the Indenture. "Bond Register" means the bond register established and maintained by the Trustee pursuant to the Indenture. "Bond Registrar" means the Trustee or its designee as keeper of the Bond Register. "Bond Year" means the period of 12 consecutive months ending on the last day of the month specified in the Indenture in each year in which Bonds are or will be Outstanding, provided that the fIrst Bond Year shall commence on the Closing Date and end on the date set forth in the Indenture. "Book-Entry Bonds" means any Bonds which are issued in book-entry form, as evidenced by a single certificate for each stated principal maturity of the Bonds, and registered in the name of and delivered to a Securities Depository. "Book-Entry System" means an electronic system in which the clearance and settlement of securities transactions is made through electronic book-entry changes. "Business Day" means any day other than (a) a Saturday or a Sunday, (b) any day on which banking institutions located in the city or cities in which the Principal Office of the Trustee is located are required or authorized by law or executive order to close, (c) a day on which banking institutions located in the city in which the Principal Office of the Loan Servicer is located are required or authorized by law or executive order to close, (d) a day on which the Credit Provider is closed or (e) a day on which the New York Stock Exchange is closed. "Cash Flow Projection" means a cash flow projection prepared by an independent firm of certified public accountants, a financial advisory fIrm or other independent third party qualified and experienced in the preparation of cash flow projections for mortgage loans, designated by the Borrower and acceptable to the Credit Provider and the Rating Agency, establishing, to the satisfaction of the Rating Agency, the sufficiency of (a) the scheduled payments due under the Mortgage Note (together with and after taking into account the Initial Debt Service Deposit) and (b) Investment Income with 111:-1117 respect to the General Account to pay the principal of and interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate), in each instance, when due and payable, including, but not limited to, any cash flow projection prepared in connection with (i) the initial issuance and delivery of the Bonds, as provided in the Indenture or (ii) a remarketing of the Bonds as provided in the Indenture or a partial prepayment of the Mortgage Loan and a corresponding partial redemption of Bonds pursuant to the Indenture. "Closing Date" means the date on which the Bonds are issued and delivered. "Code" means the Internal Revenue Code of 1986, as amended; each reference to the Code shall be deemed to include (a) any successor internal revenue law and (b) the applicable regulations whether final, temporary or proposed under the Code or such successor law. Any reference to a particular provision of the Code shall be deemed to include (i) any successor provision of any successor internal revenue law and (ii) the applicable regulations, whether final, temporary or proposed, under such provision or successor provision. "Costs of Issuance" means (a) the fees, costs and expenses of (I) the Issuer, the Issuer's counsel and the Issuer's financial advisor, if any, (2) the Underwriter (including discounts to the Underwriter or other purchasers of the Bonds, other than original issue discount, incurred in the issuance and sale of the Bonds) and the Underwriter's counsel, (3) Bond Counsel, (4) the Trustee and the Trustee's counsel, (5) the Loan Servicer and the Loan Servicer's counsel, if any, (6) the Credit Provider and the Credit Provider's counsel, (7) the Borrower's counsel and the Borrower's fmancial advisor, if any, and (8) the Rating Agency, (b) the costs of preparing the initial Cash Flow Projection and the initial Verification Report, (c) costs of printing the offering documents relating to the sale of the Bonds and (d) all other fees, costs and expenses directly associated with the authorization, issuance, sale and delivery of the Bonds, including, but not limited to, printing costs, costs of reproducing documents, filing and recording fees, and any fees, costs and expenses required to be paid to the Loan Servicer in connection with the Mortgage Loan. "Costs oflssuance Deposit" means the deposit to be made by the Borrower with the Trustee on the Closing Date, as required by the Financing Agreement, and deposited by the Trustee into the Costs of Issuance Fund. "Costs of Issuance Fund" means the Costs of Issuance Fund created by the Indenture. "Credit Facility Account" means the Credit Facility Account of the Revenue Fund. "Credit Facility Agreement" means, individually or collectively, the Reimbursement Agreement, the Pledge Agreement and all other agreements and documents securing the Credit Provider or otherwise relating to the provision of the Credit Facility, as any such agreement may be amended, modified, supplemented or restated from time to time. "Credit Provider" means Fannie Mae. "Custodian" means the custodian under the Pledge Agreement. "Dated Date" means the dated date for the Bonds set forth on the cover hereof. "Disclosure Agreement" means the Continuing Disclosure Agreement, dated as of the date of the Indenture between the Borrower and the Trustee. 1~l1 8 "DTC' means The Depository Trust Company and any successor to it or any nominee of it. "DTC Participanf' has the meaning given to that term in the Indenture. "DTC System" has the meaning given to that term in the Indenture "Electronic Means" means telecopy transmission or other similar electronic means of communication approved in writing by the Credit Provider, including a telephonic communication confirmed by writing or written transmission. "End Period Payment" means, with respect to any optional redemption of Bonds pursuant to the Indenture, the premium due on the Bonds, if any, and interest due on the Bonds from the date of prepayment of the Mortgage Loan to the Redemption Date. "Event of Default" means any of the events specified as events of default described under the heading "Default Provisions and Remedies" in Appendix B. "Extraordinary Items" means, with respect to the Trustee, reasonable compensation for extraordinary services and/or reimbursement for reasonable extraordinary costs and expenses. "Fannie Mae" means Fannie Mae, a cOlporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C., ~ 1716 et seq., and its successors and assigns. "Fannie Mae Commitment" means Fannie Mae's Commitment to the Loan Servicer, accepted by the Loan Servicer, pursuant to which Fannie Mae has agreed, upon satisfaction of the terms and conditions set forth in the Fannie Mae Commitment, to provide credit enhancement for the Mortgage Loan and liquidity support for the Bonds on the Initial Remarketing Date. "Fees Account" means the Fees Account of the Revenue Fund. "Fund" means any Fund created by the Indenture. "General Account" means the General Account of the Revenue Fund. "Government Obligations" means direct obligations of, and obligations on which the full and timely payment of principal and interest is unconditionally guaranteed by, the full faith and credit of the United States of America. "Highest Rating Category" has the meaning, with respect to an Investment, given in this definition. If the Bonds are rated by a Rating Agency, the term "Highest Rating Category" means, with respect to an Investment, that the Investment is rated by each Rating Agency in the highest rating given by that Rating Agency for that general category of security. If at any time the Bonds are not rated (and, consequently, there is no Rating Agency), then the term "Highest Rating Category" means, with respect to an Investment, that the Investment is rated by S&P or Moody's in the highest rating given by that rating agency for that general category of security. By way of example, the Highest Rating Category for tax-exempt municipal debt established by S&P is "A-I+" for debt with a term of one year or less and "AAA" for a term greater than one year, with corresponding ratings by Moody's of "MIG-l" (for fixed rate) or "VMIG-l" (for variable rate) for three months or less and "Aaa" for greater than three months. If at any time (i) the Bonds are not rated, (ii) both S&P and Moody's rate an Investment and (iii) one of those ratings is below the Highest Rating Category, then such Investment will, nevertheless, be deemed to be rated in the Highest Rating Category if the lower rating is no more than one rating category below the 1 ^-1419 highest rating category of that rating agency. For example, an Investment rated "AAA" by S&P and "Aa3" by Moody's is rated in the Highest Rating Category. If, however, the lower rating is more than one full rating category below the Highest Rating Category of that rating agency, then the Investment will be deemed to be rated below the Highest Rating Category. For example, an Investment rated "AAA" by S&P and "AI" by Moody's is not rated in the Highest Rating Category. "Improvements" means the improvements made or to be made upon the Land. "Initial Debt Service Deposit" means the deposit to be made by the Borrower with the Trustee on the Closing Date, as required by the Financing Agreement and deposited by the Trustee into the General Account as provided in the Indenture. "Interest Payment Date" means each interest payment date set forth on the cover hereof, each Redemption Date, each Maturity Date and the date of acceleration of the Bonds. "Investment Agreement" means any investment agreement with respect to amounts on deposit in any Fund or Account, as described in paragraph (g) of the definition of Pennitted Investments. "Investment Income" means the earnings, profits and accreted value derived from the investment of moneys pursuant to the Indenture. "Investments" means any Permitted Investment and any other investment held under the Indenture that does not constitute a Permitted Investment. "Issuer's Annual Fee" means the Issuer's annual fee payable by the Borrower pursuant to the Financing Agreement. "Land' means the real property described in the Security Instrument. "Maturity Date" means any maturity date shown on the inside front cover hereof. "Mortgage Loan Documents" means, collectively, the Mortgage Note, the Security Instrument and all other agreements and instruments, including any Collateral Agreements (as defined in the Security Instrument), documenting, evidencing, securing, arising under, made in connection with or otherwise relating to the Mortgage Loan, as each such agreement or document may be amended, modified, supplemented, or restated from time to time, but excluding the Financing Agreement and the Regulatory Agreement. "Mortgage Loan Fund' means the Mortgage Loan Fund created by the Indenture. "Net Bond Proceeds" means the proceeds derived from the issuance, sale and delivery of the Bonds, representing the total purchase price of the Bonds, including any premium paid as part of the purchase price of the Bonds, but excluding the accrued interest, if any, on the Bonds paid by the initial purchaser(s) of the Bonds. "Opinion of Bond Counsel" means a written opinion of Bond Counsel addressed to the Issuer, the Trustee and, at its request, the Credit Provider, and in form and substance acceptable to the Issuer, the Trustee and the Credit Provider. "Opinion of Counsel" means a written opinion of legal counsel acceptable to the recipient(s) of the opinion; if the opinion is with respect to an interpretation of federal tax laws or regulations, or 1A-120 bankruptcy matters, such legal counsel will also be an attorney or fIrm of attomeys experienced in such matters. "Outstanding" means, when used with reference to the Bonds at any date as of which the amount of Outstanding Bonds is to be detennined, all Bonds which have been authenticated and delivered under the Indenture except: (a) Bonds canceled or delivered for cancellation at or prior to such date; (b) Bonds deemed to be paid in accordance with the Indenture; and (c) Bonds in lieu of which others have been authenticated under the Indenture. In detennining whether the owners of a requisite aggregate principal amount of Outstanding Bonds have concurred in any request, demand, authorization, direction, notice, consent or waiver under the provisions of the Indenture, Bonds which are owned or held by or for the account of the Borrower, including Purchased Bonds, will be disregarded and deemed not to be Outstanding under the Indenture for the purpose of any such determination unless all Bonds are owned or held by or for .the account of the Borrower. In detennining whether the Trustee will be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which are either registered in the name of or known by the Trustee to be held for the account of the Borrower, including Purchased Bonds, will be disregarded. "Permitted Investments" means, to the extent authorized by law for the investment of moneys of the Issuer: (a) Government Obligations; (b) direct obligations of, and obligations on which the full and timely payment of principal and interest is unconditionally guaranteed by, any agency or instrumentality of the United States of America (other than the Federal Home Loan Mortgage Corporation) or direct obligations of the World Bank, which obligations are rated in the Highest Rating Category; (c) obligations, in each case rated in the Highest Rating Category, of (i) any state or territory of the United States of America, (ii) any agency, instrumentality, authority or political subdivision of a state or territory, (iii) any public benefit or municipal corporation the principal of and interest on which are guaranteed by such state or political subdivision or (iv) any state or territory of the United States of America or any agency, instrumentality, authority or political subdivision of a state or territory which have been advance refunded and are secured by Government Obligations or by other such prerefunded municipal securities; (d) any written repurchase agreement entered into with a Qualified Financial Institution whose unsecured short-term obligations are rated in the Highest Rating Category; (e) commercial paper rated in the Highest Rating Category; (t) interest-bearing negotiable certificates of deposit, interest-bearing time deposits, interest-bearing savings accounts and bankers' acceptances, issued by a Qualified Financial Institution if either (A) the Qualified Financial Institution's unsecured short-term obligations are rated in the Highest Rating Category or (B) such deposits or accounts are fully insured by the Federal Deposit Insurance Corporation; 1 A-fi2 1 (g) an agreement held by the Trustee for the investment of moneys at a guaranteed rate (an "Investment Agreement") with (i) the Credit Provider or (ii) a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category, or whose obligations are unconditionally guaranteed or insured by a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category, provided that the Investment Agreement is in a form acceptable to the Issuer and the Credit Provider, and provided further that the Investment Agreement includes the following restrictions: (A) the invested funds are available for withdrawal without penalty or premium at any time that (1) the Trustee is required to pay moneys from the Fund(s) to which the Investment Agreement is applicable or (2) any Rating Agency indicates that it will lower, suspend or withdraw or actually lowers, suspends or withdraws the rating on the Bonds on account of the rating of the Qualified Financial Institution providing, guaranteeing or insuring, as applicable, the Investment Agreement; (B) the Investment Agreement is the unconditional and general obligation of the Qualified Financial Institution providing, and, if applicable, the Qualified Financial Institution guaranteeing or insuring, the Investment Agreement, and is not subordinated to any other obligation; (C) the Trustee receives an Opinion of Counsel that the Investment Agreement is legal, valid, binding and enforceable, in accordance with its terms, upon the Qualified Financial Institution providing the Investment Agreement and, if applicable, an Opinion of Counsel that any guaranty or insurance policy provided by a Qualified Financial Institution guaranteeing or insuring the Investment Agreement is legal, valid, binding and enforceable, in accordance with its terms, upon such Qualified Financial Institution; and (D) the Investment Agreement provides that if during its term the rating of the Qualified Financial Institution providing, guaranteeing or insuring, as applicable, the Investment Agreement is withdrawn or suspended by any rating agency or falls below the Highest Rating Category, such Qualified Financial Institution will, within 10 days following the withdrawal, suspension or downgrade, either: (I) (x) collateralize the Investment Agreement (if the Investment Agreement is not already collateralized) with Permitted Investments described in paragraph (a) or (b) above by depositing such collateral with the Trustee or a third-party custodian, such collateralization to be effected in a manner and in an amount sufficient to maintain (I) the integrity of the Cash Flow Projection most recently provided with respect to the Bonds and (II) the then current rating of the Bonds, or, if the Investment Agreement is already collateralized, increase the collateral with Pennitted Investments described in paragraph (a) or (b) above by depositing such collateral with the Trustee or a third-party custodian, such collateralization to be effected in a manner and in an amount sufficient to maintain (ill) the integrity of the Cash Flow Projection most recently provided with respect to the Bonds and (IV) the then current rating of the Bonds, (y) transfer the Investment Agreement and the rights and obligations of the Qualified Financial Institution under the Investment Agreement to a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category or whose obligations are unconditionally guaranteed or insured by a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category (z) deliver a guarantee from a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category or (2) at the direction of the Trustee, following 1 A1'22 the failure of the Qualified Financial Institution to take one or more of the actions described in the foregoing clauses (1)(x)-(l)(z), repay the principal of and accrued but unpaid interest on the investment, in either case with no penalty or premium to the Trustee unless required by law (the Investment Agreement may provide that the Qualified Financial Institution providing the Investment Agreement shall have the right to elect among the actions described in clauses (l)(x), (l)(y) and (1)(z), but shall not have the right to elect the action described in clause (b) as an alternative to the actions described in clauses (l)(x), (I)(y) and (l)(z); (h) any money market mutual fund (including those of the Trustee and its affiliates) registered under the Investment Company Act of 1940, as amended, that have been rated "AAAm-G" or "AAAm" by S&P or "Aaa" by Moody's, so long as the portfolio of such money market mutual fund is limited to Government Obligations and/or agreements to purchase Government Obligations; if approved in writing by the Credit Provider, a money market mutual fund portfolio may also contain obligations and agreements to repurchase obligations described in paragraph (b) or (c) above; a money market mutual fund is not a Pennitted Investment if both S&P and Moody's rate the money market mutual fund and one such rating is below the level required by this paragraph (h); (i) any other investment authorized by the laws of the State if such investment is approved by the Credit Provider and the Rating Agency; provided that Permitted Investments will not include the following: (i) any investment with a final maturity or any agreement with a term greater than one year from the date of the investment (except (A) obligations that provide for the optional or mandatory tender, at par, by the holder of such obligations at least once within one year of the date of purchase, (B) Government Obligations irrevocably deposited with the Trustee for payment of Bonds pursuant to the Indenture and (C) investments listed in paragraphs (g) and (i) above), (ii) any obligation (other than obligations described in paragraphs (a) and (b) above) with a purchase price greater or less than the par value of such obligation, (iii) any asset-backed security, including mortgage-backed securities, real estate mortgage investment conduits, collateralized mortgage obligations, credit card receivable asset-backed securities and auto loan asset-backed securities, (iv) any interest-only or principal-only stripped security, (v) any obligation bearing interest at an inverse floating rate, (vi) any investment which may be prepaid or called at a price less than its purchase price prior to stated maturity, (vii) any investment the interest rate on which is variable and is established other than by reference to a single interest rate index plus a single fixed spread, if any, and which interest rate moves proportionately with that index, (viii) any investment described in paragraph (d) or (g) above with a Qualified Financial Institution (as defined in clause (d) of the definition of "Qualified Financial Institution") if the Qualified Financial Institution does not agree to submit to jurisdiction, venue and service of process in the United States of America in the Investment Agreement and (ix) any investment to which the Rating Agency has added an "r" or "t" highlighter. If an Investment Agreement is entered into which does not require the Qualified Financial Institution providing the Investment Agreement to either (A) satisfy one or more of the requirements of clause (1) of subparagraph (D) of paragraph (g) above upon a withdrawal or suspension of, or downgrade in the rating of the Qualified Financial Institution providing the Investment Agreement or (B) compensate the Trustee for any loss in yield upon reinvestment if the Investment Agreement is tenninated following a withdrawal or suspension of, or downgrade in, the rating of the Qualified Financial Institution providing, guaranteeing or insuring the Investment Agreement, the yield on the Investment Agreement above the minimum yield pennitted by the Rating Agency shall not be taken into account in any Cash Flow Projection provided to the Rating Agency in connection with its rating of the Bonds. 1Jr..323 "Pledge Agreement" means the Pledge, Security and Custody Agreement, dated as of the date of the Indenture, by and among the Borrower, the Trustee, as collateral agent for the Credit Provider, and the Credit Provider, as such agreement may be amended, modified, supplemented or restated from time to time. "Principal Amount" means the principal amount of the Bonds Outstanding on the Closing Date. "Principal Office" of the Trustee, the Remarketing Agent or the Loan Servicer. means, respectively, the office of the Trustee, the Remarketing Agent or the Loan Servicer at the respective address set forth in the Indenture, or such other address as may be specified in writing by the Trustee, the Remarketing Agent or the Loan Servicer, as applicable, as provided in the Indenture. "Proceeds" has the meaning assigned thereto under the heading ''THE BONDS-Redemption_ Special Mandatory Redemption-Casualty or Condemnation." "Project" means the Land and the Improvements. "Project Account' means the Project Account of the Mortgage Loan Fund. "Purchased Bond' means any Bond (a) tendered for purchase by a Bondholder pursuant to the Indenture and purchased by the Trustee for the account of the Borrower, with amounts provided by the Credit Provider under the Credit Facility, and (b) pledged to the Custodian under the Pledge Agreement for the benefit of the Credit Provider. A Bond is a "Purchased Bond" only during the period (a) beginning on and including the date of its purchase by the Borrower and (b) ending on and excluding the date on which the Amount Available under (and as defined in) the Credit Facility with respect to the Borid is reinstated under the Credit Facility. "Qualified Financial Institution" means any (a) bank or trust company organized under the laws of any state of the United States of America, (b) national banking association, (c) savings bank, a savings and loan association, or an insurance company or association chartered or organized under the laws of any state of the United States of America, (d) federal branch or agency pursuant to the International Banking Act of 1978 or any successor provisions of law or a domestic branch or agency of a foreign bank which branch or agency is duly licensed or authorized to do business under the laws of any state or territory of the United States of America, (e) government bond dealer reporting to, trading with, and recognized as a primary dealer by the Federal Reserve Bank of New York, (f) securities dealer approved in writing by the Credit Provider the liquidation of which is subject to the Securities Investors Protection Corporation or other similar corporation, or (g) any other entity which is acceptable to the Credit Provider. With respect to an entity which provides an agreement held by the Trustee for the investment of moneys at a guaranteed rate as set out in paragraph (g) of the defmition of the term "Permitted Investments" or an entity which guarantees or insures, as applicable, the agreement, a "Qualified Financial Institution" may also be a corporation or limited liability company organized under the laws of any state of the United States of America. "Rating Agency" means any national rating agency then maintaining a rating on the Bonds. "Rating Category" means one of the generic rating categories of the Rating Agency. "Rebate Analyst" means a person that is (a) qualified and experienced in the calculation of rebate payments under Section 148 of the Code and in compliance with the arbitrage rebate regulations promulgated under the Code, (b) chosen by the Borrower and (c) engaged for the purpose of detennining the amount of required deposits, if any, to the Rebate Fund. 1<<=<:1 2 4 "Rebate Analyst's Annual Fee" means the annual fee of the Rebate Analyst, if any, in the amount set forth in the Indenture for its rebate calculation services. "Rebate Fumf' means the Rebate Fund created by the Indenture. "Record Date" means, with respect to any Interest Payment Date, the fifteenth day of the month preceding the month in which the Interest Payment Date falls. "Redemption Account" means the Redemption Account of the Revenue Fund. "Redemption Date" means any date upon which Bonds are to be redeemed pursuant to the Indenture. "Registered Owner" means the registered owner of any Bonds, as shown in the Bond Register. "Remarketing Agreement" means the Remarketing Agreement, dated as of the date of the Indenture, between the Borrower and the Remarketing Agent, as amended, modified, supplemented or restated from time to time, or any agreement entered into in substitution therefor with a substitute Remarketing Agent. "Remarketing Date" means the Initial Remarketing Date and, if the Bonds Outstanding on such date or on any subsequent Remarketing Date are remarketed pursuant to the Indenture for a Remarketing Period which does not extend to the final maturity of the Bonds, the day after the last day of the Remarketing Period. "Remarketing Expenses" means the costs and expenses incurred by the Trustee and its counsel, the Remarketing Agent and its counsel, the Issuer and its counsel, the Loan Servicer and its counsel, the Credit Provider and its counsel and Bond Counsel in connection with the remarketing of the Bonds, including bond printing and registration costs, costs of funds advanced by the Remarketing Agent, registration and filing fees, rating agency fees and other costs and expenses incurred in connection with or properly attributable to the remarketing of Bonds. "Remarketing Expenses Account" means the Remarketing Expenses Account of the Bond Purchase Fund. "Remarketing Period" means the period beginning on a Remarketing Date and ending on the last day of the term for which Bonds are remarketed pursuant to the Indenture or the final Maturity Date of the Bonds, as applicable. "Remarketing Proceeds Account" means the Remarketing Proceeds Account of the Bond Purchase Fund. "Remarketing Rate" means the interest rate established pursuant to the Indenture and borne by the Bonds then Outstanding from and including each Remarketing Date to, but not including, the next succeeding Remarketing Date or the final Maturity Date of the Bonds, as applicable. "Representation Letter" means a letter of representations in the form required by DTC executed by the Issuer and the Trustee. ~-P2 5 "Requisition" means with respect to the Costs of Issuance Fund, the requisition in the form attached to Indenture required to be submitted in connection with disbursements from the Costs of Issuance Fund. "Reserved Rights" means those certain rights of the Issuer under the Financing Agreement to indemnification and to payment or reimbursement of fees and expenses of the Issuer, its right to give and receive notices and to enforce notice and reporting requirements and restrictions on transfer of ownership, its right to inspect and audit the books, records and premises of the Borrower and of the Project, its right to collect attorneys' fees and related expenses, its right to specifically enforce the Borrower's covenant to comply with applicable federal tax law and State law (including the Act and the rules and regulations of the Issuer, if any), and its rights to give or withhold consent to amendments, changes, modifications and alterations to the Financing Agreement relating to the Reserved Rights. "Revenue Fund" means the Revenue Fund created by the Indenture. "Revenues" means all (a) payments made under the Mortgage Note, (b) payments made under the Credit Facility and (c) Investment Income (excluding Investment Income earned from moneys on deposit in the Rebate Fund and the Costs of Issuance Deposit Account of the Costs of Issuance Fund). "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors and assigns, or if it shall be dissolved or shall no longer assign credit ratings to long-term debt, then any other nationally recognized statistical rating agency, designated by the Issuer and acceptable to the Trustee, the Credit Provider and the Borrower, as shall assign credit ratings to long-term debt. "Securities Depository" means, initially, The Depository Trust Company, New York, New York, and its successors and assigns, and any replacement securities depository appointed under the Indenture. "Security" means the Trust Estate and the Credit Facility. "Set Rate Interest' has the meaning given to that term in the Mortgage Note. "State" means the state of California. "Supplemental Indenture" means any indenture duly authorized and entered into between the Issuer and the Trustee amending or supplementing the Indenture in accordance with the provisions of the Indenture. "Tax Certificate" means the Tax Certificate dated the Closing Date, executed and delivered by the Issuer together with the Borrower's Use of Proceeds Certificate dated as of the Closing Date, executed and delivered by the Borrower. "Third Party Fees" means, individually or collectively, as the context shall require, the (a) Issuer's Annual Fee, (b) Trustee's Annual Fee and (c) Rebate Analyst's Annual Fee, if any. "Trustee's Annual Fee" means the annual ongoing trust administration fee of the Trustee in the amount set forth in the Indenture payable as provided in the Financing Agreement, computed and payable semiannually in advance on each Interest Payment Date. "Trust Estate" means the property, rights, money, securities and other amounts pledged and assigned by the Issuer to the Trustee pursuant to the Indenture and the Assignment. 1A.-i2 6 "Verification Agent" means an independent fInn of certified public accountants, an independent financial advisory firm or other independent third party designated by the Borrower and acceptable to the Credit Provider, qualified and experienced in the verification of the mathematical accuracy of scheduled cash flows and other funds to pay the principal of and interest on bonds and fees, which has been engaged to prepare a VerifIcation Report. "Verification Report" means a report prepared by a Verification Agent verifying the mathematical accuracy of a Cash Flow Projection. "Wrongful Dishonor" means an uncured failure by the Credit Provider to make an Advance to the Trustee upon proper presentation of a Certificate which conforms to the terms and conditions of the Credit Facility. A-=1227 APPENDIX B SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE Furthermore. the following summary of the Indenture is a summary only and does not purport to be a complete statement of the contents thereof Reference is made to the Indenture for the complete terms thereof Funds and Accounts The following Funds and Accounts have been created with the Trustee: (a) the Mortgage Loan Fund (b) the Revenue Fund and, within the Revenue Fund, the General Account, the Redemption Account, the Credit Facility Account and the Fees Account; (c) the Rebate Fund; (d) Costs of Issuance Fund and within the Costs of Issuance Fund, a Costs of Issuance Deposit Account and a Net Bond Proceeds Account; and (e) the Bond Purchase Fund, and within the Bond Purchase Fund, a Remarketing Proceeds Account and a Remarketing Expenses Account. Initial Deposits On the Closing Date, the Trustee shall make the following deposits: (i) the Net Bond Proceeds excluding that portion of the Net Bond Proceeds to be used to fund Costs of Issuance and excluding all or that portion of the Initial Debt Service Deposit funded with Net Bond Proceeds, shall be deposited into the Mortgage Loan Fund; (ii) accrued interest on the Bonds, shall be deposited into the General Account; (iii) the Initial Debt Service Deposit, shall be deposited into the General Account; and (iv) the Costs of Issuance Deposit shall be deposited into the Costs of Issuance Deposit Account of the Costs of Issuance Fund and $ of Net Bond Proceeds to be applied to pay Costs of Issuance, shall be deposited into the Net Bond Proceeds Account of the Costs of Issuance Fund. The Mortgage Loan Fund Amounts on deposit in the Mortgage Loan Fund shall be disbursed by the Trustee to fund the Mortgage Loan upon satisfaction of the conditions to delivery of the Bonds as provided in the Indenture. 1-128 The Revenue Fund General Account Deposits Into the General Account. The Trustee will deposit each of the following amounts into the General Account: (1) Indenture; on the Closing Date, the Initial Debt Service Deposit, as provided in the (2) all regularly scheduled payments of principal, if any, and interest on the Mortgage Loan; (3) interest paid in connection with any prepayment of the Mortgage Loan; (4) all Investment Income on the Funds and Accounts (except that, as provided in the Indenture, Investment Income earned on amounts on deposit in the Accounts of the Mortgage Loan Fund will be credited to and be retained in the respective Accounts of the Mortgage Loan Fund, Investment Income earned on amounts on deposit in the Rebate Fund will be credited to and be retained in the Rebate Fund and Investment Income earned on amounts on deposit in the Costs of Issuance Deposit Account of the Costs of Issuance Fund shall be credited to and be retained in the Costs of Issuance Deposit Account of the Costs of Issuance Fund); (5) from time to time, upon receipt, Available Moneys provided pursuant to the Indenture to fund the interest portion of any End-Period Payment; and (6) any other moneys made available for deposit into the General Account from any other source including, but not limited to, any excess amounts in the Bond Purchase Fund. Disbursements From the General Account. The Trustee will disburse or transfer, as applicable, moneys on deposit in the General Account at the following times and apply such moneys in the following manner and in the following order of priority: (a) on each Interest Payment Date, the Trustee will disburse an amount equal to the amount of interest due on the Bonds on such Interest Payment Date and will apply such amount to the payment of such interest so due; (b) on each Redemption Date on which a mandatory sinking fund redemption pursuant to the Indenture is scheduled to take place, the Trustee will transfer to the Redemption Account an amount of principal equal to the sinking fund redemption payment due on such Redemption Date; (c) on each Maturity Date and the date of acceleration of the Bonds, the Trustee will disburse an amount equal to the principal due on the Bonds on such date and will apply such amount to the payment of such principal so due; (d) on each Interest Payment Date, the Trustee will transfer an aggregate amount equal to that portion of the Issuer's Annual Fee, the Trustee's Annual Fee and the Rebate Analyst's Annual Fee (to the extent (a) such Third Party Fees are included in the Mortgage Note Rate, as described in the Financing Agreement, and (b) such Third Party Fees are not paid in advance on the Closing Date) payable on such date (or on any date prior to the next Interest Payment Date) to the Fees Account; and fl-21 2 9 (e) on each Interest Payment Date and fol1owing the disbursement, transfer and application of funds described in the preceding paragraphs (a) through (d), the Trustee shall transfer any amounts remaining in the General Account in excess of the amount set forth in the Indenture, to the Redemption Account and, following such transfer, shall apply any moneys so transferred (including any moneys so transferred on any prior Interest Payment Date), to the redemption of Bonds as provided in the Indenture. Redemption Account Deposits Into the Redemption Account. The Trustee will deposit each of the following amounts into the Redemption Account: (a) any prepayment of principal of the Mortgage Loan, and any Available Moneys provided by or on behalf of the Borrower pursuant to the Indenture to fund any premium on the Bonds to be paid in connection with such prepayment; (b) that portion of any other deposit or transfer of funds representing principal corresponding to the principal to be paid on any optional or special mandatory redemption of Bonds; (c) any amounts required to be transferred to the Redemption Account pursuant to the Indenture; (d) the amounts provided for in the Indenture; and (e) any other amount received by the Trustee and required by the terms of the Indenture or the Financing Agreement to be deposited into the Redemption Account. Disbursements From the Redemption Account. The Trustee will disburse moneys on deposit in the Redemption Account at the following times and apply such moneys in the following manner: (a) on each Redemption Date on which a mandatory sinking fund redemption pursuant to the Indenture is scheduled to take place, the Trustee will apply amounts on deposit in the Redemption Account, including amounts transferred pursuant to the Indenture, to payment of the sinking fund redemption due on such Redemption Date; and (b) on each Redemption Date on which a redemption pursuant to the Indenture is scheduled to take place, the Trustee will apply amounts on deposit in the Redemption Account to the payment of principal of and premium, if any, on the Bonds to be redeemed on such Redemption Date. Credit Facility Account Deposits Into the Credit Facility Account. The Trustee will deposit all amounts advanced under the Credit Facility into the Credit Facility Account. No other moneys will be deposited into the Credit Facility Account. The Credit Facility Account will be closed at such time as the Credit Provider has no continuing liability under the Credit Facility. Disbursements From the Credit Facility Account. The Trustee will, on each date on which a payment is due under the Indenture and in respect of which an Advance is made under the Credit Facility, .8-31 30 apply such Advance, on the date such payment is due, to the payment of the amounts in respect of which such Advance was made. Fees Account Deposits Into the Fees Account. The Trustee will deposit into the Fees Account (a) amounts provided for in the Indenture and (b) any payment of a Third Party Fee pursuant to the Financing Agreement to the extent that such Third Party Fee is not included in the Mortgage Note Rate. Disbursements From the Fees Account. Following the deposit provided for in the Indenture, the Trustee will disburse moneys on deposit in the Fees Account on each Interest Payment Date to the payment of Third Party Fees in satisfaction of the obligations of the Borrower under the Financing Agreement. In the event the amount in the Fees Account is insufficient to pay such Third Party Fees, the Trustee will inform the Loan Servicer and make written demand on the Borrower for the amount of such insufficiency and, pursuant to the terms of the Financing Agreement, the Borrower will be liable to promptly pay the amount of such insufficiency to the Trustee within five Business Days after the date of the Trustee's written demand. The Costs of Issuance Fund Deposits Into Costs of Issuance Fund. On the Closing Date the Borrower shall deliver to the Trustee the Costs of Issuance Deposit (including any portion of the Costs of Issuance Deposit to be funded with Net Bond Proceeds). On the Closing Date, the Trustee shall deposit that portion of the Costs of Issuance Deposit paid directly by the Borrower into the Costs of Issuance Deposit Account of the Costs of Issuance Fund and shall deposit that portion of the Costs of Issuance Deposit funded with Net Bond Proceeds into the Net Bond Proceeds Account of the Costs of Issuance Fund. Disbursements from the Costs of Issuance Fund. The Trustee shall disburse moneys on deposit in the Costs of Issuance Fund pursuant to requisitions in the form attached to the Indenture, signed by an Authorized Borrower Representative, to pay Costs of Issuance. The Trustee may conclusively rely on such requisitions for purposes of making such disbursements. Moneys on deposit in the Costs of Issuance Deposit Account of the Costs of Issuance Fund shall not be part of the Trust Estate and shall be used solely to pay Costs of Issuance. Moneys on deposit in the Net Bond Proceeds Account of the Costs of Issuance Fund shall be part of the Trust Estate and shall be used to pay Costs of Issuance. Disposition of Remaining Amounts. Any moneys remaining in the (a) Costs of Issuance Deposit Account of the Costs of Issuance Fund six (6) months after the Closing Date and not needed to pay still unpaid Costs of Issuance shall be returned to the Borrower and/or (b) Net Bond Proceeds Account of the Costs of Issuance Fund six (6) months after the Closing Date and not needed to pay still unpaid costs of issuance shall be transferred to the Mortgage Loan Fund. Upon final disbursement, the Trustee shall close the Costs of Issuance Fund. The Rebate Fund The "Rebate Fund" shall be held and applied as provided in the Indenture. On any date on which any amounts are required by applicable federal tax law to be rebated to the federal government, amounts shall be withdrawn by the Trustee from the General Account and deposited into the Rebate Fund for such purpose. All money at any time deposited into the Rebate Fund will be held by the Trustee in trust, to the extent required to satisfy any rebate requirement (as calculated by the Rebate Analyst) to the United States government. Neither the Issuer, the Borrower, the Bondholders nor the Credit Provider will 18-1 3 1 have any rights in or claim to such moneys. All amounts deposited into or on deposit in the Rebate Fund will be governed by the Indenture and the Financing Agreement and by the Tax Certificate. Bond Purchase Fund The Trustee shall deposit: (i) all proceeds of the remarketing of Bonds remitted to the Trustee by the Remarketing Agent pursuant to the provisions of the Indenture into the Remarketing Proceeds Account; and (ii) all amounts paid to the Trustee by the Borrower, the Issuer or the Credit Provider to pay Remarketing Expenses into the Remarketing Expenses Account. (iii) The Trustee shall apply amounts on deposit in the (a) Remarketing Proceeds Account to pay the purchase price of Bonds purchased under the Indenture to the former owners of such Bonds upon presentation of the Bonds to the Trustee, and (b) Remarketing Expenses Account to pay Remarketing Expenses, as provided in the Indenture. In the event that the Bonds Outstanding are not remarketed on a scheduled Remarketing Date, all amounts in the Bond Purchase Fund in excess of amounts on deposit in the Bond Purchase Fund required to pay the purchase price of the Bonds shall be disbursed as provided in the Indenture. In the event that the Bonds Outstanding are remarketed and the proceeds of remarketing exceed 100% of the principal amount of the Bonds Outstanding or in the event funds received by the Trustee to pay Remarketing Expenses are not required for such purpose, such excess amounts shall be transferred to the General Account. Nonpresentment of Bonds In the event any Bond shall not be presented for payment when the principal of such Bond becomes due, either at maturity or at the date fixed for redemption of such Bond or otherwise, if amounts sufficient to pay such Bond shall have been deposited with the Trustee for the benefit of the owner of the Bond and shall have remained unclaimed for two (2) years after such principal has become due and payable, such amounts shall, to the extent amounts are owed to the Credit Provider, as set forth in a written statement of the Credit Provider addressed to the Trustee, be paid to the Credit Provider, with any excess to be paid to the Borrower. Upon such payment, all liability of the Issuer and the Trustee to the holder of any Bond for the payment of such Bond shall forthwith cease, detennine and be completely discharged, provided, however, that the Trustee, before being required to make any such payment to the Credit Provider or the Borrower, shall cause to be published once in a financial newspaper or journal of general circulation in New York, New York, notice that such moneys remain unclaimed and that, after a date specified in such notice, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such moneys then remaining will be paid to the Credit Provider or the Borrower. The cost of such publication shall be paid from the unclaimed amount held by the Trustee. . The obligation of the Trustee described under this heading to pay any such amounts to the Credit Provider or the Borrower shall be subject to any provisions of law applicable to the Trustee or to such amounts providing other requirements for disposition or escheat of unclaimed property. $-!5132 Investments Moneys held as part of any Fund or Account shall be invested and reinvested in Pennitted Investments. Permitted Investments shall have maturities corresponding to, or shall be available for withdrawal without penalty no later than, the dates upon which such moneys will be needed for the purpose for which such moneys are held. Moneys on deposit in the (I) General Account and the Fees Account shall be invested only in investments described in paragraphs (a), (b), (c), (d) and (e) of the definition of Permitted Investments, (2) Redemption Account shall be invested only in investments described in paragraph (i) of the definition of Pennitted Investments and, (3) Credit Facility Account and the Bond Purchase Fund shall be held uninvested and (4) Costs of Issuance Fund shall, until transferred, disbursed or retumed to the Borrower pursuant to the Indenture, be invested only in investments described in paragraph (h) of the definition of Pennitted Investments. Pennitted Investments shall be held by or under the control of the Trustee. All Investment Income from moneys held in all Funds and Accounts other than the Mortgage Loan Fund, the Rebate Fund and the Rebate Costs of Issuance Fund (other than as provided below) upon receipt shall be deposited into the General Account; Investment Income from moneys held in the Mortgage Loan Fund shall be retained in the Mortgage Loan Fund; Investment Income from moneys held in the Rebate Fund shall be retained in the Rebate Fund; Investment Income from moneys held in the Costs of Issuance Deposit Account of the Costs of Issuance Fund shall be retained in the Costs ofIssuance Fund. Discharge of Lien and Security Interest Discharge. Upon satisfaction of the conditions precedent set out in the Indenture, the Trustee will (a) execute and deliver to the Issuer such instruments in writing prepared by the Issuer or its counsel and provided to the Trustee and the Credit Provider as will be required to cancel and discharge the Indenture and the pledge and assignment of the Trust Estate, (b) reconvey, assign and deliver to the Issuer so much of the Trust Estate as may be in its possession or subject to its control (except for (i) moneys and Government Obligations held for the purpose of paying Bonds and (ii) moneys and Pennitted Investments held in the Rebate Fund for payment to the United States government), who will, in turn, convey, assign and deliver the remaining Trust Estate to the Borrower, and (c) return the Credit Facility to the Credit Provider. Conditions to Discharge. The conditions precedent to the cancellation and discharge of the Indenture and the other acts described in the Indenture are (a) payment in full of the Bonds, (b) payment of the Trustee's Annual Fee and the Trustee's ordinary costs and expenses under the Indenture, (c) receipt by the Trustee of a written statement from the Credit Provider stating that all obligations owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents have been fully paid, (d) payment of all Extraordinary Items, (e) receipt by the Trustee of a written statement from the Issuer stating that all amounts owed to the Issuer in respect of Reserved Rights have been fully paid, (f) receipt by the Trustee of an Opinion of Counsel, at the expense of the Borrower, to the effect that the Credit Provider has no further obligation under the Credit Facility and (g) receipt by the Trustee of an Opinion of Counsel, at the expense of the Borrower, stating that all conditions precedent to the satisfaction and discharge of the Indenture have been satisfied. Defeasance Provision for Payment of Bonds. Any Bond will be deemed to have been paid within the meaning of the Indenture jf: (a) there has been irrevocably deposited with the Trustee either (i) sufficient Available Moneys or (ii) Government Obligations, which are not subject to early redemption and 1l-<i1 3 3 which are purchased with Available Moneys, of such maturities and interest payment dates and bearing such interest as will, without further investment or reinvestment of either the principal amount of such Govemment Obligations or the interest eamings on Government Obligations (the earnings to be held in trust also), be sufficient, together with any Available Moneys deposited pursuant to this paragraph, in each case as verified by a written report of an independent certified public accountant, for the payment on their respective maturity dates, or redemption dates prior to maturity, of the principal of such Bonds and redemption premium, if any, and interest to accrue on such Bonds to such maturity or redemption dates, provided that the Trustee has received, at the expense of the Borrower (A) an Opinion of Counsel rendered by bankruptcy counsel that such Available Moneys or Government Obligations purchased with Available Moneys are not subject to avoidance under Section 547 or 544 and are not subject to an automatic stay pursuant to Section 362 of the Bankruptcy Code or any successor statute, and, as such, are not recoverable under Section 550(a) of the Bankruptcy Code or other applicable insolvency law, should there be a petition by or against the Borrower, any general partner of the Borrower or the Issuer under the Bankruptcy Code or any other bankruptcy act, and (B) an Opinion of Bond Counsel to the effect that such deposit with the Trustee and consequent defeasance of the Bonds does not adversely affect the excludability of the interest payable on the Bonds from gross income for federal income tax purposes; (b) aU Third Party Fees due or to become due have been paid or sufficient additional moneys to make the required payments have been irrevocably deposited with the Trustee; and (c) for any such Bonds to be redeemed on any date prior to their maturity, the Trustee has received in form satisfactory to it irrevocable instructions to redeem such Bonds on a date on which the Bonds are subject to redemption, and either evidence satisfactory to the Trustee that all redemption notices required by the Indenture have been given or irrevocable power authorizing the Trustee to give such redemption notices. The Trustee will redeem the Bonds specified by such irrevocable instructions on the date specified by such irrevocable instructions. Defeased Bonds No Longer Outstanding. At such time as a Bond will be deemed to be paid under the Indenture, it will no longer be secured by or entitled to the benefits of the Indenture, except for the purposes of payment in accordance with the terms of the Indenture. DefauIt Provisions and Remedies Events of Default. Each of the foUowing will constitute an Event of Default under the Indenture: (a) default in the payment of any interest due on any Bond (other than a Purchased Bond) on any Interest Payment Date or any other date when and as the same becomes due; (b) default in the payment of the principal of any Bond (other than a Purchased Bond) when and as the same becomes due, whether at the stated maturity of the Bond or upon any redemption of the Bond; (c) written notice to the Trustee from the Credit Provider of a default by the Issuer in the observance or performance of any covenant, agreement, warranty or representation on the part of the Issuer included in the Indenture or in the Bonds (other than an Event of Default set forth in subsection (a) or (b) above) and the continuance of such default for a period of 30 days after the Trustee receives such notice; or 1Il-11 34 (d) an Act of Bankruptcy. Preliminary Notice. The Trustee will immediately notify the Issuer, the Loan Servicer, the Borrower and the Credit Provider after the Trustee obtains knowledge or receives notice of the occurrence of an Event of Default or an event which would become an Event of Default with the passage of time or the giving of notice, or both, identifying the paragraph in the Indenture under which the Event of Default has occurred or may occur. Nondefault and Prohibition of Mandatory Redemption Upon Event of Taxability. The occurrence of any event (a ''Tax Event") which results in the interest payable on the Bonds being includable for federal income tax purposes, in the gross income of the Bondholders, including, but not limited to, any violation of any provision of the Regulatory Agreement or any of the other Bond Documents, will not (a) constitute an Event of Default under the Indenture, the Bonds or any of the other Bond Documents, or permit any party (other than the Credit Provider) to accelerate, or require acceleration of, the Mortgage Loan or the Bonds, or give rise to a mandatory redemption of the Bonds, unless the Credit Provider, in its sole and absolute discretion, provides written notice to the Trustee that such Tax Event constitutes an Event of Default under the Security Instrument and, by cross-default, a default under the Financing Agreement, or (b) give rise to the payment to the Bondholders of any amount, denoted as "supplemental interest," "additional interest," "penalty interest," "damages," "liquidated damages" or otherwise, in addition to the amounts payable to the owners of the Bonds prior to the occurrence of the Tax Event. Nothing contained in the Indenture will be deemed to amend or modify the terms of the Mortgage Loan Documents. Promptly upon determining that a Tax Event has occurred, the Issuer or the Trustee, by notice in writing to the Credit Provider, the Loan Servicer, all Registered Owners of the Bonds will state that a Tax Event has occurred and whether the Tax Event is cured, curable within a reasonable period or incurable. Notwithstanding the availability of the remedy of specific performance to cure a Tax Event that is curable within a reasonable period, neither the Issuer nor the Trustee will have, and each of them has acknowledged that, except at the direction of the Credit Provider, they will not have, upon the occurrence of a Tax Event, any right or obligation to cause or direct acceleration of the Bonds or the Mortgage Loan, to enforce the Mortgage Note or to foreclose the Security Instrument, to accept a deed to the Project in lieu of foreclosure, or to effect any other comparable conversion of the Mortgage Loan. Remedies; Rights of Bondholders Acceleration; Rescission of Acceleration. Upon: (a) the occurrence of the Event of Default described in paragraph (a) or (b) of the section entitled ''Events of Default" above, the Trustee may, and will upon the written request of Bondholders owning not less than 51 % in. aggregate principal amount of Bonds then Outstanding, by written notice to the Issuer, the Borrower, the Credit Provider and the Loan Servicer, declare the principal of all Bonds then Outstanding (if not then due and payable) and the interest accrued, and to accrue, on the Outstanding Bonds to the date of such declaration immediately due and payable; or (b) the occurrence of an Event of Default described in the Indenture, the Trustee may, upon receiving the prior written consent of the Credit Provider, and will, upon the written direction of the Credit Provider, by written notice to the Issuer, the Borrower, the Credit Provider the Loan Servicer, declare the principal of all Bonds then Outstanding (if not then due and payable) and the interest accrued, and to accrue, on the Outstanding Bonds to the date of such declaration immediately due and payable. fWlI 3 5 Upon any such declaration of acceleration, the Trustee will (i) give immediate notice to the Credit Provider and request an Advance under the Credit Facility pursuant to the Indenture, (ii) exercise such rights as it may have under the Mortgage Note to declare all payments under the Mortgage Note to be immediately due and payable and (iii) give the notice required by the Indenture. Notice. Upon any decision to accelerate payment of the Bonds, the Trustee will notify the Bondholders of the declaration of acceleration, that interest on the Bonds will cease to accrue Upon such declaration, and that payment of such Bonds will be made upon presentment of the Bonds at the Principal Office of the Trustee not earlier than 15 days following the date of acceleration. Such notice will be sent by registered mail, ovemight delivery service or other secure means, postage or charges prepaid, or, at the Trustee's option, may be given by Electronic Means to each Registered Owner of Bonds at such Registered Owner's last address appearing in the Bond Register. Any defect in or failure to give notice of such declaration will not affect the validity of such declaration. Other Remedies. Subject to the Indenture, upon the occurrence and continuance of an Event of Default, the Trustee may, with or without taking action under the Indenture, but only with the prior written consent of the Credit Provider, and will, at the direction of the Credit Provider if the Event of Default OCcurs under paragraph (c) or (d) of the section entitled "Events of Default" above, pursue any of the following remedies: (a) an action in mandamus or other suit, action or proceeding at law or in equity (i) to enforce the payment of the principal of, premium, if any, or interest on the Bonds then Outstanding, (ii) for the specific performance of any covenant or agreement contained in the Indenture or in the Financing Agreement or in the Regulatory Agreement or (ill) to require the Issuer to carry out any other covenant or agreement with Bondholders and to perform its duties under the Act; (b) the liquidation of the Trust Estate pledged under the Indenture (subject to the provisions of the Indenture); or (c) an action or suit in equity, to enjoin any acts or things which may be unlawful or in violation of the rights of the Bondholders and to execute any other papers and documents and do and perform any and all such acts and things as may be necessary or advisable in the opinion of the Trustee in order to have the respective claims of the Bondholders against the Issuer allowed in any bankruptcy or other proceeding. Subject to the provisions of the Indenture and the requirement, if any, that the Credit Provider consent in writing to the exercise by the Trustee of any such available remedy, upon the occurrence and continuance of an Event of Default, the Trustee will exercise such of the rights and powers conferred by the Indenture as the Trustee, being advised by counsel, will deem most effective to enforce and protect the interests of the Bondholders and the Credit Provider. Preservation of Security and Remedies if Wrongful Dishonor Occurs; Rights of Bondholders. Upon the occurrence and during the continuance of a Wrongful Dishonor, the Trustee may proceed, and upon the written request of the holders of not less than 25% of the aggregate principal amount of the Bonds Outstanding and the receipt of indemnity reasonably satisfactory to the Trustee, will proceed, to protect and enforce its rights and the rights of the Bondholders under the Indenture by such suits, actions or special proceedings in equity or at law, or by proceedings in the office of any board or officer having jurisdiction, whether for the specific performance of any covenant or agreement contained in the . Indenture or the Financing Agreement, or in aid of the execution of any power granted in the Indenture, or in the Financing Agreement or by the Act, or for the enforcement of any legal or equitable right or .lJ~136 remedy, as the Trustee, being advised by counsel, shall deem most effective to protect and enforce such rights or to perform any of its duties under the Indenture. Remedies Not Exclusive. Subject to the provisions of the Indenture, no right or remedy conferred upon or reserved to the Trustee (or to the Bondholders) by the terms of the Indenture is intended to be exclusive of any other right or remedy, but each and every such right and remedy will be cumulative and will be in addition to any other right or remedy given to the Trustee or to the Bondholders under the Indenture or under the Financing Agreement, the Regulatory Agreement or the Credit Facility or now or hereafter existing at law or in equity. Waiver. To the extent not precluded by law, the Trustee, upon notice to and with the prior written consent of the Credit Provider (unless a Wrongful Dishonor has occurred and is continuing) may waive any Event of Default under the Indenture and its consequences and, if the Trustee has accelerated payment of the Bonds, rescind the declaration of acceleration (unless precluded by the Indenture or unless clause (b) following shall be applicable) and will do so upon the written request of (a) the Credit Provider or (b) Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding; provided, however, that there will be no such waiver or rescission unless the principal and interest on the Bonds in arrears (without regard to the acceleration), together with interest at the applicable rate or rates of interest borne by the Bonds on such overdue principal and, to the extent pennitted by law, on such overdue interest, will have been paid or provided for by the Borrower or by the Credit Provider and all fees and expenses of the Trustee will have been paid or provided for by the Borrower or the Credit Provider. In the case of any such waiver, the Issuer, the Borrower, the Trustee and the Bondholders will be restored to their former positions and rights under the Indenture. The Trustee may not waive any Event of Default under the Indenture unless, after the waiver, the Credit Facility will remain in effect in an amount equal to the aggregate principal amount of the Bonds outstanding (other than a Purchased Bond) plus the Interest Requirement; provided, however, that such waiver will be pennitted if (i) the Issuer consents to the waiver, (ii) the Rating Agency then rating the Bonds is notified and the Trustee gives written notice to the Bondholders that the ratings on the Bonds may be reduced or withdrawn upon the occurrence of such waiver, and (iii) 100% of the Bondholders consent to the waiver. Limited Effect of Waiver. No waiver of any Event of Default, whether by the Trustee or by the Bondholders, will extend to or will affect any subsequent Event of Default or will impair any rights or remedies consequent to such Event of Default. Delay or Omission. No delay or omission to exercise any right or remedy provided in the Indenture upon any Event of Default will impair any such right or remedy or will be construed to be a waiver of any such Event of Default or acquiescence in it and every such right and remedy may be exercised from time to time as often as may be deemed expedient. Rights of the Credit Provider and the Bondholders To Direct Proceedings; Rights and Limitations Applicable to Bondholders, Issuer and Trustee Rights To Direct Proceedings. Notwithstanding anything cOlitained in the Indenture to the contrary, the Credit Provider itself or Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding, but only with the prior written consent of the Credit Provider, will have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of the Indenture or any other proceedings under the Indenture, provided that such direction will not be otherwise than in accordance with the provisions of law and of the I'HCl37 Indenture, and provided that the Trustee will be indemnified to its satisfaction (except for actions required under the Indenture relating to a specific Advance under the Credit Facility and certain other actions required under the Indenture). Limitations on Bondholders' Rights. No Bondholder will have the right to enforce the provisions of the Indenture, the Financing Agreement or any Mortgage Loan Document, or to institute any proceeding in equity or at law for the enforcement of the Indenture or the Financing Agreement, or to take any action with respect to an Event of Default under the Indenture or an ''Event of Default" under (and as defined in) the Financing Agreement, or to institute, appear in or defend any suit or other proceeding with respect to the Indenture, the Financing Agreement or any Mortgage Loan Document upon an Event of Default unless (a) such Bondholder has given the Trustee, the Issuer, the Credit Provider, the Loan Servicer and the Borrower written notice of the Event of Default, (b) the holders of not jess than 51 % in aggregate principal amount of Bonds then Outstanding will have requested the Trustee in writing to institute such proceeding, (c) the Trustee will have been afforded a reasonable opportunity to exercise its powers or to institute such proceeding, (d) the Trustee has been offered reasonable indemnity, where required, and (e) the Trustee has thereafter failed or refused to exercise such powers or to institute such proceeding within a reasonable period of time. Except as provided in the Indenture, no Bondholder will have any right in any manner whatever by his or her action to affect, disturb or prejudice the pledge of Revenues or of any other moneys, funds or securities under the Indenture. No Bondholder will have the right, directly or indirectly, individually or as a group, to seek to enforce, collect amounts available under, or otherwise realize on, the Credit Facility. Noninterference and Nonimpairment of Mortgage Loan. Notwithstanding anything contained in the Indenture to the contrary, so long as the Credit Facility remains in effect and a Wrongful Dishonor has not occurred or, if it has occurred is not continuing, neither the Issuer, the Trustee nor any person under their control nor the Bondholders will, without the prior written consent of the Credit Provider exercise, directly or indirectly, any remedy or direct any proceeding under the Bond Documents or with respect to the Mortgage Loan or, directly or indirectly: (a) initiate or take any action which may have the effect, directly or indirectly, of (i) impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due and payable under, the Mortgage Loan Documents or (ii) impairing or defeating the validity or priority of the lien created by the Security Instrument; (b) interfere with or attempt to influence the exercise by the Credit Provider of its rights under the Mortgage Loan Documents, including, but not limited to, the Credit Provider's remedial rights under the Mortgage Loan Documents upon the occurrence of an Event of Default by the Borrower under the Security Instrument; or (c) upon the occurrence of an Event of Default under the Security Instrument, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan, provided that, subject to the provisions of the foregoing paragraphs (a) through (c), the Indenture will not prohibit the Issuer's right to enforce its Reserved Rights, and provided further that the Issuer or the Trustee, as the case may be, may (i) enforce rights under the Credit Facility (so long as the Credit Facility is in effect), (ii) enforce the tax covenants set forth in the Indenture and the Financing Agreement and (iii) enforce rights of specific performance under the Financing Agreement and the Regulatory Agreement, except that neither the Issuer nor the Trustee will seek damages or any monetary recovery under the Financing Agreement or the Regulatory Agreement. $-It 38 Discontinuance of Proceedings. Prior to a demand for payment under the Credit Facility in case the Trustee has proceeded to enforce any right under the Indenture by the appointment of a receiver or otherwise, and such proceedings have been discontinued or abandoned for any reason, or have been detennined adversely, then and in every such case the Issuer, the Credit Provider and the Trustee will be restored to their former positions and rights under the Indenture, and all rights, remedies, powers, duties and obligations of the Issuer, the Trustee and the Credit Provider will continue as if no such proceedings had been taken, subject to the limits of any adverse determination. Action by Trustee. All rights of action under the Indenture or upon any of the Bonds enforceable by the Trustee may be enforced by the Trustee without the possession of any of the Bonds, or the production of the Bonds at the trial or other proceedings relative to such suit, action or proceeding, and any such suit, action or proceeding instituted by the Trustee may be brought in its name for the ratable benefit of the Bondholders, without the necessity of joining any Bondholder as a party, and for the benefit of the Credit Provider. In any action, suit or other proceeding by the Trustee, the Trustee shall be paid fees, counsel fees and expenses in accordance with the Indenture. Application of Moneys Amounts derived from payments under the Credit Facility shall be deposited into the Credit Facility Account and applied solely to pay the principal of and interest on the Bonds and will not be applied to pay any fees or expenses or advances of the Trustee or the Issuer (except to the extent such fees are payable out of the Fees Account from transfers to the Fees Account from the General Account), including amounts in respect of indemnification. All other moneys received by the Trustee pursuant to any action taken under the Indenture and all moneys on deposit in the Funds and Accounts under the Indenture (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) will be deposited into the General Account after payment of the ordinary costs and expenses of the Trustee. The balance of such moneys, less such amounts as the Trustee detennines may be needed for possible use in paying future fees and expenses and for the preservation and management of the Project (as identified by the Credit Provider), will be applied as described below. Principal on Bonds Not Due and Payable. Unless the principal of all Bonds shall have become or been declared due and payable, all such moneys will be applied: FIRST, to the payment of amounts, if any, payable to the United States pursuant to the Indenture; SECOND, to the payment of all interest then due on the Bonds, in the order of the maturity of such interest and, if the amount available will not be sufficient to pay in full said amount, then to the payment ratably of the amounts due, without any discrimination or privilege; THIRD, to the payment of the unpaid principal of any of the Bonds which will have become due (other than Bonds matured or called for redemption for the payment of which moneys are held pursuant to the provisions of the Indenture), in the order of their due dates upon which they became due, with interest on such Bonds from the respective dates upon which they became due at the rate or rates borne by the Bonds, to the extent pennitted by law, and, if the amount available will not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the persons entitled to such payment without any discrimination or privilege; and FOURTH, to the payment of amounts owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents, as specified to the Trustee in writing by 1:a.Hl9 the Credit Provider and then to any unpaid amounts due to the Trustee for Extraordinary Items, for this purpose including the costs and expenses of any proceedings resulting in the collection of such moneys and of advances incurred or made by the Trustee. Principal on Bonds Declared Due and Payable. If the principal of all the Bonds has become or been declared due and payable, all such moneys will be applied, fIrst, to the payment of amounts, if any, payable to the United States pursuant to the Indenture; second, to the payment of the principal and interest then due and unpaid upon the Bonds, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably according to the amounts due respectively for principal and interest to the persons entitled to payment, until all such principal and interest has been paid; third, to pay the Credit Provider amounts owed to it under the Credit Facility Agreement and the Mortgage Loan Documents, as specified to the Trustee in writing by the Credit Provider; and, fourth, to the Borrower (but only if all amounts due the Trustee and the Issuer have been paid, otherwise to fIrst pay such amounts in the priority set forth in the Indenture). Acceleration Rescinded. If the principal of all the Bonds has been declared due and payable, and if such declaration is thereafter rescinded under the Indenture, then, in the event that the principal of all the Bonds will later become or be declared due and payable, the moneys will be applied in accordance with the Indenture. General. Whenever moneys are to be applied pursuant to the Indenture, such moneys will be applied at such times, and from time to time, as the Trustee detennines, having due regard for the amount of such moneys available for application, the likelihood of additional moneys becoming available for such application in the future, and potential expenses relating to the exercise of any remedy or right conferred on the Trustee by the Indenture. Whenever the Trustee applies such moneys, it will fix the date (which will be an Interest Payment Date unless it deems an earlier date more suitable) upon which such application is to be made, and upon such date interest on the amounts of principal to be paid on such date will cease to accrue. The Trustee will give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date, and will not be required to make payment to the owner of any Bond until such Bond is presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Whenever the principal of and interest on all Bonds have been paid in fun under the provisions of the Indenture and all other conditions set out in the Indenture have been satisfied, any balance remaining in the Funds and Accounts will be paid as provided in the Indenture. The Trustee Resignation of Trustee. The Trustee may resign only upon giving 60 days' prior written notice to the Issuer, the Credit Provider, the Loan Servicer, the Borrower and to each Registered Owner of Bonds then outstanding as shown on the Bond Register. Notwithstanding such notice, such resignation shall take effect only upon the appointment of a successor Trustee in accordance with the Indenture and the acceptance of such appointment by such successor Trustee. Removal of Trustee. The Trustee may be removed at any time, upon 30 days' prior written notice to the Trustee, (a) by the Issuer, with the prior written consent of the Credit Provider, (b) by an instrument or concurrent instruments in writing delivered to the Issuer, the Credit Provider, the Loan Servicer, the Trustee and the Borrower, signed by the owners of not less than 51 % in aggregate principal amount of Bonds then Outstanding, and approved by the Credit Provider which written instrument shan designate a successor trustee, or (c) by the Credit Provider. Such removal shall not be effective until a successor Trustee satisfying the requirements of the Indenture is appointed and has accepted its appointment. 1l""1l40 Appointment of Successor Trustee. Upon the resignation or removal of the Trustee, a successor Trustee shall be appointed by the Borrower with the prior written consent of the Issuer and the Credit Provider, provided that if the Borrower is then in default under any Bond Document or any Mortgage Loan Document or if an event has occurred and is continuing which, with notice or the passage of time or both, would constitute such a default, such appointment shall be made by the Issuer with the prior written consent of the Credit Provider. If, in the case of resignation or removal of the Trustee, no successor is appointed within 30 days after the notice of resignation or within 30 days after removal, as the case may be, then, in the case of a resignation, the resigning Trustee shall appoint a successor with the prior written consent of the Issuer and the Credit Provider or apply to a court of competent jurisdiction for the appointment of a successor Trustee and, in the case of a removal, the Credit Provider shall have the right to appoint a successor Trustee or to apply to a court of competent jurisdiction for the appointment of a successor Trustee. Qualifications of Successor Trustee. Any successor Trustee (a) shall be a bank or trust company organized under the laws of the United States of America or any state of the United States of America, having (or its parent having) a combined capital stock, surplus and undivided profits aggregating at least $50,000,000 and (b) shall accept in writing its duties and responsibilities under the Indenture, the Financing Agreement, the Assignment and the Regulatory Agreement. Such written acceptance shall be filed with the Issuer, the Credit Provider, the Loan Servicer and the Borrower. The successor Trustee shall give notice of such succession by frrst-<:lass mail, postage prepaid, to each Bondholder at the address of such Bondholder shown on the Bond Register. Upon appointment of a successor Trustee, the resigning or removed Trustee, as the case may be, shall assign all of its right, title and interest in the Security, including its right, title and interest in the Credit Facility and the Indenture, to the successor Trustee. Supplemental Indentures; Amendments Supplemental Indentures Not Requiring Bondholder Consent. The Issuer and the Trustee, without the consent of or notice to any of the Bondholders, may enter into an indenture or indentures supplemental to the Indenture for one or more of the following purposes: (a) to cure any ambiguity or to correct or supplement any provision contained in the Indenture or in any supplemental indenture which may be defective or inconsistent with any other provision contained in the Indenture or in any supplemental indenture; (b) to amend, modify or supplement the Indenture in any respect if, in the judgment of the Trustee, such amendment, modification or supplement is not materially adverse to the interests of the Bondholders; (c) to grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Bondholders or the Trustee, or to grant or pledge to the Trustee for the benefit of the Bondholders any additional security other than that granted or pledged under the Indenture; (d) to modify, amend or supplement the Indenture or any supplemental indenture in such manner as to pennit the qualification of the Indenture or such supplemental indenture under the Trust Indenture Act of 1939, as amended, or any similar federal statute then in effect, or to pennit the qualification of the Bonds for sale under the securities laws of any of the States of the United States; (e) to appoint a successor trustee, separate trustee or co-trustee, or a separate Bond Registrar in the manner provided in the Indenture; lHM1 (f) to make any change requested by the Credit Provider which, in the judgment of the Trustee, is not materially adverse to the interests of the Bondholders, including, but not limited to, provision of a Credit Facility other than or in substitution for the Credit Facility then in effect, provided that the provision of such other Credit Facility does not adversely affect the rating then in effect for the Bonds; (g) to make any change in the Indenture or in the terms of the Bonds necessary or desirable in order to maintain the rating of "AAA" and/or "Aaa" awarded to the Bonds by the Rating Agency or to otherwise comply with the requirements of any Rating Agency then rating the Bonds; (h) to comply with the Code and the regulations and rulings issued with respect to the Code, to the extent detennined as necessary or desirable in the Opinion of Bond Counsel; (i) to implement any secondary market disclosure, required under applicable law with respect to the Bonds, the Issuer, the Borrower or the Project; and (j) to modify the terms of the Indenture or the Bonds to be effective as of a Remarketing Date if a supplemental indenture is executed and delivered at least 30 days prior to such Remarketing Date and notice of the execution and delivery together with a copy of the supplemental indenture or a summary of the provisions of the supplemental indenture is given to all Bondholders and to the Rating Agency not later than the time notice of remarketing of Bonds is given to Bondholders pursuant to the Indenture; (k) to change any of the time periods for provision of notice relating to: (a) the remarketing of Bonds and (b) the detennination of the interest rate on the Bonds; (I) to change or modify any provision of the Indenture in connection with the remarketing of Bonds following any mandatory tender of the Bonds pursuant to the Indenture but only upon the condition that such change is effective only after mandatory purchase; or (m) in connection with any other change in the Indenture which, in the judgment of the Trustee, is not materially adverse to the interests of the Bondholders. If the Trustee has received written confIrmation from the Rating Agency to the effect that such supplemental indenture will not result in the suspension, withdrawal or reduction of the then current rating on the Bonds and all conditions precedent in the Indenture have been satisfied, the Trustee will join the Issuer in the execution of any such supplemental indenture. The Trustee will promptly furnish a copy of any such supplemental indenture to the Credit Provider, the Loan Servicer and the Borrower. The Trustee shall provide not less than 10 days' written notice to Bondholders by fIrst-class mail of any supplemental indenture delivered pursuant to paragraph (f) above. Supplemental Indentures Requiring Bondholder Consent. Exclusive of supplemental indentures covered by the Indenture and subject to the terms and provisions contained in the Indenture, the Issuer, in its sole discretion, and the Trustee may, with the consent of Bondholders owning 51 % or more in aggregate principal amount of Bonds then Outstanding, from time to time, execute indentures supplemental to the Indenture for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in the Indenture or in any supplemental indenture, provided that nothing in the Indenture shall permit, or be construed as permitting: ~11542 (a) an extension of the maturity of the principal of or interest on, or the mandatory redemption date of, any Bond, without the consent of the owners of all of the Bonds then Outstanding; (b) a reduction in the principal amount of, or the rate of interest on, any Bond, without the consent of the owner of such Bond; (c) a preference or priority of any Bond or Bonds over any other Bond or Bonds, without the consent of the owners of all such Bonds; (d) the creation of a lien prior to or on parity with the lien of the Indenture, without the consent of the owners of all of the Bonds then Outstanding; (e) a change in the percentage of Bondholders necessary to waive an Event of Default or otherwise approve matters requiring Bondholder approval under the Indenture, including consent to any supplemental indenture, without the consent of the owners of all the Bonds then Outstanding; (f) a transfer, assignment or release of the Credit Facility (or modification of the provisions of the Indenture governing such transfer, assignment or release), other than as pennitted by the Indenture, the Assignment or the Credit Facility; (g) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental indenture, without the consent of the holders of all of the Bonds then Outstanding; (h) the creation of any lien other than a lien ratably securing all of the Bonds at any time Outstanding under the Indenture, without the consent of the holders of all of the Bonds then Outstanding; or (i) the amendment of the Indenture, without the consent of the holdets of all of the Bonds then Outstanding. The giving of notice to and consent of the Bondholders to any such supplemental indenture will be obtained as provided in the Indenture. When requested by the Issuer or the Borrower, and if all conditions precedent under the Indenture have been satisfied, the Trustee will join the Issuer in the execution of any such supplemental indenture. The Trustee will promptly furnish a copy of any such supplemental indenture to the Credit Provider, the Remarketing Agent, the Loan Servicer and the Borrower. 1l-=:fl>4 3 APPENDIX C SUMMARY OF CERTAIN PROVISIONS OF THE REGULATORY AGREEMENT The following summary of the Regulatory Agreement is a summary only and does not purport to be a complete statement of the contents thereof Reference is made to the Regulatory Agreement for the complete terms thereof Definitions "Adjusted Income" means the adjusted income of all persons who intend to reside in one residential unit as calculated in the manner detennined by the Secretary of the Treasury pursuant to Section 142(d)(2)(B) of the Code. "Administration Agreement" means the administration agreement to be entered into among the Issuer, the Borrower and any entity other than Issuer, which is acting as the Program Administrator. "Affiliated Party" means (1) a Person whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, (2) a Person who together with the Borrower are members of the same controlled group of corporations (as defined in Section 1563(a) of the Code, except that "more than 50 percent" shall be substituted for "at least 80 percent" each place it appears therein), (3) a partnership and each of its partners (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance oflosses under Section 267 or 707(b) of the Code or (4) an S Corporation and each of its shareholders (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code. "Area" means the San Diego County, California Primary Metropolitan Statistical Area. "CDLAC' means the California Debt Limit Allocation Committee. "CDLAC Resolution" means Resolution No. 03-123 adopted by CDLAC on July 9, 2003. '~Certificate of Continuing Program Compliance" means the certificate with respect to the Project to be filed by the Borrower with the Program Administrator, which shall be substantially in the form attached to the Regulatory Agreement. "Income Certification" means the Income Computation and Certification Form in substantially the form attached to the Regulatory Agreement. "Median Income for the Area" means the median gross income for the Area as most recently detennined by the Secretary of Treasury pursuant to Section 142(d)(2)(B) of the Code. "Person" means any natural person, firm, partnership, association, limited liability company, corporation, company or public body. "Program Administrator" means the Issuer, or such other entity as is appointed by the Issuer from time to time to act in such capacity under the Regulatory Agreement. 1-144 "Project" means the Project Facilities and the Project Site. "Project Facilities" means the buildings, structures and other improvements on the Project Site, and all fixtures and other property owned by the Borrower and located on, or used in connection with, such buildings, structures and other improvements constituting the Project. "Project Site" means the parcel or parcels of real property described in an exhibit attached to the Regulatory Agreement, which is incorporated in the Regulatory Agreement, and all rights and appurtenances thereunto appertaining. "Qualified Project Period" means the period beginning on the fIrst date on which ten percent of the units in the Project are occupied and ending on the latest of the following dates: (a) the date which is 55 years after the date on which fifty percent of the units in the Project are occupied, (b) the first day on which no tax exempt bonds with respect to the Project are Outstanding, or (c) the date on which any assistance provided with respect to the Project under Section 8 of the United States Housing Act of 1937 tenninates. "Very Low Income Tenants" means individuals or families with an Adjusted Income that does not exceed 50 percent of the Median Income for the Area as adjusted for household size as set forth below. In no event, however, will the occupants of a residential unit be considered to be Very Low Income Tenants if all the occupants are students, as defined in Section 151(c)(4) of the Code, as such may be amended, no one of which is entitled to file a joint federal income tax retum. Currently, Section 151(c)(4) defines a student as an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a fulHime course of institutional on-farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. Household Size Adjustment to 50 % of Median Income for the Area 1 2 3 4 5 6 7 8 70% 80% 90% 100% 108% 116% 124% 132% "Very Low Income Units" means the dwelling units in the Project designated for occupancy by Very Low Income Tenants pursuant to the Regulatory Agreement. Residential Rental Property The Borrower shall own, manage and operate the Project as a "qualified residential rental project" (within the meaning of Section 142(d) of the Code) until the expiration of the Qualified Project Period. To that end, and for the term of the Regulatory Agreement, the Borrower has represented, as of the date of the Regulatory Agreement, and covenanted, warranted and agreed as follows: 1e-H5 (a) The Project is being acquired, constructed and equipped for the purpose of providing multifamily residential rental property, and the Borrower shall own, manage and operate the Project as a project to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with applicable provisions of Section 142(d) of the Code and Section 1.103-8(b) of the Regulations, and the Act, and in accordance with such requirements as may be imposed thereby on the Project from time to time. (b) All of the dwelling units in the Project will be similarly constructed units, and, to the extent required by the Code and the Regulations, each dwelling unit in the Project will contain complete separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink; provided that any Very Low Income Tenant may, but shall not be obligated to, provide a refrigerator for the unit to be occupied. (c) None of the dwelling units in the Project will at any time be utilized on a transient basis, or will ever be used as a hotel, motel, donnitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement house or trailer court or park. (d) No part of the Project will at any time be owned or used as a condominium or by a cooperative housing corporation nor shall the Borrower take any steps in connection with a conversion to such ownership or uses. Other than obtaining a final subdivision map on the Project and a Final Subdivision Public Report from the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion of the Project to a condominium or cooperative ownership except with the prior written approving opinion of Bond Counsel that the interest on the Bonds will not become taxable thereby under Section 103 of the Code. (e) All of the dwelling units will be available for rental on a continuous basis to members of the general public and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that dwelling units are required to be leased or rented to Very Low Income Tenants and to holders of Section 8 certificates or vouchers. (f) The Project Site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the Project Facilities will comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. (g) No dwelling unit in any building or structure in the Project which contains fewer than five units shall be occupied by the Borrower or by persons related to or affiliated with the Borrower. (h) Should involuntary noncompliance with the provisions of Section 1.103-8(b) of the Regulations be caused by fire, seizure, requisition, foreclosure, transfer of title by deed in lieu of foreclosure, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer from enforcing the requirements of the Regulations, or condemnation or similar event, the Borrower has covenanted that, within a "reasonable period" determined in accordance with the Regulations, it will either prepay the Mortgage Note or apply any proceeds 1&346 received as a result of any of the preceding events to reconstruct the Project to meet the requirements of Section 142(d) of the Code and the Regulations. (i) The Borrower shall not discriminate on the basis of race, religion, creed, color, ethnic group identification, sex, source of income (e.g. AFDC, SSI), mental or physical disability, age, national origin or marital status in the rental, lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the operation and management of the Project. (j) Following the expiration or tennination of the Qualified Project Period, Very Low Income Units shall remain available to the Very Low Income Tenants then occupying such units at the date of expiration or tennination of the Qualified Project Period at a rent not greater than the rent determined as described in paragraph (a) under the heading "Very Low Income Tenants" below until the earliest of any of the following occurs: (i) The household's income exceeds 140 percent of the income at which such household would qualify as a Very Low Income Tenant. (ii) The household voluntarily moves or is evicted for "good cause." For these purposes, "good cause" means the nonpayment of rent or allegation of facts necessary to prove major, or repeated minor, violations of material provisions of the lease agreement which detrimentally affect the health and safety of other persons or the structure, the fiscal integrity of the Project, or the purposes or special programs of the Project. (iii) Sixty years after the commencement of the Qualified Project Period. (iv) The Borrower pays relocation assistance and benefits to such tenant as provided in Government Code Section 7264(b). (k) During the three-year period prior to the expiration of the Qualified Project Period, the Borrower shall continue to make available to Very Low Income Tenants, Very Low Income Units that have been vacated to the same extent that other units in the Project are made available to the general public. (I) The Issuer may but shall not be required to monitor the Borrower's compliance with the provisions of paragraph (j) above. Very Low Income Tenants Pursuant to the requirements of Section 142(d) of the Code and applicable provisions of the Act, the Borrower has represented, as of the date of the Regulatory Agreement, and warranted, covenanted and agreed as follows: (a) During the Qualified Project Period not less than twenty percent (20%) of the units in the Project shall be designated as Very Low Income Units and shall be continuously occupied by or held available for occupancy by Very Low Income Tenants at monthly rents paid by the Very Low Income Tenants which do not exceed one-twelfth of the amount obtained by multiplying 30% times 50% of the Median Income for the Area, as adjusted for household size utilizing the percentages set forth above under the definition of Very Low Income Tenant less a 1e--4 47 reasonable deduction for utilities paid by the tenant, as detennined by the Issuer, and assuming the following unit sizes and household sizes: Unit Size Household Size Studio One Bedroom Two Bedrooms Three Bedroom One Person Two Persons Three Persons Four Persons Such Very Low Income Units shall be of comparable quality and offer a range of sizes and number of bedrooms comparable to those units which are available to other tenants and shall be distributed throughout the Project. A unit occupied by a Very Low Income Tenant who at the commencement of the occupancy is a Very Low Income Tenant shall be treated as occupied by a Very Low Income Tenant until a recertification of such tenant's income as described in paragraph (c) below demonstrates that such tenant no longer qualifies as a Very Low Income Tenant and thereafter any residential unit of comparable size in the Project is occupied by a new resident other than a Very Low Income Tenant. Moreover, a unit previously occupied by a Very Low Income Tenant and then vacated shall be considered occupied by a Very Low Income Tenant until reoccupied, other than for a temporary period, at which time the character of the unit shall be redetennined. In no event shall such temporary period exceed thirty-one (31) days. (b) Immediately prior to a Very Low Income Tenant's occupancy of a Very Low Income Unit, the Borrower will obtain and maintain on file an Income Certification from each Very Low Income Tenant occupying a Very Low Income Unit, dated immediately prior to the initial occupancy of such Very Low Income Tenant, in the Project. In addition, the Borrower will provide such further information as may be required in the future by the State of Califomia, the Issuer, the Act, Section 142(d) of the Code and the Regulations, as the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to obligations issued under Section 142(d) of the Code. The Borrower shall verify that the income provided by an applicant is accurate by taking one or more of the following steps as a part of the verification process: (I) obtain a federal income tax return for the most recent tax year, (2) obtain a written verification of income and employment from the applicant's current employer, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income satisfactory to the Issuer or (4) such other information as may be reasonably requested by the Issuer. Copies of the most recent Income Certifications for Very Low Income Tenants commencing or continuing occupancy of a Very Low Income Unit shall be attached to the quarterly report to be filed with the Issuer as required in paragraph (d) below. (c) Immediately prior to the first anniversary date of the occupancy of a Very Low Income Unit by one or more Very Low Income Tenants, and on each anniversary date thereafter, b:14 8 the Borrower shall recertify the income of the occupants of each Very Low Income Unit by obtaining a completed Income Certification based upon the current income of each occupant of the unit. In the event the recertification demonstrates that such household's income exceeds 140% of the income at which such household would qualify as Very Low Income Tenants, such household will no longer qualify as Very Low Income Tenants and to the extent necessary to comply with the requirements described in paragraph (a) above, the Borrower will rent the next available unit of comparable size to one or more Very Low Income Tenants. (d) Not later than ten days after the commencement of the Qualified Project Period, and within ten days of the last day of each quarter thereafter during the term of the Regulatory Agreement, the Borrower shall advise the Issuer of the status of the occupancy of the Project by delivering to the Program Administrator and the Issuer a Certificate of Continuing Program Compliance. (e) The Borrower will maintain complete and accurate records pertaining to the Very Low Income Units, and will pennit any duly authorized representative of the Issuer, the Program Administrator, the Trustee, the Credit Provider, the Department of the Treasury or the Internal Revenue Service to inspect the books and records of the Borrower pertaining to the Project, including those records pertaining to the occupancy of the Very Low Income Units. (f) The Borrower shall submit to the Secretary of the Treasury annually on the anniversary date of the start of the Qualified Project Period, or such other date as is required by the Secretary, a certification that the Project continues to meet the requirements of Section 142(d) of the Code, and shall provide a copy of such certification to the Issuer and the Program Administrator. (g) Prior to renting any Very Low Income Units, the Borrower shall prepare and present to the Issuer a marketing plan for the Very Low Income Units. The Borrower may begin leasing the Very Low Income Units following the Issuer Manager's approval of the marketing plan, which consent shall not be umeasonably withheld. The Borrower shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. The Borrower has agreed to contact the San Diego County Housing Authority for a list of persons who are recipients of, or who are applying for, Section 8 certificates or vouchers whenever a Very Low Income Unit becomes available but not more frequently than every four weeks. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that are more burdensome than criteria applied to all other prospective tenants. (h) The Very Low Income Units shall be of a comparable quality and offer a range of sizes and number of bedrooms comparable to the units that are available to other tenants. (i) The Borrower shall not collect any additional fees or payments from a Very Low Income Tenant except security deposits or other deposits required of aU tenants or for services or items requested by a tenant. The Borrower shall not collect security deposits or other deposits from Section 8 certificate or voucher holders in excess of those allowed under the Section 8 Program. The Borrower shall not discriminate against Very Low Income Tenant applicants on the basis of source of income (i.e., AFDC or SSI), and the Borrower shall consider a prospective tenant's previous rent history of at least one year as evidence of the ability to pay the applicable rent. 1c.64 9 0) Each lease pertaining to a Very Low Income Unit shall contain a provision to the effect that the Borrower has relied on the Income Certification and supporting information supplied by the Very Low Income Tenant in detennining qualification for occupancy of the Very Low Income Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. Each lease will also contain a provision that failure to cooperate with the annual recertification process reasonably instituted by the Borrower described in paragraph (c) above may at the option of the Borrower disqualify the unit as a Very Low Income Unit, or provide grounds for tennination of the lease. (k) The Borrower will execute and deliver to the Issuer an Administration Agreement applicable to the Project at the request of the Issuer. (I) Prior to the completion of construction of the Project, the Borrower has agreed to provide to the Issuer and any Program Administrator a copy of the form of application and lease to be provided to prospective Very Low Income Tenants. The term of the lease shall be not less than thirty days. (m) The Borrower shall notify the Issuer and any Program Administrator of any change in leasing agents or managers for the Project. Sale or Transfer of the Project; Syndication The Borrower intends to hold the Project for its own account, has no current plans to sell, transfer or otherwise dispose of the Project, and has covenanted and agreed not to sell, transfer or otherwise dispose of the Project, or any portion thereof (other than for individual tenant use as contemplated under the Regulatory Agreement and replacement of personal property), without obtaining the prior written consent of the Issuer, which consent shall be given upon receipt by the Issuer of (i) such certifications from the Borrower or the Trustee as are reasonably deemed necessary by the Issuer to establish that the Borrower shall not be in default under the Regulatory Agreement or under the Financing Agreement or, if any such defaults exist, the purchaser or assignee undertakes to cure such defaults to the satisfaction of the Issuer; (ii) a written instrument by which the Borrower's purchaser or transferee has assumed in writing and in full the Borrower's duties and obligations under the Regulatory Agreement and under the Administration Agreement, (iii) an opinion of counsel for the transferee that the transferee has duly assumed the obligations of the Borrower under the Regulatory Agreement and the Administration Agreement and that such obligations and the Regulatory Agreement and the Administration Agreement are binding on the transferee, (iv) documentation from the transferee reflecting the transferee's experience with owning and/or operating multifamily housing projects such as the Project and with use and occupancy restrictions similar to those contained in the Regulatory Agreement, and (v) an opinion of Bond Counsel addressed to the Issuer and the Trustee to the effect that such transfer will not cause interest on any Bond to become includable in the gross income of the recipients thereof for federal income tax purposes. No transfer of the Project shall operate to release the Borrower from its obligations under the Regulatory Agreement with respect to any action or inaction taken prior to such transfer. Consent of the Issuer and delivery of items (i), (ii), (iii) and (v) of the preceding paragraph shall be required for any transfer of the Project by the Credit Provider, or its designee, subsequent to the purchase at foreclosure or transfer pursuant to deed in lieu of foreclosure as described in the preceding sentence. It has been expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of the provisions of the Regulatory Agreement described under this heading shall be null, void and without effect, shall cause a reversion of title to the Borrower, and shall be ineffective to 1e-t 50 relieve the Borrower of its obligations under the Regulatory Agreement. Not less than 20 days prior to consummating any sale, transfer or disposition of any interest in the Project, the Borrower shall deliver to the Issuer and the Trustee a notice in writing explaining the nature of the proposed transfer. The Borrower shall not syndicate the Project unless, prior to such syndication, an opinion of counsel acceptable to the Issuer is delivered to the Issuer to the effect that (i) the terms and conditions of the syndication do not reduce or limit any of the requirements of the Act or regulations adopted or documents executed pursuant to the Act, (ii) no requirements of the Issuer shall be subordinated to the syndication agreement and (ill) the syndication shall not result in the provision of fewer assisted units, or the reduction of any benefits or services, than were in existence prior to the syndication agreement. Term Except as described in paragraphs (j), (k) and (I) under the heading "Residential Rental Property" above and as otherwise provided in the Regulatory Agreement, which provisions shall continue beyond the Qualified Project Period, and, except as provided in the second paragraph under this heading, the Regulatory Agreement and all and several of the terms of the Regulatory Agreement shall become effective upon its execution and delivery and shall remain in full force and effect during the Qualified Project Period, it being expressly agreed and understood that the provisions of the Regulatory Agreement are intended to survive the retirement of the Bonds and expiration of the Indenture, the Financing Agreement, the Mortgage Note and the Security Instrument. Notwithstanding any other provisions of the Regulatory Agreement to the contrary, this entire Regulatory Agreement, or any of the provisions or sections of the Regulatory Agreement, may be terminated upon agreement by the Issuer, the Trustee and the Borrower only if there shall have been received by the Issuer an opinion of Bond Counsel that such tennination will not adversely affect the exclusion from gross income for federal income tax purposes or the exemption from State personal income taxes of the interest on the Bonds. The terms of the Regulatory Agreement to the contrary notwithstanding, the Regulatory Agreement, and each and all of the terms of the Regulatory Agreement, shall tenninate and be of no further force and effect in the event of involuntary noncompliance with the provisions of the Regulatory Agreement caused by (a) foreclosure of the Security Instrument or delivery of a deed in lieu of foreclosure, or (b) fire, seizure, requisition, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer and the Trustee from enforcing the provisions of the Regulatory Agreement or condemnation or a similar event, but only if within a reasonable period thereafter the Bonds are paid in full and retired or amounts received as a consequence of such event are used to provide a project that meets the requirements of the Code set forth in the Regulatory Agreement; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained in the Regulatory Agreement shall be reinstated if, at any time subsequent to the tennination of such provisions as the result of the foreclosure on the Project or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any Affiliated Party obtains an ownership interest in the Project for federal income tax purposes. Upon the tennination of the terms of the Regulatory Agreement, the parties to the Regulatory Agreement agree to execute, deliver and record appropriate instruments of release and discharge of the terms of the Regulatory Agreement; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the tennination of the Regulatory Agreement in accordance with its terms. Enforcement If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in the Regulatory Agreement, and if such default remains uncured for a period of 60 days after written notice thereof shall have been given by the Issuer or the Trustee to the Borrower, the Credit Provider and the Loan Servicer (or such longer period if the Borrower provides the 1e-g 51 Issuer with an opinion of Bond Counsel to the effect that such extension will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds), then the Trustee, subject to the provisions of the Regulatory Agreement and acting on its own behalf or on behalf of the Issuer, or the Issuer shall declare an "Event of Default" to have occurred under the Regulatory Agreement, and, at its option, may take anyone or more of the following steps: (i) by mandamus or other suit, action or proceeding at law or in equity, require the Borrower to perform its obligations and covenants under the Regulatory Agreement or enjoin any acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee under the Regulatory Agreement; (ii) have access to and inspect, examine and make copies of all of the books and records of the Borrower pertaining to the Project; (iii) with the prior written consent of the Credit Provider, take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower under the Regulatory Agreement. The Borrower has agreed that specific enforcement of the Borrower's agreements contained in the Regulatory Agreement is the only means by which the Issuer may fully obtain the benefits of such agreements made by the Borrower in the Regulatory Agreement, and the Borrower therefore has agreed to the imposition of the remedy of specific performance against it in the case of any Event of Default by the Borrower under the Regulatory Agreement. The Trustee shall have the right, in accordance with the provisions of the Regulatory Agreement described under this heading and the provisions of the Indenture, upon notice to but without the consent or approval of the Issuer, to exercise any or all of the rights or remedies of the Issuer under the Regulatory Agreement. All fees, costs and expenses of the Trustee (including, without limitation, reasonable attorneys fees) incurred in taking any action pursuant to the provisions of the Regulatory Agreement described under this heading shall be the sole responsibility of the Borrower. After the Indenture has been discharged, or if the Trustee fails to act under the provisions of the Regulatory Agreement described under this heading, the Issuer may act on its own behalf to declare an "Event of Default" to have occurred and to take anyone or more of the steps specified above to the same extent and with the same effect as if taken by the Trustee. After the date on which no Bonds remain outstanding as provided in the Indenture, the Trustee shall no longer have any duties or obligations under the Regulatory Agreement, and all references to the Trustee in the Regulatory Agreement shall be deemed references to the Issuer. The rights of the Trustee described under this heading are in addition to all rights conferred upon the Trustee under the Indenture and in no way limit those rights. All monetary obligations of the Borrower that may arise under the Regulatory Agreement shall be subject and subordinate to the repayment of amounts owed by the Borrower under the Mortgage Loan Documents. Amendments Except as provided in the Regulatory Agreement, the Regulatory Agreement shall be amended only with the written consent of the Credit Provider by a written instrument executed by the parties to the Regulatory Agreement or their successors in title, and duly recorded in the real property records of the 1 €Ni 2 County. The parties to the Regulatory Agreement acknowledge that for so long as the Bonds are outstanding, the Credit Provider and the owners of the Bonds are third party beneficiaries to the Regulatory Agreement. CDLAC Requirements The acquisition, construction and operation of the Project and the financing thereof are and shall be in compliance with the conditions set forth as an exhibit to the CDLAC Resolution, a copy of which is attached to the Regulatory Agreement as an exhibit, which conditions are incorporated in the Regulatory Agreement by reference and are made a part of the Regulatory Agreement. The CDLAC Resolution requires, among other things, that (a) 30 units in the Project be rented or held vacant for rental for persons or families whose income is at 50% or below of the Area Median Income and (b) 119 units in the Project be rented or held vacant for rental for persons or families whose income is at 60% or below of the Area Median Income. The rental restrictions set forth in the CDLAC Resolution have a term of 55 years. The Issuer shall have the right, but not the obligation, to monitor and enforce the Borrower's compliance with the provisions of the Regulatory Agreement described under this heading. The Borrower shall prepare and submit to CDLAC on each anniversary of the Closing Date, and on such other date as is reasonably requested by CDLAC, a Certificate of Compliance in substantially the form attached to the Regulatory Agreement as an exhibit, executed by an authorized representative of the Borrower. CDLAC shall be a third-party beneficiary of the Regulatory Agreement for purposes of enforcing the terms of the CDLAC Resolution. CDLAC shall have the right to enforce the terms of the CDLAC Resolution through an action for specific performance or any other available remedy; provided, however, that CDLAC shall not take any action or enforce any remedy that would be materially adverse to the interests of the owner of the Bonds or the Credit Provider and any such action or enforcement shall otherwise be subject to the terms, conditions and limitations applicable to the enforcement of remedies under the Regulatory Agreement. Third-Party Beneficiary The parties to the Regulatory Agreement have recognized and agreed that the terms of the Regulatory Agreement and the enforcement of those terms are essential to the security of the Credit Provider and are entered into for the benefit of the Credit Provider. The Credit Provider shall accordingly have contractual rights in the Regulatory Agreement and shall be entitled (but not obligated) to enforce, separately or jointly with the Issuer and/or the Trustee, or to cause the Issuer or the Trustee to enforce, the terms of the Regulatory Agreement. In addition, the Credit Provider is intended to be and shall be a third-party beneficiary of the Regulatory Agreement, and the Credit Provider shall have the right (but not the obligation) to enforce the terms of the Regulatory Agreement insofar as the Regulatory Agreement sets forth obligations of the Borrower. Personal Obligation of Borrower; Limitations on Recourse to Borrower Notwithstanding any provisions of the Regulatory Agreement to the contrary, all obligations of the Borrower under the Regulatory Agreement for the payment of money and all claims for damages against the Borrower occasioned by breach or alleged breach by the Borrower of its obligations under the Regulatory Agreement, including indemnification obligations, shall be unsecured by, and subordinated in priority and right to, payment and in all other respects to the obligations and liens, rights (including, without limitation, the right to payment) and interests arising or created under the Mortgage Loan Documents. The Regulatory Agreement shall not be deemed to create a lien or security interest of any kind in the Project in favor of the Issuer, the Trustee or any other person with respect to any monetary obligations of the Borrower arising under the Regulatory Agreement, and no such person shall have bibS 3 recourse to the Project or have the right to enforce such obligations other than directly against the Borrower as described under this heading "Enforcement" above. Except as otherwise provided in the Regulatory Agreement, no subsequent owner shall be liable or obligated for the breach or default of any obligation of the Borrower under the Regulatory Agreement on the part of any prior owner. Such obligations shall be personal to the Person who was the owner at the time the default or breach was alleged to have occurred, and such Person shall remain liable for any and all damages occasioned by the default or breach even after such Person ceases to be the owner. Notwithstanding anything contained in any other provision of the Regulatory Agreement to the contrary, the Borrower's obligations under the Regulatory Agreement relating to indemnification and payment of fees shall be and remain the joint and several full recourse obligations of the Borrower and each general partner of the Borrower, which, subject to the provisions of the first paragraph under this heading, are payable from and enforceable against any and all income, assets and properties of the Borrower and each general partner of the Borrower; provided that in no event shall Borrower or any partner of Borrower be personally liable for the payment of the principal, interest or any premium on the Mortgage Loan or the Bonds, which shall be non-recourse to Borrower and shall be enforced solely against the Project and other property securing such obligations, in each case subject to and in accordance with the terms and conditions of the Mortgage Loan Documents. Consents of the Credit Provider The written consents of the Credit Provider as required under the Regulatory Agreement shall not be required if the Credit Provider is not the provider of credit enhancement for the Bonds or is in default under the Credit Facility. Fannie Mae Rider During any period when the Credit Facility provided by Fannie Mae is in effect and no default in payment has occurred thereunder and is continuing, the provisions of the Fannie Mae Rider to Regulatory Agreement, dated as of the date of the Indenture (the "Fannie Mae Rider"), by and among the Issuer, the Trustee and the Borrower, attached to the Regulatory Agreement and described below, shall apply and, during such period, the terms, provisions and conditions of the Regulatory agreement shall be subject in all respects to the terms, conditions and provisions of the Fannie Mae Rider. Applicability. The Fannie Mae Rider shall amend and supplement the Regulatory Agreement. In the event any provision of the Fannie Mae Rider conflicts with the Regulatory Agreement, the Fannie Mae Rider shall supersede the conflicting provision of the Regulatory Agreement. The Fannie Mae Rider shall apply in spite of the fact that the covenants, reservations and restrictions of the Regulatory Agreement run with the land and may be deemed applicable to any successor in interest to the Borrower. Obligations not Secured by the Mortgaged Property. The Regulatory Agreement shall not constitute a mortgage, equitable mortgage, deed of trust, deed to secure debt or other lien or security interest in the Mortgaged Property. None of the obligations of the Borrower or any subsequent owner of the Mortgaged Property under the Regulatory Agreement shall be secured by a lien on, or security interest in, the Mortgaged Property. All such obligations are expressly intended to be and shall remain unsecured obligations. The occurrence of an event of default under the Regulatory Agreement shall not impair, defeat or render invalid the lien of the Security Instrument. Subordination. The terms, covenants and restrictions of the Regulatory Agreement, other than those described under the headings "Residential Rental Property" and "Very Low Income Tenants" herein and in certain other specified sections of the Regulatory Agreement (collectively, the "Excluded f,-11l54 Provisions"), are and shall at all times remain subject and subordinate, in all respects, to the liens, rights and interests created under the Mortgage Loan Documents. Upon a conveyance or other transfer of title to the Mortgaged Property by foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan, the Person who acquires title to the Mortgaged Property pursuant to such foreclosure, deed in lieu of foreclosure or comparable conversion of the Mortgage Loan (unless such Person is the Borrower or a Person related to the Borrower within the meaning of Section 1.103-10(e) of the Regulations, in which event the Regulatory Agreement shall remain in full force and effect in its entirety) shall acquire such title free and clear of the terms, covenants and restrictions of the Regulatory Agreement, other than those set forth in the Excluded Provisions and, from and after the date on which such Person acquires title to the Mortgaged Property, the terms, covenants and restrictions of the Regulatory Agreement, other than those set forth in the Excluded Provisions, shall automatically tenninate and be of no force and effect; provided that the Excluded Provisions shall also tenninate and be of no force or effect under the circumstances described under the heading ''Term'' herein. Obligations Personal. The Issuer agrees that no owner of the Mortgaged Property (including Fannie Mae) subsequent to the Borrower will be liable for, assume or take title to the Mortgaged Property subject to: (a) any failure of any prior owner of the Mortgaged Property to perform or observe any representation or warranty, affirmative or negative covenant or other agreement or undertaking under the Regulatory Agreement; and (b) the payment of any compensation or any accrued unpaid fees, costs, expenses or penalties otherwise owed by any prior owner of the Mortgaged Property under the Regulatory Agreement. The Borrower and each subsequent owner of the Mortgaged Property shall be responsible under the Regulatory Agreement for its own acts and omissions occurring during the period of its ownership of the Mortgaged Property. All such liability and obligations shall be and remain personal to such person even after such person ceases to be the owner of the Mortgaged Property. Sale or Transfer. (a) Restrictions Not Applicable to Certain Transfers. All proVISIOns of the Regulatory Agreement regarding the sale or transfer of the Mortgaged Property or of any interest in the Borrower, including any requirement, limitation or condition precedent for any of (i) the consent of the Issuer or the Trustee to such transfer, (ii) an agreement by any transferee to abide by the requirements and restrictions of the Regulatory Agreement, (Hi) transferee criteria or other similar requirements, (iv) an opinion of legal counsel and (v) the payment of any assumption fee, transfer fee, penalty or other charges, shall not apply to any of the following: (1) any transfer of title to the Mortgaged Property to Fannie Mae or to a third party by foreclosure, deed in lieu of foreclosure or comparable conversion of any lien on the Mortgaged Property or to any subsequent transfer by Fannie Mae (or a third party) following such foreclosure, deed in lieu of foreclosure or comparable conversion; (2) any execution and delivery of a mortgage, deed of trust, deed to secure debt or other lien by the Borrower to secure any additional indebtedness of the Borrower which is originated by a lender for sale to Fannie Mae or guaranteed or otherwise credit enhanced by Fannie Mae; and 1G-1:5 5 (3) provided that no Bonds are then Outstanding or all Bonds are to be simultaneously fully paid, redeemed or defeased, any execution and delivery of a mortgage, deed of trust, deed to secure debt or other lien by the Borrower to secure any indebtedness incurred by the Borrower which effectively refinances the Mortgage Loan. (b) Fannie Mae Rights to Consent Not Impaired. Nothing contained in the Regulatory Agreement shall affect any provision of the Security Instrument or any of the other Credit Facility Agreement or Mortgage Loan Documents which requires the Borrower to obtain the consent of Fannie Mae as a precondition to sale, transfer or other disposition of, or any direct or indirect interest in, the Mortgaged Property or of any direct or indirect interest in the Borrower, excluding transfers pennitted by the Security Instrument. (c) Conclusive Evidence. Any written consent to a sale or transfer obtained from the Issuer shall constitute conclusive evidence that the sale or transfer is not a violation of the transfer provisions of the Regulatory Agreement. Damage, Destruction or Condemnation of the Morlgaged Property. In the event that the Mortgaged Property is damaged or destroyed or title to the property, or any part thereof, is taken through the exercise or the threat of the exercise of the power of eminent domain, the Borrower shall comply with all applicable requirements of the Security Instrument and the other Mortgage Loan Documents. Regulatory Agreement Default. Notwithstanding anything contained in the Regulatory Agreement to the contrary: (a) The occurrence of an event of default under the Regulatory Agreement shall not impair, defeat or render invalid the lien of the Security Instrument. (b) The occurrence of an event of default under the Regulatory Agreement shall not be or be deemed to be a default under the Mortgage Loan Documents, except as may be otherwise specified in the Mortgage Loan Documents. (c) Upon any default by the Borrower under the Regulatory Agreement, the Assignment shall govern the remedies and other actions which the Issuer may take on account of such default. Amendments. Unless the Assigned Rights (as that term is defined in the Assignment) are held solely by the Trustee pursuant to the Assignment, the Issuer shall not consent to any amendment, supplement to, or restatement of the Regulatory Agreement without the prior written consent of Fannie Mae. Termination. The Regulatory Agreement may be terminated upon agreement by the Issuer, the Trustee, the Credit Provider and the Borrower upon receipt of an opinion of a nationally recognized bond counsel acceptable to the Trustee that such tennination will not adversely affect the exclusion of the interest on the Bonds from gross income for federal income purposes. So long as the Bonds have been redeemed or are redeemed within a reasonable period thereafter, the Regulatory Agreement shall tenninate and be of no further force or effect from and after the date of any transfer of title to the Mortgaged Property by foreclosure, deed in lieu of foreclosure or comparable conversion of any lien on the Mortgaged Property; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained in the Regulatory Agreement shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any related person (within the meaning of 1&t!i6 Section 1.103-1O(e) of the Regulations) obtains an ownership interest in the Mortgaged Property for federal income tax purposes. Third-Party Beneficiary. The parties to the Regulatory Agreement have recognized and agreed that the terms of the Regulatory Agreement and the enforcement of those terms are essential to the security of Fannie Mae and are entered into for the benefit of various parties, including Fannie Mae. Fannie Mae shall accordingly have contractual rights in the Regulatory Agreement and shall be entitled (but not obligated) to enforce, separately or jointly with the Issuer and/or the Trustee, or to cause the Issuer or the Trustee to enforce, the terms of the Regulatory Agreement. In addition, the Borrower and the Issuer intend that Fannie Mae be a third-party beneficiary of the Regulatory Agreement. . t-Il15 7 APPENDIX D SUMMARY OF CERTAIN PROVISIONS OF THE FINANCING AGREEMENT The following summary of the Financing Agreement is a summary only and does not purpon to be a complete statement of the contents thereof Reference is made to the Financing Agreement for the complete terms thereof Amount and Source of Mortgage Loan Upon the issuance and delivery of the Bonds, the Issuer will apply the Net Bond Proceeds to fund the Mortgage Loan. The Borrower has accepted the Mortgage Loan from the Issuer on the terms and conditions set forth in the Financing Agreement and in the Mortgage Loan Documents and subject to the terms and conditions of the Indenture and the Regulatory Agreement. The Borrower has agreed to apply the proceeds of the Mortgage Loan to pay costs of acquiring, constructing and equipping the Project. Obligation To Repay the Mortgage Loan and To Pay the Debt Service on the Bonds In repayment of the Mortgage Loan, the Borrower will make payments on the Mortgage Note, which will, at all times and in all events, be sufficient to repay the Mortgage Loan (including all payments of principal and interest when due) and to timely pay, when due, the principal of, premium, if any, and interest on, the Bonds, plus all (a) Third Party Fees and (b) Set Rate Interest. The Borrower's obligations set forth in the preceding sentence are without exception, and are not diminished by any provision of any Bond Document or any Mortgage Loan Document which may state or imply to the contrary, or by the amount of Investment Income available to be applied to the payment of the foregoing obligations. Terms The Mortgage Loan will (a) be evidenced by the Mortgage Note, (b) be in a principal amount approved by the Credit Provider, not to exceed the principal amount of the Bonds, (c) bear interest at the Mortgage Note Rate, (d) be payable on the terms provided in the Mortgage Note, (e) be secured by, among other instruments, the Security Instrument and as otherwise provided in the other Mortgage Loan Documents and/or the Financing Agreement and (t) be subject to optional and mandatory prepayment at the times, in the manner and on the terms, and have such other terms and provisions as are, set forth in the Mortgage Loan Documents. The Mortgage Note Rate will be comprised of: (i) a pass-through rate of interest (the "Pass-Through Rate"), which will be a rate sufficient to pay when due the interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate); and (ii) Set Rate Interest, which shall be equivalent to the sum of (1) the Facility Fee payable to the Credit Provider and (2) the Servicing Fee. Payment of Third Party Fees and Expenses In addition to all fees, costs, expenses and other amounts required to be paid by the Borrower under the Mortgage Note and the Reimbursement Agreement, the Borrower shall pay, without duplication, the following fees and expenses: 1-158 (i) fees included in the Mortgage Note Rate: (I) the Third Party Fees, provided that such fees may be included in the Mortgage Note Rate only to the extent that they are expressed as a percentage of the outstanding unpaid principal balance of the Mortgage Loan; (2) fees that comprise Set Rate Interest, which shall be received by the Loan Servicer as part of the payments of interest on the Mortgage Note received by the Loan Servicer, deducted by the Loan Servicer from such payments of interest and retained by the Loan Servicer (as to that portion of Set Rate Interest allocable to the Servicing Fee) and remitted by the Loan Servicer to the Credit Provider as to that portion of Set Rate Interest allocable to the Facility Fee; (ii) fees not included in the Mortgage Note Rate and expenses: (1) the fees (other than the Servicing Fee included in Set Rate Interest) and expenses due to the Loan Servicer in connection with the Mortgage Loan; (2) to the extent not previously paid by the Borrower, the fees and expenses required to be paid by the Loan Servicer to the Credit Provider, such fees and expenses to be paid at the times and in the manner required by the Credit Provider, provided that the imposition of such obligation on the Borrower shall not diminish the Loan Servicer's obligation to pay such fees to the Credit Provider; (3) all amounts required to pay to the Issuer (a) the fees of the Issuer (exclusive of that portion of the Issuer's Annual Fee included in the Mortgage Note Rate), and (b) all expenses of the Issuer incurred at any time in connection with the financing of the Project or the Bonds, including, without limitation, counsel fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of the Bond Documents, the Mortgage Loan Documents or any other documents relating to the Project or the Bonds or in connection with questions or other matters arising under such documents or in connection with any federal or state tax audit; all payments for fees and expenses other than the portion of the Issuer's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower to the Issuer or to any payee designated by the Issuer not later than 30 days after receipt of invoices rendered to the Borrower by the Issuer; (4) the Trustee's acceptance fee, if any, which shall be paid to the Trustee on the Closing Date, and all amounts required from time to time to (a) pay the fees of the Trustee for its duties and services as Trustee in connection with the Bonds (exclusive of that portion of the Trustee's Annual Fee included in the Mortgage Note Rate), and (b) reimburse the Trustee for all advances, out-of-pocket expenses, fees, costs and other charges, including counsel fees and expenses, and taxes (excluding income, value added and single business taxes), reasonably and necessarily incurred by the Trustee in perfonning its duties as Trustee under the Indenture, the Financing Agreement, the Disclosure Agreement, the Credit Facility and the Regulatory Agreement and (c) pay and reimburse the Trustee for any fees and expenses incurred in connection with any default under the Indenture, the Financing Agreement or under the Regulatory Agreement; all payments for fees and expenses other than the portion of the Trustee's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower to the Trustee not 19-159 later than thirty (30) days after receipt of invoices rendered to the Borrower by the Trustee; (5) all amounts required to pay the fees and expenses of the Rebate Analyst as required by the Financing Agreement, (exclusive of that portion of the Rebate Analyst's Annual Fee included in the Mortgage Note Rate); all payments for fees and expenses other than the portion of the Rebate Analyst's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower not later than 30 days after receipt of invoices rendered to the Borrower by the Rebate Analyst; (6) all Costs of Issuance; . (7) all costs of registering, printing, reprinting, preparing and delivering any replacement bonds required under the Indenture and in connection with the registration, printing, reprinting or transfer of Bonds; (8) all fees and expenses of the Credit Provider, the Loan Servicer, their respective counsel, title insurance, survey, recording and other costs related to underwriting, closing and disbursing the Mortgage Loan and of assigning the Mortgage Loan to the Trustee and the Credit Provider, as their interests may appear; (9) all fees of the Rating Agency; and (10) not later than seven Business Days prior to each Remarketing Date, all Remarketing Expenses expected to be incurred in connection with the remarketing of the Bonds on Such Remarketing Date, which amounts shall be paid to the Trustee for deposit in the Bond Purchase Fund, and on each Remarketing Date, the amount, if any, by which actual Remarketing Expenses exceed amounts on deposit in the Bond Purchase Fund to pay Remarketing Expenses. The Borrower has further agreed to timely honor any demand by the Trustee pursuant to the Indenture for payment on account of any insufficiency in the Fees Account. The Borrower has acknowledged that all fees, costs, expenses and other amounts described under this heading are obligations solely of the Borrower and (a) as to fees described in paragraphs (i) and (ii) above, must be paid by the Borrower in all events, including the insufficiency of the amounts included in the Mortgage Note Rate to pay such fees, and (b) as to fees described in paragraph (ii) above, must be paid by the Borrower separate and apart from payments due under the Mortgage Loan and will not be included in the Mortgage Note Rate. None of the Issuer, the Trustee, the Credit Provider or the Loan Servicer shall have (a) any liability, responsibility or accountability for the payment, remittance or handling of any such fees, costs or expenses or (b) any obligation to pay any such fees, costs or expenses. The payment of all fees and expenses specified in the Financing Agreement that are not included in the Mortgage Note Rate or provided for in the Reimbursement Agreement shall not be secured by the Security Instrument or constitute a lien on the Project in any manner (unless the Loan Servicer or the Credit Provider shall, in its sole discretion, advance such fees and expenses), shall be unsecured obligations of the Borrower and shall be subordinate to the Borrower's obligations under the Mortgage Loan Documents. Prepayment Optional Prepayment. The Borrower will have the right to prepay the Mortgage Loan in whole, but not in part, on the terms provided in, and subject to the limitations of, the Mortgage Note and, to the extent applicable, the Security Instrument and the Reimbursement Agreement, provided that the Borrower 1)-360 will comply with the provisions of the Financing Agreement. The Borrower has agreed that the payment of all amounts set forth in the Financing Agreement will be a condition precedent to the effectiveness of any prepayment of the Mortgage Loan. Involuntary Prepayment. The Mortgage Loan will be subject to involuntary prepayment in whole or in part on the terms provided in the Mortgage Note. Nonrecourse Liability Except as otherwise provided in the Mortgage Loan Documents, in any action or proceeding brought with respect to the Mortgage Loan or the Bonds, no deficiency or other money judgment will be enforced against the Borrower or any partner of the Borrower or any successor or assign of the Borrower, and any judgment obtained shall be enforced only against the Project and other property of the Borrower encumbered by the Mortgage Loan Documents and not against the Borrower or any partner of the Borrower or any successor or assign of the Borrower. Notwithstanding the foregoing, anything to the contrary contained in the Financing Agreement, the obligations of the Borrower to the Issuer, the Trustee or any other party (a) under the Financing Agreement and (b) to pay any and all rebate amounts that may be or become owing with respect to the Bonds, will be recourse to the Borrower, but except with respect to obligations owing to the Credit Provider, not to the Project or any other property encumbered by the Mortgage Loan Documents. Borrower's Obligations The Borrower has released the Issuer and the Trustee, and their respective officers, directors, agents, officials, employees (and, as to the Issuer, members of its governing body) and any person who controls the Issuer or the Trustee within the meaning of the Securities Act of 1933, from, and has covenanted and agreed to indemnify, hold harmless and defend the Issuer and the Trustee and their respective officers, directors, employees, agents, members of its governing body, officials and any person who controls such party within the meaning of the Securities Act of 1933 and employees and each of them (each, an "Indemnified Party") from and against, any and all losses, claims, damages, demands, liabilities and expenses (including attorneys' fees and expenses), taxes, causes of action, suits, claims, demands and judgments of any nature, joint or several, by or on behalf of any person arising out of certain events as further described in the Financing Agreement. Events of Default; Remedies Events of Default. Each of the following will constitute an Event of Default under the Financing Agreement: (a) the failure by the Borrower to pay any amounts due under the Financing Agreement at the times and in the amounts required by the Financing Agreement; (b) the failure by the Borrower to observe or perform any covenants, agreements or obligations in the Financing Agreement on its part to be observed or performed (other than as provided in paragraph (a) above) for a period of 30 days after receipt of written notice from the Trustee specifying such failure and requesting that it be remedied; provided, however, that if the failure is such that it cannot be corrected within such period, it will not constitute an Event of Default if the failure is correctable without material adverse effect on the validity or enforceability of the Bonds or on the exclusion from gross income, for federal income tax purposes, of the interest payable on the Bonds, and if corrective action is instituted by the Borrower within such period and diligently pursued until the failure is corrected, and provided 1~1 further that any such failure will have been cured within 90 days of receipt of notice of such failure; (c) any breach of any of the covenants, agreements or obligations of the Borrower under, or the occurrence of a default under, the Regulatory Agreement, including any exhibits to the Regulatory Agreement; (d) the detennination by the Issuer, the Trustee, the Loan Servicer or the Credit Provider that any representation or warranty made by the Borrower in the Financing Agreement or in any document delivered by or on behalf of the Borrower to the Issuer, the Trustee, the Loan Servicer or the Credit Provider in connection with the Project, the Mortgage Loan or the Bonds was untrue or misleading in any material respect as of the date made or deemed made; (e) the occurrence of an Event of Default under and as defined in the Indenture or under and as defined in any other Bond Document caused by the Borrower's failure to comply with the terms or conditions of any such Bond Document; (f) the occurrence of any of the following: the Borrower will generally not pay its debts as they become due, or will admit in writing its inability to pay its debts generally, or will make a general assignment for the benefit of creditors or will institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property; or the Borrower will take any action to authorize any of the actions described above in this paragraph (f), or any proceeding will be instituted against the Borrower seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and, if such proceeding is being contested by the Borrower in good faith, such proceeding will remain undismissed or unstayed for a period of 60 days; (g) the filing or making of any claim against the Trust Estate as a result of any action or proceeding described in the Financing Agreement by, or with respect to, the Issuer; or (h) an Event of Default as a result of a detennination by the Credit Provider pursuant to the Financing Agreement. Cross-Default. The occurrence of a default under the Mortgage Loan Documents shall not constitute an Event of Default under the Financing Agreement unless the default is declared by the Credit Provider, in its sole and absolute discretion, to be an Event of Default under the Financing Agreement, such declaration to be made by written notice to the Trustee. The occurrence of an Event of Default under the Financing Agreement will not constitute a default under any Mortgage Loan Document unless the Event of Default is declared by the Credit Provider, in its sole and absolute discretion, to be a default under the Mortgage Loan, such declaration to be made by written notice to the Trustee. 1D1'i62 Remedies Upon an Event of Default General. Subject to the Financing Agreement, whenever any Event of Default will have occurred and be continuing under the Financing Agreement, the Trustee may take anyone or more of the following remedial steps: (a) give immediate notice to the Issuer, the Loan Servicer and the Credit Provider, and if the Event of Default is the failure to receive a Required Mortgage Payment (as defined in the Credit Facility), the Trustee will present to the Credit Provider an appropriate certificate for an Advance under the Credit Facility; (b) if the principal and interest accrued on the Bonds will have been declared immediately due and payable pursuant to the Indenture, the Trustee will give notice to the Issuer, the Loan Servicer and the Credit Provider and present an appropriate certificate for an Advance under the Credit Facility; provided, however, that if the Trustee will rescind or annul a declaration of acceleration of Bonds pursuant to the Indenture, the Issuer, the Trustee, the Loan Servicer and the Credit Provider will be restored to their former rights and positions, and all rights, duties and obligations of the parties will continue as if no adverse proceeding had been taken, subject to the limits of any adverse detennination; (c) take such action as is pennitted by the Mortgage Loan Documents but only with the prior written consent of the Credit Provider; (d) to the extent of any insufficiency in the payment of the Bonds after the Trustee has received an Advance under the Credit Facility, the Trustee may, by any suit, action or proceeding, pursue all remedies now or hereafter existing at law or in equity to collect all amounts then due and thereafter to become due under the Financing Agreement, to enforce the performance of any covenant, obligation or agreement of the Borrower under the Financing Agreement (subject to the nomecourse provisions of the Financing Agreement and the Regulatory Agreement) or to enjoin acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee; (e) at the written direction or with the prior written consent of the Credit Provider, apply in any court of competent jurisdiction for specific performance by the Borrower of its covenants, obligations and agreements under the Financing Agreement or for injunctive relief to prevent any violation of the covenants, obligations or agreements on the part of the Borrower to be observed or performed under the Financing Agreement (the Borrower has acknowledged and agreed that money damages alone would not be an adequate remedy at law for a default by the Borrower arising from a failure to comply with the Financing Agreement, and therefore the Borrower has agreed that the remedy of specific performance or injunctive relief will be available to the Trustee in any such case); or (f) at the written direction or with the prior written consent- of the Credit Provider, take whatever other action at law or in equity may appear necessary or desirable to enforce any obligation of the Borrower under the Financing Agreement. In addition, upon the occurrence of an Event of Default, the Issuer, the Trustee, the Loan Servicer and the Credit Provider will have access to and may inspect, examine, audit and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Borrower. 1 B-ti6 3 Enforcement of Reserved Rights. Subject to the terms of the Regulatory Agreement and the Financing Agreement, the Issuer, without the consent of the Trustee, but only after written notice to the Trustee, the Loan Servicer, the Credit Provider and the Borrower, may take whatever action may appear necessary or desirable to specifically enforce the performance and observance of any Reserved Right of the Issuer, provided that the Issuer may not, without the prior written consent of the Trustee and the Credit Provider (a) tenninate the Financing Agreement or cause the Mortgage Loan to become due and payable or (b) cause the Trustee to declare the principal of all Bonds then Outstanding and the interest accrued on the Bonds to be immediately due and payable, or cause the Trustee to accelerate, foreclose or take any other action or seek other remedies under the Bond Documents, the Mortgage Loan Documents or any other documents contemplated by the Financing Agreement or by such other documents to obtain such performance or observance. Permitted Cures of an Event of Default. The Trustee may, with the prior written consent of the Credit Provider, or at the written direction of the Credit Provider, pennit the Borrower, for a period specified by the Credit Provider, to cure any default under the Mortgage Note and the Security Instrument, but only if (a) the Borrower pays to the Trustee or the Loan Servicer, as the case may be, for proper remittance, all overdue payments of principal and interest on the Mortgage Note, (b) the Borrower cures any nonmonetary defaults under the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents to the satisfaction of the Credit Provider, and (c) the Borrower pays all fees, costs and expenses of the Trustee, the Issuer, the Loan Servicer and the Credit Provider, including, without limitation, Extraordinary Items due to the Trustee and all legal fees and expenses, incurred in connection with the default. The Borrower acknowledges that any cure of any default will not affect any subsequent default under the Mortgage Loan Documents. Waiver and Annulment. If, after any Event of Default (a) all amounts which would then be payable under the Financing Agreement by the Borrower if such Event of Default had not occurred and was not continuing will have been paid by or on behalf of the Borrower, and (b) the Borrower will have also performed all other obligations in respect of which it is then in default under the Financing Agreement and will have paid the reasonable fees and expenses of the Issuer, the Trustee, the Credit Provider and the Loan Servicer, including reasonable attorney fees and expenses paid or incurred in connection with such default, then and in every such case, such Event of Default shall be waived and annulled by the Trustee, but only if so directed by the Credit Provider, in its sole and absolute discretion; no such waiver or annulment will extend to or affect any subsequent Event of Default or impair any right or remedy consequent on such Event of Default. Limitations on Actions. Notwithstanding any other provision of the Financing Agreement or the Regulatory Agreement to the contrary: (i) neither the Issuer, the Trustee nor any person under the control of either will, without the prior written consent of the Credit Provider, exercise any remedies or direct any proceedings under the Bond Documents or the Mortgage Loan Documents other than to (a) enforce rights under the Credit Facility, (b) enforce the tax covenants in the Indenture, the Regulatory Agreement and the Financing Agreement, (c) enforce rights of specific performance under the Regulatory Agreement or (d) enforce the Issuer's Reserved Rights, provided, however, that any enforcement under (b), (c) or (d) above will not include seeking any monetary recovery against the Borrower apart from a monetary recovery associated with Reserved Rights and provided further that (1) any claim of the Issuer for a monetary recovery will be subordinate to the payment obligations of the Mortgage Loan and (2) the enforcement of any claim for a monetary recovery will not cause the Borrower to file a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Borrower under any applicable 11H64 liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law in effect; and (ii) so long as the Credit Facility remains outstanding and a Wrongful Dishonor has not occurred or, if it has occurred, is not continuing, neither the Issuer, the Trustee, nor any person under their control will: (A) initiate or take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal, interest and other amounts due under the Mortgage Loan; (B) interfere with or attempt to influence the exercise by the Credit Provider of any of its rights under the Mortgage Loan, including, without limitation, its remedial rights under the Mortgage Loan upon the occurrence of an event of default by the Borrower under the Mortgage Loan; or . (C) upon the occurrence of an event of default under the Mortgage Loan, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan. 19-165 APPENDIX E FORM OF CREDIT FACILITY 1-166 APPENDIX F FORM OF OPINION OF BOND COUNSEL September _, 2005 Housing Authority of the City of Chula Vista, California Chula Vista, California Re: $1,715,000 Housing Authority of the City of Chula Vista, Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2oo5A Ladies and Gentlemen: We have acted as Bond Counsel to the Housing Authority of the City of Chula Vista, California (the "Housing Authority") in connection with the issuance of its Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2oo5A (the "Bonds"), in the aggregate principal amount of $1,715,000. The Bonds have been issued pursuant to a resolution of the Housing Authority adopted on August 16,2005 (the "Resolution"), Chapter 1 of Part 2 of Division 24 of the Health and Safety Code of the State of Califomia (the "Act"), and a Trust Indenture, dated as of September 1, 2005 (the "Indenture"), by and between the Housing Authority and Wells Fargo Bank, National Association, as trustee (the "Trustee"). The repayment of the Bonds is secured by the Revenues (as defined in the Indenture), payments under the Standby Letter of Credit dated September [13], 2005 (the "Standby Credit Facility"), issued by Fannie Mae. We express no opinion as to the validity or enforceability of the Standby Credit Facility. Capitalized terms used herein and not defined shall have the meanings given to them in the Indenture. The Bonds are dated the date hereof and mature on the dates and bear interest payable on the dates and at the rates per annum set forth in the Indenture. The Bonds are issuable only as fully registered Bonds in the forms set forth in the Indenture, redeemable at the times and in the manner provided for in the Indenture. In rendering our opinion, we have examined the Act and originals or certified copies of the Indenture, the Financing Agreement, the Regulatory Agreement and the Assignment (collectively, the "Bond Documents"), and such other information and documents as we have deemed necessary to render the opinions set forth herein. As to questions of fact material to the opinions stated herein, we have relied upon representations made by the Housing Authority and the Borrower contained in the Bond Documents, the certified proceedings of the Housing Authority and certifications of public officials of the Housing Authority, the Borrower, the initial purchasers of the Bonds and others furnished to us without undertaking to verify through independent investigation the accuracy of the representations and certifications relied upon by us. Based upon our examination of all of the foregoing, and in reliance thereon, and on all matters of fact as we deem relevant under the circumstances, and upon consideration of applicable laws, we are of the opinion that: (I) the Housing Authority is a public body corporate and politic duly organized and validly existing under the laws of the State of California, with full power and authority to adopt 1-167 the Resolution, to execute, deliver the Bond Documents, to perform its obligations thereunder and to issue, sell and deliver the Bonds; (2) the execution and delivery of the Bond Documents have been duly authorized by the Housing Authority and, assuming proper authorization, execution and delivery by the respective other parties thereto, are valid and binding obligations of the Housing Authority enforceable against the Housing Authority in accordance with their terms, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, fraudulent conveyance or transfer, insolvency or other laws affecting creditors' rights generally or by the exercise of judicial discretion in accordance with general principles of equity or by the limitations on legal remedies against public agencies in the State of California and except that we express no opinion as to the enforceability of any provisions contained therein relating to indemnification, waiver, choice of law or choice of forum; (3) the Bonds have been duly and validly authorized, executed and delivered by the Housing Authority and are valid and binding special and limited obligations of the Housing Authority, payable solely out of the revenues and receipts provided therefor in the Indenture. The Bonds are enforceable in accordance with their terms and the terms of the Indenture, except to the extent that enforceability may be limited by moratorium, bankruptcy, reorganization, fraudulent conveyance or transfer, insolvency or other laws affecting creditors' rights generally or by the exercise of judicial discretion in accordance with general principles of equity by the limitations on legal remedies against public agencies in the State of California; (4) the Indenture creates a valid, express and irrevocable trust under the laws of the State of California of the Revenues held or set aside under the Indenture, subject to the application thereof to the purposes and on the conditions permitted by the Indenture; (5) assuming continuing compliance subsequent to the issuance of the Bonds with the applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code"), with respect to the Bonds, under existing statutes, regulations, rulings and judicial decisions, interest on the Bonds is excluded from gross income for federal income tax purposes, except for interest on any Bond for any period during which such Bond is held by a "substantial user" of the property financed with the proceeds of the Bonds or a "related person," as such terms are used in Section 147(a) of the Code; provided, however, interest on the Bonds is an item of tax preference for purposes of calculating the federal alternative minimum tax imposed on individuals and corporations; and (6) interest on the Bonds is exempt from State of California personal income tax. The opinion expressed in paragraph (5) above as to the exclusion from gross income for federal income tax purposes of interest on the Bonds is subject to the condition that the applicable requirements of the Code are complied with subsequent to the issuance of the Bonds. Failure to comply with such requirements may cause interest on the Bonds to be included in gross income for federal income tax purposes retroactive to the date of issuance of the Bonds. Except as expressly set forth in paragraph (5) above, we express no opinion as to any federal tax consequences with respect to the Bonds. Certain requirements and procedures contained or referred to in the Bond Documents and the Tax Certificate may be changed, and certain actions may be taken, under the circumstances and subject to the terms and conditions set forth in such documents, upon the advice or with the approving opinion of counsel nationally recognized in the area of tax-exempt obligations. We express no opinion as to the exclusion from gross income for federal income tax purposes of interest on the Bonds on and after the 1 :F-1!68 date on which any such change occurs or action is taken upon the advice or approval of counsel other than Stradling Yocca Carlson & Rauth, a Professional Corporation. Weare admitted to the practice of law only in the State of California and our opinion is limited to matters governed by the laws of the State of California and federal law. We assume no responsibility with respect to the applicability or the effect of the laws of any other jurisdiction and express no opinion as to the enforceability of the choice of law provisions contained in the Bond Documents. The opinions expressed herein are based on an analysis of existing statutes, regnlations, rulings and judicial decisions and cover certain matters not directly addressed by such authorities. Such opinions may be affected by actions taken (or not taken) or events occurring (or not occurring) after the date hereof. We have not undertaken to determine, or to inform any person, whether any such actions or events are taken or do occur. We express no opinion herein as to the accuracy, completeness or sufficiency of the Official Statement or other offering material relating to the Bonds, and we expressly disclaim any duty to advise the owners of the Bonds with respect to matters contained in the Official Statement. Respectfully submitted, 1P"_j 69 APPENDIX G FORM OF CONTINUING DISCLOSURE AGREEMENT $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A Tms CONTINUING DISCLOSURE AGREEMENT dated as of September I, 2005 (this "Disclosure Agreement") is executed and delivered by CIC Eastlake, LP., a California limited partnership (the "Borrower") and Wells Fargo Bank, National Association, in its capacity as Dissemination Agent hereunder (the "Dissemination Agent") and in its capacity as trustee (the "Trustee"), for the holders of the above-captioned bonds (the "Bonds") under the Trust Indenture dated as of September 1, 2005 (the "Indenture") between the Housing Authority of the City of Chula Vista (the "Issuer") and the Trustee. The Borrower, the Dissemination Agent and the Trustee covenant and agree as follows: Section 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is being executed and delivered by the Borrower, the Dissemination Agent and the Trustee for the benefit of the Holders and Beneficial Holders of the Bonds and in order to assist the Participating Underwriter in complying with, and constitutes the written undertaking of the Borrower for the benefit of the Bondholders required by, Section (b)(5)(i) of Securities and Exchange Commission Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (17 c.F.R. ~ 240.15c2-12) (the "Rule"). The Borrower, as an "obligated person" within the meaning of the Rule, undertakes to provide the following information as provided in this Disclosure Agreement: (a) Annual Financial Information; (b) Audited Financial Statements, if any; and (c) Material Event Notices. Section 2. Definitions. In addition to the definitions set forth in the Indenture, which apply to any capitalized term used in this Disclosure Agreement unless otherwise defined in this Section, the following capitalized terms shall have the following meanings: "Annual Financial Information" means, in the case of the Borrower, the financial information or operating data with respect to the Project, provided at least annually, of the type included in Exhibit A hereto, which Annual Financial Information may, but is not required to, include Audited Financial Statements. "Audited Financial Statements" means, in the case of the Borrower, the annual audited financial statements, if any. "Beneficial Holders" means any person which has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds, including persons holding Bonds through nominees or depositories., 1-170 "Dissemination Agent" means Wells Fargo Bank, National Association, acting in its capacity as Dissemination Agent hereunder, or any successor Dissemination Agent designated in writing by the Borrower and which has filed with the Trustee a written acceptance 'of such designation. "Holders" means either the registered owners of the Bonds, or, if the Bonds are registered in the name of The Depository Trust Company or another recognized depository, any applicable participant in its depository system. "Material Event" means any of the following events with respect to the Bonds, if material: (a) (b) Indenture; (c) difficulties; (d) difficulties; (f) Bonds; (g) (h) (i) G) Bonds; and (k) Principal and interest payment delinquencies; Non-payment related Events of Default under and as defined in the Unscheduled draws on debt service reserves reflecting financial Unscheduled draws on credit enhancements reflecting financial (e) Substitution of credit or liquidity providers, or their failure to perform; Adverse tax opinions or events affecting the tax-exempt status of the Modifications to rights of Bondholders; Bond calls (other than mandatory sinking fund redemptions); Defeasances; Release, substitution, or sale of property securing repayment of the Rating changes. "Material Event Notice" means written or electronic notice of a Material Event. "NRMSIR" means a nationally recognized municipal securities information repository, as recognized from time to time by the Securities and Exchange Commission for the purposes referred to in the Rule; the NRMSIRs as of the date of this Disclosure Agreement being set forth at http://www .sec.gov/info/municipal/nrrnsir. gov. "Participating Underwriter" means the original underwriter of the Bonds required to comply with the Rule in connection with offering of the Bonds. "Project" means the project financed with proceeds of the Bonds. "tt-:l 71 "SID" means a state information depository as operated or designated by the State of California as such for the purposes referred to in the Rule. As of the date of this Disclosure Agreement, there is no SID operated or designated by the State of California as such for the purposes referred to in the Rule. Section 3. Provision of Annual Reports. (a) While any Bonds are outstanding with respect to the Project, the Borrower shall, or upon written direction shall cause the Dissemination Agent to, provide the Annual Financial Information on or before June 1 of each year (the "Borrower Report Date"), beginning on or before June 1, 2006 to each then existing NRMSIR and the SID, if any. If the Dissemination Agent is to provide the Annual Financial Information, not later than 15 Business days prior to said date, the Borrower shall provide the Annual Financial Information to the Dissemination Agent. The Borrower shall include with each such submission of Annual Financial Information to the Dissemination Agent a written representation addressed to the Dissemination Agent, upon which the Dissemination Agent may conclusively rely, to the effect that the Annual Financial Information is the Annual Financial Information .required to be provided by it pursuant to this Disclosure Agreement and that it complies with the applicable requirements of this Disclosure Agreement. In each case, the Annual Financial Information may be submitted as a single document or as a set of documents, and all or any part of such Annual Financial Information may be provided by specific cross-reference to other documents previously provided to each NRMSIR and the SID, if any, or filed with the Securities and Exchange Commission and, if such a document is a final official statement within the meaning of the Rule, available from the Municipal Securities Rulemaking Board, as provided in the definition of Annual Financial Information. The Audited Financial Statements, if any, may, but are not required to be, provided as a part of the Annual Financial Information. (b) If not provided as part of the Annual Financial Information, the Borrower shall, or, upon furnishing such Audited Financial Statements to the Dissemination Agent shall cause the Dissemination Agent to, provide Audited Financial Statements when and if available while any Bonds are Outstanding with respect to the Project to each then existing NRMSIR and the SID, if any. (c) If by 15 Business days prior to an Borrow.er Report Date the Dissemination Agent has not received a copy of the Annual Financial Information, the Dis.semination Agent shall contact the Borrower to give notice that the Dissemination Agent has not received the Annual Financial Information and that such information must be provided to the NRMSIRS and SID, if any, by the applicable Report Date. (d) The Dissemination Agent shall: (i) determine prior to the Borrower Report Date the name and address of each NRMSIR and each SID, if any; and (ii) to the extent the Borrower has provided the Annual Financial Information to the Dissemination Agent and required such information be sent to each NRMSIR or SID, file a report with the Borrower certifying that the Annual Financial Information has been provided by the Dissemination Agent to each NRMSIR and SID, if any, pursuant to this Disclosure Agreement, stating the date it was provided and listing each then existing NRMSIR and the SID, if any, to which it was provided. b:j 7 2 (e) If the Dissemination Agent does not receive the Annual Financial Information from the Borrower required by clause (a) of this Section by the applicable Report Date, the Dissemination Agent shall, without further direction or jnstruction from the Borrower, provide to the Municipal Securities Rulemaking Board and to the SID, if any, notice of any such failure to provide to the Dissemination Agent Annual Financial Information by the applicable Report Date. For the purposes of determining whether information received from the Borrower is Annual Financial Information, the Dissemination Agent shall be entitled conclusively to rely on the written representation made by the Borrower pursuant to this Section. Section 4. Reporting of Significant Events. (a) (i) If a Material Event occurs while any Bonds are Outstanding, the Borrower shall provide a Material Event Notice in a timely manner to the Dissemination Agent and instruct the Dissemination Agent to provide such Material Event Notice in a timely manner to the Municipal Securities Rulemaking Board and the SID, if any. Each Material Event Notice shall be so captioned and shall prominently state the date, title and CUSIP numbers of the Bonds. (ii) The Trustee shall promptly advise the Borrower of the occurrence of any event with respect to the Bonds of which the Trustee has actual knowledge which, if materiiu, would constitute a Material Event. For purposes of this Disclosure Agreement, "actual knowledge" of such event shall mean knowledge by a Responsible Officer of the Trustee at the Corporate Trust Office of the existence of such event. Notwithstanding anything to the contrary herein, the Trustee shall have no duty to determine the materiality of any such event. (b) Whenever the Borrower obtains actual knowledge of the occurrence of an event which, if material, would constitute a Material Event, whether because of a notice from the Trustee pursuant to subsection (a) or otherwise, the Borrower shall as soon as reasonably possible determine if such event would constitute material information for Bondholders and is, therefore, a Material Event. (c) If the Borrower provides to the Dissemination Agent information relating to the Borrower or the Bonds, which information is not designated as a Material Event Notice, and directs the Dissemination Agent to provide such information to NRMSIRs, the Dissemination Agent shall provide such information in a tirnely manner to the NRMSIRs or the Municipal Securities Rulemaking Board and the SID, if any. Section 5. Termination of Reporting Obligation. The Borrower's, the Dissemination Agent's and the Trustee's obligations under this Disclosure Agreement shall automatically terminate once the Bonds are no longer outstanding or, with respect to the Trustee or the Dissemination Agent, as appropriate, upon the resignation or removal of the Trustee or the Dissemination Agent. Section 6. Dissemination Agent. The Borrower may, from time to time, appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Agreement, and may discharge any such Dissemination Agent, with or without appointing a successor Dissemination Agent upon notice to the Dissemination Agent. The Dissemination Agent may resign at any time by providing 30 days' written notice to the Borrower. The initial Dissemination Agent shall be the Dissemination Agent named herein. Section 7. Amendment; Waiver. Notwithstanding any other provision of this Disclosure Agreement, the Borrower, the Dissemination Agent and the Trustee may amend this Disclosure rr-J 73 Agreement and any provision of this Disclosure Agreement may be waived by the parties hereto, if such amendment or waiver is supported by an opinion of counsel expert in federal securities laws, acceptable to the Borrower and the Trustee, to the effect that such amendment or waiver would not, in and of itself, cause the undertakings herein to violate the Rule if such amendment or waiver had been effective on the date hereof but taking into account any subsequent change in or official interpretation of the Rule, provided that the Borrower shall have provided notice of such delivery and of the amendment to each then existing NRMSIR or the MSRB and the SID, if any, provided that neither the Trustee nor the Dissemination Agent shall be obligated to agree to any amendment that modifies the duties or liabilities of the Dissemination Agent or the Trustee without their respective consent thereto. Any such amendment shall satisfy, unless otherwise permitted by the Rule, the following conditions: (a) The amendment may only be made in connection with a change in circumstances that arises from a change in legal reimbursements, change in law or change in the identity, nature or status of the obligated person or type of business conducted; (b) This Disclosure Agreement, as amended, would have complied with the requirements of the Rule at the time of the primary offering, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (c) The amendment does not materially impair the interests of Beneficial Holders and Holders of any of the Bonds, as determined either by parties unaffiliated with the Borrower (such as counsel expert ilJ federal securities laws), or by approving vote of Bondholders pursuant to the terms of the Indenture at the time of the amendment. The initial Annual Financial information after the amendment shall explain, in narrative form, the reasons for the amendment and the effect of the change, if any, in the type of operating data or financial information being provided. Section 8. Additional Information. Nothing in this Disclosure Agreement shall be deemed to prevent the Borrower from disseminating any other information, using the means of dissemination set forth in this Disclosure Agreement or any other means of communication, or including any other information in any Annual Financial Information or notice of occurrence of a Material Event, in addition to that which is required by this Disclosure Agreement. If the Borrower chooses to include any information in any Annual Financial Information or notice of occurrence of a Material Event in addition to that which is specifically required by this Disclosure Agreement, the Borrower shall have no obligation under this Disclosure Agreement to update such information or include it in any future Annual Financial Information or notice of occurrence of a Material Event. Section 9. Default. In the event of a failure of the Borrower, the Dissemination Agent or the Trustee to comply with any provision of this Disclosure Agreement, the Trustee, at the written direction of the Participating Underwriter or the Holders of at least 25% in aggregate principal amount of Outstanding Bonds, shall, but only to the extent the Trustee receives indemnification to its satisfaction, or any Beneficial Holder or Holder of any of the Bonds may, seek mandate or specific performance by court order, to cause the Borrower, the Dissemination Agent or the Trustee, as the case may be, to comply with its obligations under this Disclosure Agreement; provided that none of the Borrower, the Dissemination Agent or the Trustee shall be liable for monetary damages or any other monetary penalty or payment for breach of any of its obligations under this Section or unless, in the case of the Borrower, such breach shall have been willful or reckless. A default under this Disclosure Agreement shall not be deemed an Event of Default under the Indenture or the Financing Agreement, and the rights and remedies provided by the Indenture and the Financing Agreement upon the occurrence of an "Event of Default" shall not apply to any such failure. The sole remedy under this Disclosure Agreement in the event of any failure of the 1 OJs7 4 Borrower, the Dissemination Agent or the Trustee to comply with this Disclosure Agreement shall be an action to compel performance. Section 10. Duties, Immunities and Liabilities of Trustee and Dissemination Agent. Article 10 of the Indenture is hereby made applicable to this Disclosure Agreement as if this Disclosure Agreement were (solely for this purpose) contained in the Indenture and the Dissemination Agent shall be entitled to the benefits, protections and provisions thereof to the same extent as the Trustee. The Dissemination Agent (if other than the Trustee or the Trustee in its capacity as Dissemination Agent) and the Trustee shall have only such duties as are specifically set forth in this Disclosure Agreement, and the Borrower agrees to indemnify and save the Dissemination Agent and the Trustee and their officers, directors, employees and agents harmless against any loss, expense and liabilities which they may incur arising out of or in the exercise or performance of their powers and duties hereunder, including the costs and expenses (including attorneys' fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent's or Trustee's respective negligence or willful misconduct. The Dissemination Agent and Trustee shall be paid compensation by the Borrower (on a pro rata basis based on the outstanding principal balance of its Loan) for its services provided hereunder and all expenses, legal fees and advances made or incurred by the Dissemination Agent hereunder. The Dissemination Agent and Trustee shall have no duty or obligation to review any information provided to it by the Borrower hereunder and shall not be deemed to be acting in a fiduciary capacity for the Borrower, the Holders or Beneficial Holders of the Bonds or any other party. The obligations of the Borrower under this Section shall survive resignation or removal of the Dissemination Agent or Trustee and payment of the Bonds. Section 11. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit of the Borrower, the Trustee, the Dissemination Agent, the Participating Underwriter and the Beneficial Holders and Holders of any Bonds and shall create no rights in any other person or entity. Section 12. Interpretation. It being the intention of the Borrower that there be full and complete compliance with the Rule, this Disclosure Agreement shall be construed in accordance with the written guidance and no-action letters published from time to time by the Securities and Exchange Commission and its staff with respect to the Rule. Section 13. Governing Law. This Disclosure Agreement shall be governed by the laws of the State of California. Section 14. Counterparts. This Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 1<:t-175 [Borrower's Signature Page to the Continuing Disclosure Agreement] CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California non-profit public benefit corporation, its Managing General Partner By Brian F. Biber, Executive Director By; SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By James 1. Schmid, Manager n-Jl76 [Trustee and Dissemination Agent's Signature Page to Continuing Disclosure Agreement] WELLS FARGO BANK, NATIONAL ASSOCIATION By Authorized Signatory 1 6~87 7 EXHIBIT A ANNUAL DISCLOSURE REPORT [BOND CAPTION] Report For Period Ending THE PROJECT Name: Address: Occupancy Number of Units Number of Units Occupied as of Report Date Operating History of the Project The following table sets forth a summary of the operating results of the Project for fiscal year ended, as derived from the Borrower's [un]audited financial statements. Revenues Operating Expenses 1 Net Operating Income Debt Service on the Loan2 Net Operating Income/(Loss) After Debt Service lExcludes depreciation and other noncash expenses, includes management fee. 2Interest and scheduled principal payrnents on the Loan during the period indicated. The average occupancy of the Project for the fiscal year ended [_] was [-:)%. 1-178 APPENDIX H SUMMARY OF CERTAIN PROVISIONS OF THE REIMBURSEMENT AGREEMENT The following statements are a brief summary of certain provisions of the Reimbursement Agreement. The summary does not purport to be complete, and reference is made to the Reimbursement Agreement for a full and complete statement of the provisions thereof In addition, Fannie Mae shall have the right without the consent oj. or notice to, the Trustee, the Issuer or the Bondholders, to amend, modify, change, add to or delete any of the provisions of the Reimbursement Agreement. Capitalized terms used in this Appendix and not otherwise defined will have the meanings given them in the Reimbursement Agreement. The Credit Facility is issued pursuant to the Reimbursement Agreement. The Reimbursement Agreement obligates the Borrower, among other things, to reimburse Fannie Mae for funds advanced by Fannie Mae under the Credit Facility and to pay various fees and expenses. The Reimbursement Agreement sets forth various affirmative and negative covenants of the Borrower, some of which are more restrictive with respect to the Borrower than similar covenants contained in the Financing Agreement. The Reimbursement Agreement also includes various Events of Default, including, but not limited to, payment defaults, covenant defaults and cross-defaults to other documents, including in some cases other indebtedness. Upon the occurrence of an Event of Default under the Reimbursement Agreement, Fannie Mae may, among other things, accelerate the Bonds, subject the Bonds to mandatory purchase and/or exercise any other rights or remedies available under any Financing Document or take any other action, whether at law or in equity, without notice or demand, as it deems advisable to protect and enforce its rights. Fannie Mae shall have the right, in its sole discretion, to amend, modify, change, add to ordelete any provisions of the Reimbursement Agreement, including, but not limited to, adding cross-defaults to any other documents and agreements, without receiving the consent of, or providing notice to, the Trustee, the Issuer or the Bondholders. Fannie Mae shall also have the right, in its sole discretion, to waive any Event of Default under any Financing Document. Unless such waiver expressly provides to the contrary, any waiver so granted shall extend only to the specific event or occurrence which gave rise to the Event of Default so waived and not to any other similar event or occurrence which OCcurs subsequent to the date of such waiver. 1-179 EXHIBIT 4 SUBORDINATION AGREEMENT TillS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 D.S.C. 91716, eJ: seq., its successors, transferrees and assigns ("Fannie Mae"); (iii) the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has previously issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A" in the aggregate principal amount of $11,485,000 and has loaned the proceeds thereof to the Borrower (the "First Mortgage Loan"). The First Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit of Issuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "First Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in Fynin;t A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the "First Mortgage Note"), and is due in full on November I, 2035. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the First Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defined therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancernent"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the First Mortgage. Fannie Mae Subordination Agreement- AlYordable Housing [Serie, 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 ]0/98 (page ]) 1-180 c. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $1,000,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the First Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, Iirnited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specif'y the default upon which such Default Notice is based. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 2) 1-181 "First Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defmed in the First Mortgage Loan Documents. "First Mortgage Loan Documents" means the First Mortgage Note, the First Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the First Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the fIrst paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Agreement" means the Loan Agreement and Related Restrictive CovenantslHome Program Participation Agreement dated October _' 2003, by and among Subordinate Lender, Borrower and the City ofChula Vista. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October 1, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274816 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1,2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A#1212947 v4 Form 4503 10/98 (Page 3) 1-182 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the First Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Subordinate Note. The Subordinate Note contains the following proVlslOn: "The indebtedness evidenced by this Note shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated September 1, 2005 in the original principal amount of $11,485,000 (or such lesser amount as may be determined by Fannie Mae) to be issued by Borrower and payable to the City of Chula Vista (the "Issuer"), as assigned and endorsed to the order of Fannie Mae and Wells Fargo Bank, National Association (the "Trustee"), as their interests may appear, to the extent and in the manner provided in that certain Subordination Agreement to be entered into by and among Fannie Mae, Trustee, Borrower and the Agency (the "Subordination Agreement"). The Deed of Trust securing this Note shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Deed of Trust securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Deed of Trust securing this Note are subject to the restrictions and limitation set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's . acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the holder of this Note under the Subordination Agreement." Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 4) Affordable Housing (Series 2003A - Agency Loan] MO':'OOCS_A #1212947 v4 1-183 (b) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (c) Term. The term of the Subordinate Note does not expire before the term of the First Mortgage Loan. (d) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (e) First Mortgage Loan Documents. The executed First Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the First Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the First Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness . evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the First Mortgage and the other First Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the First Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (I) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the First Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First Mortgage. Fannie Mae Subordination Agreement - Form 4503 10/98 (page 5) Affordable Housing [Series 2003A - Agency Loan] MO_OOCS_A #1212947 v4 1-184 (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the S ubordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the First Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been. cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4( d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise frorn the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. Fannie Mae Subordination Agreement - Form 4503 10/98 (page 6) Affordable Housing {Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 1-185 (1) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice. All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the First Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder. ( c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other First Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such First Mortgage Loan Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 7) Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 1-186 Default. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60- day period to continue to pursue its remedies under the First Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the First Mortgage Loan Documents. In the event that such a non- monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. Fannie Mae Subordination Agreement- AJTordable Housing [Series 2003A - Agency LoanJ MD_DOCS_A#1212947 v4 Farm 4503 10/98 (Page 8) 1-187 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any First Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the First Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and ofthe Senior Lender under the First Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds .to cure First Mortgage Loan Defaults pursuant to Section 6( a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 9) Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 1-188 settlement of, or to adjust, any claims resulting frorn a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlernent or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 10) 1-189 9. Modification or Reimancing of First Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refinancing all or any part of the First Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refmanced debt; and that all references to the First Mortgage Loan, the First Mortgage Note, the First Mortgage, the First Mortgage Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the refmance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in perfonning or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or pennitted to give to the other party pursuant to this Agreernent shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) .designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENlOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Blvd., 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 F ann 4503 10198 (Page 11) 1-190 Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: Redevelopment Agency of the City ofChula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Housing Manager With a copy to City Attorney Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. Ibis Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instnunents and/or documents reasonably required by any other party to this Agreement in Faonie Mae Subordination Agreement - Form 4503 10/98 (page 12) Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 1-191 order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent ofthis Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid- or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. G) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modify, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan I MD_DOCS_A #1212947 v4 Farm 4503 10/98 (Page 13) 1-192 IN WITNESS WHEREOF, the parties hereto have executed this Agreernent as of the day and year first written above. WITNESS/ATTEST SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10198 (Page 14) 1-193 Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 FANNIE MAE By: Name: Title Form 4503 1-194 10/98 (Page 15) Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A#1212947 v4 SUBORDINATE LENDER: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA By: Name: Title: Form 4503 10/98 (Page 16) 1-195 BORROWER: CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive Director/President By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 17) 1-196 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by his/herltheir signature(s) on the instrument the person(s), or the entity uponbehalf of which person(s) acted, executed the instrument Witness my hand and official seaL (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRlBED AT RiGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing {Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 18) 1-197 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seaL (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Do cum en I Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 19) 1-198 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactory evidence to be the person(s) wbose namees) 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 bis/her/their signature(s) on the instrument the person(s), or the entity upon behalf ofwbich person(s) acted, executed the instrument Witness my hand and official seaL (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) ( ) ( ) ( ) ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency LoanJ MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 20) 1-199 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf ofwmch person(s) acted, executed the instrument Witness my hand and officiai seal. (Signature of NataI)') Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRlBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 21) 1-200 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (n~e, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactory evidence to be the person(s) wbose name(s) is/are subscribed to the within instrument and acknowledged to me that be/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 person(s) acted, executed the instrument Witness my band and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) ( ) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized docwnent. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Docwnent Nwnber of Pages _ Date ofDocwnent Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [post-Conversion - Agency Loan} MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 22) 1-201 FXHTllTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State ofCaIifornia, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16,2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement- Affordable Housing [Post-Conversion - Agency Loan) MD_DOCS_A #1212947 v4 Form 4503 10/98 (page 1) 1-202 EXHIBIT 5 SUBORDINATION AGREEMENT TIllS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. ~1716, et ~, its successors, transferrees and assigns ("Fannie Mae"); (iii) TIffi CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has previously issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A" in the aggregate principal amount of $11 ,485,000 and has loaned the proceeds thereof to the Borrower (the "First Mortgage Loan"). The First Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit of Issuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "First Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in Fx]'i]'it A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the "First Mortgage Note"), and is due in full on November l, 2035. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the First Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defmed therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, betWeen Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the First Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $500,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A #121 0038 v5 Form 4503 10/98 (page 1) 1-203 D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the First Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. DefInitions. In addition to the terms defmed in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meartings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a maj ority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the frrst paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specifY the default upon which such Default Notice is based. "First Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defmed in the First Mortgage Loan Documents. "First Mortgage Loan Documents" means the First Mortgage Note, the First Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the First Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 2) 1-204 "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" rneans collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the fIrst paragraph on page I of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October I, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274817 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1,2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the First Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender Wlder and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the First Mortgage Loan Documents applicable to Wlpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. Fannie Mae Subordination Agreement - Form 4503 10/98 Affordable Housing [Series 2003A - City Loanl MD_DOCS_A #1210038 v5 (page 3) 1-205 The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) provision: Subordinate Note. The Subordinate Note contains the following "The indebtedness evidenced by this Note shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated September I, 2005 in the original principal amount of $11,485,000 (or such lesser amount as may be determined by Fannie Mae) to be issued by Borrower and payable to the City of Chula Vista (the "Issuer"), as assigned and endorsed to the order of Fannie Mae and Wells Fargo Bank, National Association (the "Trustee"), as their interests may appear, to the extent and in the manner provided in that certain Subordination Agreernent to be entered into by and among the Issuer, Fannie Mae, Borrower and Trustee (the "Subordination Agreement"). The Deed of Trust securing this Note shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Deed of Trust securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Deed of Trust securing this Note are subj ect to the restrictions and limitation set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the holder of this Note under the Subordination Agreement." (b) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (c) Term. The term of the Subordinate Note does not expire before the term of the First Mortgage Loan. (d) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (e) First Mortgage Loan Documents. The executed First Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the First Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the First Mortgage Loan Documents, certified to be true, correct and complete. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 4) 1-206 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the rnanner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the First Mortgage and the other First Mortgage Loan Documents and to all advances heretofore made or which rnay hereafter be made pursuant to the First Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (I) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the First Mortgage, or (2) constructing, renovating, repairing, furnishing, fIxturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First Mortgage. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments Mter First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the First Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 5) Affordable Housing [Series 2003A - City Loan] MD_DOCS_A #121 0038 v5 1-207 Lender in accordance with the provisions of this Section 4( d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any .such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not cOmmence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the First Mortgage. (b) Subordinate Lender's Exercise of Remedies Mter Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 6) Affordable Housing [Series 2003A - City Loan J MD_DOCS_A #1210038 v5 1-208 Documents or exercise any other rights or remedies it may have under the Suborclinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws. (c) Cross Default. The Borrower and the Subordinate Lender agree that a . Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same marmer as in the case of any other First Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such First Mortgage Loan Default. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60- day period to continue to pursue its remedies under the First Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the First Mortgage Loan Documents. In the event that such a non- monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. Fannie Mae Subordination Agreement- Affordable Housing [Series 200JA - City Loan I MO_DOCS_A #1210038 v5 Form 4503 10/98 (Page 7) 1-209 (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default llllder the Subordinate Loan Documents if no other default occurred llllder the Subordinate Loan Documents lllltil either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights llllder the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default is determined to constitute a default llllder the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default llllder the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior lender to the Subordinate Lender, any default llllder the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender llllder the First Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any First Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively llllder the First Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the First Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan} MD_DOCS_A #1210038 v5 Form 4503 10/98 (page 8) 1-210 (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance prerniums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fIre or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (I) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or.a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to fIle any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount Fannie Mae Subordination Agreement - Form 4503 10/98 (page 9) Affordable Housing [Series 2003A - City Loanl MD_DOCS_A#1210038 v5 1-211 of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Refinancing of First Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of rnoney. Subordinate Lender further agrees that its agreernent to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refmancing all or any part of the First Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the First Mortgage Loan, the First Mortgage Note, the First Mortgage, the First Mortgage Loan Documents and Senior Lender shall mean, respectively, the refmance loan, the refinance note, the mortgage securing the refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request; demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: Fannie Mae Subordination Agreement- Affordable Housing [Series Z003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (page 10) 1-212 SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17'I, Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: The City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Executive Director With a copy to Agency Attorney and Housing Coordinator: Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 11) Affordable Housing (Series 2003A - City Loanl MD_DOCS_A #121 0038 v5 1-213 such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreernent shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. G) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modifY, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City LoaD] , MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 12) 1-214 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fIrst written above. WITNESS/ATTEST: SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan) MD_DOCS_A #1210038 v5 Form 4503 10/98 (page 13) 1-215 Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loao] MD_DOCS_A #1210038 v5 FANNIE MAE By: Name: Title Form 4503 1-216 10/98 (page 14) Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 SUBORDINATE LENDER: THE CITY OF CHULA VISTA By: Name: Title: Form 4503 10/98 1-217 (page 15) BORROWER: CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive DirectorfPresident By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (page 16) 1-218 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the witllln instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behaIfofwhich person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series Z003A - City Loan] MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 17) 1-219 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactOlY 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 person( s) acted, executed the instrument Witness my band and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTlFICA TE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loan] MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 18) 1-220 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A- City Loan] MD_DOCS_A #121 0038 v5 Form 4503 10/98 (Page 19) 1-221 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.~., M Jane Doe, Notary Public) Personally appeared (narne(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer( s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 20) 1-222 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO TIffi DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loanl MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 21) 1-223 FXHTRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16,2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement Affordable Housing [post-Conversion - City Loan] MD_DOCS_A #121 0038 v5 Form 4503 10/98 (page A-I) 1-224 EXHIBIT 6 SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as ofthis 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 91716, et seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) the REDEVELOPMENT AGENCY OF TIffi CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California lirnited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has issued its tax -exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A" in the aggregate principal amount of $1,715,000 and has loaned the proceeds thereof to the Borrower (the "Second Mortgage Loan"). The Second Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit ofIssuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "Second Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in P"hihit A attached hereto. The Borrower's obligation to repay the Second Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the" Second Mortgage Note"), and is due in full on May 1, 2036. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the Second Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defmed therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reirnbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the Second Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $1,000,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - Agency Loan] MD_DOCS_A #1263615 v3 Form 4503 10198 (Page 1) 1-225 D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the Second Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defmed in the Recitals to this Agreernent, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" rneans, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a maj ority of the directors of a corporation, to make managernent decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Second Mortgage Loan Default has occurred under the Second Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specifY the default upon which such Default Notice is based. " Second Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Second Mortgage Loan Documents. " Second Mortgage Loan Documents" means the Second Mortgage Note, the Second Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the Second Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement - Form 4503 10/98 Affordable Housing [Series 2005A - Agency Loan]] MO_DOCS_A #1263615 v3 (Page 2) 1-226 "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the fIrst paragraph on page I of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Agreement" means the Loan Agreement and Related Restrictive CovenantslHome Program Participation Agreement dated October _,2003, by and among Subordinate Lender, Borrower and the City of Chula Vista. "Subordinate Loan Documents" means the Subordinate Loan Agreernent, Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October 1, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274816 among the Land Records. ':Subordinate Note" means the Promissory Note dated October 1, 2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency L03nJ] MD_DOCS_A #1263615 v3 Form 4S03 10/98 (page 3 ) 1-227 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Second Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the Second Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the Second Mortgage Loan Documents applicable to unpennitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (b) Term. The term of the Subordinate Note does not expire before the term of the Second Mortgage Loan. (c) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (d) Second Mortgage Loan Documents. The executed Second Mortgage Loan Documents are substantially in the same forms as, when applicable, those subrnitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the Second Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the Second Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 4) Affordable Housing [Series 2005A - Agency Loan]J MD_DOCS_A #1263615 v3 1-228 and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreernent to the prior payment in full of the indebtedness evidenced by the Second Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Second Mortgage and the other Second Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Second Mortgage and the other Second Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the Second Mortgage, curing defaults by the Borrower under the Second Mortgage Loan Documents or for any other purpose expressly permitted by the Second Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other rnonetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the Second Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the Second Mortgage. (c) Payments Before Second Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a Second Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) . Payments After Second Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Second Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the Second Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with Fannie Mae Subordination Agreement - Form 4503 10/98 (page 5) Affordable Housing {Series 2005A - Agency Loan]] MD_DOCS_A #1263615 v3 1-229 subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Second Mortgage Loan Documents in accordance with the provisions of the Second Mortgage Loan Documents. By executing this Agreernent, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (t) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice. All amounts paid by the Senior Lender in accordance with the Second Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Second Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder. Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - Agency LoanIJ MD_DOCS_A #1263615 v3 Form 4503 ]0/98 (Page 6) 1-230 (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a Second Mortgage Loan Default under the Second Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Second Mortgage Loan Documents in the same manner as in the case of any other Second Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Second Mortgage Loan Documents, any Second Mortgage Loan Default under the Second Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the Second Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such Second Mortgage Loan Default. 6. Default Under Second Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Second Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Second Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60-day period to continue to pursue its rernedies under the Second Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the Second Mortgage Loan Documents. In the event that such a non-monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Second Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Second Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the Second Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Second Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of Fannie Mae Subordination Agreement - Form 4503 10/98 (page 7) Affordable Housing (Series 2005A - Agency Loan]] MD_DOCS_A#1263615 v3 1-231 sale contained in) the Second Mortgage. At any time after a Second Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be pennitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations ofthis Agreement. If at any time the Borrower cures any Second Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such Second Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Second Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Second Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Second Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Second Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Second Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure Second Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 8) Affordable Housing [Series 2005A - Agency Loan]] MD_DDCS_A #1263615 v3 1-232 (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the Second Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Second Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreernent shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Second Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Second Mortgage Loan, any proceeds remaining after the satisfaction. in full of the principal of, interest on and other amounts payable under the Second Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, ,in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Second Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Second Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Refmancing of Second Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Fannie Mae Subordination Agreement - Form 4503 10/98 (page 9) Affordable Housing (Series 200SA - Agency LoanJ] MD_DOCS_A #1263615 v3 1-233 Lender waives, postpones, extends, reduces or modifies any provisions of the Second Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refinancing all or any part of the Second Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the Second Mortgage Loan, the Second Mortgage Note, the Second Mortgage, the Second Mortgage Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the refmance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, I in Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - Agency LoanlJ MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 10) 1-234 Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: Redevelopment Agency of the City ofChula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Housing Manager With a copy to City Attorney Either party rnay, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. lbis Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Second Mortgage, or to further evidence the intent of this Agreement. Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loan IJ MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 11) 1-235 1-236 1-237 1-238 (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (f) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreernent shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Second Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Second Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. G) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modif'y, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing {Series 200SA - Agency LoanJl MD_DDCS_A #1263615 v3 Form 4503 10/98 (Page 12) 1-239 IN WI1NESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fIrst written above. WITNESS/ATTEST: Fannie Mae Subordination Agreement _ Affordable Housing [Series 2005A - Agency Loan I] MD_DOCS_A #1263615 v3 SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Form 4503 10/98 1-240 (page 13) Fannie Mae Subordination Agreement- Affordable Housing {Series 2005A - Agency Loan]] MD_DOCS_A#1263615 v3 FANNIE MAE By: Name: Title Form 4503 1-241 10/98 (Page 14) 1-242 1-243 Fannie Mae Subordination Agreement- Affordable Housing {Series 200SA - Agency LoanJ] MD_DOCS_A #1263615 v3 SUBORDINATE LENDER: REDEVELOP.MENT AGENCY OF THE CITY OF CHULA VISTA By: Name: Title: Form 4503 10/98 (Page 15) 1-244 BORROWER: CIC EASTLAKE, LP., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive Director/President By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loan Jl MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 16) 1-245 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrwnent and acknowledged to me that he/she/they executed the same in his/her/their authorized cilpacity/ies, and that by his/her/their signature(s) on the instrwnent the person(s), or the entity upon behalf of which person(s) acted, executed the instrwnent Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized docwnent. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type ofDocwnent Nwnber of Pages _ Date ofDocwnent Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - Agency LaaDlI MD_DOCS_A #1263615 v3 Form 4503 10/98 (page 17) 1-246 [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person( s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature ofNotaIy) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TIllS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - Agency Loan]J MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 18) 1-247 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) ( ) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement _ Affordable Housing [Series 2005A - Agency Loan)] MD_DOCS_A#1263615 v3 Form 4503 10/98 (page 19) 1-248 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seaL (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) . Guardian/Conservator Other: ( ) ( ) ( ) ( ) ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 200SA - Agency LoanJ) MD_DOCS_A#1263615 v3 Form 4503 10/98 (Page 20) 1-249 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer; (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other; ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loan)] MD_DOCS_A #1263615 v3 Form 4503 10/98 (page 2]) 1-250 FXffiRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement Affordable Housing [Series 2005A - Agency Loan MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page A-I) 1-251 EXHIBIT 7 SUBORDINATION AGREEMENT TIllS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 91716, et seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A" in the. aggregate principal amount of $1,715,000 and has loaned the proceeds thereof to the Borrower (the "Second Mortgage Loan"). The Second Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit of Issuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "Second Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in Fxhihit A attached hereto. The Borrower's obligation to repay the Second Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the "Second Mortgage Note"), and is due in full on May 1, 2036. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the Second Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defined therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the Second Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $500,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mac Subordination Agreement- Affordable Housing [Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page I) 1-252 D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the Second Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, TIIEREFORE, in order to induce Fannie Mae to issue the Credit Enhancernent, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exerCising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the fIrst paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Second Mortgage Loan Default has occurred under the Second Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specify the default upon which such Default Notice is based. "Second Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Second Mortgage Loan Documents. "Second Mortgage Loan Documents" means the Second Mortgage Note, the Second Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the Second Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 2) 1-253 "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the first paragraph on page I of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October 1, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274817 among the Land Records. "Subordinate Note" means the Promissory Note dated October I, 2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Second Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the Second Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the Second Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. Fannie Mae Subordination Agreement - Form 4503 10/98 Affordable Housing {Series 2005A - City Loan] MD _DOCS_A #1263594 v3 (page 3) 1-254 The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (b) Term. The term of the Subordinate Note does not expire before the term of the Second Mortgage Loan. (c) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (d) Second Mortgage Loan Documents. The executed Second Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the Second Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the Second Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the Second Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Second Mortgage and the other Second Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Second Mortgage and the other Second Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (I) protecting or further securing the lien of the Second Mortgage, curing defaults by the Borrower under the Second Mortgage Loan Documents or for any other purpose expressly pennitted by the Second Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the Second Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the Second Mortgage. Fannie Mae Subordination Agreement - Form 4503 10/98 (page 4) AtJordable Housing (Seri.. 200SA - City Loaoj MD_DOCS_A #1263594 v3 1-255 (c) Payments Before Second Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a Second Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After Second Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Second Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the Second Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4( d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Second Mortgage Loan Documents in accordance with the provisions of the Second Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (1) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Fannie Mae Subordination Agreement - Form 4503 10/98 (page 5) Affordable Housing [Series 200SA - City Loan] MD_DOCS_A #1263594 v3 1-256 Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the Senior Lender in accordance with the Second Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Second Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a Second Mortgage Loan Default under the Second Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Second Mortgage Loan Documents in the same manner as in the case of any other Second Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Second Mortgage Loan Documents, any Second Mortgage Loan Default under the Second Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the Second Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default Fannie Mae Subordination Agrecment- Form 4503 10/98 (page 6) Affordable Housing ISeries 200SA - City Loan) MD_DOCS_A #1263594 v3 1-257 related charges or payments received by the Senior Lender during such Second Mortgage Loan Default. 6. Default Under Second Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Second Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Second Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60-day period to continue to pursue its remedies under the Second Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the Second Mortgage Loan Documents. In the event that such a non-monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Second Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Second Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the Second Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Second Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Second Mortgage. At any time after a Second Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be pennitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any Second Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such Second Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Second Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Second Lender and the Subordinate Lender each agrees that, in the event Fannie Mae Subordination Agreement _ Form 4503 10/98 (page 7) AHordable Housing [S,ri,. 2005A - City Loao] MD_DOCSfi #1263594 v3 1-258 of any conflict or inconsistency between the terms of the Second Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Second Mortgage and the Subordinate Mortgage, respectively; and ( c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Second Mortgage Loan Docwnents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Second Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Docwnents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Docwnents, except that the Subordinate Lender shall have the right to advance funds to cure Second Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiwns, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Docwnents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the Second Mortgage remains a lien on the Property the following provisions shall apply: (I) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Docwnents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Second Mortgage Loan Docwnents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Fannie Mae Subordination Agreement - Form 4503 10/98 (page 8) Affordable Housing {Series :2005A - City Loan] MD_DOCS_A #1263594 v3 1-259 Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Second Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Second Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Second Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Second Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Second Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or RefInancing of Second Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the Second Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refinancing all or any part of the Second Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the Second Mortgage Loan, the Second Mortgage Note, the Second Mortgage, the Second Mortgage Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. Fannie Mae Subordination Agreement- Affordable Housing (Series 200SA - City Loanl MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 9) 1-260 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in perfonning or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent. shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: The City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Executive Director With a copy to Agency Attorney and Housing Coordinator: Fannie Mae Subordination Agnement- Affordable Housing [Series 2005A - City Loaol MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 10) 1-261 Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. Ibis Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto -shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Second Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. Ibis Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, sha1I not be .affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Second Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; Fannie Mae Subordination Agreement- Form 4503 10/98 (page 11) Affordable Housing [Serie, 200SA - City Loao] MD_DOCS_A #1263594 v3 1-262 (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Second Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (I) Counterparts. 1bis Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. (j) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modify, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing (Series 200SA - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 12) 1-263 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. WITNESS/ATTEST: SENIOR LENDER: . WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement _ Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 13) 1-264 Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan! MO_DOCS_A #1263594 v3 FANNIE MAE By: Name: Title Form 4503 1-265 10/98 (page 14) Fannie Mae Subordination Agreement - Affordable Housing [Series 200SA - City Loan! MD_DOCS_A #1263594 v3 SUBORDINATE LENDER: THE CITY OF CHULA VISTA By: Name: Title: Form 4S03 (page IS) 10/98 1-266 BORROWER: CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive DirectorlPresident By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 16) 1-267 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g_, "Jane DoC; Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) () ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) () ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type ofDocnment Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement _ Affordable Housing [Series 200SA - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 17) 1-268 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe; Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) () () () ( ) ( ) () Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized docnment. . THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Docnment Nnmber of Pages _ Date ofDocnment Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 18) 1-269 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hisiher/their authorized capacitylies, and that by hisiher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seat (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) () () ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) Genera! Attomey-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer( s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 19) 1-270 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed 10 the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) () ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) () ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the infonnation requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 20) 1-271 ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane DoC; Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) () () ( ) () () () ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information reques1ed below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement _ Affordable Housing [Seri.. 2005A - City Loanl MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 21) 1-272 RXHmTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot 1 of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page A-I) 1-273 EXHIBIT 8 Stradling Yocca Carlson & Rauth Draft dated August 2, 2005 TRUST INDENTURE between HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee reI ating to $1,715,000 HOUSING AUTHORITY OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS (RANCHO VISTA APARTMENTS), SERIES 2005A Dated as of September 1,2005 DOCSOC/1120730v3/24036-0031 ARTICLE 1. Section 1.1 Section 1.2 Section 1.3 Section 1.4 Section 1.5 TABLE OF CONTENTS Paee INCORPORATION OF RECITALS; DEFINITIONS; INTERPRETATION ............4 Incorporation of Recitals........................................................................................4 Definitions; Terms Defined In Financing Agreement............................................4 Rules of Construction ............................ ........ .... ................................. ............. .....19 Content of Certificates and Opinions ...................................................................19 Effective Date ... ..... ..................................................... ................................... .......20 ARTICLE 2. TIlE BONDS .... ..... ..... ......................... ...... ..................... ... ......................... ......... ..... ...20 Section 2.1 Section 2.2 Section 2.3 Section 2.4 Section 2.5 Section 2.6 Section 2.7 Section 2.8 Section 2.9 Section 2.10 Section 2.11 Section 2.12 Section 2.13 Section 2.14 Section 2.15 Section 2.16 ARTICLE 3. Section 3.1 Section 3.2 Section 3.3 Section 3.4 Section 3.5 Section 3.6 Section 3.7 Section 3.8 Section 3.9 ARTICLE 4. Section 4.1 Section 4.2 Section 4.3 Section 4.4 Section 4.5 Authorized Amount of Bonds ..............................................................................20 Issuance of Bonds................................................................................................ .20 Registered Bonds; Authorized Denomination; Numbering..................................20 Security is Sole Source for Payments of Principal and Interest ...........................20 Ratably Secured................................................................................................... .20 Terms of Bonds. .... ... .................................... .............. ........................ ............... ...21 Form of Bonds. ...... ... .................................... ........... ... ........................ .... ....... ..... ..22 Temporary Bonds .. .... ........ .............. ............. ........... ... ......... ................ .................23 Execution ........ ....... ... ......... ........................... ........... ... ..... ................. ....................23 Authentication ...... ............. ........................... .............. ................ .......... ................23 Mutilated, Lost, Stolen or Destroyed Bonds ........................................................23 Book Entry System. ........... .............................. .................... ................ .................24 Bond Registrar; Exchange and Transfer of Bonds; Persons Treated as the Bondholders......................................................................................................... .25 Cancellation ................... .... ..... ....... ............. ............. .... ..... ... ................ .................26 Conditions for Delivery of Bonds ........................................................................27 Remarketing of Bonds...... ........ ..... ............. .......... ............ .... .............. ..................28 REDEMPTION OF BONDS .......................................................................................36 Redemption........ .... .... .......... ....... .... ............ .......... ............ .... .............. ............. .....36 Optional Redemption. ....... ... ..... ...... ......... ................ ... .......... .... .......... ..................36 Special Mandatory Redemption...... ........... ................ .......... ............... ........ .... .....38 Mandatory Sinking Fund Redemption. ................................................................39 Notice of Redemption..................... ............................ ...................... ......... ........ ...41 Redemption Payments ..................... ....... .... .......... ............... ........ ....... ............. .....42 Selection of Bonds to be Redeemed Upon Partial Redemption of Bonds............43 Purchase of Bonds In Lieu of Redemption...........................................................44 Cancellation of Bonds ..................... ............ ................... ............. ................. ........45 FUNDS AND ACCOUNTS ........................................................................................45 Creation of Funds and Accounts ..........................................................................45 Ini tial Deposi ts......................................................................................................4 5 The Mortgage Loan Fund.....................................................................................46 The Revenue Fund General Account....................................................................46 The Revenue Fund - Redemption Account. .........................................................47 DOCSOCIl12073Ov3/24036-0031 Section 4.6 Section 4.7 Section 4.8 Section 4.9 Section 4.1 0 Section 4.11 Section 4.12 Section 4.13 Section 4.14 Section 4.15 ARTICLE 5. Section 5.1 Section 5.2 ARTICLE 6. Section 6.1 Section 6.2 Section 63 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9 Section 6.1 0 Section 6.11 Section 6.12 ARTICLE 7. Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 ARTICLE 8. Section 8.1 Section 8.2 Section 83 The Revenue Fund - Credit Facility AccounL....................................................48 The Revenue Fund - Fees Account. .....................................................................48 The Costs of Issuance Fund. ... ....................................................................... .......48 The Rebate Fund. ........... ... .................... ........... ....... ............ ............ ......................49 Bond Purchase Fund. ... ........ ....................... ... ....... .......... .......................... ..... .......50 Certain Moneys to be Applied at the Direction of the Credit Provider................5l Records................................................................................................................ .51 Reports By the Trustee .........................................................................................51 Moneys Held for Particular Bonds .......................................................................51 Nonpresentment of Bonds ........ ......... .................................................. ..... ....... .....52 INVESTMENTS .........................................................................................................52 Investment Limitations ...... .... ....... ... ....... ............... ................................... ..... .......52 Trustee's Authority and Responsibilities .............................................................52 SECURITy............. ................. ........... ... ....... .................... .............................. ... .........53 Security; Pledge of Trust Estate; Compliance with Law......................................53 Issuer's Negative Covenants. ......... ........ ..... .......... ...................................... .........54 Limitations on Liability..... ..... ...... .......... ............... ... ............................................54 Enforcement. .................... ............ .......... ............... ... .......... ........... .................. .....55 Preservation of Revenues .... ......... ............ ................. .................................. .... .....55 Request and Indemnification.................. ....... ............ ......... ...... ....... ................ .... .56 Possession of the Mortgage Note and Security Instrument..................................56 No Disposition of Mortgage Loan, Mortgage Note or Security Instrument; Excepted Assignments; Amendment: Substitution. ..........................56 Books, Records and Accounts. .............................................................................57 Maintenance of Lien on Trust Estate....................................................................57 Compliance with Rating Agency Requests ..........................................................57 Tax Covenants. .....................................................................................................5 8 THE CREDIT FACILITy.... ..... ............... ....... ..... ........ .............. ............ ................... ..59 Acceptance of the Credit Facility .........................................................................59 No Disposition of Credit Facility .........................................................................59 Replacement Credit Facility......... .......... ......... ................................ .... ........ ..... ....60 Advances Under the Credit Facility. ....................................................................60 Enforcement of Credit Facility .............................................................................60 Certain Notices to the Credit Provider .................................................................60 Certain Rights of the Credit Provider ...................................................................60 Limitations on Rights of Credit Provider .............................................................61 References to Credit Provider When No Credil Facility Is In Effect...................61 DISCHARGE OF LIEN ..............................................................................................61 Discharge of Lien and Security Interest. ..............................................................61 Payment of Outstanding Amounts................ ............... ....................... ................ ..62 Defeasance........................................................................................................... .63 DOCSOC/lI20730v3/24036-003l ii ARTICLE 9. DEFAULT PROVISIONS AND REMEDIES............................................................64 Section 9.1 Section 9.2 Section 9.3 Section 9.4 Section 9.5 Section 9.6 Section 9.7 Section 9.8 Section 9.9 Section 9.10 Section 9.11 Section 9.12 Events of Default; Preliminary Notice. ................................................................64 Remedies; Rights of Bondholders. ...... ................................. ......... .......................65 Other Remedies ............. .... ... ....... .......................................................... ...............66 Preservation of Security and Remedies if Wrongful Dishonor Occurs; Rights of Bondholders ......... ..... ...................... ..... ..... ................ ......... .......... .........66 Remedies Not Exclusive...... ........................... ..................................... .................66 Wai ver ................. ..... .................... ... ....... ................................. ...... ........... ............67 Limited Effect of Waiver .................................................. ............................... .....67 Delay or Omission ............... ..... .......................... ......... ............... ......... ..... ......... ...67 Rights of the Credit Provider and the Bondholders To Direct Proceedings; Rights and Limitations Applicable to Bondholders, Issuer and Trustee. .... ..................... ....... ................................................... .... .......... .........67 Discontinuance of Proceedings ............................. ...... ..... ........................... .... .....68 Action by Trustee.. ............... .... .... .... ... ................... ..... ........ ........ .............. ...... .....69 Application of Moneys ... ...... ........ ....... ..................... ..... ............. .............. ...... ......69 ARTICLE 10. THE TRUSTEE...........................................................................................................70 Section 10.1 Section 10.2 Section 10.3 Section 10.4 Section 10.5 Section 10.6 Section 10.7 Section 10.8 Section 10.9 Section 10.10 Section 10.11 Section 10.12 Section 10.13 Section 10.14 Section 10.15 Appointment of Trustee; Duties. .......................................... .......... ......................70 Quantification....................................................................................................... 73 Fees; Expenses...................................................................................................... 73 Merger; Consolidation ......... ..... ................. ............... .................. ..................... .....74 Intervention in Litigation..... ....... .................. ............ ................ ................. ........ ...74 Resignation of Trustee ...... ........ ........ .............. ......................... .............. ... .......... ..74 Removal of Trustee ............... ............... .............. ..... ........ ....... ........... ................ ...74 Appointment of Successor Trustee.......................................................................74 Qualifications of Successor Trustee .....................................................................75 Transfer of Rights and Property to Successor Trustee .........................................75 Instruments of Bondholders.. .......... ............... .......................... ....................... .....75 Power To Appoint Co-Trustees and Separate Trustees........................................76 Filing of Financing Statements..... ....... ................. ............................. ................ ...77 Servicing the Mortgage Loan ...............................................................................78 Disclosure Agreement .. ..... ......... ................................ ........ ........... .......................78 ARTICLE 11. SUPPLEMENTAL INDENTURES; AMENDMENTS..............................................78 Section 11.1 Section 11.2 Section 11.3 Section 11.4 Section 11.5 Section 11.6 Section 11. 7 Section 11.8 Secti on 11. 9 Supplemental Indentures Not Requiring Bondholder Consent ............................78 Supplemental Indentures Requiring Bondholder Consent ...................................80 Amendments to Financing Agreement Not Requiring Bondholder Consent................................................................................................................ .81 Amendments to Financing Agreement Requiring Bondholder Consent..............82 Amendments, Changes and Modifications to the Credit Facility and the Regulatory Agreement......... ............ .... ................ ..................................... ............82 Notice to and Consent of Bondholders.................................................................83 Required Approvals .......... ........ .................. ................. ...... ............ ........... ....... .....83 Opinions of Counsel... ..... .... ........ ...................... ................... ......... ... ....................83 Notation of Modification on Bonds; Preparation of New Bonds .........................84 DOCSOCIl120730v3/24036-0031 111 ARTICLE 12. MISCELLANEOUS....................................................................................................84 Section 12.1 Section 12.2 Section 12.3 Section 12.4 Section 12.5 Section 12.6 Section 12.7 Section 12.8 Section 12.9 Section 12.10 Section 12.11 EXHIBIT A EXlllBIT B EXHIBIT C Consents, Etc., of Bondholders ............................................................................84 Limitation of Rights ............ ...... ....... ............ ......... ............... .......................... ......84 Severability.......................................................................................................... .85 Notices.................................................................................................................. 85 Action Required to be taken on a Non-Business Day ..........................................87 Binding Effect ...................................................................................................... 87 Governing Law......... ..... ...... ................ ..... ........... ........ ......... ..................... ...........87 No Personal Liability; No Recourse.....................................................................88 Captions ...... .............. ..... ...... ............... ....................................................... ...........88 Counterparts ........................................................................................................ .88 Qualified Project Costs ....... ........ .............. ........... .......... ............ .... .......................88 FORM OF BOND ................................................................................................. A-I FORM OF REQUISITION ..... .......... ..................... ................ .... ..... ..... ......... .........B-l CASH FLOW PROJECTION ................................................................................C-l DOCSOC/I120730v3/24036-0031 IV TRUST INDENTURE This TRUST INDENTURE, dated as of September 1, 2005 (the "Indenture"), is between the HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate duly organized and existing under the laws of the State of California (together with its permitted successors and assigns, the "Issuer"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (together with its permitted successors and assigns, the "Trustee"). THE MEANING OF CAPITALIZED TERMS CAN BE DETERMINED BY REFERENCE TO ARTICLE I OF THIS INDENTURE. RECITALS A. The Issuer is authorized by the Act to issue revenue bonds for the purpose of financing the development of multifamily rental housing for persons of low and moderate income. B. In furtherance of the purposes of the Act and the Resolution and as a part of the Issuer's plan of financing residential rental housing, the Issuer has issued $11,485,000 aggregate principal amount of its revenue bonds designated "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2003A" (the "2003 Series A Bonds") and $201,000 aggregate principal amount of its "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Subordinate Series 2003B" (the "2003 Series B Bonds," and together with the 2003 Series A Bonds, the "2003 Bonds"), the proceeds of which were loaned to the Borrower which used the proceeds of the 2003 Bonds to finance the acquisition, construction and equipping of a ISO-unit multifamily rental housing project known as the Rancho Vista Apartments, located in the City of Chula Vista (the "Project") for the public purpose of providing decent, safe and sanitary housing for families and individuals of low and moderate income. C. The Borrower has requested that the Issuer provide additional financing for the Mortgaged Property owned by the Borrower by issuing the Bonds and by using the Net Bond Proceeds to fund the Mortgage Loan to the Borrower and the Borrower has agreed to secure the Mortgage Loan by placing the Security Instrument on the Mortgaged Property. D. The Issuer has determined that the issuance and sale of the Bonds and the application of the Net Bond Proceeds to fund the Mortgage Loan will facilitate the financing of the Mortgaged Property and will accomplish a valid public purpose of the Issuer. E. The Issuer has, pursuant 10 the Act the Bond Resolution authorized (i) the issuance of the Bonds in the Principal Amount for the purpose of providing additional financing for the Mortgaged Property, (ii) the execution and delivery of this Indenture to establish the terms of the Bonds and the security for the Bonds and (iii) the execution and delivery of the Financing Agreement to establish certain terms and conditions of the Mortgage Loan. F. By executing this Indenture, the Issuer is directing the deposit of the Net Bond Proceeds with the Trustee, to be used by the Trustee to fund the Mortgage Loan to the Borrower. The 1 DOCSOC/1120730v3124036-0031 proceeds of the Mortgage Loan will be applied, together with other funds, in order to effect the financing of the Mortgaged Property. G. Agreement. H. The Mortgage Loan will be (i) made by the Issuer pursuant to the Financing Agreement, (ii) evidenced by the Mortgage Note, (iii) secured by the Security Instrument and (iv) otherwise documented, evidenced and secured by the other Loan Documents. The Issuer, the Trustee and the Borrower are concurrently entering into the Financing 1. Fannie Mae has agreed, subject to the satisfaction of certain conditions, to facilitate the financing of the Mortgaged Property by providing credit enhancement for the Mortgage Loan and liquidity support for the Bonds pursuant to the Credit Facility. J. Pursuant to the Assignment, the Issuer will assign and deliver all of its right, title and interest in and to the Mortgage Loan, including the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents, to the Trustee and the Credit Provider, as their interests may appear. K. Agreement. The operation of the Mortgaged Property will be subject to the Regulatory L. The Issuer has determined that all things necessary to make the Bonds, when executed by the Issuer and authenticated by the Trustee and issued in accordance with this Indenture, the valid, binding and legal special and limited obligations of the Issuer and to constitute this Indenture a valid assignment and pledge of the Trust Estate as security for the payment of the principal of and interest and any premium on, the Bonds, have been done, and the creation, execution and delivery of this Indenture and the creation, execution and delivery of the Bonds, subject to the terms of this Indenture, have been duly authorized by the Issuer. M. The Trustee has trust powers and the power and authority to enter into this Indenture, to accept trusts generally and to accept and execute the trust created by this Indenture; the Trustee has accepted the trust so created, and to evidence such acceptance, has joined in the execution of this Indenture. GRANT OF TRUST ESTATE On the basis of the foregoing recitals and in consideration of the premises, the acceptance by the Trustee of its obligations under this Indenture, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, in order to secure the payment of the principal of, redemption premium, if any, and interest on, and the purchase price of, the Bonds according to their tenor and effect, to secure, on a parity basis, all obligations owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents, and to secure the performance and observance by the Issuer of the covenants expressed or implied in this Indenture and in the Bonds, the Issuer assigns and grants a security interest in and to the property described in paragraphs (i) through (v) below to the Trustee and its successors in trust, for the benefit of the Bondholders, and to the Credit Provider, and its successors and assigns, as their interests may appear, subject to the provisions of the Assignment and subject to the provisions of this Indenture permitting the application of such property for the purposes set forth in this Indenture: 2 DOCSOC/l120730v3/24036-003l (i) all right, title and interest of the Issuer in and to the Financing Agreement, the Mortgage Loan, including the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents, and all amendments, modifications, supplements, renewals and restatements of the foregoing, reserving, however, the Reserved Rights; (ii) all rights to receive payments on the Mortgage Note and under the other Mortgage Loan Documents, including all proceeds of insurance or condemnation awards; (iii) all right, title and interest of the Issuer in and to the Net Bond Proceeds and the accrued interest, if any, derived from the sale of the Bonds, and all Funds, Accounts and Investments under this Indenture (including, but not limited to, moneys, documents, securities, investments, instruments and general intangibles on deposit or otherwise held by the Trustee under this Indenture), including Investment Income, but excluding moneys in the Fees Account, the Rebate Fund and the Costs of Issuance Deposit Account of the Costs of Issuance Fund (including within such exclusion Investment Income retained in the Costs of Issuance Deposit Account of the Costs of Issuance Fund and Investment Income retained in the Rebate Fund); (iv) all documents, securities, instruments and general intangibles and any and all other rights and interests in property, whether tangible or intangible, from time to time by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned or transferred as and for additional security under this Indenture for the Bonds by the Issuer, or by anyone on its behalf, or with its written consent, to the Trustee, which is authorized by this Indenture to receive any and all such property at any and all times, and to hold and apply the same subject to the terms of this Indenture; and (v) all of the proceeds of the foregoing, including, but not limited to, Investments and Investment Income (except as excluded in paragraph (iii) above); TO HAVE AND TO HOLD all the same with all privileges and appurtenances conveyed and assigned by this Indenture, or agreed or intended to be so assigned, to the Trustee, and its successors in trust, and to the Credit Provider, and its successors and assigns, as their interests may appear, subject to the provisions of the Assignment; IN TRUST, NEVERTHELESS, upon the terms and trusts set forth in this Indenture for the equal and proportionate benefit, security and protection (subject to the terms of this Indenture) of (a) all Registered Owners of the Bonds, without privilege, priority or distinction as to the lien or otherwise of any of the Bonds over any of the others of the Bonds and (b) the Credit Provider to secure the payment of all amounts owed to the Credit Provider under the Financing Agreement and the Credit Facility Agreement; PROVIDED, HOWEVER, that, as set forth in the Assignment, the Issuer has further specifically assigned the Mortgage Loan Rights exclusively to the Credit Provider and the Mortgage Loan Payments Interest exclusively to the Trustee, provided further that, as also set forth in the Assignment, the Credil Provider may direct the Trustee to assign the Trustee's interest in the Mortgage Loan, including the Mortgage Note, the Security Instrument, the other Mortgage Loan Documents and, under certain circumstances, the Financing Agreement, to the Credit Provider, subject to reassignment to the Trustee; 3 DOCSOC/1120730v3/24036-0031 PROVIDED FURTHER, HOWEVER, that if the Issuer or its successors or assigns shall payor cause to be paid to the Registered Owners of the Bonds the principal, redemption premium, if any, and interest to become due on the Bonds at the times and in the manner provided in this Indenture, and if no amount shall be owing by the Borrower to the Issuer or the Trustee under the Financing Agreement or to the Credit Provider under the Credit Facility Agreement, and if the Issuer shall keep, perform and observe, or cause to be kept, performed and observed, all of its covenants, warranties and agreements contained in this Indenture, this Indenture and the estate and rights granted by this Indenture shall terminate and be discharged in accordance with the terms of this Indenture, upon which the Trustee shall execute and deliver to the Issuer such instruments in writing as shall be necessary to satisfy the lien of this Indenture, and, in accordance with Article VIII, shall reconvey to the Issuer any property at the time subject to the lien of this Indenture which may then be in the Trustee's possession, except amounts held by the Trustee for the payment of principal of, redemption premium, if any, and interest on the Bonds, or moneys held in the Rebate Fund for payment to the United States Government or moneys held in the Fees Account for the payment of accrued and unpaid Third Party Fees; otherwise this Indenture shall be and remain in full force and effect, upon the trusts and subject to the covenants and conditions set forth in this Indenture; and FINALLY, all Bonds issued and secured under this Indenture are to be issued, authenticated and delivered, and all property, rights and interests, including, but not limited to, the amounts payable under the Financing Agreement and any other amounts assigned and pledged by this Indenture are to be dealt with and disposed of under, upon and subject to, the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes expressed in this Indenture, and the Issuer has agreed and covenanted, and agrees and covenants with the Trustee and with the respective owners of the Bonds as set forth in this Indenture: ARTICLE 1. INCORPORATION OF RECITALS; DEFINITIONS; INTERPRET A TION Section 1.1 Incornoration of Recitals. The Recitals to this Indenture are, by this reference, incorporated into and deemed a part of this Indenture. Section 1.2 Definitions: Terms Defined In Financinl! Al!reement. All capitalized terms used in this Indenture shall have the meanings given to those terms in this Section 1.2 or as elsewhere defined in this Indenture unless the context or use clearly indicates a different meaning. Certain capitalized terms used and not otherwise defined in this Indenture are defined in the Financing Agreement. "Account" means any Account within a Fund. "Act" means Chapter I of Part 2 of Division 24 of the California Health and Safety Code, as now in effect and as it may from time to time hereafter be amended and supplemented. "Act of Bankruptcy" means any proceeding instituted under the Bankruptcy Code or other applicable insolvency law by or against the Issuer. 4 DOCSOC/l12073Ov3/24036-0031 "Advance" means an advance under the Credit Facility, which may be a Scheduled Payment Advance, a Bankruptcy-Related Advance, an Extraordinary Advance or a Purchased Bond Advance, as each is defined in the Credit Facility. "Assignment" means the Assignment and Intercreditor Agreement, dated as of September I, 2005, by and among the Issuer, the Trustee and Fannie Mae, and acknowledged, accepted and agreed to by the Borrower, as it may be amended, modified, supplemented or restated from time to time. "Authorized Attesting Officer" means the Secretary of the Issuer, or such other officer or official of the Issuer who, in accordance with the laws of the State, the bylaws or other goveming documents of the Issuer, or practice or custom, regularly attests or certifies official acts and records of the Issuer, and includes any assistant or deputy officer to the principal officer or officers exercising such responsibilities. "Authorized Borrower Representative" means any person who, at any time and from time to time, may be designated as the Borrower's authorized representative by written certificate furnished to the Issuer, the Loan Servicer, the Credit Provider and the Trustee containing the specimen signature of such person and signed on behalf of the Borrower by or on behalf of any authorized general partner of the Borrower if the Borrower is a general or limited partnership, by any authorized managing member of the Borrower if the Borrower is a limited liability company, or by any authorized officer of the Borrower if the Borrower is a corporation, which certificate may designate an alternate or alternates. The Trustee may conclusively presume that a person designated in a written certificate filed with it as an Authorized Borrower Representative is an Authorized Borrower Representative until such time as the Borrower files with it (with a copy to the Issuer, the Loan Servicer and the Credit Provider) a written certificate identifying a different person or persons to act in such capacity. "Authorized Denomination" means $5,000 or any integral multiple of $5,000. "Authorized Officer" means the President, Vice President, Secretary, Treasurer, Executive Director, Assistant Executive Director or Assistant Treasurer of the Issuer, and any other officer or employee of the Issuer designated to perform a specified act, to sign a specified document or to act generally, on behalf of the Issuer by a written certificate furnished to the Trustee, which certificate is signed by the President, Vice President, Secretary, Treasurer, Executive Director, Assistant Executive Director or Assistant Treasurer and contains the specimen signature of such other officer or employee of the Issuer. "A vailable Moneys" means, as of any date of determination (a) the proceeds of the Bonds and remarketing proceeds (other than funds provided by the Borrower, any general partner of the Borrower or any guarantor of the Borrower's obligations relating to the Mortgage Loan or the Bonds, if applicable, or the Issuer), (b) moneys received by the Trustee pursuant to the Credit Facility, (c) any other amounts with respect to which the Trustee has received an Opinion of Counsel to the effect that (l) the use of such amounts to make payments on the Bonds would not violate Section 362(a) of the Bankruptcy Code or that relief from the automatic stay provisions of such Section 362(a) would be available from the bankruptcy court and (2) payments of such amounts to the Bondholders would not be avoidable as preferential payments under Section 547 of the Bankruptcy Code should the Issuer or the Borrower become a debtor in proceedings commenced under the Bankruptcy Code, and (d) Investment Income derived from the investment of moneys described in clause (a), (b) or (c). 5 DOCSOC/l120730v3/24036-0031 "Bankruptcy Code" means Title 11 of the United States Code, entitled "Bankruptcy," as in effect now and in the future, or any successor statute. "Beneficial Owner" means the beneficial owner of any Bond held in book-entry form or the Registered Owner of any Bond held in certificated form. "Bond" or "Bonds" means the Issuer's City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A in the original aggregate principal amount of $1,715,000. "Bond Counsel" means (a) on the Closing Date, the law firm or law firms delivering the approving opinion(s) with respect to the Bonds or (b) after the Closing Date, any law firm selected by the Issuer and acceptable to the Credit Provider, of nationally recognized standing in matters pertaining to the excludability from gross income, for federal income tax purposes, of the interest payable on bonds issued by states and political subdivisions. "Bond Documents" means this Indenture, the Financing Agreement, the Regulatory Agreement, the Bond Purchase Agreement, the Assignment, the Credit Facility, the Tax Certificate, the Disclosure Agreement and the Remarketing Agreement, and all other documents, agreements and instruments executed and delivered in connection with the issuance, sale, delivery and/or remarketing of the Bonds, as each such document, agreement or instrument may be amended, modified, supplemented or restated from time to time. "Bondholder," "holder," "Owner," "owner," "Registered Owner" or "registered owner" means, with respect to any Bond, the Registered Owner of the Bond. "Bond Payment Date" means any (a) Interest Payment Date, (b) other date on which interest is payable, including any Redemption Date, each Maturity Date and the date of acceleration of the Bonds and (c) date on which principal of the Bonds is payable. "Bond Purchase Agreement" means the Bond Purchase Agreement, dated September [6], 2005, by and among the Underwriter, the Issuer and the Borrower. "Bond Purchase Fund" means the Bond Purchase Fund created by Section 4.1. "Bond Register" means the bond register established and maintained by the Trustee pursuant to Section 2.13.1. "Bond Registrar" means the Trustee or its designee as keeper of the Bond Register. "Bond Resolution" means the resolution adopted by the Issuer on August 23, 2005, authorizing and approving the issuance and sale of the Bonds and authorizing and approving the execution and delivery of this Indenture, the Financing Agreement, the Regulatory Agreement, the Bond Purchase Agreement, the Assignment, the endorsement of the Mortgage Note, the Disclosure Agreement, the Mortgage Loan Documents, the Tax Certificate and certain other documents, making certain appointments and determining certain details with respect to the Bonds. "Bond Year" shall mean the period of 12 consecutive months ending on the last day of September in each year in which Bonds are or will be Outstanding, provided that the first Bond Year shall commence on the Closing Date and end on September 30, 2006. 6 DOCSOC/l120730v3/24036-0031 "Book-Entry Bonds" means any Bonds which are issued in book-entry form, as evidenced by a single certificate for each stated principal maturity of the Bonds, and registered in the name of and delivered to a Securities Depository. "Book Entry System" means an electronic system in which the clearance and settlement of securities transactions is made through electronic book entry changes. "Borrower" shall mean CIC Eastlake, L.P., a California limited partnership, and its successors and assigns. "Business Day" means any day other than (a) a Saturday or a Sunday, (b) any day on which banking institutions located in the city or cities in which the Principal Office ofthe Trustee is located are required or authorized by law or executive order to close, (c) a day on which banking institutions located in the city in which the Principal Office of the Loan Servicer is located are required or authorized by law or executive order to close; (d) a day on which the Credit Provider is closed or (e) a day or on which the New York Stock Exchange is closed. "Cash F]ow Projection" means a cash flow projection prepared by an independent firm of certified public accountants, a financial advisory firm or other independent third party qualified and experienced in the preparation of cash flow projections for mortgage loans, designated by the Borrower and acceptable to the Credit Provider and the Rating Agency, establishing, to the satisfaction of the Rating Agency, the sufficiency of (a) the scheduled payments due under the Mortgage Note (together with and after taking into account the Initial Debt Service Deposit) and (b) Investment Income with respect to the General Account to pay the principal of and interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate), in each instance, when due and payable, including, but not limited to, any cash flow projection prepared in connection with (A) the initial issuance and delivery of the Bonds, as provided in paragraph (xi) of Section 2.]5, (B) a remarketing of the Bonds, as provided in paragraph (v) of Section 2.16.1.3 or (B) (C) a partial prepayment of the Mortgage Loan and a corresponding partial redemption of Bonds pursuant to Section 3.2 or 3.3. "C]osing Date" means the date on which the Bonds are issued and delivered. "Code" means the Internal Revenue Code of 1986, as amended; each reference to the Code shall be deemed to include (a) any successor internal revenue law and (b) the applicable regulations whether final, temporary or proposed under the Code or such successor law. Any reference to a particular provision of the Code shall be deemed to include (a) any successor provision of any successor internal revenue law and (b) the applicable regulations, whether final, temporary or proposed, under such provision or successor provision. "Computation Date" means the last day of each Bond Year commencing September 30, 2006, and the date on which the final payment in full of all Outstanding Bonds is made. "Cost," "Costs" or "Costs of the Mortgaged Property" means, with respect to the Mortgaged Property, the costs chargeable to the Mortgaged Property in accordance with generally accepted accounting principles, including, but not limited to, the costs of acquisition, construction, rehabilitation, reconstruction, restoration, repair, alteration, improvement and extension (in any of such events, "construction") of any building, structure, facility or other improvement: stored materials for work in progress; the cost of machinery and equipment; the cost of the Land, rights in 7 DOCSOC/l120730v3/24036-0031 lands, easements, privileges, agreements, franchises, utility extensions, disposal facilities, access roads and site development necessary or useful and convenient for the Mortgaged Property; financing costs, including, but not limited to, the Costs of Issuance, engineering and inspection costs; fees paid to the developer of the Mortgaged Property; organization, administrative, insurance, legal, operating, letter of credit and other expenses of the Borrower actually incurred prior to and during construction; and all such other expenses as may be necessary or incidental to the financing, acquisition, construction or completion of the Mortgaged Property or any part of it; insurance premiums payable by the Borrower and taxes and other governmental charges levied on the Mortgaged Property. "Costs of Issuance" means (a) the fees, costs and expenses of (I) the Issuer, the Issuer's counsel and the Issuer's financial advisor, if any, (2) the Underwriter (including discounts to the Underwriter or other purchasers of the Bonds, other than original issue discount, incurred in the issuance and sale of the Bonds) and the Underwriter's counsel, (3) Bond Counsel, (4) the Trustee and the Trustee's counsel, (5) the Loan Servicer and the Loan Servicer's counsel, if any, (6) the Credit Provider and the Credit Provider's counsel, (7) the Borrower's counsel and the Borrower's financial advisor, if any, and (8) the Rating Agency, (b) the costs of preparing the initial Cash Flow Projection and the initial Verification Report, (c) costs of printing the offering documents relating to the sale of the Bonds and (d) all other fees, costs and expenses directly associated with the authorization, issuance, sale and delivery of the Bonds, including, but not limited to, printing costs, costs of reproducing documents, filing and recording fees, and any fees, costs and expenses required to be paid to the Loan Servicer in connection with the Mortgage Loan. "Costs of Issuance Deposit" means the deposit to be made by the Borrower with the Trustee on the Closing Date, as required by the Financing Agreement, and deposited by the Trustee into the Costs of Issuance Fund, as provided in paragraphs (iv) of Section 4.2. "Costs of Issuance Fund" means the Costs of Issuance Fund created by Section 4.1. "Credit Facility" means the Credit Enhancement Instrument (Stand-By), dated September [13], 2005, issued by the Credit Provider to the Trustee. "Credit Facility Account" means the Credit Facility Account of the Revenue Fund. "Credit Facility Agreement" means, individually or collectively, the Reimbursement Agreement, the Pledge Agreement and all other agreements and documents securing the Credit Provider or otherwise relating to the provision of the Credit Facility, as any such agreement may be amended, modified, supplemented or restated from time to time. "Credit Provider" means Fannie Mae. "Custodian" means the custodian under the Pledge Agreement. "Dated Date" means the date designated as such on the face of the Bonds. "Disclosure Agreement" means the Continuing Disclosure Agreement, dated as of September 1,2005, by and between the Borrower and the Trustee. "DTC" means The Depository Trust Company and any successor to it or any nominee of it. "DTC Participant" has the meaning given to that term in Section 2.12.2. 8 DOCSOC/1120730v3/24036-oo31 "DTC System" has the meaning given to that term in Section 2.12.1. "Electronic Means" means telecopy transmission or other similar electronic means of communication approved in writing by the Credit Provider, including a telephonic communication confirmed by writing or written transmission. "End Period Payment" means, with respect to any optional redemption of Bonds pursuant to Section 3.2, the premium due on the Bonds, if any, and interest due on the Bonds from the date of prepayment of the Mortgage Loan to the Redemption Date. "Event of Default" means any of the events specified in Section 9.1.1. "Extraordinary Items" means, with respect to the Trustee, reasonable compensation for extraordinary services and/or reimbursement for reasonable extraordinary costs and expenses. "Fannie Mae" means Fannie Mae, a corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.c., Ii 1716 et seq., and its successors and assigns. "Fannie Mae Commitment" means Fannie Mae's Commitment to the Loan Servicer, dated , 2005, accepted by the Loan Servicer on , 2005, pursuant to which Fannie Mae has agreed, upon satisfaction of the terms and conditions set forth in the Fannie Mae Commitment, to provide credit enhancement for the Mortgage Loan and liquidity support for Bonds Outstanding on the Remarketing Date. "Fees Account" means the Fees Account of the Revenue Fund. "Financing Agreement" means the Financing Agreement, dated as of September 1, 2005, among the Issuer, the Trustee and the Borrower, as amended, modified, supplemented or restated from time to time. "Fund" means any Fund created by Section 4.1. "General Account" means the General Account of the Revenue Fund. "Government Obligations" means direct obligations of, and obligations on which the full and timely payment of principal and interest is unconditionally guaranteed by, the full faith and credit of the United States of America. "Highest Rating Category" has the meaning, with respect to an Investment, given in this definition. If the Bonds are rated by a Rating Agency, the term "Highest Rating Category" means, with respect to an Investment, that the Investment is rated by each Rating Agency in the highest rating given by that Rating Agency for that general category of security. If at any time the Bonds are not rated (and, consequently, there is no Rating Agency), then Ihe term "Highest Rating Category" means, with respect to an Investment, that the Investment is rated by S&P or Moody's in the highest rating given by that rating agency for that general category of security. By way of example, the Highest Rating Category for tax-exempt municipal debt established by S&P is "A-l+" for debt with a term of one year or less and "AAA" for a term greater than one year, with corresponding ratings by Moody's of "MIG-l" (for fixed rate) or "VMIG-l" (for variable rate) for three months or less and "Aaa" for greater than three months. If at any time (i) the Bonds are not rated, (ii) both S&P and Moody's rate an Investment and (iii) one of those ratings is below the Highest Rating Category, then 9 DOCSOC/1120730v3/24036-0031 such Investment will, nevertheless, be deemed to be rated in the Highest Rating Category if the lower rating is no more than one rating category below the highest rating category of that rating agency. For example, an Investment rated "AAA" by S&P and "Aa3" by Moody's is rated in the Highest Rating Category. If, however, the lower rating is more than one full rating category below the Highest Rating Category of that rating agency, then the Investment will be deemed to be rated below the Highest Rating Category. For example, an Investment rated "AAA" by S&P and "AI" by Moody's is not rated in the Highest Rating Category. "Improvements" means the improvements made or to be made upon the Land. "Indenture" means this Trust Indenture, dated as of September I, 2005, as amended, modified, supplemented or restated from time to time as permitted by this Indenture. "Indirect Participant" has the meaning given to that term in Section 2.12.2. "Initial Debt Service Deposit" means the deposit to be made by the Borrower with the Trustee on the Closing Date, as required by Section 4.2.3 of the Financing Agreement and deposited by the Trustee into the General Account as provided in paragraph (ii) of Section 4.2.3. "Initial Remarketing Date" means June 1,2024. "Interest Payment Date" means June I and December I of each year beginning [December 1, 2005], each Redemption Date, each Maturity Date and the date of acceleration of the Bonds. "Investment Agreement" means any investment agreement with respect to amounts on deposit in any Fund or Account, as described in paragraph (vii) of the definition of Permitted Investments. "Investment Income" means the earnings, profits and accreted value derived from the investment of moneys pursuant to Article V. "Investments" means any Permitted Investment and any other investment held under this Indenture that does not constitute a Permitted Investment. "Issuer" shall mean the Housing Authority of the City of Chula Vista, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State. "Issuer Annual Fee" shaH mean the annual fee payable to the Issuer pursuant to Section 4.3 of the Financing Agreement. "Land" means the real property described in the Security Instrument. "Loan Servicer" means Red Mortgage Capital, Inc., an Ohio corporation, as servicer of the Mortgage Loan, and any successor servicer appointed by the Credit Provider. "Maturity Date" means any maturity date shown in Section 2.6.1. "Moody's" means Moody's Investors Service, a Delaware corporation, and its successors and assigns, or if it shaH be dissolved or shall no longer assign credit ratings to long term debt, then 10 DOCSOC/1120730v3n4036-0031 any other nationally recognized statistical rating agency, designated by the Credit Provider, as shall assign credit ratings to long term debt. "Mortgage Loan" means the loan made by the Issuer to the Borrower pursuant to the terms and provisions of the Financing Agreement for the purpose of providing funds to the Borrower to finance the construction, development and equipping of the Mortgaged Property. "Mortgage Loan Documents" has the meaning given to that term in the Financing Agreement. "Mortgage Loan Fund" means the Mortgage Loan Fund created by Section 4.1. "Mortgage Loan Payments Interest" has the meaning given to that term in the Assignment. "Mortgage Loan Rights" has the meaning given to that lerm in the Assignment. "Mortgage Note" means the Multifamily Note, dated as of September 1, 2005, executed by the Borrower in favor of the Issuer, together with all addenda and schedules, as the same may be amended, modified, supplemented or restated from time to time, or any note executed in substitution therefor, as such substitute note may be amended, modified, supplemented or restated from time to time. "Mortgage Note Rate" has the meaning given to that term in the Financing Agreement. "Mortgaged Property" means the Land and the Improvements. "Net Bond Proceeds" means the proceeds derived from the issuance, sale and delivery of the Bonds, representing the total purchase price of the Bonds, including any premium paid as part of the purchase price of the Bonds, but excluding the accrued interest, if any, on the Bonds paid by the initial purchaser(s) of the Bonds. "Opinion of Bond Counsel" means a written opinion of Bond Counsel addressed to the Issuer, the Trustee and, at its request, the Credit Provider, and in form and substance acceptable to the Issuer, the Trustee and the Credit Provider. "Opinion of Counsel" means a written opinion of legal counsel acceptable to the recipient(s) of the opinion: if the opinion is with respect to an interpretation of federal tax laws or regulations, or bankruptcy matters, such legal counsel shall also be an attorney or firm of attorneys experienced in such matters. "Outstanding" means, when used with reference to the Bonds at any date as of which the amount of Outstanding Bonds is to be determined, all Bonds which have been authenticated and delivered under this Indenture except: (i) Bonds canceled or delivered for cancellation at or prior to such date; (ii) Bonds deemed to be paid in accordance with Article VIII; and (iii) Bonds in lieu of which others have been authenticated under Sections 2.8, 2.11 or 2.13. 11 DOCSOC/l120730v 3/24036-0031 In determining whether the owners of a requisite aggregate principal amount of Outstanding Bonds have concurred in any request, demand, authorization, direction, notice, consent or waiver under the provisions of this Indenture, Bonds which are owned or held by or for the account of the Borrower, including Purchased Bonds, shall be disregarded and deemed not to be Outstanding under this Indenture for the purpose of any such determination unless all Bonds are owned or held by or for the account of the Borrower. In determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which are either registered in the name of or known by the Trustee to be held for the account of the Borrower, including Purchased Bonds, shall be disregarded. "Pass Through Rate" has the meaning given to that term in the Mortgage Note. "Permitted Investments" means, to the extent authorized by law for the investment of moneys of the Issuer: (i) Government Obligations; (ii) direct obligations of, and obligations on which the full and timely payment of principal and interest is unconditionally guaranteed by, any agency or instrumentality of the United States of America (other than the Federal Home Loan Mortgage Corporation) or direct obligations of the World Bank, which obligations are rated in the Highest Rating Category; (iii) obligations, in each case rated in the Highest Rating Category, of (a) any state or territory of the United States of America, (b) any agency, instrumentality, authority or political subdivision of a state or territory, (c) any public benefit or municipal corporation the principal of and interest on which are guaranteed by such state or political subdivision or (d) any state or territory of the United States of America or any agency, instrumentality, authority or political subdivision of a state or territory which have been advance refunded and are secured by Government Obligations or by other such pre-refunded municipal securities: (iv) any written repurchase agreement entered into with a Qualified Financial Institution whose unsecured short-term obligations are rated in the Highest Rating Category; (v) commercial paper rated in the Highest Rating Category; (vi) interest-bearing negotiable certificates of deposit, interest-bearing time deposits, interest-bearing savings accounts and bankers' acceptances, issued by a Qualified Financial Institution if either (a) the Qualified Financial Institution's unsecured short-term obligations are rated in the Highest Rating Category or (b) such deposits or accounts are fully insured by the Federal Deposit Insurance Corporation; (vii) an agreement held by the Trustee for the investment of moneys at a guaranteed rate (an "Investment Agreement") with (a) the Credit Provider or (b) a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category, or whose obligations are unconditionally guaranteed or insured by a Qualified Financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category, provided that the Investment Agreement is in a form acceptable to the Issuer and the Credit Provider, and provided, further, that the Investment Agreement includes the following restrictions: 12 DOCSOC/1 120730v3/24036-0031 (I) the invested funds are available for withdrawal without penalty or premium at any time that (a) the Trustee is required to pay moneys from the Fund(s) to which the Investment Agreement is applicable or (b) any Rating Agency indicates that it will lower, suspend or withdraw or actually lowers, suspends or withdraws the rating on the Bonds on account of the rating of the Qualified Financial Institution providing, guaranteeing or insuring, as applicable, the Investment Agreement; (2) the Investment Agreement is the unconditional and general obligation of the Qualified Financial Institution providing, and, if applicable, the Qualified Financial Institution guaranteeing or insuring, the Investment Agreement, and is not subordinated to any other obligation; (3) the Trustee receives an Opinion of Counsel that the Investment Agreement is legal, valid, binding and enforceable, in accordance with its terms, upon the Qualified Financial Institution providing the Investment Agreement and, if applicable, an Opinion of Counsel that any guaranty or insurance policy provided by a Qualified Financial Institution guaranteeing or insuring the Investment Agreement is legal, valid, binding and enforceable, in accordance with its terms, upon such Qualified financial Institution; and (4) the Investment Agreement provides that if during its term the rating of the Qualified financial Institution providing, guaranteeing or insuring, as applicable, the Investment Agreement is withdrawn or suspended by any rating agency or falls below the Highest Rating Category, such Qualified financial Institution will, within ten (10) days following the withdrawal, suspension or downgrade, either: (a) (I) collateralize the Investment Agreement (if the Investment Agreement is not already collateralized) with Permitted Investments described in paragraph (i) or (ii) above by depositing such collateral with the Trustee or a third party custodian, such collateralization to be effected in a manner and in an amount sufficient to maintain (A) the integrity of the Cash Flow Projection most recently provided with respect to the Bonds and (B) the then-current rating of the Bonds, or, if the Investment Agreement is already collateralized, increase the collateral with Permitted Investments described in paragraph (i) or (ii) above by depositing such collateral with the Trustee or a third party custodian, such collateralization to be effected in a manner and in an amount sufficient to maintain (C) the integrity of the Cash Flow Projection most recently provided with respect to the Bonds and (D) the then-current rating of the Bonds, (2) transfer the Investment Agreement and the rights and obligations of the Qualified financial Institution under the Investment Agreement to a Qualified financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category or whose obligations are unconditionally guaranteed or insured by a Qualified financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category or (3) deliver a guarantee from a Qualified financial Institution whose unsecured long-term obligations are rated in the Highest Rating Category or (b) at the direction of the Trustee, following the failure of the Qualified financial Institution to take one or more of the actions described in the foregoing clauses (a)(i)-(a)(3), repay the principal of and accrued but unpaid interest on the investment, in either case with no penalty or premium to the Trustee unless required by law (the Investment Agreement may provide that the Qualified financial Institution providing the Investment Agreement shall have the right to elect among the actions described in clauses (a)(i), (a)(2) and (a)(3), but shall not have the right to elect the action described in clause (b) as an alternative to the actions described in clauses (a)(i), (a)(2) and (a) (3); (viii) any money market mulual fund (including those of the Trustee and its affiliates) registered under the Investment Company Act of 1940, as amended, that have been rated "AAAm-G" or "AAAm" by S&P or "Aaa" by Moody's, so long as the portfolio of such money 13 DOCSOC/l120730v3/24036-0031 market mutual fund is limited to Government Obligations and/or agreements to purchase Government Obligations; if approved in writing by the Credit Provider, a money market mutual fund portfolio may also contain obligations and agreements to repurchase obligations described in paragraphs (ii) or (iii) above; a money market mutual fund is not a Permitted Investment if both S&P and Moody's rate the money market mutual fund and one such rating is below the level required by this paragraph (viii); (ix) any other investment authorized by the laws of the State if such investment is approved by the Credit Provider and Ihe Rating Agency; provided that Permitted Investments shall not include the following: (1) any investment with a final maturity or any agreement with a term greater than one year from the date of the investment (except (a) obligations that provide for the optional or mandatory tender, at par, by the holder of such obligations at least once within one year of the date of purchase, (b) Government Obligations irrevocably deposited with the Trustee for payment of Bonds pursuant to Article VIII and (c) investments listed in paragraph (vii) and (ix) above), (2) any obligation (other than obligations described in paragraph (i) and (ii) above) with a purchase price greater or less than the par value of such obligation, (3) any asset-backed security, including mortgage-backed securities, real estate mortgage investment conduits, collateralized mortgage obligations, credit card receivable asset- backed securities and auto loan asset-backed securities, (4) any interest-only or principal-only stripped security, (5) any obligation bearing interest at an inverse floating rate, (6) any investment which may be prepaid or called at a price less than its purchase price prior to stated maturity, (7) any investment the interest rate on which is variable and is established other than by reference to a single interest rate index plus a single fixed spread, if any, and which interest rate moves proportionately with that index, (8) any investment described in paragraph (iv) or (vii) above with a Qualified Financial Institution (as defined in clause (d) of the definition of "Qualified Financial Institution") if the Qualified Financial Institution does not agree to submit to jurisdiction, venue and service of process in the United States of America in the Investment Agreement and (9) any investment to which the Rating Agency has added an "r" or "t" highlighter. If an Investment Agreement is entered into which does not require the Qualified Financial Institution providing the Investment Agreement to either (a) satisfy one or more of the requirements of clause (a) of subparagraph (4) of paragraph (vii) above upon a withdrawal or suspension of, or downgrade in the rating of the Qualified Financial Institution providing the Investment Agreement or (b) compensate the Trustee for any loss in yield upon reinvestment if the Investment Agreement is terminated following a withdrawal or suspension of, or downgrade in, the rating of the Qualified Financial Institution providing, guaranteeing or insuring the Investment Agreement, the yield on the Investment Agreement above the minimum yield permitted by the Rating Agency (presently [1.5%] per annum) shall not be taken into account in any Cash Flow Projection provided to the Rating Agency in connection with its rating of the Bonds. "Person" means any natural person, estate, trust, corporation, partnership, limited liability company, association, public body or any other organization or entity (whether governmental or private). "Pledge Agreement" means the Pledge, Security and Custody Agreement, dated as of September I, 2005, by and among the Borrower, the Trustee, as collateral agent for the Credit Provider, and the Credit Provider, as such agreement may be amended, modified, supplemented or restated from time to time. 14 DOCSOC/l120730v3124036-0031 "Preference Claim" has the meaning given to that term in Section 7.6. "Principal Amount" means $1,715,000, the original principal amount of the Bonds on the Closing Date. "Principal Office" of the Trustee, the Remarketing Agent or the Loan Servicer means, respectively, the office of the Trustee, the Remarketing Agent or the Loan Servicer at the respective address set forth in Section 12.4, or such other address as may be specified in writing by the Trustee, the Remarketing Agent or the Loan Servicer, as applicable, as provided in Section 12.4. "Proceeds" has the meaning given to that term in Section 3.3.1. "Project Account" means the Project Account of the Mortgage Loan Fund. "Purchased Bond" means any Bond (a) tendered for purchase by a Bondholder pursuant to Section 2.16.1.5 and purchased by the Trustee for the account of the Borrower, with amounts provided by the Credit Provider under the Credit Facility, and (b) pledged to the Custodian under the Pledge Agreement for the benefit of the Credit Provider. A Bond is a "Purchased Bond" only during the period (a) beginning on and including the date of its purchase by the Borrower and (b) ending on and excluding the date on which the Amount Available under (and as defined in) the Credit Facility with respect to the Bond is reinstated under the Credit Facility. "Qualified Financial Institution" means any (a) bank or trust company organized under the laws of any state of the United States of America, (b) national banking association, (c) savings bank, a savings and loan association, or an insurance company or association chartered or organized under the laws of any state of the United States of America, (d) federal branch or agency pursuant to the International Banking Act of 1978 or any successor provisions of law or a domestic branch or agency of a foreign bank which branch or agency is duly licensed or authorized to do business under the laws of any state or territory of the United States of America, (e) government bond dealer reporting to, trading with, and recognized as a primary dealer by the Federal Reserve Bank of New York, (f) securities dealer approved in writing by the Credit Provider the liquidation of which is subject to the Securities Investors Protection Corporation or other similar corporation, (g) any other entity which is acceptable to the Credit Provider. With respect to an entity which provides an agreement held by the Trustee for the investment of moneys at a guaranteed rate as set out in paragraph (vii) of the definition of the term "Permitted Investments" or an entity which guarantees or insures, as applicable, the agreement, a "Qualified Financial Institution" may also be a corporation or limited liability company organized under the laws of any state of the United States of America. "Rating Agency" means any national rating agency then maintaining a rating on the Bonds. "Rating Category" means one of the generic rating categories of the Rating Agency. "Rebate Analyst" means a person that is (a) qualified and experienced in the calculation of rebate payments under Section 148 of the Code and in compliance with the arbitrage rebate regulations promulgated under the Code, (b) chosen by the Borrower and (c) engaged for the purpose of determining the amount of required deposits, if any to the Rebate Fund. "Rebate Analyst's Annual Fee" means the annual fee of the Rebate Analyst, if any, in the amount of $ for its rebate calculation services. 15 DOCSOC/1120730v3/24036-0031 "Rebate Fund" means the Rebate Fund created by Section 4.1. "Record Date" means, with respect to any Interest Payment Date, the fifteenth day of the month preceding the month in which the Interest Payment Date falls. "Redemption Account" means the Redemption Account of the Revenue Fund. "Redemption Date" means any date upon which Bonds are to be redeemed pursuant to this Indenture. "Registered Owner" means the registered owner of any Bonds, as shown m the Bond Register. "Regulatory Agreement" means the Regulatory Agreement and Deciaration of Restrictive Covenants, relating to the Mortgaged Property, dated as of September 1, 2005, by and among the Issuer, the Trustee and the Borrower, as amended, modified, supplemented or restated from time to time. "Reimbursement Agreement" means the Reimbursement Agreement, dated as of September I, 2005, between the Credit Provider and the Borrower, as amended, modified, supplemented or restated from time to time or any agreement entered into in substitution therefor. "Remarketing Agent" means Red Capital Markets, Inc. and any successor designated in the manner provided in Section 2.16.4. "Remarketing Agreement" means the Remarketing Agreement, dated as of September 1, 2005, between the Borrower and the Remarketing Agent, as amended, modified, supplemented or restated from time to time, or any agreement entered into in substitution therefor with a substitute Remarketing Agent. "Remarketing Date" means the Initial Remarketing Date and, if the Bonds Outstanding on such date or on any subsequent Remarketing Date are remarketed pursuant to Section 2.16.1.2 for a Remarketing Period which does not extend to the final maturity of the Bonds, the day after the last day of the Remarketing Period. "Remarketing Expenses" means the costs and expenses incurred by the Trustee and its counsel, the Remarketing Agent and its counsel, the Issuer and its counsel, the Loan Servicer and its counsel, the Credit Provider and its counsel and Bond Counsel in connection with the remarketing of the Bonds, inciuding bond printing and registration costs, costs of funds advanced by the Remarketing Agent, registration and filing fees, rating agency fees and other costs and expenses incurred in connection with or properly attributable to the remarketing of Bonds. "Remarketing Expenses Account" means the Remarketing Expenses Account of the Bond Purchase Fund. "Remarketing Period" means the period beginning on a Remarketing Date and ending on the last day of the term for which Bonds are remarketed pursuant to Section 2.16.1.2 or the final Maturity Date of the Bonds, as applicable. 16 DOCSOC/l120730v3/24036-003! "Remarketing Proceeds Account" means the Remarketing Proceeds Account of the Bond Purchase Fund. "Remarketing Rate" means the interest rate established pursuant to Section 2.6.4.1 and borne by the Bonds then Outstanding from and including each Remarketing Date to, but not including, the next succeeding Remarketing Date or the final Maturity Date of the Bonds, as applicable. "Replacement Credit Facility" has the meaning given to that term in Section 7.3. "Representation Letter" has the meaning given to that term in Section 2.12.1. "Requisition" means with respect to the Costs of Issuance Fund, the requisition in the. form of Exhibit B to this Indenture required to be submitted in connection with disbursements from the Costs of Issuance Fund. "Reserved Rights" means those certain rights of the Issuer under the Financing Agreement to indemnification and to payment or reimbursement of fees and expenses of the Issuer, its right to give and receive notices and to enforce notice and reporting requirements and restrictions on transfer of ownership, its right to inspect and audit the books, records and premises of the Borrower and of the Mortgaged Property, its right to collect attorneys' fees and related expenses, its right to specifically enforce the Borrower's covenant to comply with applicable federal tax law and State law (including the Act and the rules and regulations of the Issuer, if any), and its rights to give or withhold consent to amendments, changes, modifications and alterations to the Financing Agreement relating to the Reserved Rights. "Revenue Fund" means the Revenue Fund created by Section 4.1. "Revenues" means all (a) payments made under the Mortgage Note, (b) payments made under the Credit Facility and (c) Investment Income (excluding Investment Income earned from moneys on deposit in the Rebate Fund and the Costs of Issuance Deposit Account of the Costs of Issuance Fund). "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors and assigns, or if it shall be dissolved or shall no longer assign credit ratings to long term debt, then any other nationally recognized statistical rating agency, designated by the Issuer and acceptable to the Trustee, the Credit Provider and the Borrower, as shall assign credit ratings to long term debt. "Securities Depository" means, initially, The Depository Trust Company, New York, New York, and its successors and assigns, and any replacement securities depository appointed under this Indenture. "Security" means Ihe Trust Estate and the Credit Facility. "Security Instrument" means the Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated as of, dated as of , 2005, together with all riders and exhibits, securing the Mortgage Note, executed by the Borrower with respect to the Mortgaged Property, as it may be amended, modified, supplemented or restated from time to time, or any 17 DOCSOC/1120730v3/24036-003i security instrument executed in substirution therefor, as such substitute security instrument may be amended, modified, supplemented or restated from time to time. "Set Rate Interest" has the meaning given to that term in the Mortgage Note. "State" means the State of California. "Strike Rate" means _ % per annum or such other per annum interest rate as may be approved by the Credit Provider in its sole discretion, but in no event higher than _ %. "Supplemental Indenture" means any indenture duly authorized and entered into between the Issuer and the Trustee amending or supplementing this Indenture in accordance with the provisions of this Indenture. "Tax Certificate" means the Tax Certificate dated the Closing Date, executed and delivered by the Issuer together with the Borrower's Use of Proceeds Certificate dated as of the Closing Date, executed and delivered by the Borrower. "Third Party Fees" means, individually or collectively, as the context shall require, the (a) Issuer's Annual Fee, (b) Trustee's Annual Fee and (c) Rebate Analyst's Annual Fee, if any. "Trust Estate" means the property, rights, money, securities and other amounts pledged and assigned by the Issuer to the Trustee pursuant to this Indenture and the Assignment. "Trustee" means Wells Fargo Bank, National Association, a national banking association, or its successors or assigns, or any other corporation or association resulting from or surviving any consolidation or merger to which it or its successors may be a party and any successor trustee at any time serving as successor trustee under this Indenture. "Trustee's Annual Fee" means the annual ongoing trust administration fee of the Trustee equal to $ payable as provided in Section 4.3(i) of the Financing Agreement, computed and payable semiannually in advance on each Interest Payment Date. "U.C.C." means the Uniform Commercial Code of the State as in effect now or in the future, whether or not such Uniform Commercial Code is applicable to the parties or the transactions. "Undelivered Bond" means any Bond that is required under this Indenture to be delivered to the Remarketing Agent or the Trustee for purchase on a Remarketing Date but that has not been received on the date such Bond is required to be delivered. "Underwriter" means Red Capital Markets, Inc. "Verification Agent" means an independent firm of certified public accountants, an independent financial advisory firm or other independent third party designated by the Borrower and acceptable to the Credit Provider, qualified and experienced in the verification of the mathematical accuracy of scheduled cash flows and other funds to pay the principal of and interest on bonds and fees, which has been engaged to prepare a Verification Report. "Verification Report" means a report prepared by a Verification Agent verifying the mathematical accuracy of a Cash Flow Projection. 18 DOCSOC/1120730v3124036-003! "Wrongful Dishonor" has the meaning given to that term in the Assignment. Section 1.3 Rules of Construction. The rules of construction set forth in this Section 1.3 shall apply to this Indenture: 1.3.1 The singular form of any word used in this Indenture, including the terms defined in Section 1.2, includes the plural, and vice versa, unless the context otherwise requires. The use in this Indenture of a pronoun of any gender includes correlative words of the other genders. 1.3.2 AIl references in this Indenture to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or other subdivisions of this Indenture; the words "in this Indenture," "of this Indenture," "under this Indenture" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision of this Indenture. 1.3.3 Any captions, headings or titles of the Articles and Sections of this Indenture, and any table of contents appended to this Indenture, are solely for convenience of reference, do not limit or otherwise affect the meaning, construction or effect of this Indenture or describe the scope or intent of any provision of this Indenture. 1.3.4 All accounting terms not otherwise defined in this Indenture have the meanings assigned to them in accordance with applicable generally accepted accounting principles as in effect from time to time. 1.3.5 Every "request," "order," "demand," "direction," "application," "appointment," "notice," "statement," "certificate," '.consent" or similar action under this Indenture by any party shall, unless the form to be used is specifically provided, be in writing and signed by a duly authorized representative of such party with a duly authorized signature. 1.3.6 All references in this Indenture to "counsel fees," "attorneys fees" or the like shall mean and include fees and disbursements allocable to in-house or of outside counsel, whether or not suit is instituted, and include fees and disbursements preparatory to and during trial and appeal and in any bankruptcy or arbitration proceeding. 1.3.7 Whenever the term "includes" or "including" is used in this Indenture, such terms mean "includes or including by way of example and not limitation"; and 1.3.8 The term "immediate notice" means personal delivery of a written notice given by Electronic Means or by messenger service promptly followed by a duplicate or "hard copy" of such written notice sent by certified mail, return-receipt requested or by any nationally recognized overnight delivery service. Section 1.4 Content of Certificates and Opinions. Every certificate or opinion with respect to compliance by or on behalf of any party with a condition or covenant provided for in this Indenture or the Financing Agreement shall include (a) a statement that the person or persons providing or giving the certificate or opinion have read the covenant or condition and the definitions in this Indenture relating to the covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in the certificate or opinion are based, (c) a statement that, in the opinion of the signers, they have made or caused to 19 DOCSOC/1120730v3124036-0031 be made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not the covenant or condition has been complied with and (d) a statement as to whether, in the opinion of the signers, the condition or covenant has been complied with. Any such certificate or opinion provided or given by an officer of any party may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representation with respect to any matter upon which his or her certificate or opinion may be based is erroneous, or in the exercise of reasonable care should have known that the same is erroneous. Any certificate or opinion provided or given by counsel may be based, insofar as it relates to factual matters (with respect to which information is in the possession of a party), upon the certificate or opinion of or representation by an officer of the party, unless such counsel knows that the certificate or opinion or representation with respect to the matter upon which his or her opinion may be based is erroneous, or in the exercise of reasonable care should have known that the same is erroneous. Section 1.5 Effective Date. The provisions of this Indenture shall be effective on and as of the Closing Date. ARTICLE 2. THE BONDS Section 2.1 Authorized Amount of Bonds. No Bonds may be issued under this Indenture except as provided in Section 2.2. The total principal amount of Bonds that may be issued and outstanding under this Indenture is expressly limited to the Principal Amount. Section 2.2 Issuance of Bonds. The Bonds are authorized to be issued pursuant to and in accordance with this Indenture. The Bonds shall (a) be designated "Housing Authority of the City of Chula Vista Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A," (b) be issued in the Principal Amount, (c) be dated the Dated Date, (d) bear interest from the Dated Date at the rate or rates provided in Section 2.6.1, payable on each Interest Payment Date and on each other Bond Payment Date on which interest is payable, until the Bonds are paid in full or earlier redeemed, and (e) mature, subject to redemption prior to maturity as provided in Section 2.16.1.9 and Article III, on the dates and in the principal amounts set forth in Section 2.6. L Section 2.3 Rel!istered Bonds: Authorized Denomination; Numberinl!. The Bonds shall be issued as registered bonds without coupons. Each Bond shall be issued in an Authorized Denomination. The Bonds shall be numbered consecutively from R-l upwards, bearing numbers not then contemporaneously outstanding (in order of issuance) according to the Bond Register. Section 2.4 Security is Sole Source for Payments of Princiual and Interest. The Bonds are payable solely from the Security. Section 2.5 Ratably Secured. All Bonds issued under this Indenture shall (a) be equally and ratably secured under this Indenture without preference, priority or distinction and (b) have the same right, lien and preference under this Indenture. 20 DOCSOC/l i 20730v3/24036-0031 Section 2.6 Terms of Bonds. 2.6.1 Interest Rates: Principal Maturitv. The Bonds shall bear interest, subject to adjustment as described in Section 2.6.4, at the rate(s) per annum and shall mature (subject to redemption prior to maturity, including sinking fund redemption), on the dates and in the principal amounts set forth below: Date Principal Amount Maturing Interest Rate $ % Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. 2.6.2 Accrual of Interest. . The Bonds shall bear interest from the Interest Payment Date next preceding the date of authentication of the Bonds. If the date of authentication is an Interest Payment Date for which interest has been paid or is after the Record Date, but prior to the next Interest Payment Date, the Bonds shall bear interest from such Interest Payment Date. If the date of authentication is prior to the Record Date for the first Interest Payment Date, the Bonds shall bear interest from the Dated Date of the Bonds. Notwithstanding the foregoing, if at the time of authentication of any Bond, interest on the Bond is in default, the Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment, or if no interest has been paid on the Bond, from the Dated Date of the Bond. 2.6.3 Pavment of Principal and Interest. The principal of, premium, if any, and the interest on the Bonds shall be payable in lawful money of the United States of America to the persons in whose names the Bonds are registered on the Bond Register at the close of business on the applicable Record Date. Payment of the interest on the Bonds shall be made to the Registered Owners of the Bonds (as determined at the close of business on the Record Date next preceding the applicable Interest Payment Date) by check drawn upon the Trustee and mailed by first class mail, postage prepaid, on the Interest Payment Date to the addresses of such Registered Owners as they appear on the Bond Register or to such other address as may be furnished in writing by any Registered Owner to the Trustee prior to the applicable Record Date. Payment of the principal amount of any Bond and premium, if any, together with interest payable on any Bond Payment Date (other than interest payable on a regularly scheduled Interest Payment Date) shall be made by check only upon presentation and surrender of the Bond on or after its maturity date or date fixed for purchase, redemption or other payment at the office of the Trustee designated by the Trustee for that purpose. Notwithstanding the foregoing, payment of principal of, premium, if any, and interest on any Bond on any Bond Payment Date shall be made by wire transfer to any account within the United States of America designated by a Registered Owner owning $1,000,000 or more in aggregate principal amount of Bonds if a written request for wire transfer is delivered to the Trustee by any such Registered Owner not less than five (5) Business Days prior to the applicable Bond Payment Date and if any such Registered Owner otherwise complies with the reasonable requirements of the Trustee. A request for wire transfer may specify that it is effective with respect to all succeeding payments of principal, premium, if any, and interest and will be so effective unless and until rescinded in writing by the Registered Owner at least five (5) days prior to the Record Date for the Bond Payment Date to which such rescission is designated to apply. Notwithstanding the foregoing, payments of the principal of, premium, if any, and interest on any Bonds that are subject to the Book- Entry System shall be made as provided in Section 2.12.3. If interest on the Bonds is in default, the 21 DOCSOC/l120730v3/24036-0031 Trustee shall, prior to the payment of interest, establish a special record date (the "Special Record Date") for such payment. A Special Record Date shall be not more than fifteen (15) nor less than ten (10) days prior to the date of the proposed payment. Payment of defaulted interest shall then be made by check or wire transfer, as permitted above, mailed or remitted to the persons in whose names the Bonds are registered on the Special Record Date at the addresses or accounts of such persons shown on the Bond Register. 2.6.4 Establishment of Interest Rate In Connection With Remarketinl!: of Bonds. 2.6.4.1 Establishment of Interest Rate. On and after each Remarketing Date, to, but not including, the earlier of the next succeeding Remarketing Date or final Maturity Date, the interest rate on the Bonds then Outstanding shall be established by the Remarketing Agent at the Remarketing Rate in accordance with this Section 2.6.4.1. Not less than ten (10) days preceding each Remarketing Date, the Remarketing Agent, taking into consideration prevailing market conditions, shall, using its best professional judgment, determine the minimum rate of interest which, if borne by the Bonds then Outstanding for the period beginning on the Remarketing Date and ending on the final Maturity Date of the Bonds, would be the rate of interest, but would not exceed the rate of interest, that would enable the Remarketing Agent to remarket all Bonds then Outstanding on the Remarketing Date for that period at a price equal to 100% of the principal amount of such Bonds, and the rate of interest so determined shall be the Remarketing Rate for such Remarketing Period, provided that if the rate of interest so determined for such period would exceed the Strike Rate, the Bonds Outstanding shall be remarketed for the longest Remarketing Period, ending on the last day of a Bond Year, at the minimum rate of interest that would enable such Bonds to be remarketed at a price equal to 100% of the principal amount of such Bonds and that would not exceed the Strike Rate; notwithstanding the foregoing, if the rate of interest so determined for any Remarketing Period in excess of one year would exceed the Strike Rate, the Bonds Outstanding shall be remarketed for a Remarketing Period of one year at the lowest rate of interest that would enable such Bonds to be remarketed at a price equal to 100% of the principal amount of such Bonds, and the rate of interest so determined shall be the Remarketing Rate for such Remarketing Period. 2.6.4.2 Notice. The Remarketing Agent shall, upon determination of the Remarketing Rate and Remarketing Period, immediately (and in no event later than the Business Day following the day on which the Remarketing Agent makes its determination of the Remarketing Rate and the Remarketing Period) give notice of its determination, by Electronic Means, promptly confirmed in writing, to the Trustee, the Issuer, the Borrower, the Loan Servicer and the Credit Provider. The establishment of the Remarketing Rate and the Remarketing Period shall be conclusive and binding for the purposes of this Indenture upon the Trustee, the Issuer, the Borrower, the Loan Servicer, the Credit Provider and the Bondholders. Section 2.7 Form of Bonds. The Bonds, the certificate of authentication on the Bonds and the form of assignment on the Bonds shall be in substantially the forms set forth in Exhibit A to this Indenture with such appropriate variations, omissions, substitutions and insertions as are permitted or required by this Indenture or are required by law. The Bonds may have such letters, numbers or other marks of identification and such legends and endorsements placed on the Bonds as any Authorized Officer shall deem appropriate. Any portion of the text of any Bond may be set forth on the reverse of such Bond, with an appropriate reference on the face of the Bond to the reverse side of the Bond. Bonds may be lypewritten, printed, engraved, lithographed or otherwise reproduced. 22 DOCSOCII120730v3/24036-0031 Section 2.8 Temporary Bonds. If definitive Bonds are not ready for delivery on the Closing Date, then, unless Section 2.12 is applicable, the Issuer shall execute, and at the request of the Issuer, the Trustee, as Bond Registrar, shall authenticate and deliver, one or more temporary typewritten, printed or lithographed Bonds, in any Authorized Denomination, in fully registered form, and in substantially the tenor set forth and with such appropriate omissions, insertions and variations as may be required. If temporary Bonds shall be issued, the Issuer shall prepare and deliver to the Trustee a supply of blank forms of the Bonds, executed by facsimile signatures and bearing the Issuer's official seal imprinted or impressed on the forms, for issuance upon subsequent transfers or in the event of partial redemption. In the event that such supply of blank forms shall be insufficient to meet the requirements of the Trustee, the Trustee shall order printed, at the Borrower's expense, an additional supply of blank forms and request their execution by manual or facsimile signature of an Authorized Officer of the Issuer and attested by an Authorized Officer of the Issuer under the official seal of the Issuer or a facsimile of the official seaL The Issuer shall cause definitive Bonds to be prepared and to be executed and delivered to the Trustee. Upon presentation to the Trustee of any temporary Bond, the Trustee shall cancel the same and authenticate and deliver in exchange therefor, without charge to the owner of such Bond, a definitive Bond or Bonds of an equal aggregate principal amount of Authorized Denominations, of the same maturity and series, and bearing interest at the same rate as the temporary Bond surrendered. Until so exchanged, the temporary Bonds shall in all respects be entitled to the same benefit and security of this Indenture as the definitive Bonds to be issued and authenticated under this Indenture. Interest on temporary Bonds, when due and payable, if the definitive Bonds are not ready, shall be paid on presentation of such temporary Bonds for notation of such payment on such Bonds by the Trustee. Section 2.9 Execution. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signature of its Authorized Officer and attested by the manual or facsimile signature of its Authorized Attesting Officer under the official seal, or a facsimile of the official seal, of the Issuer. Any facsimile signatures shall have the same force and effect as if the Authorized Officer had manually signed and attested the Bonds. In case any officer whose signature or a facsimile of whose signature appears on any Bond ceases to be such officer before the delivery of such Bond, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes as if such officer had remained in office until delivery. Any reproduction of the official seal of the Issuer on the Bonds shall have the same force and effect as if the official seal of the Issuer had been manually impressed on the Bonds. Section 2.10 Authentication. Only such Bonds as shall have endorsed on them a certificate of authentication substantially in the form(s) set forth in Exhibit A to this Indenture duly executed by the Trustee, as Bond Registrar, shall be entitled to any right or benefit under this Indenture. No Bond shall be valid or obligatory for any purpose unless and until such certificate of authentication shall have been manually executed by the Trustee; and such executed certificate upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Indenture. The Trustee's certificale of authentication on any Bond shall be deemed to have been executed by it if signed by an authorized representative of the Trustee, but it shall not be necessary that the same person sign Ihe certificates of authentication on all of the Bonds. Section 2.11 Mutilated. Lost. Stolen or Destroyed Bonds. If any Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the Trustee may authenticate and deliver a new Bond of the same maturity, interest rate, principal amount, series and tenor in lieu of and in substitution for the mutilated, lost, stolen or destroyed Bond, provided that in the case of any mutilated Bond, the mutilated Bond shall first be surrendered to the Trustee, and in the case of any lost, stolen or 23 DOCSOC/l120730v3/24036-0031 destroyed Bond, there shall be first furnished to the Trustee evidence satisfactory to it of the ownership of the Bond, and of the loss, theft or destruction, together with indemnity satisfactory to the Trustee and the Issuer and compliance with such other reasonable requirements as the Issuer and the Trustee may prescribe. If any such Bond has matured or will mature within the ensuing 60 day period, or if such Bond has been called for redemption or a redemption date pertaining to such Bond has passed, instead of replacing the Bond, the Trustee may, upon receipt of such indemnity, pay the Bond. Any mutilated Bond surrendered to the Trustee shall be canceled by it. In connection with any such payment, the Issuer and the Trustee may charge the holder of such Bond with their reasonable fees and expenses, including attorneys' fees and expenses. Section 2.12 Book Entrv System. 2.12.1 Rel!istration in the Book-Entrv System. The Bonds shall be issued initially as Book-Entry Bonds. A separate single fully registered Bond shall be issued for each of the maturities of the Bonds. The initial Securities Depository shall be DTC, and the initial securities depository system shall be the DTC system (the "DTC System"). The Bonds shall be registered in the name of Cede & Co., as nominee of DTC. The Issuer and the Trustee are authorized to execute and deliver such letters to or agreements with DTC as shall be necessary to effectuate the DTC System, including a letter of representations in the form required by DTC (the "Representation Letter"). In the event of any conflict between the terms of any such letter or agreement, including the Representation Letter, and the terms of this Indenture, the terms of this Indenture shall control. DTC may exercise the rights of a Bondholder only in accordance with the terms of this Indenture applicable to the exercise of such rights. 2.12.2 Exculpation. With respect to Bonds registered in the Bond Register in the name of Cede & Co., as nominee of DTC, the Issuer, the Trustee, the Credit Provider, the Loan Servicer and the Borrower shall have no responsibility or obligation to any broker dealer, bank or other financial institution for which DTC holds Bonds from time to time as securities depository (each such broker dealer, bank or other financial institution being referred to in this Indenture as a "DTC Participant") or to any person on behalf of whom such a DTC Participant directly or indirectly holds an interest in the Bonds (each such person being referred to in this Indenture as an "Indirect Participant"). Without limiting the immediately preceding sentence, the Issuer, the Trustee, the Credit Provider, the Loan Servicer and the Borrower shall have no responsibility or obligation with respect to (a) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (b) the delivery to any DTC Participant or any Indirect Participant or any other person, other than Cede & Co., as nominee of DTC, as Bondholder on the Bond Register, of any notice with respect to the Bonds, including any notice of redemption, (c) the payment to any DTC Participant or Indirect Participanl or any other Person, other than Cede & Co., as nominee of DTC, as Bondholder on the Bond Register, of any amount with respect to principal of, premium, if any, or interest on, the Bonds or (d) any consent given by Cede & Co., as nominee of DTC as Registered Owner. So long as certificates for the Bonds are not issued pursuanl to Section 2.12.5 and the Bonds are registered in the name of Cede & Co., as nominee for DTC, the Issuer, the Borrower, the Credit Provider, the Loan Servicer and the Trustee shall treat DTC or any successor securities depository as, and deem DTC or any successor securities depository to be, the absolute owner of the Bonds for all purposes whatsoever, including, but not limited to, the (a) payment of the principal of, premium, if any, and interest on the Bonds, (b) giving notice of redemption and other matters with respect to the Bonds, (c) registration of transfers with respect to the Bonds and (d) selection of Bonds for redemption. While in the DTC System, no 24 DOCSOCIl12073Ov3/24036-0031 person other than Cede & Co., or any successor to it, as nominee for DTC, shall receive a Bond certificate with respect to any Bond. 2.12.3 Payments/Notices with Resnect to Bonds Relrlstered in the Book-Entry System. Notwithstanding any other provision of this Indenture to the contrary, so long as any of the Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Bonds and all notices with respect to such Bonds shall be made and given, respectively, in the manner provided in the Representation Letter. 2.12.4 Substitution of Nominee. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions of this Indenture with respect to interest checks being mailed to the Registered Owner at the close of business on the Record Date applicable to any Interest Payment Date, the name "Cede & Co." in this Indenture shall refer to such new nominee of DTC. 2.12.5 Successor Securities Denository: Transfers Outside Book Entry System. DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving written notice to the Issuer, the Trustee and the Borrower and by discharging its responsibilities with respect to the Bonds under applicable law. The Trustee may determine that the Bonds shall be registered in the name of and deposited with a successor depository operating a securities depository system, qualified to act as such under Section 17(a) of the Securities Exchange Act of 1934, as amended, as may be acceptable to the Issuer, or such depository's agent or designee. The Issuer or the Borrower, with the consent of the other, but without the consent of any other person, may terminate the services of DTC with respect to the Bonds. If the Borrower is in default under any Bond Document or any Mortgage Loan Document, the Issuer shall not be required to obtain the consent of the Borrower to termination of the services of DTC. Upon the discontinuance or termination of the services of DTC, unless a substitute securities depository is appointed to undertake the functions of DTC under this Indenture, the Issuer, at the expense of the Borrower, is obligated to deliver Bond certificates to the Beneficial Owners of the Bonds, and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of Cede & Co. as nominee of DTC, but may be registered in whatever name or names the Registered Owners transferring or exchanging Bonds shall designate to the Trustee in writing. Section 2.13 Bond Ree:istrar: Exchane:e and Transfer of Bonds: Persons Treated as the Bondholders. The provisions of this Section 2.13 shall govern the transfer and exchange of Bonds at such time or times as the Bonds are not in a Book-Entry System. 2.13.1 Bond Ree:istrar: Bond Relrlster. The Trustee is, by this Indenture, constituted and appointed the Bond Registrar for the Bonds. The Trustee shall keep the Bond Register for the registration of the Bonds and for the registration of transfer of the Bonds. 2.13.2 Transfers. Subject to the express limitations contained in this Section 2.13, any Bondholder or its attorney duly authorized in writing may transfer title to a Bond on the Bond Register kept by the Trustee, upon surrender of the Bond at the office of the Trustee designated by the Trustee for that purpose, together with a written instrument of transfer (in substantially the form of assignment, including signature guarantee, attached to the Bond) satisfactory to the Trustee executed by the Bondholder or its attorney duly authorized in writing. Upon surrender for registration of transfer of any Bond, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same aggregate 25 DOCSOC/l120730v3/24036-0031 principal amount, rate of interest, maturity, series and tenor as the Bond surrendered and of any Authorized Denomination. Transfers of an interest in the Bonds shall be in principal amounts equal to any Authorized Denomination. If Fannie Mae is the Credit Provider, notwithstanding anything to the contrary contained in this Indenture, any purported transfer to the Credit Provider (other than a transfer of Purchased Bonds if the Credit Provider has become the owner of the Mortgaged Property and would be required to advance funds under the Credit Facility in connection with a mandatory purchase of Bonds) shall be accompanied by the written consent of the General Counsel and the Controller of Fannie Mae. 2.13.3 Exchanl!es. Subject to the express limitations contained in this Section 2.13, Bonds may be exchanged upon surrender of such Bonds at the office of the Trustee designated by the Trustee for that purpose together with a written instrument of transfer (in substantially the form of assignment, including signature guarantee, attached to the Bond) satisfactory to the Trustee, executed by the Bondholder or its attorney duly authorized in writing, for an equal aggregate principal amount of Bonds of the same aggregate principal amount, rate of interest, maturity, series and tenor as the Bonds being exchanged and of any Authorized Denomination. The Issuer shall execute and the Trustee shall authenticate and deliver Bonds which the Bondholder making the exchange is entitled to receive, bearing numbers not contemporaneously outstanding. 2.13.4 Exceptions to Transfers and Exchanl!es. The Trustee shall not be required to register any transfer or exchange of any Bond (or portion of any Bond) called for redemption. 2.13.5 Charl!es. Registrations of transfers or exchanges of Bonds shall be without charge to the Bondholders, but any taxes or other governmental charges required to be paid with respect to a transfer or exchange shall be paid by any Bondholder requesting the registration of transfer or exchange as a condition precedent to the exercise of such privilege. Any service charge made by the Trustee for any such registration, transfer or exchange shall be paid by the Borrower. 2.13.6 Recol!Ilized Owners. The person in whose name any Bond is registered on the Bond Register shall be deemed and regarded as the absolute owner of such Bond for all purposes, and payment of or on account of either principal or interest shall be made only to or upon the order of such person or its attorney duly authorized in writing, but such registration may be changed as provided in this Section 2.13. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. 2.13.7 Bonds Protected. All Bonds issued upon any registration of transfer or exchange of Bonds shall be legal, valid and binding limited obligations of the Issuer, evidencing the same debt, and entitled to the same security and benefits under this Indenture, as the Bonds surrendered upon such transfer or exchange. 2.13.8 Issuer's Reliance. In executing any Bond upon any exchange or registration of transfer provided for in this Section 2.13, the Issuer may rely conclusively on a representation of the Trustee that such execution is required. Section 2.14 Cancellation. All Bonds (other than Purchased Bonds) which have been surrendered pursuant to Section 2.6.3 or Article III for payment upon maturity or redemption prior to maturity shall be canceled by the Trustee and shall not be reissued. Canceled Bonds shall be 26 DOCSOC/1120730v3/24036-0031 destroyed by the Trustee unless the Trustee receives contrary instructions from the Issuer with respect to the disposition of such canceled Bonds. Section 2.15 Conditions for Deliverv of Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute and deliver to the Trustee, and the Trustee shall authenticate, the Bonds and deliver them to or for the account of the Underwriter or to such persons as the Underwriter shall specify, in each case in the records of DTC, provided, however, that prior to delivery of the Bonds to the Underwriter there shall be delivered to the Trustee the following: (i) a certified copy of the Bond Resolution authorizing the execution and delivery on behalf of the Issuer of the Bonds and the Bond Documents to which it is a party and related matters; (ii) executed original counterparts of the Bond Documents and the Mortgage Loan Documents, the original executed Credit Facility, the Assignment, the Issuer's endorsement of the Mortgage Note, without recourse, to the order of the Trustee and the Credit Provider, as their interests may appear, the Remarketing Agreement and all other agreements, documents and instruments to be executed and delivered on the Closing Date by the parties to those agreements, documents and instruments; (iii) an Opinion of Bond Counsel to the effect Ihat the Bonds have been duly and validly authorized, issued and delivered and constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, that the interest payable on the Bonds is excludable from gross income for federal income tax purposes, the Issuer has the power and authority to execute and deliver each of the Bond Documents to which the Issuer is a party and each of the Bond Documents to which the Issuer is a party has been duly and validly authorized, executed and delivered by the Issuer and each constitutes the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to customary qualifications on enforceability; (iv) a written request and authorization by an Authorized Officer of the Issuer to the Trustee to authenticate and deliver the Bonds to or for the account of the Underwriter upon receipt from the Underwriter of [100% of the principal amount of the Bonds]; (comprising $ (v) receipt from the Underwriter of the purchase price of $ $1,715,000, representing 100% of the principal amount of the Bonds, and as accrued interest on the Bonds); (vi) receipt from the Borrower of the Costs of Issuance Deposit; (vii) receipt from the Borrower of the Initial Debt Service Deposit; (viii) evidence, acceptable to the Issuer, the Trustee, the Credit Provider and the Loan Servicer, of proper recordation of (a) the Regulatory Agreement and (b) the Security Instrument and the Assignment (or a title insurance binder acceptable to the Credit Provider and the Loan Servicer insuring the "gap" in a manner acceptable to the Credit Provider and the Loan Servicer): and (ix) written evidence that the Bonds have been assigned a rating in the Highest Rating Category by the Rating Agency rating the Bonds; 27 DOCSOC/l120730v3/24036.0031 (x) the Representation Letter; (xi) the Cash Flow Projection; and (xii) the Verification Report. For the purpose of establishing that the Regulatory Agreement, the Security Instrument and the Assignment have been properly recorded, the Issuer, the Trustee, the Borrower, the Credit Provider and the Loan Servicer shall be authorized and entitled to rely conclusively on the oral or written advice of an attorney at law or a title company to which any such instrument has been delivered to and entrusted for filing that such instrument has been delivered to and accepted for recording by the public officer responsible under the laws of the State for receiving such instrument for recording in the appropriate public records, provided that, based on local custom and practice, the Credit Provider and the Loan Servicer may rely on a title insurance policy covering any "gap" in a manner acceptable to the Issuer, the Trustee, the Credit Provider and the Loan Servicer. Section 2.16 Remarketinl! of Bonds. The Bonds Outstanding on each Remarketing Date shall be remarketed in accordance with this Section 2.16. 2.16.1 Purchase of Bonds on a Remarketinl! Date. 2.16.1.1 Notice. Not less than 60 days preceding a Remarketing Date, the Trustee shall give written notice of the Remarketing Date to the Credit Provider and the Loan Servicer; not less than 30 days preceding a Remarketing Date, the Trustee shall give written notice of tender and remarketing to the Bondholders of the Bonds then Outstanding (with a copy to the Credit Provider and the Loan Servicer) by mail, at their respective addresses appearing on the Bond Register; the notice shall state: (i) the Remarketing Date and that (a) all Outstanding Bonds are subject to mandatory tender for purchase on the Remarketing Date, (b) all Outstanding Bonds must be tendered for purchase on the Remarketing Date and (c) Bondholders will not have the right to elect to retain their Bonds; (ii) the address of the office of the Trustee at which Bondholders should deliver their Bonds for purchase and the date of the required delivery: (iii) that all Outstanding Bonds will be purchased on the Remarketing Date (or not later than three (3) Business Days after the Remarketing Date, in the event that the Trustee does not, after a remarketing, have sufficient funds on the Remarketing Date to purchase all of the Outstanding Bonds) at a price equal to the principal amount of the Outstanding Bonds plus interest accrued to the Remarketing Date: and (iv) any Bonds not tendered will nevertheless be deemed to have been tendered and will cease to bear interest from and after the Remarketing Date. 2.16.1.2 Remarketinl!. Not less than 10 days before each Remarketing Date, the Remarketing Agent shall offer for sale and use its best efforts to sell the Bonds Outstanding on the Remarketing Date at a price equal to 100% of the principal amount of such Bonds. Not less than four Business Days before each Remarketing Date, the Remarketing Agent shall give notice, by Electronic Means, promptly confirmed in writing, to the Trustee, the Credit Provider and the Loan 28 DOCSOCI1120730v3/24036-0031 Servicer specifying the principal amount of Bonds, if any, it has remarketed (including Bonds to be purchased by the Remarketing Agent on the Remarketing Date for its own account), the Remarketing Rate and the Remarketing Period applicable to the Bonds. Immediately upon receipt of the Remarketing Agent's notice, the Trustee shall give notice, by Electronic Means, to the Borrower, the Loan Servicer and the Issuer of the principal amount of Bonds remarketed, the Remarketing Rate and the Remarketing Period. 2.16.1.3 Conditions. If, not less than four Business Days preceding the Remarketing Date: (i) the Remarketing Agent shall have notified the Trustee pursuant to Section 2.16.1.2 of the remarketing of the Outstanding Bonds and that the proceeds from the remarketing (including proceeds of remarketing of Outstanding Bonds to be purchased by the Remarketing Agent on the Remarketing Date for its own account) or other funds equal to the amount needed to purchase the remarketed Bonds on the Remarketing Date are expected to be available to the Trustee on the Remarketing Date and deposited into the Bond Purchase Fund in an amount equal to the principal amount of the Outstanding Bonds; (ii) there shall be on deposit with the Trustee, from funds provided by the Borrower, the Issuer or the Credit Provider, in the Bond Purchase Fund an additional amount sufficient to pay estimated Remarketing Expenses, or provision for the payment of the estimated Remarketing Expenses shall have been made to the satisfaction of the Trustee and the Remarketing Agent; (iii) the Issuer shall have notified the Trustee in writing that it has approved as to form and substance any disclosure document or offering materials which, in the opinion of counsel to the Issuer and the Remarketing Agent, is necessary to be used in connection with the remarketing of the Outstanding Bonds; (iv) the Trustee shall have received written confirmation from the Credit Provider that the Credit Facility is in full force and effect and will continue in full force and effect during the ensuing Remarketing Period or that a Replacement Credit Facility will be in full force and effect during the ensuing Remarketing Period; (v) the Trustee shall have received confirmation that the Rating Agency shall have received and approved a Cash Flow Projection and a Verification Report, each based on the Mortgage Note Rale, as revised, to reflect the interest rate to be in effect with respect to the Outstanding Bonds on and after the Remarketing Date; and (vi) the Trustee shall have received written notice from the Remarketing Agent that the Remarketing Agent has received written confirmation from the Rating Agency that the then current rating assigned to the Outstanding Bonds will continue to be effective on the Remarketing Date; then the Trustee shall immediately give notice, by Electronic Means, which notice shall be immediately confirmed in writing, to the Credit Provider, the Remarketing Agent and the Loan Servicer that (a) all conditions precedent to the remarketing of the Outstanding Bonds have been satisfied and (b) the sale and settlement of the Outstanding Bonds is expected to occur on the Remarketing Date. Following the Trustee's notice, the Outstanding Bonds shall be sold to the 29 DOCSOC/l120730v3/24036-0031 purchasers identified by the Remarketing Agent for delivery and settlement on the Remarketing Date, and the Trustee shall apply the funds in the Bond Purchase Fund on the Remarketing Date to payment of the purchase price of the Outstanding Bonds. 2.16.1.4 Purchase of Tendered Bonds. If. not less than four (4) Business Days preceding a Remarketing Date. any condition set forth in Section 2.16.1.3 has not been satisfied, then, unless the Outstanding Bonds are otherwise purchased on the Remarketing Date (a) the Remarketing Agent shall not sell any of the Outstanding Bonds on the Remarketing Date and (b) the Trustee shall, not less than four (4) Business Days preceding the Remarketing Date, give notice of that fact to the Credit Provider. by Electronic Means, and shall, not later than 9:30 a.m., Washington, D.C. time, on the third Business Day preceding the Remarketing Date, present a Certificate for a Purchased Bonds Advance under the Credit Facility. In the event that all of the conditions set forth in Section 2.16.1.3 are satisfied not less than four (4) Business Days preceding the Remarketing Date, but there are insufficient moneys available to the Trustee on the Remarketing Date to purchase all of the tendered Outstanding Bonds on the. Remarketing Date, then, unless the Outstanding Bonds are otherwise purchased on the Remarketing Date, (a) the Trustee shall, not later than 9:30 a.m., Washington, D.C. time, on the Business Day following the Remarketing Date, give notice of that fact to the Credit Provider, by Electronic Means, and with such notice shall present a certificate for a Purchased Bonds Advance under the Credit Facility and (b) any funds deposited by the Remarketing Agent with the Trustee shall be returned to the Remarketing Agent. 2.16.1.5 Deliverv of Bonds. Not later than 12:00 noon, New York time, on the Remarketing Date, each Bondholder of the Bonds then Outstanding will be required to deliver its Bonds to the Trustee (a) for delivery to the purchaser or purchasers identified by the Remarketing Agent or (b) for purchase by the Trustee for the account of the Borrower if the Outstanding Bonds are not to be remarketed. Bonds received by the Trustee shall be held by the Trustee in trust for the tendering Bondholders pending receipt of funds for the payment of such Bonds. 2.16.1.6 Additional Remarketinl!S. After the Initial Remarketing Date and prior to the final maturity of the Bonds, the Bonds Outstanding on the day immediately fOllowing the last day of each Remarketing Period shall be remarketed on such day in accordance with the procedures set forth in this Section 2.16. 2.16.1.7 Ownership and Pledl!e of Purchased Bonds. Purchased Bonds shall be owned by the Borrower and pledged to the Custodian, for the benefit of the Credit Provider, pursuant to the Pledge Agreement. As set forth in Section 2.3 of the Pledge Agreement, the Trustee shall either (a) ensure that Purchased Bonds are delivered to the Custodian under the Pledge Agreement or (b) if, and only if, delivery of the Bonds is not possible, deliver a written entitlement order to the applicable financial intermediaries on whose records ownership of the Purchased Bonds is reflected directing the intermediaries to credit the security entitlement to the Purchased Bonds to the account of the custodian for the benefit of the Credit Provider and deliver to the Custodian a written confirmation of such credit, whether or not the Borrower notifies the Remarketing Agent to do so. Purchased Bonds shall not be held as Book-Entry Bonds, but shall, as soon as practicable, be issued in certificated form. 2.16.1.8 Remarketinl! of Purchased Bonds. At such time as a Purchased Bond is remarketed by the Remarketing Agent, the Trustee shall (a) remit the proceeds from the remarketing to the Credit Provider, and (b) give written notice to the Remarketing Agent, the Borrower, and the Credit Provider that such Bond is no longer a Purchased Bond. A Purchased Bond 30 DOCSOCIl120730v3/24036-003t shall not be remarketed without the consent of the Credit Provider during the occurrence and continuance of an Event of Default under the Indenrure or any Credit Facility Agreement. 2.16.1.9 Cancellation of Purchased Bonds. Purchased Bonds shall be cancelled and deemed redeemed, without any further action by the Trustee or otherwise under this Indenrure, at the direction of the Credit Provider if the Purchased Bonds are not remarketed as of the first anniversary of the date of purchase of such Bonds. 2.16.1.10 Purchased Bonds: No Credit Facilitv Support. The Credit Facility shall not constitute security, or provide liquidity, for Purchased Bonds. 2.16.2 Bond Purchase Fund. The Bond Purchase Fund is provided for in Section 4.10 and is to be implemented and applied solely in connection with the remarketing of Bonds pursuant to this Section 2.16. 2.16.3 Rel!istration. Exchanl!e and Deliverv of Bonds In Connection With Remarketinl!. 2.16.3.1 Execution. Authentication and Deliverv. Bonds sold by the Remarketing Agent pursuant to Section 2.16.1.2 shall be transferred by the Bond Registrar on the Bond Register and registered in the names of the purchasers of such Bonds, as specified in instructions from the Remarketing Agent; new Bonds shall be executed by the Issuer by manual or facsimile signature, authenticated by the Trustee and delivered to or upon the direction of such purchasers. 2.16.3.2 Undelivered Bonds. An Undelivered Bond shall be treated as a lost Bond and shall be deemed tendered and a new Bond may be issued in place of it pursuant to Section 2.11 without providing indemnity. An Undelivered Bond shall not bear interest from and after the applicable Remarketing Date, and shall not be otherwise entitled to any rights under, or be secured by the lien of, this Indenrure, but shall have only the right to receive the amount due as a result of the purchase of the Bonds pursuant to Section 2.16.1.4, and only upon surrender of such Undelivered Bond to the Trustee or compliance with the provisions of Section 2.11 concerning payment of lost, stolen or destroyed Bonds. 2.16.3.3 Second Notices. In the event that any Bond required to be delivered to the Trustee for payment of the purchase price of such Bond shall not have been delivered to the Trustee on or before the 30th day following a Remarketing Date, the Trustee shall mail a second notice to the holder of the Bond at its address as shown on the Bond Register setting forth the requirements set forth in this Indenture for delivery of the Bond to the Trustee and stating that delivery of the Bond to the Trustee (or compliance with the provisions of this Indenture concerning payment of lost, stolen or destroyed Bonds) must be accomplished as a condition to payment of the purchase price or redemption price applicable to the Bond. 2.16.3.4 Payment of Accrued Interest: Payment of Principal. Accrued interest payable to the Remarketing Date on the Outstanding Bonds shall be paid to the owners of the Outstanding Bonds as of the Record Date in the same manner as if the Outstanding Bonds were not purchased pursuant to Section 2.16.1.4. The principal portion of the purchase price of the Outstanding Bonds shall be payable only upon surrender of such Bonds pursuant to Section 2.16.1.5. 31 DOCSOC/l120730v3/24036-0031 2.16.4 Appointment and Succession of Remarketinl! Al!ent. 2.16.4.1 Appointment; Duties. The Issuer appoints Red Capital Markets, Inc. as the Remarketing Agent for the Bonds. The Remarketing Agent shall advise the Trustee of its address for purposes of receipt of notices to be given to the Remarketing Agent under this Indenture and shall signify its acceptance of the duties and obligations imposed upon it under this Indenture by a written instrument of acceptance delivered to the Issuer and the Trustee, with copies to the Credit Provider and the Borrower. Under such acceptance, the Remarketing Agent must agree, with respect to each remarketing of Bonds: (i) to determine the Remarketing Period and establish the Remarketing Rate pursuant to and in accordance with Section 2.6.4.1; (ii) to give the notices provided for or otherwise required in Section 2.6.4.2; (iii) to hold all Bonds delivered to it under this Indenture in trust for the benefit of the Bondholders which shall have so delivered such Bonds until such Bonds are required to be delivered to the Trustee under this Indenture or until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such Bondholders; (iv) to hold all moneys, if any, delivered to it under this Indenture for the purchase of Bonds in trust for the benefit of the purchaser delivering such moneys until such moneys are required to be delivered to the Trustee under this Indenture or until the Bonds purchased with such moneys shall have been delivered to or for the account of such purchasers, and not to commingle such funds with its general funds; and (v) to keep such books and records with respect to all actions taken and all funds and securities received, held and delivered under this Indenture as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Issuer, the Trustee and the Credit Provider at all reasonable times. 2.16.4.2 Merl!er; Consolidation; Sale of Business. Any legal entity into which the Remarketing Agent may be merged, or with which it may be consolidated, or to which its investment banking business and assets may be sold or transferred as a whole or substantially as a whole, shall be and become the successor Remarketing Agent under this Indenture and shall be vested with all the powers, rights, obligations and duties under this Indenture as was its predecessor, without the execution or filing of any instrument by any party to this Indenture. 2.16.4.3 Resil!Dation. The Remarketing Agent may at any time resign and be discharged ofthe duties and obligations created by this Indenture by giving at least 90 days' prior written notice to the Issuer, the Credit Provider, the Loan Servicer and the Trustee, provided that such resignation shall become effective prior to the expiration of such 90 day period upon, or shall not take effect in any event until, the date on which a successor Remarketing Agent approved in writing by the Credit Provider shall have been appointed, shall have executed a written instrument accepting its duties and obligations and signifying its rights under this Indenture and the Remarketing Agreement, and shall be serving as Remarketing Agent under this Indenture and the Remarketing Agreement. 32 DOCSOC/1120730v3/24036-0031 2.16.4.4 Removal. The Remarketing Agent may be removed at any time, upon thirty (30) days notice, by any instrument in writing executed by the Borrower, with the prior written consent of the Credit Provider, (provided that the Borrower is not in default under any Bond Document or any Mortgage Loan Document and provided that no event shall have occurred which, with notice or the lapse of time or both, would constitute such a default) delivered to the former Remarketing Agent, the Loan Servicer, the Issuer and the Trustee. The Borrower shall remove the Remarketing Agent at any time, upon thirty (30) days notice, by an instrument in writing, executed by the Borrower, at the direction of the Credit Provider. If the Remarketing Agent fails to perform its duties under this Indenture or the Remarketing Agreement (as determined by the Credit Provider, in its sole and absolute discretion) the Credit Provider will have the right, with or without cause, to remove the Remarketing Agent upon thirty (30) days notice by an instrument in writing filed with the Remarketing Agent, the Trustee, the Borrower, the Loan Servicer and the Issuer, provided that no such removal shall be effective unless contemporaneously with such removal a successor Remarketing Agent shall be appointed in the manner provided in this Indenture; the duties and obligations of the Remarketing Agent under this Indenture must be accepted by the successor Remarketing Agent. 2.16.4.5 Successor Remarketinl!: Al!:ent. In the event of the resignation or removal of the Remarketing Agent, or in the event the Remarketing Agent shall be dissolved, or if the property or affairs of the Remarketing Agent shall be taken under the control of any state or federal court or administrative body, or if the Remarketing Agent shall have ceased to conduct its investment banking business, or if the authorization of the Remarketing Agent to conduct its investment banking business or to hold funds or securities of customers shall have been terminated or suspended by any regulatory body having jurisdiction over the affairs of the Remarketing Agent, by reason of insolvency, bankruptcy, violation of capitalization requirements, or for any other reason, a successor Remarketing Agent meeting the requirements set forth in Section 2.16.5 shall be appointed by the Borrower with the prior written consent of the Credit Provider (provided that the Borrower is not in default under any Bond Document or any Mortgage Loan Document and provided that no event shall have occurred which, with notice or the lapse of time or both, would constitute such a default) and written notice of such appointment shall be filed with the Trustee and the Loan Servicer. If the Borrower is disqualified from making such appointment, a successor Remarketing Agent may be appointed by the Credit Provider; notice of such appointment shall be given to the Issuer, the Trustee, the Loan Servicer and the Borrower. The former Remarketing Agent shall pay over, assign and deliver any moneys and Bonds held by it in such capacity to the successor Remarketing Agent when appointed, or, if no successor Remarketing Agent is appointed within 30 days, to the Trustee. 2.16.4.6 Ril!:hts of the Credit Provider; Trustee as Remarketinl!: Al!:ent. The Credit Provider shall be entitled to appoint a successor Remarketing Agent in the event that the Issuer shall fail to appoint a successor Remarketing Agent by the 90th day prior to a Remarketing Date. If neither the Issuer nor the Credit Provider has appointed a successor Remarketing Agent under this Indenture, then the Trustee shall assume from that point forward the duties of the Remarketing Agent stated in paragraph (iii) and (iv) of Section 2.16.4.1, and only those duties, provided that the Trustee shall not be deemed to be the Remarketing Agent and shall not be responsible for any prior action or inaction of the Remarketing Agent. In no event shall the Trustee be required to market or sell any Bonds or to determine the Remarketing Period or the Remarketing Rate for any Bonds. 2.16.5 Qualifications of Successor Remarketinl!: Al!:ent. Any successor Remarketing Agent shall be a member of the National Association of Securities Dealers, Inc., or a 33 DOCSOC/l120730v3/24036-0031 commercial bank (or a separate department or division of one of the foregoing) which is a registered Municipal Securities Dealer, shall have a capitalization of at least $10,000,000 and shall be authorized by law to perform all the duties imposed upon it by this Indenture and applicable law. 2.16.6 Duties of Remarketine Aeent with Respect to Remarketine. In addition to the duties and responsibilities of the Remarketing Agent prior to the remarketing of Bonds specified in Section 2.6.4.1 and 2.6.4.2 and elsewhere in this Section 2.16, with respect to each scheduled remarketing of Bonds, the Remarketing Agent shall: (i) not less than 75 days prior to the scheduled Remarketing Date, advise the Trustee (a) of its estimate of all Remarketing Expenses (except that such estimate need not include estimates of fees and expenses of the Trustee) expected to be incurred in connection with the remarketing of the Bonds, (b) whether any disclosure document or offering materials or any legal opinions will be required by the Remarketing Agent for use in offering the Bonds or as a condition to settlement and delivery of the Bonds on the Remarketing Date, whether counsel has been retained by the Remarketing Agent or (to the knowledge of the Remarketing Agent) by the Issuer or the Borrower in connection with the preparation of any such document, and (if such counsel has been or is to be retained) the identity and address of such counsel, and (c) that it will request from the Rating Agency confirmation and continuation of the existing rating for the Bonds, as contemplated in paragraph (vi) of Section 2.16.1.3, and the information, if any, required to be furnished by the Trustee, the Issuer or the Credit Provider in connection with the request for confirmation of the existing rating of the Bonds; (ii) not less than 60 days prior to the Remarketing Date (a) submit a request to the Rating Agency for confirmation and continuation of the existing rating of the Bonds, and thereafter from time to time respond promptly to requests received from the Rating Agency for additional information requested by the rating agency and (b) requesl from the Issuer, the Borrower and the Credit Provider (with a copy of any such request being given to each other such party and to the Trustee) any information required to be furnished by any of such parties in order to complete the information necessary in connection with the request for confirmation and continuation of the existing rating of the Bonds or preparation or completion of any disclosure documents or offering materials to be used in the remarketing of the Bonds, and any information expected to be required in connection with any legal opinions to be rendered in connection with the remarketing of the Bonds or as a condition to settlement and delivery of the Bonds on the Remarketing Date; (iii) not less than 35 days prior to the Remarketing Date, advise the Trustee, in writing, of (a) the Remarketing Date and (b) the rating, if any, then in effect with respect to the Bonds, and whether the rating then in effect for the Bonds is expected to continue upon the remarketing of the Bonds; (iv) not less than IS Business Days prior to the Remarketing Date, submit to the Trustee a revised statement for all Remarketing Expenses which have been or are expected to be incurred by or are payable to the Remarketing Agent, together with statements or other appropriate information concerning any other Remarketing Expenses known to the Remarketing Agent which are payable to other parties, accompanied by (if the amount of such Remarketing Expenses shall exceed the estimate of such Remarketing Expenses previously furnished to the Trustee pursuant to paragraph (i) of this Section 2.16.6 by the Remarketing Agent), an explanation of such discrepancy; 34 DOCSOC/112073llv3/24036-0031 (v) not less than 10 days prior to the Remarketing Date, offer the Bonds for sale as contemplated in Section 2.16.1.2, establish the Remarketing Rate and the Remarketing Period in the manner contemplated in Section 2.6.4.1, and give notice to the Trustee, the Issuer, the Borrower and the Credit Provider of the Remarketing Rate and Remarketing Period so established, as required under Section 2.6.4.2; (vi) not less than four Business Days prior to the Remarketing Date (a) advise the Trustee, the Credit Provider and the Loan Servicer whether the Bonds have been remarketed, and if the Bonds have been remarketed, commit to transfer to the Trustee by 12:00 noon, New York time, on the Remarketing Date, for deposit into the Bond Purchase Fund, an amount equal to the purchase price of all Bonds sold by the Remarketing Agent together with the purchase price of all Bonds, if any, to be purchased by the Remarketing Agent for its own account, (b) deliver to the Trustee information as to denominations, names and addresses of the purchasers of the Bonds and such other information with respect to the Bonds which have been remarketed by the Remarketing Agent as shall be necessary to enable the Trustee to prepare definitive Bonds for delivery to the purchasers of such Bonds, and (c) deliver to the Trustee all Bonds to be purchased on the Remarketing Date, if any, which may have been delivered to the Remarketing Agent; and (vii) not less than one Business Day prior to the Remarketing Date, notify the Trustee, the Credit Provider, the Loan Servicer and the Rating Agency of any Bonds which the Remarketing Agent was unable to remarket, if any; (viii) not later than 1:00 p.m., New York time, on the Remarketing Date, deliver to the Trustee all proceeds of remarketing, if any, which have been deposited with the Remarketing Agent; and (ix) on the Remarketing Date, provide to the Trustee, the Borrower, the Loan Servicer and the Credit Provider the schedule of sinking fund installments for the Bonds as provided in Section 3.4.1. 2.16.7 Duties of Trustee with Respect to Remarketinl!. In addition to the duties and responsibilities of the Trustee with respect to the remarketing of Bonds specified elsewhere in this Indenture, with respect to each scheduled remarketing of Bonds, the Trustee shall: (i) not less than 120 days prior to the scheduled Remarketing Date, give written notice to the Issuer, the Borrower, the Credit Provider, the Loan Servicer and the Remarketing Agent to the effect that remarketing of the Bonds is scheduled to occur on such Remarketing Date and, if the Remarketing Agent shall have resigned, been removed or shall no longer be serving in such capacity and if no successor Remarketing Agent shall have been appointed as provided in this Indenture, request that the Issuer and the Credit Provider designate a successor to the Remarketing Agent as provided in Section 2.16.4.5: (ii) not less than 60 days prior to the scheduled Remarketing Date, advise the Credit Provider, the Loan Servicer and the Borrower of the estimated amount of all Remarketing Expenses expected to be incurred in connection with the remarketing (including the estimate of Remarketing Expenses furnished by the Remarketing Agent, together with estimated fees and expenses of the Trustee) and that an amount equal 10 the estimated Remarketing Expenses is required to be on deposit with the Trustee as a condition to the remarketing of Ihe Bonds; 35 DOCSOCll120730v3/24036-0031 (iii) not less than 30 days prior to the scheduled Remarketing Date, give the notice to Bondholders required to be given pursuant to Section 2.16.1.1; (iv) not less than 12 Business Days prior to the Remarketing Date, notify the Borrower of any deficiency in the amounts required to be deposited with the Trustee to pay estimated Remarketing Expenses, and not less than seven Business Days prior to the scheduled Remarketing Date, notify the Borrower, the Loan Servicer and the Credit Provider if such deficiency has not been funded by the Borrower by such date; (v) if applicable, on the Remarketing Date, notify the Credit Provider that it has not received all of the remarketing proceeds it expected to receive from the Remarketing Agent and, not later than 9:30 a.m. on the Business Day following the Remarketing Date, request a Purchased Bonds Advance from the Credit Provider pursuant to Section 2.16.1.4; (vi) within 15 days following each Remarketing Date (a) if the Bonds shall have been remarketed, disburse funds held in the Remarketing Expenses Account for the payment of Remarketing Expenses for which it has received statements or other appropriate payment information sufficient to support such disbursement, remit any excess amounts on deposit in the Remarketing Expenses Account to the General Account (provided, that if the Trustee shall not have received a statement or other appropriate information sufficient for payment of any Remarketing Expenses of which the Trustee is aware, such disbursement will not be required to be made until five days subsequent to the date on which the amount of such remaining Remarketing Expenses required to be paid is established), and advise the Borrower and the Loan Servicer of the amount, if any, by which all Remarketing Expenses incurred with respect to the remarketing of which the Trustee is aware exceed the amount on deposit in the Remarketing Expenses Account for the payment of any Remarketing Expenses, and (b) in the event the Bonds were not remarketed on the Remarketing Date, remit to the Loan Servicer for the account of the holder of the Mortgage Note all amounts which have been deposited in the Remarketing Expenses Account for payment of Remarketing Expenses incurred notwithstanding that the Bonds have not been remarketed; and (vii) give a second notice to Bondholders who have failed to surrender their Bonds for payment or exchange on or before the 30th day following each Remarketing Date, as provided in Section 2.16.3.3. 2.16.8 Failure to Give Notice. Neither failure to give or receive any notice described in this Section 2.16, nor the lack of timeliness of such notice or any defect in any notice (or in its content) shall affect the validity or sufficiency of any action required or provided for in this Section 2.16. ARTICLE 3. REDEMPTION OF BONDS Section 3.1 Redemntion. The Bonds are subject to redemption prior to maturity only as set forth in this Article III. All redemptions shall be in Authorized Denominations. Section 3.2 Ontional RedemDtion. The Bonds are not subject to optional redemption prior to June 1,20_. 36 DOCSOC/l12073Ov3/24036-0031 3.2.1 Optional Redemption On and After June 1. 20 and Prior to the Initial Remarketin2 Date. On and after June I, 20_, the Bonds shall be subject to optional redemption only upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents. Optional redemption shall occur on the first day of any month for which timely notice of redemption can be given during the periods and at the respective redemption prices set forth below (expressed as percentages of the principal amounts of the Bonds called for redemption), plus accrued interest, if any, to the Redemption Date: Redemption Period (Both Dates Inclusive) June 1,20_ to May 31,20_ June 1,20_ to May 31, 20_ June 1,20_ and thereafter Redemption Prices (Expressed as a Percentage) 102% 101 100 3.2.2 Ontional Redemntion After Initial Remarketin2 Date. If the Bonds then Outstanding are remarketed on the Initial Remarketing Date or, if applicable, any subsequent Remarketing Date for a Remarketing Period: (i) of 10 years or more, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents; such redemption shall occur on the first day of any month on or after the seventh anniversary of the Remarketing Date, at a redemption price equal to (a) 102% of the principal amount of such Bonds if the redemption occurs in the period beginning on the seventh anniversary of the Remarketing Date and ending on the day prior to the eighth anniversary of the Remarketing Date, (b) 101 % of the principal amount of such Bonds if the redemption occurs in the period beginning on the eighth anniversary of the Remarketing Date and ending on the day prior to the ninth anniversary of the Remarketing Date and (c) 100% of the principal amount of such Bonds if the redemption occurs on or after the ninth anniversary of the Remarketing Date, in each case together with accrued interest to the Redemption Date; (ii) less than 10 years but not less than four years, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents; such redemption shall occur on the first day of any month on or after the second anniversary of the most recent Remarketing Date, at a redemption price equal to (a) 102% of the principal amount of such Bonds if the redemption occurs in the period beginning on the second anniversary of the Remarketing Date and ending on the day prior to the third anniversary of the Remarketing Date, (b) 101 % of the principal amount of such Bonds if the redemption occurs in the period beginning on the third anniversary of the Remarketing Date and ending on the day prior to the fourth anniversary of the Remarketing Date and (c) 100% of the principal amount of such Bonds if the redemption occurs on or after the fourth anniversary of the Remarketing Date, in each case together with accrued interest to the Redemption Date; (iii) greater than one year but less than four years, such Bonds shall be subject to optional redemption upon optional prepayment of the Mortgage Loan in accordance with the Mortgage Loan Documents, on the first day of any month on or after the first anniversary of the Remarketing Date at a redemption price equal to 100.5% of the principal amount of such Bonds plus accrued interest to the Redemption Date: or 37 DOCSOC/1120730v3/24036-0031 (iv) of one year or less, such Bonds shall not be subject to optional redemption prior to the next succeeding Remarketing Date or maturity date of such Bonds, as appropriate. 3.2.3 Available Monevs ReQuirement. Optional redemption pursuant to Section 3.2.1 or Section 3.2.2 is not permitted unless (a) the redemption is effected solely with Available Moneys or (b) the Credit Provider provides its prior written consent to a redemption with other than Available Moneys. Notwithstanding any other provision of this Indenture to the contrary, optional redemption of the Bonds shall not be permitted unless on or before the Redemption Date, the Trustee has on hand Available Moneys in an amount sufficient to pay the End Period Payment on the Redemption Date. Neither the Issuer, the Credit Provider nor the Loan Servicer shall have any responsibility or liability to provide funds to be included in the End Period Payment. Section 3.3 Special Mandatorv Redemption. The Bonds are subject to special mandatory redemption as provided in this Section. Unless otherwise specified in any subsection, each special mandatory redemption shall be (a) effected on the earliest practicable Redemption Date for which timely notice ofredemption can be given pursuant to Section 3.5 following the occurrence of the event requiring such redemption and (b) at a redemption price equal to 100% of the principal amount of the Bonds to be redeemed plus accrued interest on such Bonds to the Redemption Date. Bonds subject to special mandatory redemption in part shall be redeemed in Authorized Denominations; if the Trustee receives an amount for the special mandatory redemption of the Bonds which is not equivalent to an Authorized Denomination, Bonds shall be redeemed in an amount equal to the next lowest whole integral of an Authorized Denomination to the amount received by the Trustee, with any excess to be held in the Redemption Account. 3.3.1 Casualty or Condemnation. The Bonds shall be redeemed in whole or in part, at the direction of the Credit Provider in the event and to the extent that proceeds of insurance from any casualty to, or proceeds of any award from any condemnation, or any award as part of a settlement in lieu of condemnation, of the Mortgaged Property (in any such events, "Proceeds") are not applied in accordance with the Financing Agreement and the Mortgage Loan Documents, after payment of the expenses, if any, of collecting the Proceeds, to restoring or repairing the Mortgaged Property or, with the prior written consent of the Credit Provider, otherwise used for improvements to the Mortgaged Property, or applied to the reimbursement of amounts owed to the Credit Provider pursuant to the Reimbursement Agreement. Such special mandatory redemption shall be: (i) (A) in whole following the involuntary destruction or loss of the Mortgaged Property in its entirety or nearly in its entirety, (B) funded with the Proceeds, with funds on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) and with funds provided by the Borrower pursuant to the Financing Agreement, provided, however, that the Trustee shall be entitled to an Advance under the Credit Facility, in accordance with its terms, to the extent that the sum of the Proceeds, funds on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) and funds provided by the Borrower pursuant to the Financing Agreement are insufficient to redeem all of the Bonds Outstanding and (C) deemed a corresponding involuntary prepayment of the Mortgage Loan; or (ii) (A) in part following the involuntary destruction or loss of the Mortgaged Property in part, (B) funded with the Proceeds, (C) in a principal amount equal to the next lowest whole integral of an Authorized Denomination to which such Proceeds can be rounded with any 38 DOCSOCII120730v3/24036-0031 remammg Proceeds to be held in the Redemption Account and (D) deemed a corresponding involuntary prepayment of the Mortgage Loan in part. 3.3.2 Certain Defaults. The Bonds shall be redeemed in whole or in part at the written direction, or with the prior written consent, of the Credit Provider given to the Trustee and in the amount specified by the Credit Provider if the redemption is in part, upon the occurrence of an Event of Default under (and respectively as defined in) the Security Instrument, the Credit Facility Agreement or the Financing Agreement. 3.3.3 From Excess Cash Flow Distributions. The Bonds shall be redeemed in whole or in part, in the event and to the extent that funds are transferred to the Redemption Account pursuant to paragraph (v) of Section 4.4.2. Section 3.4 Mandatory Sinkinl!: Fund Redemption. 3.4.1 Bonds Maturinl!: On June 1. 20 . The Bonds maturing on June I, 20_ shall be subject to mandatory sinking fund redemption in part, by lot, prior to maturity, from sinking fund installments (a) on and before the Initial Remarketing Date on the dates and in the amounts set forth in the below table, and (b) after the Initial Remarketing Date in principal amounts to be determined by the Remarketing Agent and the Loan Servicer upon the remarketing of the Outstanding Bonds on the Remarketing Date, so as to maintain payments on the Mortgage Loan, and amortization of principal of the Mortgage Loan, consistent with a term equivalent to the number of months remaining to the maturity date of the Mortgage Loan. The redemption price shall be equal to 100% of the principal amount of Bonds to be redeemed (and, therefore, without premium), plus accrued interest to the Redemption Date. 39 DOCSOC/] 120730v3/24036-oo31 Maturity Date Principal Amount "Maturity Not less than two Business Days prior to each Remarketing Date, the Loan Servicer shall prepare and provide to the Trustee, the Borrower, the Remarketing Agent and the Credit Provider an amortization schedule for the Mortgage Note showing substantially level monthly debt service on the Mortgage Note, based on the principal amount of the Mortgage Note outstanding on the applicable Remarketing Date and the interest rate established under the Mortgage Note in connection with the remarketing of the Bonds. Based on that amortization schedule, the Remarketing Agent shall provide to the Trustee, the Borrower, the Loan Servicer and the Credit Provider a schedule showing the sinking fund installments for the Bonds beginning on June 1 and December I following the Remarketing Date. The amortization schedule shall become effective on the applicable Remarketing Date and shall be binding on the Trustee, the Issuer, the Borrower, the Loan Servicer, the Credit Provider and the Bondholders, absent manifest error in the amortization schedule. 3,4.2 Adiustment for RedemDtions From Other Than Sinkinl!: Fund Installments. If less than all of the Bonds of a specific maturity have been redeemed other than from sinking fund installments applicable to such Bonds, the principal amount of the Bonds of such maturity to be redeemed in each year from sinking fund installments shall be decreased pro rata among all sinking fund installments applicable to such Bonds. Any such proportional redemption shall be confirmed in writing by the Trustee to the Loan Servicer. 40 DOCSOC/l120730v3/24036-0031 Section 3.5 Notice of Redemption. 3.5.1 Notice ReQuirement. The Trustee shall give notice of redemption of any Bonds in the name and on behalf of the Issuer by mail not less than fifteen (15) nor more than twenty (20) days prior to the specified Redemption Date, to the Registered Owner of each Bond to be redeemed at the address of such Registered Owner as shown on the Bond Register. Notwithstanding the foregoing, so long as the Book Entry System is maintained in effect, the Trustee must give notice of redemption only to the entity designated in the Representation Letter. The Trustee may give notice of redemption prior to the receipt of all funds necessary to effect the redemption, provided that redemption shall not occur unless and until the Trustee has on deposit and available or, if applicable, has received, all of the funds necessary to effect the redemption; otherwise, such redemption shall be cancelled. The Trustee shall cause a second notice of redemption to be sent by mail within ten (10) days after the 30th day after the Redemption Date to any Bondholder who has not submitted its Bond to the Trustee for payment on or before the 30th day following the Redemption Date. 3.5.2 Content of Notice. Each notice of redemption shall state: (i) the date of the redemption notice; (ii) the date of issue of the Bonds as originally issued and the complete official name of the Bonds, including the series designation; (iii) the numbers of the Bonds to be redeemed, by giving the individual certificate number of each Bond to be redeemed (or stating that all Bonds between two stated certificate numbers, both inclusive, are to be redeemed, or that all or a stated portion of the Bonds of one or more maturities have been called for redemption); (iv) (the CUSIP numbers of all Bonds being redeemed: (v) in the case of a partial redemption of Bonds, the principal amount of each Bond being redeemed; (vi) the rate or rates of interest borne by each Bond being redeemed; (vii) the maturity date of each Bond being redeemed; (viii) the place or places where amounts due upon such redemption will be payable; (ix) the Redemption Date and redemption price of each Bond being redeemed; (x) the name, address and telephone number and the contact person at the office of the Trustee with respect 10 such redemption: (xi) that all Bonds to be redeemed are required to be surrendered at the office of the Trustee designated by the Trustee for that purpose for redemption at the redemption price; Date; (xii) that interest on such Bonds will not accrue from and after the Redemption DOCSOC/l120730v3/24036-0031 41 (xiii) that redemption IS conditional upon receipt by the Trustee of sufficient moneys to redeem the Bonds; and (xiv) any conditions precedent to redemption. 3.5.3 Additional Notice. At the same time notice of redemption is sent to the Registered Owners pursuant to Section 3.5.1, the Trustee shall send notice of redemption by first class mail. overnight delivery service or other overnight means, postage or charges prepaid, (a) to the Rating Agency, (b) if the Bonds are not subject to the Book-Entry System, to any Registered Owner of $1,000,000 or more in aggregate principal amount of Bonds to be redeemed, (c) to any Securities Depository holding Bonds and (d) to at least two (2) of the national information services (described below) that disseminate securities redemption notices. For this purpose Information Services include: Financial Information, Inc. "Daily Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny Information Services, "Called Bond Service," 65 Broadway, 16th Floor, New York, New York 10004; Moody's Investors Service "Municipal and Government," 99 Church Street, 8th Floor, New York, New York 10007, Attention: Municipal News Reports; and Standard and Poor's Ratings Group "Called Bond Record," 25 Broadway, New York, New York 10004; or, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other services providing information with respect to called bonds, or any other such services as the Issuer may designate in writing to the Trustee. 3.5.4 Validitv of Proceedinl!s for the Redemption of Bonds. Neither failure to give or receive any notice described in Sections 3.5.1 or 3.5.3, failure to give notice timely nor any defect in any notice (or in its content, as required by Section 3.5(2) or in the manner in which notice is given) shall affect the validity or sufficiency of any proceedings for the redemption of the Bonds to be redeemed. 3.5.5 Revocation of Notice of Redemption; Cancellation of Redemption. The Trustee shall revoke any notice of optional redemption if the requirements of Section 3.2.3 have not been satisfied. The Trustee shall revoke any notice of optional or special mandatory redemption if the Trustee does not, on a Redemption Date, have sufficient funds, as permitted or required by this Indenture, to redeem the Bonds to be redeemed on such Redemption Date. The Trustee shall give notice of revocation by the same means as is provided in this Section 3.5 for the giving of notice of redemption, or by Electronic Means confirmed in writing. The redemption shall be canceled once the Trustee has given notice of revocation. Notwithstanding notice having been given in the manner provided above, any redemption of Bonds shall be canceled at the direction of the Credit Provider if the Credit Provider has notified the Trustee in writing that a default under any Credit Facility Agreement has occurred. 3.5.6 Copies to the Credit Provider and the Loan Servicer. The Trustee shall provide copies of all notices given under this Section 3.5 and of all revocations of notices to the Credit Provider, the Remarketing Agent and the Loan Servicer at the same time it gives notices to Bondholders. Neither the failure to give such notice to the Credit Provider, the Remarketing Agent or the Loan Servicer, nor any defect in such notice shall affect the validity of any proceedings for the redemption of the Bonds. Section 3.6 Redemption Payments. Notice of redemption having been given in the manner provided in Section 3.5, and all conditions precedent to redemption having been satisfied, the 42 DOCSOCIi 120730v3/24036-0031 Bonds so called for redemption shall become due and payable on the Redemption Date, and interest on the Bonds shall cease to accrue from and after the Redemption Date and the holders of the Bonds so called for redemption shall thereafter no longer have any security or benefit under this Indenture except to receive payment of the redemption price for such Bonds upon surrender of such Bonds to the Trustee. Except during any period in which the Bonds are subject to the Book Entry System: (i) no payment shall be made by the Trustee with respect to any Bond called for redemption until such Bond is presented for payment or cancellation or the Trustee receives the items required by Section 2.11 with respect to any mutilated, lost, stolen or destroyed Bond; and (ii) if less than the entire principal amount of a Bond is called for redemption, the Issuer shall execute, and the Trustee shall authenticate and deliver, upon the surrender of such Bond to the Trustee, without charge by the Issuer or the Trustee to the Bondholder, in exchange for the unredeemed principal amount of such Bond, a new Bond or Bonds of the same interest rate, maturity and term, in any Authorized Denomination, in aggregate principal amount equal to the unredeemed balance of the principal amount of the Bond so surrendered. During any period in which the Bonds are subject to the Book Entry System, the rules, regulations and practices governing the Book Entry System shall govern whether and the extent to which the Trustee shall make payments on any Bond called for redemption with or without surrender of the Bond (or portion of the Bond) to be redeemed, and the circumstances (if any) under which the Issuer shall be required to execute, and the Trustee shall authenticate and deliver, a new Bond in exchange for the unredeemed portion of any Bond called for redemption in part. All moneys held by or on behalf of the Trustee for the redemption of particular Bonds shall be held in trust for the account of the holders of the Bonds to be redeemed, as provided in and in accordance with Section 4.14. CUSIP number identification with appropriate dollar amounts for each CUSIP number also shall accompany all redemption payments. Section 3.7 Selection of Bonds to be Redeemed Upon Partial Redemption of Bonds. If less than all of the Outstanding Bonds are called for redemption (other than mandatory sinking fund redemption), Bonds to be redeemed shall be selected by the Trustee on a reasonably proportionate basis, in minimum amounts of $5,000 all the then existing maturities of the Bonds Outstanding. If less than all of the Outstanding Bonds of a series are called for redemption, Bonds of each series to be redeemed shall be selected by the Trustee on a reasonably proportionate basis, in minimum amounts of $5,000, from among all the then existing maturities of the Outstanding Bonds of such series. "Reasonably proportionate basis" shall be determined and effectuated as nearly as practicable by multiplying the total amount of money available to redeem Bonds of a series by the ratio which the principal amount of Bonds of such series Outstanding in each maturity of such series bears to the principal amount of all of the Bonds of such series Outstanding, and within a maturity by lot or in such other manner as the Trustee shall, in its sole discretion, deem fair. In the case of an optional redemption from an optional prepayment of the Mortgage Loan, the Trustee shall make its selection immediately following receipt of notice of the optional prepayment. In the case of a special mandatory redemption, the Trustee shall make such selection immediately following: (i) a transfer of funds pursuant to paragraph (v) of Section 4.4.2 with respect to a special mandatory redemption under Section 3.3.3: or (ii) receipt of funds with respect to a special mandatory redemption under Section 3.3.1 or 3.3.2. 43 DOCSOC/112D73Dv3124D36-DD31 With respect to any special mandatory redemption in part pursuant to Section 3.3.1 or 3.3.2, the sufficiency of the scheduled cash flow from the monthly payments to be made under the Mortgage Note and Investment Income with respect to the General Account to pay the principal of and interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate) when due and payable following such redemption, shall, if necessary, be established by a then current Cash Flow Projection which shall be verified by a Verification Report (upon each of which the Trustee may rely), each prepared and delivered to the Trustee, the Credit Provider and the Loan Servicer, at the Borrower's expense, at least 15 days prior to the Redemption Date. Absent a Cash Flow Projection, the Bonds to be redeemed shall be redeemed proportionately. In the event that any Bonds of the same maturity are to be redeemed in part, the Trustee shall assign to each Bond then Outstanding a distinctive number for each $5,000 of the principal amount of such Bond and from the numbers so assigned to such Bonds, the Trustee shall randomly select as many numbers as, at $5,000 for each number, shall equal the principal amount of such Bonds to be redeemed. The Bonds within a maturity that are to be redeemed shall be the Bonds to which are assigned the numbers selected by the Trustee, but only so much of the principal amount of each such Bond of a denomination of more than $5,000 shall be redeemed as shall equal $5,000 for each number assigned to it and so selected. Bonds may be redeemed only in Authorized Denominations. For the purposes of this Section 3.7, Bonds which have theretofore been selected for redemption shall not be deemed Outstanding. If there is called for redemption less than the entire principal amount of a Bond, the Issuer shall execute and the Trustee shall authenticate and deliver, upon surrender of such Bond, without charge to the holder of such Bond, in exchange for the unredeemed principal amount of such Bond, Bonds of the same maturity, interest rate, principal amount, series and tenor in any Authorized Denomination in the amount of the unredeemed principal of the surrendered Bond. Section 3.8 Purchase of Bonds In Lieu of Redemotion. Unless otherwise expressly provided in this Indenture if at any time Available Moneys are held in any Fund or Account to be used to redeem Bonds, in lieu of such redemption the Borrower may, in writing and with the written consent of the Credit Provider, direct the Trustee to use part or all of such moneys to purchase Bonds which would otherwise be subject to redemption from such moneys. The purchase price of such Bonds (excluding accrued interest, but including any brokerage and other charges) shall not exceed the applicable redemption price of the Bonds which would be redeemed but for the operation of this Section 3.8, with accrued interest on any such Bond to be paid from the same Fund or Account from which accrued interest would be paid upon the redemption of such Bond. Any such purchase must be completed prior to the time notice would otherwise be required to be given to redeem the Bonds and may not occur, without the consent of the Trustee, after a Record Date. All Bonds so purchased shall be canceled by the Trustee and the face amount of the Bonds so purchased shall be applied as a credit against the Issuer's obligation to redeem such Bonds from such moneys. Savings resulting from the purchase of Bonds at less than their respective redemption prices shall be used to purchase or redeem additional Bonds to the extent permitted by this Indenture. The Borrower may, at the expense of the Borrower, direct the Trustee to request the submission of tenders following notice to Bondholders requesting such submission prior to making the purchases authorized by this Section 3.8. Notice of acceptance of tenders shall be given by first class mail, postage prepaid, to all registered Bondholders, or in the case of Book Entry Bonds, to DTC, or any successor Securities Depository. The Borrower may specify the maximum and minimum period of time which shall transpire between the date upon which such notice is to be given and the date upon which such tenders are to be accepted. No tenders shall be considered or accepted at any price exceeding the price specified in this Section 3.8. The Trustee shall accept bids with the lowest price and in the event the moneys available for purchase pursuant to such tenders are not sufficient to pennit acceptance of all tenders and if there are tenders at an equal price above the amount of moneys DOCSOC/l120730v3/24036_0031 44 available for purchase, then the Trustee shall select by lot, in such manner as it shall determine in its discretion, the Bonds tendered which shall be purchased. Section 3.9 Cancellation of Bonds. All Bonds which have been redeemed, paid, retired or delivered to the Trustee for exchange shall not be reissued but shall be canceled and destroyed by the Trustee. ARTICLE 4. FUNDS AND ACCOUNTS Section 4.1 Creation of Funds and Accounts. The following Funds and Accounts are created with the Trustee: (i) the Mortgage Loan Fund; (ii) the Revenue Fund and within the Revenue Fund, the General Account, the Redemption Account, the Credit Facility Account and the Fees Account; (iii) the Costs of Issuance Fund and within the Costs of Issuance Fund, a Costs of Issuance Deposit Account and a Net Bond Proceeds Account; (iv) the Rebate Fund; and (v) the Bond Purchase Fund, and within the Bond Purchase Fund, a Remarketing Proceeds Account and a Remarketing Expenses Account. The Trustee shall hold and administer the Funds and Accounts in accordance with this Indenture. Section 4.2 deposi ts: Initial Deposits. On the Closing Date, the Trustee shall make the following (i) $ , representing the Net Bond Proceeds excluding that portion of the Net Bond Proceeds to be used to fund Costs of Issuance and excluding all or that portion of the Initial Debt Service Deposit funded with Net Bond Proceeds, shall be deposited into the Mortgage Loan Fund; (ii) $ deposited into the General Account: representing accrued interest on the Bonds, shall be (iii) $ , received from the Borrower, representing the Initial Debt Service Deposit, shall be deposited into the General Account; and (iv) $ , received from the Borrower, representing the Costs of Issuance Deposit shall be deposited into the Costs of Issuance Deposit Account of the Costs of Issuance Fund and $ of Net Bond Proceeds to be applied to pay Costs of Issuance, shall be deposited into the Net Bond Proceeds Account of the Costs of Issuance Fund. 45 DOCSOC/I120730v3/24036-0031 Section 4.3 The Mort!!al!e Loan Fund. Amounts on deposit in the Mortgage Loan Fund shall be disbursed by the Trustee to fund the Mortgage Loan upon satisfaction of the conditions to delivery of the Bonds as provided in Section 2.15. Section 4.4 The Revenue Fund General Account. 4.4.1 Deposits Into the General Account. The Trustee shall deposit each of the following amounts into the General Account: (i) on the Closing Date, the accrued interest, if any, on the Bonds, as provided in paragraph (ii) of Section 4.2; (ii) on the Closing Date, the Initial Debt Service Deposit, as provided III paragraph (iii) of Section 4.2; (iii) Mortgage Loan; all regularly scheduled payments of principal, if any, and interest on the (iv) interest paid in connection with any prepayment of the Mortgage Loan; (v) all Investment Income on the Funds and Accounts (except that, as provided in Article V, Investment Income earned on amounts on deposit in the Accounts of the Mortgage Loan Fund shall be credited to and be retained in the respective Accounts of the Mortgage Loan Fund, Investment Income earned on amounts on deposit in the Rebate Fund shall be credited to and be retained in the Rebate Fund and Investment Income earned on amounts on deposit in the Costs of Issuance Deposit Account of the Costs of Issuance Fund shall be credited to and be retained in the Costs of Issuance Deposit Account of the Costs of Issuance Fund); (vi) from time to time, upon receipt, Available Moneys provided pursuant to Section 3.2.3 to fund the interest portion of any End-Period Payment; and (vii) any other moneys made available for deposit into the General Account from any other source, including, but not limited to, any excess amounts in the Bond Purchase Fund pursuant to Section 4.10.3. 4.4.2 Disbursements From the General Account. The Trustee shall disburse or transfer, as applicable, moneys on deposit in the General Account at the following times and apply such moneys in the following manner and in the following order of priority: (i) on each Interest Payment Date, the Trustee shall disburse an amount equal to the amount of interest due on the Bonds on such Interest Payment Date and shall apply such amount to the payment of such interest so due; (ii) on each Redemption Date on which a mandatory sinking fund redemption pursuant to Section 3.4 is scheduled to take place, the Trustee shall transfer to the Redemption Account an amount of principal equal to the sinking fund redemption payment due on such Redemption Date; 46 DOCSOC/1120730v3/24036-0031 (iii) on each Maturity Date and the date of acceleration of the Bonds, the Trustee shall disburse an amount equal to the principal due on the Bonds on such date and shall apply such amount to the payment of such principal so due; (iv) on each Interest Payment Date, the Trustee shall transfer an aggregate amount equal to that portion of the Issuer's Annual Fee, the Trustee's Annual Fee and the Rebate Analyst's Annual Fee (to the extent (a) such Third Party Fees are included in the Mortgage Note Rate, as described in Section 4.3 of the Financing Agreement, and (b) such Third Party Fees are not paid in advance on the Closing Date) payable on such date (or on any date prior to the next Interest Payment Date) to the Fees Account; and (v) on each Interest Payment Date and following the disbursement, transfer and application of funds described in the preceding paragraphs (i) through (iv), the Trustee shall transfer any amounts remaining in the General Account in excess of $ , the minimum balance required to be maintained on the basis of the Cash Flow Projection attached to this Indenture as Exhibit C, to the Redemption Account and, following such transfer, shall apply any moneys so transferred (including any moneys so transferred on any prior Interest Payment Date), to the redemption of Bonds as provided in Section 3.3.3. Section 4.5 The Revenue Fund. Redemption Account. 4.5.1 Deposits Into the Redemption Account. The Trustee shall deposit each of the following amounts into the Redemption Account: (i) any prepayment of principal of the Mortgage Loan, and any Available Moneys provided by or on behalf of the Borrower pursuant to Section 3.2.3 to fund any premium on the Bonds to be paid in connection with such prepayment; (ii) that portion of any other deposit or transfer of funds representing principal corresponding to the principal to be paid on any optional or special mandatory redemption of Bonds; (iii) any amount required to be transferred to the Redemption Account pursuant to paragraph (ii) of Section 4.4.2; (iv) the amounts provided for in paragraph (v) of Section 4.4.2; and (v) any other amount received by the Trustee and required by Ihe terms of this Indenture or the Financing Agreement to be deposited into the Redemption Account. 4.5.2 Disbursements From the Redemption Account. The Trustee shall disburse moneys on deposit in the Redemption Account at the following times and apply such monies in the following manner: . (i) on each Redemption Date on which a mandatory sinking fund redemption pursuant to Section 3.4 is scheduled to take place, the Trustee shall apply amounts on deposit in the Redemption Account, including amounts transferred pursuant to paragraph (ii) of Section 4.4.2, to payment of the sinking fund redemption due on such Redemption Date; and 47 DOCSOC1l120730v3124036-0031 (ii) on each Redemption Date on which a redemption pursuant to Section 3.2 or Section 3.3 is scheduled to take place, the Trustee shall apply amounts on deposit in the Redemption Account to the payment of principal of and premium, if any, on the Bonds to be redeemed on such Redemption Date. Section 4.6 The Revenue Fund - Credit Facilitv Account. 4.6.1 Deposits Into the Credit Facilitv Account. The Trustee shall deposit all amounts advanced under the Credit Facility into the Credit Facility Account. No other moneys shall be deposited into the Credit Facility Account. The Credit Facility Account shall be closed at such time as the Credit Provider has no continuing liability under the Credit Facility. 4.6.2 Disbursements From the Credit Facilitv Account. The Trustee shall, on each date on which a payment is due under this Indenture and in respect of which an Advance is made under the Credit Facility, apply such Advance, on the date such payment is due, to the payment of the amounts in respect of which such Advance was made. Section 4.7 The Revenue Fund - Fees Account. 4.7.1 Deposits Into the Fees Account. The Trustee shall deposit into the Fees Account (a) amounts provided for in paragraph (iv) of Section 4.4.2 and (b) any payment of a Third Party Fee pursuant to Section 4.3 of the Financing Agreement to the extent that such Third Party Fee is not included in the Mortgage Note Rate. 4.7.2 Disbursements From the Fees Account. Following the deposit provided for in Section 4.7.1, the Trustee shall disburse moneys on deposit in the Fees Account on each Interest Payment Date to the payment of Third Party Fees in satisfaction of the obligations of the Borrower under Section 4.3 of the Financing Agreement. In the event the amount in the Fees Account is insufficient to pay such Third Party Fees, the Trustee shall inform the Loan Servicer and make written demand on the Borrower for the amount of such insufficiency and, pursuant to the terms of the Financing Agreement, the Borrower shall be liable to promptly pay the amount of such insufficiency to the Trustee within five Business Days after the date of the Trustee's written demand. Section 4.8 The Costs of Issuance Fund. 4.8.1 Deposits Into Costs of Issuance Fund. On the Closing Date the Borrower shall deliver to the Trustee the Costs of Issuance Deposit (including any portion of the Costs of Issuance Deposit to be funded with Net Bond Proceeds). On the Closing Date, the Trustee shall deposit that portion of the Costs of Issuance Deposit paid directly by the Borrower into the Costs of Issuance Deposit Account of the Costs of Issuance Fund and shall deposit that portion of the Costs of Issuance Deposit funded with Net Bond Proceeds into the Net Bond Proceeds Account of the Costs of Issuance Fund. 4.8.2 Disbursements from the Costs of Issuance Fund. The Trustee shall disburse moneys on deposit in the Costs of Issuance Fund pursuant to requisitions in the form of Exhibit B attached to this Indenture, signed by an Authorized Borrower Representative, to pay Costs of Issuance. The Trustee may conclusively rely on such requisitions for purposes of making such disbursements. Moneys on deposit in the Costs of Issuance Deposit Account of the Costs of Issuance Fund shall not be part of the Trust Estate and shall be used solely to pay Costs of Issuance. Moneys 48 DOCSOC/1120730v3/24036-0031 on deposit in the Net Bond Proceeds Account of the Costs of Issuance Fund shall be part of the Trust Estate and shall be used to pay Costs of Issuance. 4.8.3 DisDosition of Remaininl! Amounts. Any moneys remammg in the (a) Costs of Issuance Deposit Account of the Costs of Issuance Fund six (6) months after the Closing Date and not needed to pay still unpaid Costs of Issuance shall be returned to the Borrower and/or (b) Net Bond Proceeds Account of the Costs of Issuance Fund six (6) months after the Closing Date and not needed to pay still unpaid costs of issuance shall be transferred to the Mortgage Loan Fund. Upon final disbursement, the Trustee shall close the Costs of Issuance Fund. Section 4.9 The Rebate Fund. 4.9.1 Deposits; Administration. The "Rebate Fund" shall be held and applied as provided in this Section 4.9. On any date on which any amounts are required by applicable federal tax law to be rebated to the federal government, amounts shall be withdrawn by the Trustee from the General Account and deposited into the Rebate Fund for such purpose. All money at any time deposited into the Rebate Fund shall be held by the Trustee in trust, to the extent required to satisfy any rebate requirement (as calculated by the Rebate Analyst) to the United States Government. Neither the Issuer, the Borrower, the Bondholders nor the Credit Provider shall have any rights in or claim to such moneys. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section, by Section 7.2.9 of the Financing Agreement and by the Tax Certificate. The Trustee shall conclusively be deemed to have complied with such provisions if it follows the written instructions of the Issuer or of Bond Counselor the Rebate Analyst on behalf of the Issuer, including supplying all necessary information in the manner set forth in the Tax Certificate. The Trustee shall not be required to take any actions under the Tax Certificate in the absence of written instructions from the Issuer, or from Bond Counselor the Rebate Analyst on behalf of the Issuer. Within 55 days of the end of each Bond Year, the Borrower shall cause the Rebate Analyst to calculate the amount of rebatable arbitrage, in accordance with Section 148(f)(2) of the Code and Section 1.148-3 of the Rebate Regulations (taking into account any applicable exceptions with respect to the computation of the rebatable arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary investments exceptions of Section l48(f)(4)(B) and (C) of the Code), for this purpose treating the last day of the applicable Bond Year as a Computation Date, within the meaning of Section 1.148-1 (b) of the Rebate Regulations (the "Rebatable Arbitrage"). Within 55 days of the end of each fifth Bond Year, upon the written direction of the Issuer, or Bond Counselor the Rebate Analyst on behalf of the Issuer, the Trustee shall deposit into the Rebate Fund amounts provided by the Borrower, if and to the extent required in order that the balance in the Rebate Fund shall equal the amount of Rebatable Arbitrage so calculated in accordance with the foregoing provisions of this Section 4.9.1. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any rebate requirement, or provision made therefor satisfactory to the Trustee, shall be withdrawn and remitted to the Issuer as provided for in Section 8.1. The Trustee shall pay, as directed by the Issuer, or Bond Counselor the Rebate Analyst on behalf of the Issuer, to the United States Treasury, out of amounts in the Rebate Fund: (i) not later than 60 days after the end of (a) the fifth Bond Year and (b) each applicable fifth Bond Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage calculated as of the end of such Bond Year; and (ii) not later than 60 days after the payment of all of the Bonds, an amount equal to 100% of the Rebatable Arbitrage calculated as of the end of such applicable Bond Year, and any 49 DOCSOC/l120730v3/24036-0031 income attributable to the Rebatable Arbitrage, computed in accordance with Section l48(f) of the Code. Each payment required to be made under this Section shall be made to the Internal Revenue Service Center at the address required for such submission on or before the date on which such payment is due, and shall be accompanied by Internal Revenue Service Form 8038-T, which shall be prepared by the Rebate Analyst and provided to the Trustee. Notwithstanding any provision of this Indenture to the contrary, the obligation to remit payment of the rebate amount to the United States and to comply with all other requirements of this Section 4.9, Section 7.2.9 of the Financing Agreement and the requirements of the Tax Certificate shall survive the defeasance or payment in full of the Bonds. 4.9.2 Records. The Trustee shall obtain and keep such records of the computations made pursuant to this Section 4.9 as are required under Section 148(f) of the Code. The Trustee shall keep and make available to the Issuer and the Borrower such records concerning the investments of the gross proceeds of the Bonds and the investments of earnings from those investments as may be requested by the Issuer or the Borrower in order to enable the Borrower to make the computations required under Section 148(f) of the Code. 4.9,3 Exception. Notwithstanding the foregoing, the computations and payments of rebate amounts referred to in this Section 4.9 need not be made to the extent that neither the Issuer nor the Borrower will thereby fail to comply with any requirements of Section 148(f) of the Code based on an Opinion of Bond Counsel, a copy of which shall be provided to the Trustee. Section 4.10 Bond Purchase Fund. 4.10.1 Creation: Deposits: Application. The Trustee shall deposit: (i) all proceeds of the remarketing of Bonds remitted to the Trustee by the Remarketing Agent pursuant to the provisions of paragraph (viii) of Section 2.16.6 into the Remarketing Proceeds Account: and (ii) all amounts paid to the Trustee by the Borrower, the Issuer or the Credit Provider to pay Remarketing Expenses into the Remarketing Expenses Account. (iii) The Trustee shall apply amounts on deposit in the (a) Remarketing Proceeds Account to pay the purchase price of Bonds purchased under this Indenture to the former owners of such Bonds upon presentation of the Bonds to the Trustee, and (b) Remarketing Expenses Account to pay Remarketing Expenses, as provided in paragraph (vi) of Section 2.16.7. 4.10.2 Pavment Of Excess Amounts If Bonds Not Remarketed. In the event that the Bonds Outstanding are not remarketed on a scheduled Remarketing Date, all amounts in the Bond Purchase Fund in excess of amounts on deposit in the Bond Purchase Fund required to pay the purchase price of the Bonds shall be disbursed as provided in Section 2.16.7. 4.10.3 Payment Of Excess Amounts If Bonds Remarketed. In the event that the Bonds Outstanding are remarketed and the proceeds of remarketing exceed 100% of the principal amount of the Bonds Outstanding or in the event funds received by the Trustee to pay Remarketing 50 DOCSOC/112073Ov3/24036-0031 Expenses are not required for such purpose, such excess amounts shall be transferred to the General Account. Section 4.11 Certain Monevs to be Applied at the Direction of the Credit Provider. Upon a special mandatory redemption of the Bonds in whole or in part pursuant to Section 3.3.1 or Section 3.3.2, the funds on deposit in the Funds and Accounts (other than in the Rebate Fund, the Costs of Issuance Deposit Account of the Costs of Issuance Fund and the Fees Account) shall, at the direction of the Credit Provider, in its discretion, be transferred to the Redemption Account and applied to the redemption of the Bonds to be redeemed. Section 4.12 Records. The Trustee shall keep and maintain accurate records with respect to the Funds and Accounts. The Trustee shall file at least an annual accounting of the Funds and Accounts and the payment history on the Bonds and the Mortgage Loan with the Issuer, the Loan Servicer and the Borrower. Any notices, reports or other information delivered by the Trustee to the Loan Servicer with respect to any Fund or Account shall also be delivered, upon request, to the Credit Provider. Section 4.13 Reports Bv the Trustee. The Trustee shall, on or before the 20th day of each month, file with the Loan Servicer and the Borrower a statement setting forth in respect of the preceding calendar month: (i) the amount withdrawn or transferred by it and the amount deposited within or on account of each Fund and Account, including the amount of Investment Income on each Fund and Account transferred to the General Account: (ii) Fund and Account; the amount on deposit with it at the end of such month to the credit of each (iii) a brief description of all obligations held as an investment of moneys in each such Fund and Account; (iv) the amount applied to the purchase or redemption of Bonds and a description of the Bonds or portions of Bonds so purchased or redeemed; and (v) any other information which the Borrower, the Credit Provider, the Loan Servicer or the Issuer may reasonably request. No such monthly statement need be rendered pursuant to the provisions of this Indenture if no activity occurred in the Fund or Account during such preceding month. Upon the written request of any Bondholder owning 25% or more in aggregate principal amount of Bonds then Outstanding, the Trustee, at the Borrower's expense, shall provide a copy of such statement to the Bondholder. All records and files pertaining to the Trust Estate shall be open at all reasonable times during regular business hours of the Trustee to inspection and audit by the Issuer, the Borrower, the Loan Servicer and the Credit Provider and their agents and representatives upon reasonable prior notice. Section 4.14 Monevs Held for Particular Bonds. The amounts held by the Trustee for payment of the interest, principal or redemption price due on any date with respect to particular Bonds shall, pending such payment, be set aside and held in trust by it for the Bondholders entitled to 51 DOCSOC/1120730v3/24036-0031 such payment and, for the purposes of this Indenture, such interest, principal or redemption price, after the due date of payment, shall no longer be considered to be unpaid. Section 4.15 Nonpresentment of Bonds. In the event any Bond shall not be presented for payment when the principal of such Bond becomes due, either at maturity or at the date fixed for redemption of such Bond or otherwise, if amounts sufficient to pay such Bond shall have been deposited with the Trustee for the benefit of the owner of the Bond and shall have remained unclaimed for two (2) years after such principal has become due and payable, such amounts shall, to the extent amounts are owed to the Credit Provider, as set forth in a written statement of the Credit Provider addressed to the Trustee, be paid to the Credit Provider, with any excess to be paid to the Borrower. Upon such payment, all liability of the Issuer and the Trustee to the holder of any Bond for the paymenl of such Bond shall forthwith cease, determine and be completely discharged, provided, however, that the Trustee, before being required to make any such payment to the Credit Provider or the Borrower, shall cause to be published once in a financial newspaper or journal of general circulation in New York, New York, notice that such moneys remain unclaimed and that, after a date specified in such notice, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such moneys then remaining will be paid to the Credit Provider or the Borrower. The cost of such publication shall be paid from the unclaimed amount held by the Trustee. The obligation of the Trustee under this Section 4.15 to pay any such amounts to the Credit Provider or the Borrower shall be subject to any provisions of law applicable to the Trustee or to such amounts providing other requirements for disposition or escheat of unclaimed property. ARTICLE 5. INVESTMENTS Section 5.1 Investment Limitations. Moneys held as part of any Fund or Account shall be invested and reinvested in Permitted Investments. Permitted Investments shall have maturities corresponding to, or shall be available for withdrawal without penalty no later than, the dates upon which such moneys will be needed for the purpose for which such moneys are held. Moneys on deposit in the (a) General Account and the Fees Account shall be invested only in investments described in paragraphs (i), (ii), (iii), (vii) and (viii) of the definition of Permitted Investments, (b) Redemption Account shall be invested only in investments described in paragraph (i) of the definition of Permitted Investments, (c) Credit Facility Account and the Bond Purchase Fund shall be held uninvested and (d) Costs of Issuance Fund shall, until transferred, disbursed or returned to the Borrower pursuant to Section 4.8, be invested only in investments described in paragraph (viii) of the definition of Permitted Investments. Permitted Investments shall be held by or under the control of the Trustee. All Investment Income from moneys held in all Funds and Accounts other than the Mortgage Loan Fund, the Rebate Fund and the Costs of Issuance Fund (other than as provided below) upon receipt shall be deposited into the General Account; Investment Income from moneys held in the Mortgage Loan Fund shall be retained in the Mortgage Loan Fund; Investment Income from moneys held in the Rebate Fund shall be retained in the Rebate Fund; Investment Income from moneys held in Ihe Costs of Issuance Deposit Account of the Costs of Issuance Fund shall be retained in the Costs of Issuance Fund. Section 5.2 Trustee's Authoritv and ReSpOnsibilities. The Trustee is authorized and directed to cause to be sold and reduced to cash a sufficient amount of Permitted Investments whenever the cash balance is or will be insufficient to make a requested or required disbursement. 52 DOCSOCIl120730v3/24036-0031 The Trustee shall not be accountable for any depreciation in the value of any Permitted Investment or for any loss resulting from such sale. The Trustee may trade with itself and its affiliates in the purchase and sale of securities for investments, and may transact purchases and sales through its investment department or through its affiliates. The Trustee and its affiliates may act as principal, agent, sponsor, advisor or depository with respect to any investments. All Permitted Investments shall be made by the Trustee in its name, as Trustee, at the written direction of the Borrower, subject to the limitations contained in this Indenture. If no direction is provided to the Trustee, the Trustee will invest such moneys in investments described in paragraph (viii) of the definition of Permitted Investments. In computing the amount in any Fund or Account, Permitted Investments if purchased at par shall be valued at principal cost plus accrued interest, or, if purchased at other than par, at principal cost plus amortized discount or less amortized premium (amortization to be on a straight- line basis to the date of stated maturity without regard to redemptions or repayments of principal which may occur prior to maturity) plus accrued interest. The Trustee shall take such actions as shall be necessary to assure that Permitted Investments purchased by it under this Indenture are held pursuant to the terms of this Indenture and are subject to the trusts and security interests created by this Indenture. The Trustee shall furnish to the Issuer and the Borrower monthly statements detailing all investment activity of the Trustee with respect to the Funds and Accounts. The Issuer (and the Borrower by its execution of the Financing Agreement) acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory authority grant the Issuer or the Borrower the right to receive brokerage confirmations of security transactions as they occur, the Issuer and the Borrower specifically waive receipt of such confirmations to the extent permitted by law. ARTICLE 6. SECURITY Section 6.1 Securitv: Pledee of Trust Estate; Compliance with Law. The Issuer covenants as set forth in this Section 6.1. 6.1.1 Issuer's Authoritv. The Issuer is duly authorized under the Constitution and Laws of the State, including the Act, to (a) duly authorize and issue the Bonds, (b) execute and deliver this Indenture, (c) enter into the Financing Agreement and the Regulatory Agreement, (d) assign its interest in the Financing Agreement (except the Reserved Rights) and (e) pledge and assign the Trust Estate in the manner and to the extent set forth in this Indenture for the benefit of (I) the Bondholders, to secure the payment of the principal of, premium, if any, and interest on the Bonds in accordance with the terms and provisions of this Indenture and the Bonds, and (2) the Credit Provider to secure the payment of all amounts owing to the Credit Provider under the Financing Agreement and the Credit Facility Agreement. 6.1.2 Pledee of Trust Estate. The pledge and assignment of the Trust Estate pursuant to this Indenture shall attach and be valid and binding upon the execution and delivery of this Indenture by the Issuer and the Trustee, without any physical delivery of the Trust Estate or further act. Any and all interest in property acquired after the date of this Indenture of any kind or nature which is to become subject to the lien of this Indenture shall, without any further conveyance, assignment or act on the part of the Issuer or the Trustee, be subject to the lien of this Indenture as fully and completely as though specifically described in this Indenture, but nothing contained in this sentence shall be deemed to modify or change the obligations of the Issuer under Section 6.1.5. The lien of the pledge and security interest created by this Indenture shall be valid and binding and prior 53 DOCSOC/l120730v3/24036-0031 to the claims of any and all parties having claims of any kind in tort, contract or otherwise against the Issuer irrespective of whether such parties have notice of the lien. The Trust Estate is free and clear of any pledge, lien, charge or encumbrance other than the lien of this Indenture. 6.1.3 Valid Issuance of the Bonds. All actions on the part of the Issuer for the valid issuance of the Bonds and the execution and delivery of this Indenture have been duly and effectively taken, the Bonds are and will be valid, binding and enforceable obligations of the Issuer according to the terms of the Bonds and this Indenture, and the Bonds, together with all other indebtedness of the Issuer, are within all applicable debt limits. 6.1.4 Pavrnent of Bonds. Subject to Section 6.3, the Issuer shall promptly payor cause to be paid the principal of, premium, if any, and interest on the Bonds at the place, on the dates and in the manner provided in this Indenture and the Bonds. 6.1.5 Further Assurances. The Issuer will, to the extent permitted by law, execute, acknowledge and deliver such supplemental indentures and other instruments and documents, and perform such further acts, as the Trustee or the Credit Provider may reasonably require to perfect, and maintain perfected, the security interest in the Trust Estate or to better assure, transfer, convey, pledge, assign and confirm to the Trustee or the Credit Provider all of its interest in the property described in this Indenture and the Revenues and other amounts pledged by this Indenture for the purposes set forth in this Section 6.1. The Issuer will, at the sole expense of the Borrower, cooperate to the extent necessary with the Borrower, the Trustee and the Credit Provider (subject to Section 7.9) in their defenses of the Trust Estate against the claims and demands of all Persons. Section 6.2 Issuer's Nel!ative Covenants. 6.2.1 No Modification of Security. Without the prior written consent of the Trustee and the Credit Provider and without prior notification to the Rating Agency, the Issuer will not alter, modify or cancel, or agree to aiter, modify or cancel, any agreement which relates to or affects the Trust Estate. 6.2.2 No Additional Liens or Conveyances. The Issuer will not, without the prior written consent of the Credit Provider and without prior notification to and confirmation of the rating on the Bonds from the Rating Agency, create or suffer any lien or charge upon the Trust Estate prior to or on a parity with the pledge, security interest and lien created by this Indenture for (a) the benefit of the Bondholders for the payment of the principal of, premium, if any, and interest on the Bonds or (b) the benefit of the Credit Provider. Except as otherwise provided in this Indenture, the Issuer will not sell, convey, mortgage, encumber or otherwise dispose of any portion of the Trust Estate. Section 6.3 Limitations on Liabilitv. Notwithstanding any other provision of this Indenture to the contrary: (i) the obligations of the Issuer with respect to the Bonds are not general obligations of the Issuer but are special, limited obligations of the Issuer payable by the Issuer solely from the Security for the Bonds; 54 DOCSOCIl120730v3/24036-0031 (ii) nothing contained in the Bonds or in this Indenture shall be considered as assigning or pledging any funds or assets of the Issuer other than the Trust Estate; (iii) the Bonds shall not be a debt of the State, the Issuer or of any other political subdivision of the State, and neither the State, the Issuer nor any other political subdivision of the State shall be liable for the payment of the Bonds; (iv) neither the faith and credit of the Issuer, the State nor of any other political subdivision of the State are pledged to the payment of the principal or of interest on the Bonds; (v) no failure of the Issuer to comply with any term, condition, covenant or agreement in this Indenture or in any document executed by the Issuer in connection with the Mortgaged Property, or the issuance, sale and delivery of the Bonds shall subject the Issuer to liability for any claim for damages, costs or other charge except to the extent that the same can be paid or recovered from the Trust Estate; and (vi) the Issuer shall not be required to advance any moneys derived from any source other than the Trust Estate for any of the purposes of this Indenture, any of the other Bond Documents or any of the Mortgage Loan Documents, whether for the payment of the principal or redemption price of, or interest on, the Bonds, the payment of any fees or administrative expenses or otherwise. The Issuer and the Trustee acknowledge that (a) the obligations of Fannie Mae as the Credit Provider under the Credit Facility are not backed by the full faith and credit of the United States of America, but by the credit of Fannie Mae, a federally-chartered, stockholder owned corporation, and (b) payment of principal of, and interest on and premium, if any, on the Bonds is not guaranteed by Fannie Mae. Section 6.4 Enforcement. The Issuer agrees that the Trustee and, so long as a Credit Facility provided by Fannie Mae shall continue in effect, the Credit Provider, in its name or in the name of the Issuer, may enforce against the Borrower or any Person any rights of the Issuer under the Bond Documents (other than the Reserved Rights) whether or not the Issuer is in default under this Indenture or under the Financing Agreement, but neither the Trustee nor the Credit Provider shall be deemed to have assumed any of the obligations of the Issuer under the Bond Documents. Section 6.5 Preservation of Revenues. The Issuer shall not take any action to interfere with or impair the pledge and assignment of the Trust Estate under this Indenture, or the Trustee's enforcement of any rights under this Indenture or under the Financing Agreement or the Regulatory Agreement without the prior written consent of the Trustee and the Credit Provider. The Trustee may give such written consent, and may itself take any such action or consent to an amendment or modification to the Financing Agreement, the Regulatory Agreement or the Credit Facility then in effect, only (a) with the prior written consent of the Credit Provider, (b) following receipt by the Trustee of written confirmation from the Rating Agency that the taking of such action or the execution and delivery of such amendment or modification will not adversely affect the rating then assigned to the Bonds by the Rating Agency, and (c) if the Trustee shall have received an opinion of Bond Counsel to the effect that such action or such amendment or modification will not affect adversely the validity of the Bonds or the exclusion from gross income, for federal income tax purposes, of the interest payable on the Bonds. 55 DOCSOCIl120730v3/24036-0031 Section 6.6 ReQuest and Indemnification. If any consent or other action on the part of the Issuer is required in this or any other document, the Issuer shall have no obligation to act unless first requested to do so, and the Issuer shall have no obligation to expend time or money or to otherwise incur any liability unless indemnity satisfactory to the Issuer has been furnished to it. Section 6.7 Possession of the Mortl!al!e Note and Security Instrument. The Credit Provider shall have custody of the original Mortgage Note, duly endorsed to the Trustee and the Credit Provider, as their interests may appear, and the recorded Security Instrument. Section 6.8 No Disposition of Mortl!al!e Loan. Mortl!3l!e Note or Security Instrument; Excepted Assil!nments; Amendment; Substitution. 6.8.1 No Disposition of Mortl!al!e Loan. Mortl!al!e Note or Security Instrument; Excepted Assil!nments. Notwithstanding anything contained in this Indenture which may state or imply to the contrary, so long as a Wrongful Dishonor has not occurred or, if it has occurred, is not continuing, the Trustee shall not transfer its interest in the Mortgage Loan, the Mortgage Note or the Security Instrument or any interest in the Mortgage Loan, the Mortgage Note or the Security Instrument other than to or at the direction of the Credit Provider as provided in the Assignment or to a successor Trustee or as provided in Section 6.8.2 or release the Mortgage Loan from the lien of this Indenture without the Credit Provider's prior written consent. 6.8.2 Amendment; Substitution. Upon receipt of written direction from the Credit Provider, the Trustee shall consent to any amendment, modification, supplement or restatement of the Mortgage Note and/or the Security Instrument, or exchange the Mortgage Note and/or thf! Security Instrument for a new mortgage note and/or security instrument on the Mortgaged Property which may be executed by a person (the "New Borrower") other than the Borrower, provided that if the Credit Provider or its designee shall have acquired the Mortgaged Property through foreclosure, by accepting a deed in lieu of foreclosure or by comparable conversion of the Mortgage Loan, no approval from the Issuer shall be required. Except in the event of a transfer of the Mortgage Loan to the Credit Provider, prior to consenting to a new mortgage note and/or security instrument, the Trustee shall have (a) received written evidence that the New Borrower has executed and recorded, as applicable, one or more documents, acceptable to the Issuer and the Credit Provider, substantially in the forms of the Financing Agreement and the Regulatory Agreement (or executed and recorded one or more assumptions, acceptable to the Issuer and the Credit Provider of all of the applicable Borrower's obligations under the Financing Agreement and the Regulatory Agreement) and that the Credit Facility Agreement and the Credit Facility, if required, have been modified to be applicable to the new mortgage loan, (b) received from the Rating Agency written confirmation that the rating to be in effect with respect to the Bonds from and after delivery to the Trustee of the new mortgage note and security instrument and the modified Credit Facility Agreement and modified Credit Facility will not be lower than the rating then in effect for the Bonds, (c) received an Opinion of Bond Counsel to the effect that such exchange and modification, in and of itself, will not affect the excludability of the interest payable on the Bonds from gross income for federal income tax purposes and (d) received from the Issuer, the consent required by the Regulatory Agreement or the Financing Agreement, if any. In addition, if the substitution has resulted in an amendment of (or other modification to) the Credit Facility Agreement or the Credit Facility, the Trustee shall receive from the Credit Provider an Opinion of Counsel to the Credit Provider, who may be an employee of the Credit Provider, to the effect that the modified Credit Facility Agreement and Credit Facility are valid and binding obligations of the Credit Provider, subject to any applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors' 56 DOCSOCIl120730v3/24036-0031 generally, and general equitable principles. Prior to consenting to any amended, modified, supplemented or restated Mortgage Note or Security Instrument which changes the payment terms of the Mortgage Loan, the Trustee shall have received from the Rating Agency written confirmation that the rating to be in effect with respect to the Bonds from and after delivery to the Trustee of the amended, modified, supplemented or restated Mortgage Note or Security Instrument will not be lower than the rating then in effect for the Bonds. 6.8.3 ComDliance with Assilmment. The Trustee and the Issuer acknowledge the Trustee's obligation to assign its interest in the Security Instrument and the Mortgage Note to the Credit Provider and the control of the Mortgage Loan Rights by the Credit Provider under, and on the terms provided in, the Assignment. Section 6.9 Books. Records and Accounts. 6.9.1 Books. Records and Accounts. The Trustee, on behalf of the Issuer, shall keep and maintain, or cause to be kept and maintained, proper books, records and accounts, including the Bond Register, in which complete and accurate entries shall be made of all of its transactions relating to the Bonds, this Indenture, the Financing Agreement, the Regulatory Agreement, the Mortgage Loan, the Credit Facility, the Funds and Accounts, Permitted Investments and Investment Income, all of which shall, at all reasonable times, and upon reasonable prior notice, be subject to inspection and audit, at the expense of the Borrower, by the Issuer, the Credit Provider, the Borrower, the Loan Servicer and Bondholders owning not less than 25% in aggregate principal amount of Bonds then Outstanding or any of their accountants or agents duly authorized in writing, each of whom shall have the right, at its own expense, to make copies of any such books of record and accounts. 6.9.2 List of Bondholders. The Trustee will keep on file at the Principal Office of the Trustee a list of names and addresses of all Bondholders as shown on the Bond Register maintained by the Trustee as Bond Registrar which shall be available for inspection by any Bondholder or its attorney duly authorized in writing during normal business hours of the Trustee upon reasonable prior notice. Section 6.10 Maintenance of Lien on Trust Estate. The Trustee will cause financing statements and continuation statements with respect to the Trust Estate described in this Indenture to be at all times filed in such manner and in such places, if any, as may be required by law. To the extent possible under applicable law, as in effect in the jurisdiction(s) in which the Trust Estate is located, the Trustee will maintain the priority of the security interest created by this Indenture in the Trust Estate as a first lien on the Trust Estate, and warrant, protect, preserve and defend its interest in the Trust Estate and the security interest of the Trustee and the Credit Provider in the Trust Estate and all righls of the Trustee and the Credit Provider under this Indenture against all actions, proceedings, claims and demands of all persons, and defend, preserve and protect all rights of the Bondholders and the Credit Provider under this Indenture against all claims and demands of all persons, all paid for solely from the Trust Estate. Section 6.11 ComDliance with Ratin!! A!!encv Requests. The Trustee shall comply with any reasonable request in writing by a Rating Agency for information in its possession regarding the Bonds which such Rating Agency requests in order to review its rating on the Bonds. Further, the Trustee shall comply with any reasonable request by the Issuer or Bondholders holding not less than 51 % in aggregate principal amount of Bonds then Outstanding for information in its possession 57 DOCSOC/i 120730.3/24036-0031 regarding the Bonds, the Mortgage Loan, the Credit Facility or the Mortgaged Property. Any expense incurred by the Trustee pursuant to this Section 6.11 shall be borne by the Borrower. Section 6.12 Tax Covenants. 6.12.1 Issuer's Covenants. The Issuer covenants to and for the benefit of the Bondholders that it will: (i) neither make or use nor cause to be made or used any investment or other use of the proceeds of the Bonds or the moneys and investments held in the Funds and Accounts which would cause the Bonds to be arbitrage bonds under Section 148 of the Code and the Regulations issued under Section 148 of the Code or which would otherwise cause the interest payable on the Bonds to be includable in gross income for federal income tax purposes; and (ii) enforce or cause to be enforced all obligations of the Borrower under the Regulatory Agreement in accordance with its terms and seek to cause the Borrower to correct any violation of the Regulatory Agreement within a reasonable period after any such violation is first discovered; (iii) not take or cause to be taken any other action or actions, or fail to take any action or actions, which would cause the interest payable on the Bonds to be includable in gross income for federal income tax purposes; (iv) at all times do and perform all acts and things permitted by law and necessary or desirable in order to assure that interest paid by the Issuer on the Bonds will be excluded from the gross income, for federal income tax purposes, of the Bondholders pursuant to Section 103 of the Code, except in the event where any such owner of Bonds is a "substantial user" of the facilities financed with the Bonds or a "related person" within the meaning of the Code; (v) not take any action or permit or suffer any action to be taken if the result of the same would be to cause the Bonds to be "federally guaranteed" within the meaning of Section l49(b) of the Code and the Regulations; and (vi) require the Borrower to agree, pursuant to the terms and provisions of the Financing Agreement, not to commit any act and not to make any use of the proceeds of the Bonds, or any other moneys which may be deemed to be proceeds of the Bonds pursuant to the Code, which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code, and to comply with the requirements of the Code throughout the term of the Bonds. In furtherance of the covenants in this Section 6.12, the Issuer and the Borrower shall execute, deliver and comply with the provisions of the Tax Certificate, which is by this reference incorporated into this Indenture and made a part of this Indenture as if set forth in this Indenture in full, and by its acceptance of this Indenture the Trustee acknowledges receipt of the Tax Certificate and acknowledges its incorporation into this Indenture by this reference. 6.12.2 Trustee's Covenants. The Trustee agrees that it will invest funds held under this Indenture in accordance with the terms of this Indenture and the Tax Certificate (this covenant shall extend throughout the term of the Bonds, to all Funds and Accounts created under this 58 DOCSOC/l12073Ov3/24036-0031 Indenture and all moneys on deposit to the credit of any Fund or Account). The Trustee covenants to and for the benefit of the Bondholders that, notwithstanding any other provisions of this Indenture or of any other instrument, it will not make or cause to be made any investment or other use of the moneys in the Funds or Accounts which would cause the Bonds to be classified as "arbitrage bonds" within the meaning of Sections 103(b) and 148 of the Code or would cause the interest on the Bonds to be includable in gross income for federal income tax purposes; provided that the Trustee shall be deemed to have complied with such requirements and shall have no liability to the extent it reasonably follows the written directions of the Borrower, the Issuer or the Rebate Analyst. This covenant shall extend, throughout the term of the Bonds, to all Funds created under this Indenture and all moneys on deposit to the credit of any Fund. Pursuant to this covenant, with respect to the investments of the Funds and Accounts under this Indenture, the Trustee obligates itself to comply throughout the term of the issue of the Bonds with the requirements of Sections I03(b) and 148 of the Code; provided that the Trustee shall be deemed to have complied with such requirements and shall have no liability to the extent it reasonably follows the written directions of the Borrower, the Issuer or the Rebate Analyst. The Trustee further covenants that should the Issuer or the Borrower file with the Trustee (it being understood that neither the Issuer nor the Borrower has an obligation to so file), or should the Trustee receive, an Opinion of Bond Counsel to the effect that any proposed investment or other use of proceeds of the Bonds would cause the Bonds to become "arbitrage bonds," then the Trustee will comply with any written instructions of the Borrower or Bond Counsel regarding such investment or use so as to prevent the Bonds from becoming "arbitrage bonds," and the Trustee will bear no liability to the Issuer, the Borrower, the Bondholders or the Credit Provider for investments made in accordance with such instructions. ARTICLE 7, THE CREDIT FACILITY Section 7.1 Acceptance of the Credit Facility. On the Closing Date, the Trustee shall accept the Credit Facility issued by the Credit Provider. The Trustee shall abide by and take all actions required of the Trustee under the Credit Facility in accordance with its terms in order to have monies available to make payments to Bondholders as required by this Indenture. Section 7.2 No Disposition of Credit Facilitv. The Trustee shall not, without the prior written consent of the Registered Owners of all of the Bonds then Outstanding, transfer, assign or release the Credit Facility until the principal of and interest on the Bonds shall have been paid or duly provided for in accordance with the terms of this Indenture, except (a) to a successor Trustee or (b) to the Credit Provider upon expiration or other termination of the Credit Facility in accordance with its terms, including expiration on its stated expiration date or (c) upon payment under the Credit Facility of the full amount payable under the Credit Facility. If at any time during the term of the Credit Facility, a successor Trustee shall be appointed and qualified under this Indenture and the Credit Facility is not assignable or transferable to the successor Trustee, the resigning Trustee shall request the Credit Provider to deliver a new Credit Facility, substantially identical to the Credit Facility, to the successor Trustee. The resigning Trustee shall continue to serve as Trustee under this Indenture until such time as the new Credit Facility is delivered to the successor Trustee. If the resigning Trustee fails to make this request, the successor Trustee shall do so before accepting its appointment. Upon delivery of the new Credit Facility to the successor Trustee, the prior Credit Facility shall be returned to the Credit Provider and canceled, and the new Credit Facility shall thereafter be subject to all of the provisions of this Indenture relating to the Credit Facility, and shall be deemed for all purposes of this Indenture to be the Credit Facility then in effect. 59 DOCSOCIl120730v3/24036-0031 Section 7.3 Reulacement Credit Facilitv. At the request of the Credit Provider, the Trustee shall exchange the Credit Facility with the Credit Provider for a new Credit Facility (a "Replacement Credit Facility"), provided that such exchange shall not adversely affect the rating then in effect for the Bonds. Section 7.4 Advances Under the Credit Facilitv. 7.4.1 Presentation of Certificates: Auplication of Monevs. The Trustee shall present Certificates (as defined in the Credit Facility) to the Credit Provider as required by and in accordance with the Credit Facility in order to receive Advances under, and as and to the extent provided in and pennitted by, and in the amounts available under, the Credit Facility. For purposes of detennining the amount of any Advance, the Trustee shall, at the direction of the Credit Provider, first apply any amounts then on deposit in the Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and Fees Account) for such purposes. 7.4.2 Return of Pavments Under the Credit Facilitv. In the event that the Trustee receives an Advance from the Credit Provider under the Credit Facility, and thereafter amounts are received by the Trustee from the Borrower, the Remarketing Agent or other source, which later received amounts are in payment of amounts satisfied by the Advance under the Credit Facility, then such later received amounts shall be promptly reimbursed to the Credit Provider to the extent of the amount so paid by the Credit Provider. Section 7.5 Enforcement of Credit Facilitv. The Trustee shall hold the Credit Facility and shall in its name enforce all rights of the Trustee and all obligations of the Credit Provider under the Credit Facility for the benefit of the Bondholders. Section 7.6 Certain Notices to the Credit Provider. The Trustee shall promptly give written notice to the Credit Provider and the Loan Servicer of (a) an Act of Bankruptcy, (b) the making of any claim in connection with seeking the avoidance as a preferential transfer (a "Preference Claim") of any payment of principal of, or interest on, the Bonds, (c) the occurrence of any Event of Default known to it under this Indenture or under any of the other Bond Documents or of any Event of Default under the Security Instrument, or any event known to it which, with the passage of time or service of notice, or both, would constitute an Event of Default under this Indenture or under (and as defined in) the other Bond Documents or would constitute an Event of Default under the Security Instrument, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect to such event and (d) the receipt of any prepayment, in whole or in part, with respect to the Mortgage Loan. Section 7.7 Certain Ril!hts of the Credit Provider. Each Bondholder, by its purchase of Bonds, the Trustee and the Issuer agree that the Credit Provider may at any time during the continuation of an insolvency proceeding of the Issuer or the Borrower (an "Insolvency Proceeding") direct all matters relating to the Bonds in any such Insolvency Proceeding, including, without limitation, (a) all matters relating to any Preference Claim or the lifting of the automatic stay, (b) the direction of any appeal of any order relating to any Preference Claim or to the lifting of the automatic stay and (c) the posting of any surety, supersedeas or performance bond pending any such appeal. The Credit Provider shall have the right to contest, directly or indirectly (e.g. through the Trustee) any Preference Claim or the imposition of the automatic stay. The Trustee shall promptly notify the Credit Provider of any demand for recovery of a payment. The Trustee agrees to contest any attempted recovery or stay or to seek to lift or modify the automatic stay at the written direction DOCSOC/1120730v3124036-0031 60 of the Credit Provider, as well as to cease such actions or settle any claim or contest in accordance with written instructions from the Credit Provider, provided that the Trustee is indemnified to the reasonable satisfaction of the Trustee by the Credit Provider for all expenses to which it may be put and against any liability, except liability which is adjudicated to have resulted from its own negligence or willful misconduct, by reason of any action so taken. Such indemnification shall not be required if the Trustee fails to timely notify the Credit Provider, as required by the preceding sentence, and such failure is prejudicial to the Credit Provider. In addition, and without intending to limit the foregoing, the Credit Provider shall be subrogated to the rights of the Issuer, the Trustee and the Bondholders in any Insolvency Proceeding to the extent it has performed its payment obligations under the Credit Facility, including, but not limited to, any rights of any party to an adversary proceeding with respect to any court order issued in connection with any such Insolvency Proceeding and rights pertaining to the filing of a proof of claim, voting on a reorganization plan and rights to payment under any of the above. Section 7.8 Limitations on Riehts of Credit Provider. Notwithstanding anything contained in this Indenture to the contrary, all provisions of this Indenture regarding consents, approvals, directions, waivers, appointments, requests or other actions by the Credit Provider shall be deemed not to require or permit such consents, approvals, directions, waivers, appointments, requests or other actions and shall be read as if the Credit Provider were not mentioned in such provisions if a Wrongful Dishonor has occurred, but only for so long as the Wrongful Dishonor is continuing, provided, however, that the Credit Provider's right to all notices under the Bond Documents and to the payment of amounts due to the Credit Provider pursuant to the lerms of the Bond Documents shall continue in full force and effect. The foregoing shall not affect any other rights of the Credit Provider. Section 7.9 References to Credit Provider When No Credit Facilitv Is In Effect. All provisions of this Indenture relating to the rights of the Credit Provider shall be of no force or effect if there is no Credit Facility in effect and there are no Purchased Bonds or Bonds in which the Credit Provider has a security interest pursuant to the Pledge Agreement and all amounts owing to the Credit Provider under the Credit Facility Agreement have been paid. In such event, all references to the Credit Provider shall have no force or effect. ARTICLE 8. DISCHARGE OF LIEN Section 8.1 Discharee of Lien and Securitv Interest. 8.1.1 Discharee. Upon satisfaction of the conditions precedent set out in Section 8.1.2, the Trustee shall (a) execute and deliver to the Issuer such instruments in writing prepared by the Issuer or its counsel and provided to the Trustee and the Credit Provider as shall be required to cancel and discharge this Indenture and the pledge and assignment of the Trust Estate, (b) reconvey, assign and deliver to the Issuer so much of the Trust Estate as may be in its possession or subject to its control (except for (I) moneys and Government Obligations held for the purpose of paying Bonds and (2) moneys and Permitted Investments held in the Rebate Fund for payment to the United States Govemment), who shall, in turn, convey, assign and deliver the remaining Trust Estate to the Borrower, and (c) return the Credit Facility to the Credit Provider. 61 DOCSOCIl120730v3/24036-0031 8.1.2 Conditions to Discharl!e. The conditions precedent to the cancellation and discharge of this Indenture and the other acts described in Section 8.1.1 are (a) payment in full of the Bonds, (b) payment of the Trustee's Annual Fee and the Trustee's ordinary costs and expenses under this Indenture, (c) receipt by the Trustee of a written statement from the Credit Provider stating that all obligations owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents have been fully paid, (d) payment of all Extraordinary Items, (e) receipt by the Trustee of a written statement from the Issuer stating that all amounts owed to the Issuer in respect of Reserved Rights have been fully paid, (f) receipt by the Trustee of an Opinion of Counsel, at the expense of the Borrower, to the effect that the Credit Provider has no further obligation under the Credit Facility and (g) receipt by the Trustee of an Opinion of Counsel, at the expense of the Borrower, stating that all conditions precedent to the satisfaction and discharge of this Indenture have been satisfied. 8.1.3 Survival of Ril!hts and Powers. The rights and powers granted to the Trustee with respect to the payment, transfer and exchange of Bonds and the Reserved Rights of the Issuer shall survive the cancellation and discharge of this Indenture. Section 8.2 Pavment of Outstandinl! Amounts. If the Bonds have been paid in full, but anyone or more of the other conditions precedent set out in Section 8.1.2 are not satisfied because an amount has not been paid, the Trustee shall, prior to cancellation and discharge of this Indenture, pay over, assign and deliver to the persons listed below, in the strict order set out below, the amounts required to satisfy those conditions precedent: 8.2.1 The Trustee's Annual Fee and Ordinary Costs and EXDenses. If any portion of the Trustee's Annual Fee currently due and unpaid or ordinary costs and expenses of the Trustee remain unpaid at the time of discharge, the Trustee shall pay over, assign and deliver to itself so much of (and not to exceed) the Trust Estale as shall be necessary to fully pay such unpaid amounts. No Extraordinary Items shall be included under this Section 8.2.1. 8.2.2 The Credit Provider. If the Trustee receives a written statement from the Credit Provider stating that moneys are owed to the Credit Provider under the Credit Facility Agreement or the Mortgage Loan Documents,including obligations in respect of reimbursement of funds advanced by the Credit Provider to the Trustee for application to the payment of Remarketing Expenses, the Trustee shall pay over, assign and deliver to the Credit Provider so much of (and not to exceed) the remaining Trust Estate as shall be necessary to fully pay all amounts due and owing to the Credit Provider, as determined by the Credit Provider, in its sole and absolute discretion. The reimbursement from the Trust Estate of amounts advanced by the Credit Provider for application to the payment of Remarketing Expenses shall be made with interest at a rate equal to the Activity Rate as provided in the Reimbursement Agreement, from the date or dates of such advances through the date of such reimbursement (the Trustee shall be authorized to rely on the written statement of the Credit Provider as to the amount of such advances and interest accrued on such advances). 8.2.3 Trustee. If any Extraordinary Items have not been paid to the Trustee, the Trustee shall pay over, assign and deliver to itself so much of (and not to exceed) the remaining Trust Estate as shall be necessary to fully pay all amounts owing to the Trustee for Extraordinary Items. 8.2.4 Issuer. If the Trustee receives a written statement from the Issuer stating that moneys are owed to the Issuer in respect of the Reserved Rights, the Trustee shall pay over, 62 DOCSOCIl120730v3/24036-0031 assign and deliver to the Issuer so much of (and not to exceed) the remaining Trust Estate as shall be necessary to fully pay all amounts owing to the Issuer in respect of the Reserved Rights. Section 8.3 Defeasance. 8.3.1 Provision for Pavment of Bonds. Any Bond shall be deemed to have been paid within the meaning of Section 8.1 if: (i) there has been irrevocably deposited with the Trustee either (A) sufficient Available Moneys or (B) Government Obligations, which are not subject to early redemption and which are purchased with Available Moneys, of such maturities and interest payment dates and bearing such interest as will, without further investment or reinvestment of either the principal amount of such Government Obligations or the interest earnings on Government Obligations (the earnings to be held in trust also), be sufficient, together with any Available Moneys deposited pursuant to this paragraph, in each case as verified by a written report of an independent certified public accountant, for the payment on their respective maturity dates, or redemption dates prior to maturity, of the principal of such Bonds and redemption premium, if any, and interest to accrue on such Bonds to such maturity or redemption dates, provided, that the Trustee has received, at the expense of the Borrower (a) an Opinion of Counsel rendered by bankruptcy counsel that such Available Moneys or Govemment Obligations purchased with Available Moneys are not subject to avoidance under Section 547 or 544 and are not subject to an automatic stay pursuant to Section 362 of the Bankruptcy Code or any successor statute, and, as such, are not recoverable under Section 550(a) of the Bankruptcy Code or other applicable insolvency law, should there be a petition by or against the Borrower, any general partner of the Borrower or the Issuer under the Bankruptcy Code or any other bankruptcy act, and (b) an Opinion of Bond Counsel to the effect that such deposit with the Trustee and consequent defeasance of the Bonds does not adversely affect the excludability of the interest payable on the Bonds from gross income for federal income tax purposes; (ii) all Third Party Fees due or to become due have been paid or sufficient additional moneys to make the required payments have been irrevocably deposited with the Trustee; and (iii) for any such Bonds to be redeemed on any date prior to their maturity, the Trustee has received in form satisfactory to it irrevocable instructions to redeem such Bonds on a date on which the Bonds are subject to redemption, and either evidence satisfactory to the Trustee that all redemption notices required by this Indenture have been given or irrevocable power authorizing the Trustee to give such redemption notices. The Trustee shall redeem the Bonds specified by such irrevocable instructions on the date specified by such irrevocable instructions. 8.3.2 Defeased Bonds No Lone:er Outstandine:. At such time as a Bond shall be deemed to be paid under this Indenture, it shall no longer be secured by or entitled to the benefits of this Indenture, except for the purposes of payment in accordance with the terms of this Indenture. 8.3.3 Investment Limitations Not Applicable. Limitations elsewhere specified in this Indenture regarding the investment of moneys held by the Trustee, other than with respect to the Tax Certificate, shall not be construed to prevent the depositing and holding of the obligations described in paragraph (i)(B) of Section 8.3.1 for the purpose of providing for the defeasance of the DOCSOCI1120730v3124036-0031 63 lien of this Indenture as to Bonds which have not yet become due and payable. All income from all Government Obligations in the hands of Ihe Trustee pursuant to this Section 8.3 which has been identified by an independent certified public accountant as not required for the payment of the Bonds and interest on such income with respect to which such moneys have been so deposited shall be deposited with the Trustee as and when realized and collected for use and application as are other moneys deposited with the Trustee in the Revenue Fund. 8.3.4 Particular Bonds. Notwithstanding any other provision of this Indenture to the contrary, all moneys or Government Obligations set aside and held in trust pursuant to the provisions of this Article VIII for the payment of Bonds (including accrued interest on such Bonds) shall be applied to and used solely for the payment of the particular Bonds (including interest on such Bonds) with respect to which such moneys or Government Obligations have been so set aside in trust. ARTICLE 9. DEFAULT PROVISIONS AND REMEDIES Section 9.1 Events of Default; Preliminarv Notice. Default: 9.1.1 Events of Default. Each of the following shall constitute an Event of (i) default in the payment of any interest due on any Bond (other than a Purchased Bond) on any Interest Payment Date or any other date when and as the same becomes due; (ii) default in the payment of the principal of any Bond (other than a Purchased Bond) when and as the same becomes due, whether at the stated maturity of the Bond or upon any redemption of the Bond; (iii) written notice to the Trustee from the Credit Provider of a default by the Issuer in the observance or performance of any covenant, agreement, warranty or representation on the part of the Issuer included in this Indenture or in the Bonds (other than an Event of Default set forth in subsection (i) or (ii) above) and the continuance of such default for a period of 30 days after the Trustee receives such notice; or (iv) an Act of Bankruptcy. 9.1.2 Preliminarv Notice. The Trustee will immediately notify the Issuer, the Loan Servicer, the Borrower and the Credit Provider after the Trustee obtains knowledge or receives notice of the occurrence of an Event of Default or an event which would become an Event of Default with the passage of time or the giving of notice, or both, identifying the paragraph in Section 9.1.1 under which the Event of Default has occurred or may occur. 9.1.3 Non-Default and Prohibition of Mandatorv Redemption Upon Event of Taxabilitv. The occurrence of any event (a "Tax Event") which results in the interest payable on the Bonds being includable for federal income tax purposes, in the gross income of the Bondholders, including, but not limited to, any violation of any provision of the Regulatory Agreement or any of the other Bond Documents, shall not (a) constitute an Event of Default under this Indenture, the 64 DOCSOC/l12073Ov3/24036-0031 Bonds or any of the other Bond Documents, or permit any party (other than the Credit Provider) to accelerate, or require acceleration of, the Mortgage Loan or the Bonds, or give rise to a mandatory redemption of the Bonds, unless the Credit Provider, in its sole and absolute discretion, provides written notice to the Trustee that such Tax Event constitutes an Event of Default under the Security Instrument and, by cross default, a default under the Financing Agreement, or (b) give rise to the payment 10 the Bondholders of any amount, denoted as "supplemental interest," "additional interest," "penalty interest," "damages," "liquidated damages" or otherwise, in addition to the amounts payable to the owners of the Bonds prior to the occurrence of the Tax Event. Nothing contained in this Section 9.1.3 shall be deemed to amend or modify the terms of the Mortgage Loan Documents. . Promptly upon determining that a Tax Event has occurred, the Issuer or the Trustee, by notice in writing to the Credit Provider, the Loan Servicer, all Registered Owners of the Bonds and the Remarketing Agent, shall state that a Tax Event has occurred and whether the Tax Event is cured, curable within a reasonable period or incurable. Notwithstanding the availability of the remedy of specific performance to cure a Tax Event that is curable within a reasonable period, neither the Issuer nor the Trustee shall have, and each of them acknowledges that, except at the direction of the Credit Provider, they shall not have, upon the occurrence of a Tax Event, any right or obligation to cause or direct acceleration of the Bonds or the Mortgage Loan, to enforce the Mortgage Note or to foreclose the Security Instrument, to accept a deed to the Mortgaged Property in lieu of foreclosure, or to effect any other comparable conversion of the Mortgage Loan. Section 9.2 Remedies: Ril!hts of Bondholders. 9.2.1 Acceleration. Upon: (i) the occurrence of the Event of Default described in paragraph (i) or (ii) of Section 9.1.1, the Trustee may, and shall upon the written request of Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding, by written notice to the Issuer, the Borrower, the Credit Provider, the Loan Servicer and declare the principal of all Bonds then Outstanding (if not then due and payable) and the interest accrued, and to accrue, on the Outstanding Bonds to the date of such declaration immediately due and payable; or (ii) the occurrence of an Event of Default described in paragraph (iii) or (iv) of Section 9.1.1, the Trustee may, upon receiving the prior written consent of the Credit Provider, and shall, upon the written direction of the Credit Provider, by written notice to the Issuer, the Borrower, the Credit Provider and the Loan Servicer, declare the principal of all Bonds then Outstanding (if not then due and payable) and the interest accrued, and to accrue, on the Outstanding Bonds to the date of such declaration immediately due and payable. Upon any such declaration of acceleration, the Trustee shall (a) give immediate notice to the Credit Provider and request an Advance under the Credit Facility pursuant to Section 7.4, (b) exercise such rights as it may have under the Mortgage Note to declare all payments under the Mortgage Note to be immediately due and payable and (c) give the notice required by Section 9.2.2. 9.2.2 Notice. Upon any decision 10 accelerate payment of the Bonds, the Trustee shall notify the Bondholders of the declaration of acceleration, that interest on the Bonds will cease to accrue upon such declaration, and that payment of such Bonds will be made upon presentment of the Bonds at the Principal Office of the Trustee not earlier than fifteen (15) days following the date of acceleration. Such notice shall be sent by registered mail, overnight delivery service or other secure means, postage or charges prepaid, or, at the Trustee's option, may be given by Electronic 65 DOCSOC/1120730v3124036-0031 Means to each Registered Owner of Bonds at such Registered Owner's last address appearing in the Bond Register. Any defect in or failure to give notice of such declaration shall not affect the validity of such declaration. Section 9.3 Other Remedies. Subject to Section 9.9.3, upon the occurrence and continuance of an Event of Default, the Trustee may, with or without taking action under Section 9.2, but only with the prior written consent of the Credit Provider, and shall, at the direction of the Credit Provider if the Event of Default occurs under paragraph (iii) or (iv) of Section 9.1.1, pursue any of the following remedies: (i) an action in mandamus or other suit, action or proceeding at law or in equity (a) to enforce the payment of the principal of, premium, if any, or interest on the Bonds then Outstanding, (b) for the specific performance of any covenant or agreement contained in this Indenture or in the Financing Agreement or in the Regulatory Agreement or (c) to require the Issuer to carry out any other covenant or agreement with Bondholders and to perform its duties under the Act; (ii) the liquidation of the Trust Estate pledged under this Indenture (subject to the provisions of Article VIII): or (iii) an action or suit in equity, to enjoin any acts or things which may be unlawful or in violation of the rights of the Bondholders and to execute any other papers and documents and do and perform any and all such aCts and things as may be necessary or advisable in the opinion of the Trustee in order to have the respective claims of the Bondholders against the Issuer allowed in any bankruptcy or other proceeding. Subject to the provisions of Section 9.9 and the requirement, if any, that the Credit Provider consent in writing to the exercise by the Trustee of any such available remedy, upon the occurrence and continuance of an Event of Default, the Trustee shall exercise such of the rights and powers conferred by this Section 9.3 as the Trustee, being advised by counsel, shall deem most effective to enforce and protect the interests of the Bondholders and the Credit Provider. Section 9.4 Preservation of Securitv and Remedies if Wronl!ful Dishonor Occurs: Ril!hts of Bondholders. Upon the occurrence and during the continuance of a Wrongful Dishonor, the Trustee may proceed, and upon the written request of the holders of not less than 25% of the aggregate principal amount of the Bonds Outstanding and the receipt of indemnity reasonably satisfactory to the Trustee, shall proceed, to protect and enforce its rights and the rights of the Bondholders under this Indenture by such suits, actions or special proceedings in equity or at law, or by proceedings in the office of any board or officer having jurisdiction, whether for the specific performance of any covenant or agreement contained in this Indenture or the Financing Agreement, or in aid of the execution of any power granted in this Indenture, or in the Financing Agreement or by the Act, or for the enforcement of any legal or equitable right or remedy, as the Trustee, being advised by counsel, shall deem most effective to protect and enforce such rights or to perform any of its duties under this Indenrure. Section 9.5 Remedies Not Exclusive. Subject to the provisions of Section 9.9, no right or remedy conferred upon or reserved to the Trustee (or to the Bondholders) by the terms of this Indenture is intended to be exclusive of any other right or remedy, but each and every such right and remedy shall be cumulative and shall be in addition to any other right or remedy given to the Trustee 66 DOCSOC/1120730v3/24036-003! or to the Bondholders under this Indenture or under the Financing Agreement, the Regulatory Agreement or the Credit Facility or now or hereafter existing at law or in equity. Section 9.6 Waiver. To the extent not precluded by law, the Trustee, upon notice to and with the prior written consent of the Credit Provider (unless a Wrongful Dishonor has occurred and is continuing), may waive any Event of Default under this Indenture and its consequences and, if the Trustee has accelerated payment of the Bonds, rescind the declaration of acceleration (unless precluded by Section 9.2.1 or unless clause (b) following shall be applicable) and shall do so upon the written request of (a) the Credit Provider or (b) Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding, provided, however, that there shall be no such waiver or rescission unless the principal and interest on the Bonds in arrears (without regard to the acceleration), together with interest at the applicable rate or rates of interest borne by the Bonds on such overdue principal and, to the extent permitted by law, on such overdue interest, shall have been paid or provided for by the Borrower or by Ihe Credit Provider and all fees and expenses of the Trustee shall have been paid or provided for by the Borrower or the Credit Provider. In the case of any such waiver, the Issuer, the Borrower, the Trustee and the Bondholders shall be restored to their former positions and rights under this Indenture. The Trustee may not waive any Event of Default under this Indenture unless, after the waiver, the Credit Facility will remain in effect in an amount equal to the aggregate principal amount of the Bonds outstanding (other than Purchased Bonds) plus the Interest Requirement, provided, however, that such waiver will be permitted if (a) the Issuer consents to the waiver, (b) the Rating Agency then rating the Bonds is notified and the Trustee gives written notice to the Bondholders that the ratings on the Bonds may be reduced or withdrawn upon the occurrence of such waiver, and (c) 100% of the Bondholders consent to the waiver. Section 9.7 Limited Effect of Waiver. No waiver of any Event of Default, whether by the Trustee or by the Bondholders, shall extend to or shall affect any subsequent Event of Default or shall impair any rights or remedies consequent to such Event of Default. Section 9.8 Delav or Omission. No delay or omission to exercise any right or remedy provided in this Indenture upon any Event of Default shall impair any such right or remedy or shall be construed to be a waiver of any such Event of Default or acquiescence in it and every such right and remedy may be exercised from time to time as often as may be deemed expedient. Section 9.9 Ril!hts of the Credit Provider and the Bondholders To Direct Proceedinl!s: Ril!hts and Limitations Applicable to Bondholders. Issuer and Trustee. 9.9.1 Ril!hts to Direct Proceedinl!s. Notwithstanding anything contained in this Indenture to the contrary, the Credit Provider itself or Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding, but only with the prior written consent of the Credit Provider, shall have the right, at any time, by an instrument or instruments in writing executed and deli vered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture or any other proceedings under this Indenture, provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture, and provided that the Trustee shall be indemnified to its satisfaction (except for actions required under Section 9.2.1 relating to requesting an Advance under the Credit Facility and actions required under Section 9.2.2). 9.9.2 Limitations on Bondholders' Ril!hts. No Bondholder shall have the right to enforce the provisions of this Indenture, the Financing Agreement or any Mortgage Loan 67 DOCSOC/I120730v3/24036-003l Document, or to institute any proceeding in equity or at law for the enforcement of this Indenture or the Financing Agreement, or to take any action with respect to an Event of Default under this Indenture or an "Event of Default" under (and as defined in) the Financing Agreement, or to institute, appear in or defend any suit or other proceeding with respect to this Indenture, the Financing Agreement or any Mortgage Loan Document upon an Event of Default unless (a) such Bondholder has given the Trustee, the Issuer, the Credit Provider, the Loan Servicer and the Borrower written notice of the Event of Default, (b) the holders of not less than 51% in aggregate principal amount of Bonds then Outstanding shall have requested the Trustee in writing to institute such proceeding, (c) the Trustee shall have been afforded a reasonable opportunity to exercise its powers or to institute such proceeding, (d) the Trustee has been offered reasonable indemnity, where required, and (e) the Trustee has thereafter failed or refused to exercise such powers or to institute such proceeding within a reasonable period of time. Except as provided in this Section 9.9.2, no Bondholder shall have any right in any manner whatever by his or her action to affect, disturb or prejudice the pledge of Revenues or of any other moneys, funds or securities under this Indenture. No Bondholder shall have the right, directly or indirectly, individually or as a group, to seek to enforce, collect amounts available under, or otherwise realize on, the Credit Facility. 9.9.3 Non-Interference and Non-Impairment of Mortl!al!e Loan. Notwithstanding anything contained in this Indenture to the contrary, so long as the Credit Facility remains in effect and a Wrongful Dishonor has not occurred or, if it has occurred is not continuing, neither the Issuer, the Trustee nor any person under their control nor the Bondholders shall, without the prior written consent of the Credit Provider, exercise, directly or indirectly, any remedy or direct any proceeding under the Bond Documents or with respect to the Mortgage Loan or, directly or indirectly: (i) initiate or take any action which may have the effect, directly or indirectly, of (a) impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due and payable under, the Mortgage Loan Documents or (b) impairing or defeating the validity or priority of the lien created by the Security Instrument; (ii) interfere with or attempt to influence the exercise by the Credit Provider of its rights under the Mortgage Loan Documents, including, but not limited to, the Credit Provider's remedial rights under the Mortgage Loan Documents upon the occurrence of an Event of Default by the Borrower under the Security Instrument; or (iii) upon the occurrence of an Event of Default under the Security Instrument, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan. provided that, subject to the provisions of the foregoing paragraphs (i) through (iii), this Section 9.9.3 shall not prohibit the Issuer's right to enforce its Reserved Rights, and provided, further, that the Issuer or the Trustee, as the case may be, may (a) enforce rights under the Credit Facility (so long as the Credit Facility is in effect), (b) enforce the tax covenants set forth in this Indenture and the Financing Agreement and (c) enforce rights of specific performance under the Financing Agreement and the Regulatory Agreement, except that neither the Issuer nor the Trustee shall seek damages or any monetary recovery under the Financing Agreement or the Regulatory Agreement. Section 9.10 Discontinuance of Proceedinl!s. Prior to a demand for payment under the Credit Facility in case the Trustee has proceeded to enforce any right under this Indenture by the 68 DOCSOC/l120730v3/24036-0031 appointment of a receiver or otherwise, and such proceedings have been discontinued or abandoned for any reason, or have been determined adversely, then and in every such case the Issuer, the Credit Provider and the Trustee shall be restored to their former positions and rights under this Indenture, and all rights, remedies, powers, duties and obligations of the Issuer, the Trustee and the Credit Provider shall continue as if no such proceedings had been taken, subject to the limits of any adverse determination. Section 9.11 Action bv Trustee. All rights of action under this Indenture or upon any of the Bonds enforceable by the Trustee may be enforced by the Trustee without the possession of any of the Bonds, or the production of the Bonds at the trial or other proceedings relative to such suit, action or proceeding, and any such suit, action or proceeding instituted by the Trustee may be brought in its name for the ratable benefit of the Bondholders, without the necessity of joining any Bondholder as a party, and for the benefit of the Credit Provider. In any action, suit or other proceeding by the Trustee, the Trustee shall be paid fees, counsel fees and expenses in accordance with Section 10.3. Section 9,12 Application of Monevs. Amounts derived from payments under the Credit Facility shall be deposited into the Credit Facility Account and applied solely to pay the principal of and interest on the Bonds and shall not be applied to pay any fees or expenses or advances of the Trustee or the Issuer (except to the extent such fees are payable out of the Fees Account from transfers to the Fees Account from the General Account), including amounts in respect of indemnification. All other moneys received by the Trustee pursuant to any action taken under this Article IX and all moneys on deposit in the Funds and Accounts under this Indenture (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) shall be deposited into the General Account after payment of the ordinary costs and expenses of the Trustee. The balance of such moneys, less such amounts as the Trustee determines may be needed for possible use in paying future fees and expenses and for the preservation and management of the Mortgaged Property (as identified by the Credit Provider), shall be applied as set out in the following subsections. 9,12.1 Principal on Bonds Not Due and Payable. Unless the principal of all Bonds shall have become or been declared due and payable, all such moneys shall be applied: Section 4.9; First - to the payment of amounts, if any, payable to the United States pursuant to . Second - to the paymenl of all interest then due on the Bonds, in the order of the maturity of such interest and, if the amount available shall not be sufficient to pay in full said amount, then to the payment ratably of the amounts due, without any discrimination or privilege; Third - to the payment of the unpaid principal of any of the Bonds which shall have become due (other than Bonds matured or called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates upon which they became due, with interest on such Bonds from the respective dates upon which they became due at the rate or rates borne by the Bonds, to the extent permitted by law, and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the persons entitled to such payment without any discrimination or privilege: 69 DOCSOC/lI2073Ov3/24036-003! Fourth - to the payment of amounts owed to the Credit Provider under the Credit Facility Agreement and the Mortgage Loan Documents, as specified to the Trustee in writing by the Credit Provider and then to any unpaid amounts due to the Trustee for Extraordinary Items, for this purpose including the costs and expenses of any proceedings resulting in the collection of such moneys and of advances incurred or made by the Trustee; 9.12.2 Principal on Bonds Declared Due and Pavable. If the principal of all the Bonds has become or been declared due and payable, all such moneys shall be applied first, to the payment of amounts, if any, payable to the United States pursuant to Section 4.9; second, to the payment of the principal and interest then due and unpaid upon the Bonds, without preference or priority of principal over interest or of interest over principal, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably according to the amounts due respectively for principal and interest to the persons entitled to payment, until all such principal and interest has been paid; third, to pay the Credit Provider amounts owed to it under the Credit Facility Agreement and the Mortgage Loan Documents, as specified to the Trustee in writing by the Credit Provider; and fourth, to the Borrower (but only if all amounts due the Trustee and the Issuer have been paid, otherwise to first pay such amounts in the priority set forth in Section 8.2). 9.12.3 Acceleration Rescinded. If the principal of all the Bonds has been declared due and payable, and if such declaration is thereafter rescinded under this Article IX, then, in the event that the principal of all the Bonds shall later become or be declared due and payable, the moneys shall be applied in accordance with Section 9.12.2. 9.12.4 GeneraL Whenever moneys are to be applied pursuant to this Section 9.12, such moneys shall be applied at such times, and from time to time, as the Trustee determines, having due regard for the amount of such moneys available for application, the likelihood of additional moneys becoming available for such application in the future, and potential expenses relating to the exercise of any remedy or right conferred on the Trustee by this Indenture. Whenever the Trustee applies such moneys, it shall fix the date (which shall be an Interest Payment Date unless it deems an earlier date more suitable) upon which such application is to be made, and upon such date interest on the amounts of principal to be paid on such date shall cease to accrue. The Trustee shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment to the owner of any Bond until such Bond is presented to the Trustee for appropriate endorsement or for cancellation if fully paid. Whenever the principal of and interest on all Bonds have been paid in full under the provisions of this Section 9.12 and all other conditions set out in Section 8.1 have been satisfied, any balance remaining in the Funds and Accounts shall be paid as provided in Section 8.1. ARTICLE 10. THE TRUSTEE Section 10.1 Appointment of Trustee; Duties. The Trustee is appointed, and agrees to act in such capacity and to perform the duties of the Trustee under the Financing Agreement, the Assignment, the Regulatory Agreement and this Indenture, but only upon and subject to the following express terms and conditions set forth in the following paragraphs of this Section 10.1. 10.1.1 The Trustee may execute any of its trusts or powers under this Indenture and perform any of its duties by or through attorneys, agents or receivers, and shall be entitled to advice 70 DOCSOC/1120730v3/24036-0031 of counsel concerning all matters of trust under this Indenture and the duties under this Indenture, and may in all cases pay such reasonable compensation and shall be entitled to reimbursement from the Borrower for all such compensation paid to such attomeys, agents and receivers. The Trustee may act upon the opinion or advice of counsel, accountants, or such other professionals as the Trustee deems necessary and selected by it in the exercise of reasonable care. The Trustee shall not be responsible for any Joss or damage resulting from any action or nonaction based on its good faith reliance upon such opinion or advice which is not contrary to the express terms of this Indenture, any of the other Bond Documents or the Mortgage Loan Documents. 10.1.2 Except as otherwise specifically provided in this Indenture, the Trustee shall not be responsible for insuring the Mortgaged Property or for the sufficiency of any insurance, or for collecting any insurance moneys, or for the validity of this Indenture or of any supplements to this Indenture or instruments of further assurance, or for the sufficiency of the security for the Bonds issued under this Indenture or intended to be secured by this Indenture, or for the value of or title to the Mortgaged Property or otherwise as to the maintenance of the Trust Estate, but the Trustee may require (but shall be under no duty to require) of the Borrower full information and advice as to the performance of the covenants, conditions and agreements aforesaid as to the condition of the Mortgaged Property. 10.1.3 The Trustee shall not be accountable for the use of any Bonds authenticated or delivered under this Indenture after such Bonds shall have been delivered in accordance with instructions of the Issuer, or for the use by the Borrower of the proceeds of the Mortgage Loan, or for the use or application of any moneys received by the Trustee, except to the extent that the Trustee is obligated to disburse, invest and pay moneys under and in the manner provided in this Indenture. The Trustee may become the owner of Bonds secured by this Indenture with the same rights as any other Bondholder. 10.1.4 The Trustee shall be protected in acting upon any Opinion of Counsel, Opinion of Bond Counsel, Cash Flow Projection and Verification Report, and upon any notice, request, consent, direction, requisition, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and purportedly signed or sent by the proper person or persons and which is not contrary to the express terms of this Indenture, any of the other Bond Documents or the Mortgage Loan Documents. Any action taken by the Trustee pursuant to this Indenture upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is the owner of any Bond as shown on the Bond Register shall be conclusive and binding upon all future owners or holders of the same Bonds and upon Bonds issued in exchange therefor or in place of such Bonds. 10.1.5 The permissive right of the Trustee to do things enumerated in this Indenture or in the other Bond Documents to which the Trustee is a party shall not be construed as duties until specifically undertaken by the Trustee. Prior to an Event of Default, the Trustee shall only be responsible for the performance of the duties expressly set forth in this Indenture and in the other Bond Documents to which it is a party and shall not be answerable for other than its negligence or willful misconduct in the performance of those express duties. 10.1.6 The Trustee shall not be personally liable for any debts contracted or for damages to persons or to personal property injured or damaged, or for salaries or nonfulfillment of contracts, relating to the Mortgaged Property. DOCSOCIl120730v3/24036-0031 7] 10.1.7 The Trustee shall not be required to give any bond or surety in respect of the execution of its trusts and powers or otherwise in respect of the premises. 10.1.8 Before taking any action requested or required under this Indenture (except for requesting Advances under the Credit Facility) the Trustee may require reasonably satisfactory security or an indemnity bond for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its own negligence or bad faith by reason of any action so taken. 10.1.9 Before taking any action requested by a Bondholder or Bondholders under or pursuant to Article IX (except for requesting Advances under the Credit Facility), the Trustee may require reasonably satisfactory security or an indemnity bond from such Bondholder or Bondholders for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its own negligence or bad faith by reason of any such action so taken. 10.1.10 All moneys received by the Trustee, until used or applied or invested as provided in this Indenture, shall be held as special trust funds for the purposes specified in this Indenture and for the benefit and security of the holders of the Bonds, the Credit Provider and the Persons to whom the Third Party Fees are owed as provided in this Indenture. 10.1.11 The Trustee shall not be bound to ascertain or inquire as to the performance of the obligations of the Borrower under the Financing Agreement or the Regulatory Agreement or the Issuer under this Indenture or the Regulatory Agreement, and shall not be deemed to have, or required to take, notice of default under this Indenture except any default under paragraphs (i) or (ii) of Sections 9.1.1 or in the event of written notification of such default by the Credit Provider, the Loan Servicer, any party to the Financing Agreement or the holders of not less than 25 % of the principal amount of Bonds Outstanding. The Trustee may nevertheless require the Issuer and the Borrower to furnish information regarding performance of their respective obligations under the Financing Agreement, the Regulatory Agreement and this Indenture, but is not obligated to do so. 10.1.12 The Trustee shall, during the existence of any Event of Default (which has not been cured), exercise such of the rights vested in it by this Indenture, the Financing Agreement and the Regulatory Agreement, and use the same degree of care and skill in their exercise, as a reasonable person would exercise or use under the circumstances in the conduct of such person's own affairs. The foregoing shall not limit the Trustee's obligations under Article VII or Section 9.2.1. 10.1.13 The Trustee shall, if the Bonds are then rated by a Rating Agency, give notice by mail to that Rating Agency at its address promptly upon the occurrence of any of the following: (a) the appointment of any successor trustee or separate trustee or co- trustee to serve under this Indenture; (b) any modifications, amendments, supplements or reVISIOns to this Indenture, the Financing Agreement, the Credit Facility or any Mortgage Loan Document; (c) the termination of the Credit Facility; 72 DOCSOC/112073Ov3/24036-0031 (d) an Event of Default under this Indenrure; (e) a redemption or defeasance of the Bonds in whole or in part (other than any mandatory sinking fund redemption); (f) any other information reasonably requested by the Rating Agency; (g) execution by the Trustee of an investment agreement; (h) any change in the provider of an investment agreement; or (i) any mandatory tender of the Bonds. Notwithstanding the foregoing, it is expressly understood and agreed that failure to provide any such notice to any Rating Agency or any defect in any such notice will not affect the validity of any action with respect to which notice is to be given or the effectiveness of any such action. 10.1.14 The Trustee shall give prompt written notice to the Loan Servicer of the non-payment of any fee or expense payable under the Financing Agreement. 10.1.15 The Trustee is authorized and directed by the Issuer to execute or accept and acknowledge, as applicable, in its capacity as Trustee the Financing Agreement, the Assignment, the Regulatory Agreement and any financing statements. 10.1.16 Except for information provided by the Trustee, the Trustee shall have no responsibility for any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds. 10.1.17 No provision of this Indenture or any other Bond Document or any Mortgage Loan Document shall require the Trustee to risk or advance its own funds or otherwise incur any financial liability in the performance of its duties or the exercise of its rights under this Indenrure. 10.1.18 The immunities extended to the Trustee shall extend to its directors, officers, employees and agents. 10.1.19 The Trustee shall not be liable for any action taken or not taken by it in accordance with the direction of the Credit Provider or Bondholders pursuant to this Indenture unless the Trustee is negligent or engages in willful misconduct. 10.1.20 The Trustee shall not be responsible for the actions or omissions of the Loan Servicer and shall have no duty or responsibility to monitor the performance of the Loan Servicer. Section 10.2 Quantification. The Trustee represents and warrants to the Issuer that it is a national banking association, having a combined capital stock, surplus and undivided profits aggregating at least $50,000,000. Section 10.3 Fees: EXDenses. The Trustee shall be entitled to payment from the Borrower for the Trustee's Annual Fee. The Trustee shall be entitled to payment and/or reimbursement from the Borrower for its ordinary costs and expenses reasonably incurred in connection with its services 73 DOCSOC/l120730v3/24036-003! under this Indenture, the Financing Agreement and the Regulatory Agreement. In the event that it should become necessary that the Trustee perform extraordinary services, it shall be entitled to Extraordinary Items, provided that if such Extraordinary Items are incurred as a result of the negligence or willful misconduct of the Trustee, it shall not be entitled to compensation or reimbursement for such services or expenses. The Borrower's failure to pay amounts owed to the Trustee shall not excuse the performance of its obligations under this Indenture and under the other Bond Documents. The Trustee recognizes that all fees, charges and other compensation to which it may be entitled under this Indenture are required to be paid by the Borrower under the Financing Agreement, and, accordingly, the Trustee agrees that except for moneys that the Issuer may derive from the Borrower for purposes of the foregoing, the Issuer shall not be liable for any such fees, charges and other compensation. Notwithstanding anything in this Indenture to the contrary, the Trustee shall not be entitled to payment and/or reimbursement from any of the amounts held in any of the funds or accounts of this Indenture other than the Fees Account. Section 10.4 Merl!er; Consolidation. Any corporalion or assoclatton into which the Trustee may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Trustee is a party, provided such corporation or association otherwise qualifies under Section 10.9, shall be and become the successor Trustee under this Indenture, vested with title to the Trust Estate and any other assets held under this Indenture and having all the trusts, powers, discretions, rights, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of the Issuer (other than the provision of notice to the Issuer, the Credit Provider and the Loan Servicer). Section 10.5 Intervention in Litil!ation. In any judicial proceedings with respect to the Bonds to which the Issuer is a party the Trustee may intervene on behalf of Bondholders or the Credit Provider (with the prior written consent of the Credit Provider), and shall, subject to Section 10.1.9, intervene if requested in writing by the Credit Provider or by Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding and with the consent of the Credit Provider. Section 10.6 Resil!nation of Trustee. The Trustee may resign only upon giving 60 days prior written notice to the Issuer, the Credit Provider, the Loan Servicer, the Borrower and to each Registered Owner of Bonds then outstanding as shown on the Bond Register. Notwithstanding such notice, such resignation shall take effect only upon the appointment of a successor Trustee in accordance with Section 10.8 and the acceptance of such appointment by such successor Trustee. Section 10.7 Removal of Trustee. The Trustee may be removed at any time, upon 30 days prior written notice to the Trustee, (a) by the Issuer, with the prior written consent of the Credit Provider, (b) by an instrument or concurrent instruments in writing delivered to the Issuer, the Credit Provider, Ihe Loan Servicer, the Trustee and the Borrower, signed by the owners of not less than 51 % in aggregate principal amount of Bonds then Outstanding, and approved by the Credit Provider, which written instrument shall designate a successor trustee, or (c) by the Credit Provider. Such removal shall not be effective until a successor Trustee satisfying the requirements of Section 10.9 is appointed and has accepted its appointment. Section 10.8 ADDointment of Successor Trustee. Upon Ihe resignation or removal of the Trustee, a successor Trustee shall be appointed by the Borrower with the prior written consent of the 74 DOCSOClI12073Ov3/24036-0031 Issuer and the Credit Provider, provided that if the Borrower is then in default under any Bond Document or any Mortgage Loan Document or if an event has occurred and is continuing which, with notice or the passage of time or both, would constitute such a default, such appoinnnent shall be made by the Issuer with the prior written consent of the Credit Provider. If, in the case of resignation or removal of the Trustee, no successor is appointed within 30 days after the notice of resignation or within 30 days after removal, as the case may be, then, in the case of a resignation, the resigning Trustee shall appoint a successor with the prior written consent of the Issuer and the Credit Provider or apply to a court of competent jurisdiction for the appoinnnent of a successor Trustee and, in the case of a removal, the Credit Provider shall have the right to appoint a successor Trustee or to apply to a court of competent jurisdiction for the appoinnnent of a successor Trustee. Section 10.9 Qualifications of Successor Trustee. Any successor Trustee (a) shall be a bank or trust company organized under the laws of the United States of America or any state of the United States of America, having (or its parent having) a combined capital stock, surplus and undivided profits aggregating at least $50,000,000, and (b) shall accept in writing its duties and responsibilities under this Indenture, the Financing Agreement, the Assignment and the Regulatory Agreement. Such written acceptance shall be filed with the Issuer, the Credit Provider, the Loan Servicer and the Borrower. The successor Trustee shall give notice of such succession by first-class mail, postage prepaid, to each Bondholder at the address of such Bondholder shown on the Bond Register. Upon appointment of a successor Trustee, the resigning or removed Trustee, as the case may be, shall assign all of its right, title and interest in the Security, including its right, title and interest in the Credit Facility and this Indenture, to the successor Trustee. Section 10.10 Transfer of Ril!:hts and Property to Successor Trustee. Upon the execution of the written acceptance provided for in Section 10.9, the successor Trustee shall, without any further act, deed or conveyance, become fully vested with all moneys, estates, properties, rights, powers, duties and obligations of the predecessor Trustee, with like effect as if named in this Indenture as such Trustee, but the former Trustee shall nevertheless, on the written request of the Issuer, the Credit Provider or the successor Trustee, execute, acknowledge and deliver such instruments of conveyance and further assurance and do such other things as may be reasonably required for more fully and certainly vesting and confirming in the successor Trustee all the right, title and interest of the predecessor Trustee in and to any properties held by it under this Indenture, and shall pay over, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions set forth in this Indenture. Should any deed, conveyance or instrument in writing from the Issuer be required by the successor Trustee for more fully and certainly vesting in and confirming to the successor Trustee any such moneys, estates, properties, rights, powers and duties, any and all such deeds, conveyances and instruments in writing, shall, on request, and as may be authorized by law, be executed, acknowledged and delivered by the Issuer. Section 10.11 Instruments of Bondholders. Any instrument required by this Indenture to be executed by Bondholders may be in any number of writings of similar tenor and may be executed by Bondholders in person or by agents appointed in writing. Proof of the execution of any such instrument or of the writing appointing any such agent and of the ownership of Bonds shall be sufficient for any of the purposes of this Indenture if given by a certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such instrument acknowledged before him the execution of such instrument. The Trustee may rely on such an instrument of Bondholders unless and until the Trustee receives written notice that the original of such instrument is no longer valid. In the event that the Trustee shall receive conflicting directions from two groups of Bondholders, each with combined holdings of not less than 75 DOCSOC/1120730v3124036-0031 25% in aggregate principal amount of all Bonds then Outstanding, the directions given by the group of Bondholders which hold the largest percentage of Bonds Outstanding shall be controlling and the Trustee shall follow such directions as elsewhere required in this Indenture. Section 10.12 Power To Appoint Co-Trustees and Separate Trustees. 10.12.1 Appointment of Co-Trustees. At any time or times, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Mortgaged Property may at the time be located, the Issuer (at the request of the Borrower, unless the Borrower is in default) shall have the power, subject to the approval of the Credit Provider, to appoint one or more persons approved by the Trustee either to act as co-trustee or co-trustees jointly with the Trustee of all or any part of the Mortgaged Property, or to act as separate trustee or separate co-trustees of all or any part of the Mortgaged Property, and to vest in such person or persons, in such capacity, such title to the Mortgaged Property or any part of it, and/or such rights, powers, duties, trusts or obligations as the Issuer and the Trustee may consider necessary or desirable (including, if appropriate, the duties of the Bond Registrar), subject to the remaining provisions of this Section 10.12.1. Upon the request of the Trustee or of Bondholders owning not less than 51 % in aggregate principal amount of Bonds then Outstanding, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effect such appointment. If the Issuer has not joined in such appointment within 30 days after the receipt by it of a request so to do, or in case an Event of Default has occurred and be continuing, subject to the Credit Provider's right to approve, the Trustee alone shall have the power to make such appointment. The Issuer shall execute, acknowledge and deliver all such instruments as may be required by any such co-trustee or separate trustee for more fully confirming such title, rights, powers, trusts, duties and obligations to such co- trustee or separate trustee. Every co-trustee or separate trustee shall, to the extent permitted by law or any applicable contract, be appointed subject to the following terms: (i) All rights, powers, trusts, duties and obligations conferred or imposed upon the trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the Trustee and such co-trustee, or separate trustee, jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-truslee or separate trustee. (ii) Any request in writing by the Trustee to any co-trustee or separate truslee to take or to refrain from taking any action under this Indenture shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-trustee or separate trustee. (iii) Any co-trustee or separate trustee to the extent permitted by law may delegate to the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise. (iv) The Trustee at any time, by an instrument in writing, with the concurrence of the Issuer evidenced by a resolution, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section 10.12.1, and, in case an Event of Default has occurred and is continuing, the Trustee shall have power to accept the resignation of, or remove, any such co- trustee or separate trustee without the concurrence of the Issuer. Upon the request of the Trustee, the Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and 76 DOCSOC/l120730v3124036-0031 agreements necessary or proper to effectuate such resignation or removal; a successor to any co- trustee or separate trustee so resigned or removed may be appointed in the manner provided in this Section 10.12.1. (v) No trustee under this Indenture shall be personally liable by reason of any act or omission of any co-trustee or separate trustee under this Indenture. (vi) Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing executed by any Bondholder and delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee. (vii) Any moneys, papers, securities or other items of personal property received by any such co-trustee or separate trustee under this Indenture shall forthwith, so far as may be permitted by law, be turned over to the Trustee. Upon the acceptance in writing of appointment by any such co-trustee or separate trustee, the co- trustee or separate trustee shall be vested with Ihe pledge and assignment of the Security and with such rights, powers, duties, trusts or obligations as shall be specified in the instrument of appointment, jointly with the Trustee (except insofar as local law makes it necessary for any such co- trustee or separate trustee to act alone), subject to all the terms of this Indenture. Every such acceptance shall be filed with the Trustee, the Issuer, the Credit Provider, the Loan Servicer and the Borrower. 10.12.2 Effect of Death. Incapacitv. Resimation or Removal of Co-Trustee or Separate Trustee. In case any co-trustee or separate trustee dies, becomes incapable of acting, resigns or is removed, the pledge and assignment of the Security and all rights, powers, trusts, duties and obligations of the co-trustee or separate trustee shall, so far as permitted by law, vest in and be exercised by the Trustee unless and until a successor co-trustee or separate trustee is appointed in the same manner as provided for with respect to the appointment of a successor Trustee pursuant to Section 10.8. 10.12.3 Approval of the Issuer. Notwithstanding anything else to the contrary in this Article X, no successor trustee or any co-trustee or separate trustee shall assume its duties under this Indenture without the prior written approval of the Issuer (unless the Issuer is in default under this Indenture, in which case a successor trustee, co-trustee or separate trustee may be appointed by the Trustee without the consent of the Issuer, but with the prior written consent of the Credit Provider). Section 10.13 FiJin!! of Financin!! Statements. From time to time, the Trustee shall file or record or cause to be filed or recorded all financing statements which are required to be filed or recorded in order fully to protect and preserve the security interests relating to the priority of the Mortgage Loan and the Trust Estate, and the rights and powers of the Issuer, the Trustee and the Credit Provider in connection with such security interests, including, but not limited to, all continuation statements for the purpose of continuing without lapse the effectiveness of (a) those financing statements which have been filed at or prior to the Closing Date in connection with the security for the Bonds related to the Trust Estate pursuant to the authority of the UCC, and (b) any previously filed continuation statements which have been filed as required by this Indenture. The Issuer shall sign, and the Trustee or its designee shall obtain from the Borrower, the Loan Servicer or the Credit Provider, all such financing statements as may be required for the purposes specified in the 77 DOCSOC/l120730v3/24036-0031 preceding sentence. Upon the filing of any such financing statement the Trustee shall immediately notify the Issuer, the Borrower, the Loan Servicer and the Credit Provider that the same has been accomplished. If direction for filing is given by the Loan Servicer or the Credit Provider, the Trustee shall file all financing statements in accordance with such directions. Section 10.14 Servicinl! the Mortl!al!e Loan. The Issuer and the Trustee acknowledge that the Loan Servicer, as servicer of the Mortgage Loan, will be responsible to the Credit Provider for the ongoing servicing and administering of the Mortgage Loan, but that the Credit Provider, in its discretion, may contract with another servicer designated by the Credit Provider to perform such functions for the Credit Provider. Any servicing contracts or arrangements by the Credit Provider with such loan servicer for servicing the Mortgage Loan shall constitute a contractual obligation only between the Credit Provider and such loan servicer and neither the Trustee nor the Issuer will be deemed to be a party to such arrangements nor have any claim, right, duty, obligation or liability with respect to the servicing of the Mortgage Loan. Section 10.15 Disclosure Al!reement. The Borrower and the Trustee shall enter into a Disclosure Agreement to provide for the continuing disclosure of information about the Bonds, the Borrower and other matters as specifically provided for in such agreement pursuant to Rule 15c2-12 of the Securities and Exchange Commission. The Trustee is authorized and directed to enter into the Disclosure Agreement and to make information public as provided in the Disclosure Agreement. Under the Disclosure Agreement, the Trustee shall act as the agent of the Borrower and not as the agent of the Issuer. The consent of the Issuer shall be required to each amendment to, or modification of, the Disclosure Agreement, which consent shall not be unreasonably withheld. The duties and obligations of the Trustee under the Disclosure Agreement shall be as set forth in the Disclosure Agreement, and the Trustee shall be responsible only for the express duties and obligations set forth in the Disclosure Agreement. The fees and expenses of the Trustee related to the Disclosure Agreement shall be the responsibility of and be paid by the Borrower. A default under any Disclosure Agreement shall not be a default under this Indenture, the Financing Agreement, any of the other Bond Documents or any of the Mortgage Loan Documents. However, the Trustee, at the written request of any underwriter of the Bonds required to comply with Securities and Exchange Commission Rule l5c-2-12(b)(5) or the holders of at least 25% aggregate principal amount of Outstanding Bonds, shall, but only to the extent indemnified to its reasonable satisfaction by any Bondholder or Beneficial Owner, may take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the Borrower to comply with its obligations under Section 7.2.12 of the Financing Agreement. ARTICLE 11. SUPPLEMENTAL INDENTURES; AMENDMENTS Section 11.1 Supplemental Indentures Not Reauirinl! Bondholder Consent. The Issuer and the Trustee, without the consent of or notice to any of the Bondholders, may enter into an indenture or indentures supplemental to this Indenture for one or more of the following purposes: (i) to cure any ambiguity or to correct or supplement any provision contained in this Indenture or in any supplemental indenture which may be defective or inconsistent with any other provision contained in this Indenture or in any supplemental indenture; 78 DOCSOCIl120730v3/24036-0031 (ii) to amend, modify or supplement this Indenture in any respect if, in the judgment of the Trustee, such amendment, modification or supplement is not materially adverse to the interests of the Bondholders; (iii) to grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon the Bondholders or the Trustee, or to grant or pledge to the Trustee for the benefit of the Bondholders any additional security other than that granted or pledged under this Indenture; (iv) to modify, amend or supplement this Indenture or any supplemental indenture in such manner as to permit the qualification of this Indenture or such supplemental indenture under the Trust Indenture Act of 1939, as amended, or any similar federal statute then in effect, or to permit the qualification of the Bonds for sale under the securities laws of any of the States of the United States; (v) to appoint a successor trustee, separate trustee or co trustee, or a separate Bond Registrar in the manner provided in Article X; (vi) to make any change requested by the Credit Provider which, in the judgment of the Trustee, is not materially adverse to the interests of the Bondholders, including, but not limited to, provision of a Credit Facility other than or in substitution for the Credit Facility then in effect, provided that the provision of such other Credit Facility does not adversely affect the rating then in effect for the Bonds; (vii) to make any change in this Indenture or in the terms of the Bonds necessary or desirable in order to maintain the rating of "AAA" and/or "Aaa" awarded to the Bonds by the Rating Agency or to otherwise comply with the requirements of any Rating Agency then rating the Bonds; (viii) to comply with the Code and the regulations and rulings issued with respect to the Code, to the extent determined as necessary or desirable in the Opinion of Bond Counsel; (ix) to implement any secondary market disclosure, required under applicable law with respect to the Bonds, the Issuer, the Borrower or the Mortgaged Property; (x) to modify the terms of this Indenture or the Bonds to be effective as of a Remarketing Date if a supplemental indenture is executed and delivered at least 30 days prior to such Remarketing Date and notice of the execution and delivery together with a copy of the supplemental indenture or a summary of the provisions of the supplemental indenture is given to all Bondholders and to the Rating Agency not later than the time notice of remarketing of Bonds is given to Bondholders pursuant to Section 2.16.1; (xi) to change any of the time periods for provision of notice relating to: (a) the remarketing of Bonds and (b) the determination of the interest rate on the Bonds; (xii) to change or modify any provision of this Indenture in connection with the remarketing of Bonds following any mandatory tender of the Bonds pursuant to Section 2.16 but only upon the condition that such change is effective only after mandatory purchase; or 79 DOCSOC/1120730v3/24036-0031 (xiii) in connection with any other change in this Indenture which, in the judgment of the Trustee, is not materially adverse to the interests of the Bondholders. If the Trustee has received written confirmation from the Rating Agency to the effect that such supplemental indenture will not result in the suspension, withdrawal or reduction of the then current rating on the Bonds and all conditions precedent in this Section 1l.1 and in Sections 1l.7 and 1l.8 have been satisfied, the Trustee shall join the Issuer in the execution of any such supplemental indenture. The Trustee shall promptly furnish a copy of any such supplemental indenture to the Credit Provider, the Remarketing Agent, the Loan Servicer and the Borrower. The Trustee shall provide not less than 10 days written notice to Bondholders by first class mail of any supplemental indenture executed pursuant to paragraph (vi) above. Section 11.2 SUDDlemental Indentures ReQuirinl! Bondholder Consent. Exclusive of supplemental indentures covered by Section ll.l and subject to the terms and provisions contained in this Section, the Issuer, in its sole discretion, and the Trustee may, with the consent of Bondholders owning 51 % or more in aggregate principal amount of Bonds then Outstanding, from time to time, execute indentures supplemental to this Indenture for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any supplemental indenture, provided that nothing in this Section 1l.2 shall permit, or be construed as permitting: (i) an extension of the maturity of the principal of or interest on, or the mandatory redemption date of, any Bond, without the consent of the owners of all of the Bonds then Outstanding; (ii) a reduction in the principal amount of, or the rate of interest on, any Bond, without the consent of the owner of such Bond; (iii) a preference or priority of any Bond or Bonds over any other Bond or Bonds, without the consent of the owners of all such Bonds; (iv) the creation of a lien prior to or on parity with the lien of this Indenture, without the consent of the owners of all of the Bonds then Outstanding; (v) a change in the percentage of Bondholders necessary to waive an Event of Default or otherwise approve matters requiring Bondholder approval under this Indenture, including consent to any supplemental indenture, without the consent of the owners of all the Bonds then Outstanding; (vi) a transfer, assignment or release of the Credit Facility (or modification of the provisions of this Indenture governing such transfer, assignment or release), other than as permitted by this Indenture, the Assignment or the Credit Facility; (vii) a reduction in the aggregate principal amount of the Bonds required for consent to such supplemental indenlure, without the consent of the holders of all of the Bonds then Outstanding; 80 DOCSOC/1120730v3/24036-0031 (viii) the creation of any lien other than a lien ratably securing all of the Bonds at any time Outstanding under this Indenture, without the consent of the holders of all of the Bonds then Outstanding; or (ix) the amendment of this Section 11.2, without the consent of the holders of all of the Bonds then Outstanding. The giving of notice to and consent of the Bondholders to any such supplemental indenture shall be obtained as provided in Section 11.6. When requested by the Issuer or the Borrower, and if all conditions precedent under this Section 11.2 and Sections 11.7 and 11.8 have been satisfied, the Trustee shall join the Issuer in the execution of any such supplemental indenture. The Trustee shall promptly furnish a copy of any such supplemental indenture to the Credit Provider, the Remarketing Agent, the Loan Servicer and the Borrower. Section 11.3 Amendments to Financinl! Al!reement Not ReQuirinl! Bondholder Consent. The Issuer and the Trustee, without the consent of or notice to any of the Bondholders, (a) may enter into or permit any amendment of the Financing Agreement and (b) shall, at the direction of the Credit Provider, enter into any amendment of the Financing Agreement, for one or more of the following purposes: (i) to cure any ambiguity or to correct or supplement any provision contained in the Financing Agreement which may be defective or inconsistent with any other provision of the Financing Agreement; (ii) to make such other provisions with regard to matters or questions ansmg under the Financing Agreemenl which are not materially adverse to the interests of the Bondholders; (iii) to amend, modify or supplement the Financing Agreement in any respect if, in the judgment of the Trustee, such amendment, modification or supplement is not materially adverse to the interests of the Bondholders; (iv) to grant to or confer upon the Issuer or the Trustee for the benefit of the Bondholders any additional rights, remedies, powers or authority that may lawfully be so granted or conferred, or to grant or pledge to the Issuer or the Trustee for the benefit of the Bondholders any additional security; (v) to make any change requested by the Credit Provider which, in the judgment of the Trustee, is not materially adverse to the interests of Ihe Bondholders; (vi) to comply with the requirements of any Rating Agency then rating the Bonds; (vii) to comply with regulations or rulings issued with respect to the Code, to the extent determined as necessary or desirable in the opinion of Bond Counsel; (viii) to permit the Borrower to enter into a modification of any Mortgage Loan Document on terms approved by the Credit Provider, provided that there has first been delivered to the Trustee (a) written evidence of such approval and the approval by the Credit Provider of the proposed form of amendment and any other documents relating to the amendment and (b) written DOCSOCIl12073Ov3/24036-003! 81 evidence from the Rating Agency that such modifications and any related changes to the terms of the financing will not adversely affect the rating then applicable to the Bonds; or (ix) in connection with any other change which, in the judgment of the Trustee, is not materially adverse to the interests of the Bondholders; provided that if the Trustee has received written confirmation from the Rating Agency to the effect that such amendment to the Financing Agreement will not result in the suspension, withdrawal or reduction of the then current rating on the Bonds and all conditions precedent in this Section 11.3 and in Sections 11.7 and 11.8 have been satisfied, the Trustee shall join the Issuer and the Borrower in the execution of any such amendment. The Trustee shall promptly furnish a copy of any such amendment to the Financing Agreement to the Issuer, the Credit Provider, the Remarketing Agent, the Loan Servicer and the Borrower. Section 11.4 Amendments to Financine: Ae:reement ReQuirine: Bondholder Consent. Except as provided in Section 11.3, the Issuer and the Trustee shall not enter into any other modification or amendment of the Financing Agreement, nor shall any such modification or amendment become effective, without the written consent of the owners of not less than 51 % in aggregate principal amount of Bonds then Outstanding, such consent to be obtained in accordance with Section 11.6. No such amendment may, without the consent of the owners of all the Outstanding Bonds, reduce the amounts or delay the payments on the Mortgage Loan under the Financing Agreement, provided that any such amounts may be reduced without such consent solely to the extent that such reduction (a) results from a partial redemption from other than sinking fund installments or (b) represents a reduction in any fees payable from such amounts (including, but not limited to, a reduction in Set Rate Interest). The Trustee shall provide a copy of any such modification or amendment to the Issuer, the Credit Provider, the Remarketing Agent, the Loan Servicer and the Borrower. Section 11.5 Amendments. Chane:es and Modifications to the Credit Facilitv and the Rel!Ulatorv Al!l"eement. 11.5.1 The Credit Facilitv. The Trustee may, without notice to or the consent of the owners of the Bonds, accept any amendment to the Credit Facility (a) in connection with any change in the Credit Facility, including a revised Mortgage Loan Payment Amortization Schedule to the Credit Facility as a result of a partial prepayment and re amortization of the Mortgage Loan or otherwise or (b) as may be required for purposes of curing any ambiguity, formal defect or omission which is not materially adverse to the interests of the Bondholders or which does not prejudice in any material respect the interests of the Bondholders. Except for such amendments, the Credit Facility may be amended only with the written consent of the owners of not less than 51 % in aggregate principal amount of Bonds then Outstanding, except that, without the written consent of the owners of all Outstanding Bonds, no amendment may be made to the Credit Facility which would reduce the amounts required to be paid under the Credit Facility or change the time for payment of such amounts; provided that any such amounts may be reduced without such consent solely to the extent that such reduction represents a written agreement to reduce fees payable from such amounts. 11.5.2 The Rel!Ulatorv Ae:reement. Subject to the provisions of Section 11.7 and Section 11.8, the Borrower, the Trustee and the Issuer may enter into any amendment or modification of the Regulatory Agreement without the consent of the owners of the Bonds, provided that the Borrower shall furnish to the Trustee and the Issuer (a) an Opinion of Bond Counsel to the effect that 82 DOCSOCIl120730v3/24036-003! such amendment or modification of the Regulatory Agreement will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes and (b) the written consent of the Credit Provider. Section 11.6 Notice to and Consent of Bondholders. If consent of the Bondholders is required under the terms of this Indenture for any supplement, amendment or modification to this Indenture, the Financing Agreement, the Regulatory Agreement or the Credit Facility, or for any other similar purpose, the Trustee shall cause notice of the proposed execution of the supplement, amendment or modification to be given by first class mail to the Bondholders. Such notice shall briefly set forth the nature of the proposed supplement, amendment or modification, and shall state that copies of any such supplement, amendment or modification are on file at the Principal Office of the Trustee for inspection by the Bondholders. If, within 30 days or such longer period as shall be prescribed by the Trustee following the mailing of such notice, the holders of not less than the required percentage of all Bonds then Outstanding, by instruments filed with the Trustee, shall have consented to the supplement, amendment or modification, then the Trustee may execute such supplement, amendment or modification, and the consent of the Bondholders shall be conclusively presumed. The consent of the holder of any Bond shall be binding on any transferee and successor transferees of such Bond. Any other notice required to be delivered to Bondholders pursuant to this Indenture shall be given, or caused to be given, by the Trustee by first class mail. Section 11.7 ReQuired Approvals. No amendment, supplement, change or modification may be made to any Bond Document, Mortgage Loan Document or any other document executed and delivered in connection with the Bonds without the prior written consent of the Credit Provider. Unless a Wrongful Dishonor has occurred and is continuing, the Credit Provider alone may consent to any amendment to the Mortgage Loan Documents and no consent of the Bondholders is required; provided, however, that any amendment or substitution of the Mortgage Note shall occur only following written confirmation of the Rating Agency that such amendment or substitution will not result in a reduction or withdrawal of the rating on the Bonds. Anything in this Indenture to the contrary notwithstanding, a supplement or amendment or other document described under this Article XI which affects any rights or obligations of the Borrower shall not become effective unless and until the Borrower (if the Borrower is not then in default under any Bond Document or any Mortgage Loan Document and if no event shall have occurred which, with notice or the passage of time or both, would constitute such a default shall have occurred and be continuing) has consented in writing to the execution of such supplemental indenture, amendment or other document. Anything in this Indenture to the contrary notwithstanding, a supplement or amendment or other document described under this Article XI which affects any rights or obligations of the Remarketing Agent shall not become effective unless and until the Remarketing Agent (if the Remarketing Agent is not then in default under any Bond Document and if no event shall have occurred which, with notice or the passage of time or both, would constitute such a default shall have occurred and be continuing) has consented in writing to the execution of such supplemental indenture, amendment or other document. The Trustee shall not be required to enter into any supplement or amendment or other document described under this Article XI which is, in the judgment of the Trustee, to the prejudice of the Bondholders or the Trustee. Section 11.8 Opinions of Counsel. Subject to the provisions of Section 10.1, the Trustee may obtain, at the Borrower's expense, and shall be fully protected in relying upon, an Opinion of Counsel as conclusive evidence that any supplement or amendment to this Indenture, the Financing Agreement, the Regulatory Agreement or the Credit Facility at the time in effect is authorized and permitted by this Indenture and, if applicable, is not materially adverse to the interests of the 83 DOCSOC/l120730v3/24036-0031 Bondholders. No supplement or amendment with respect to this Indenture, the Financing Agreement, the Regulatory Agreement or the Credit Facility at the time in effect shall be effective until the Issuer and the Trustee shall have received an Opinion of Bond Counsel to the effect that such supplement or amendment will not adversely affect the exclusion from gross income, for federal income tax purposes, of the interest payable on the Bonds. Such Opinion of Bond Counsel shall be addressed to, or a reliance letter shall be delivered to, the Credit Provider. Section 11.9 Notation of Modification on Bonds: Preparation of New Bonds. Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article XI may bear a notation, in form approved by the Trustee and the Issuer as to any matter provided for in such supplemental indenture, and if such supplemental indenture shall so provide, new Bonds, so modified as to conform, in the opinion of the Trustee and the Issuer, to any modification of this Indenture contained in any such supplemental indenture, may be prepared by the Issuer, authenticated by the Trustee and delivered without cost to the Bondholders, upon surrender for cancellation of such Bonds in equal aggregate principal amounts. ARTICLE 12. MISCELLANEOUS Section 12.1 Consents. Etc.. of Bondholders. Any consent, request, direction, approval, objection or other instrument required by this Indenture to be signed and executed by the Bondholders may be in any number of concurrent writings of similar tenor and may be signed or executed by any Bondholder in person or by an authorized agent appointed in writing. Proof of the execution of any such consent, request, direction, approval, objection or other instrument or of the writing appointing any such agent and of the ownership of Bonds, if made in the following manner, shall be sufficient for any of the purposes of this Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken by it under such consent, request, direction, approval, objection or other instrument: (i) the fact and date of the execution by any person of any such request, consent, direction, approval, objection or other instrument may be proved by the certificate of any officer in any jurisdiction who by law has power to take acknowledgments within such jurisdiction that the person signing such writing acknowledged before such officer its execution, or by an affidavit of any witness to such execution; and (ii) the fact of ownership of Bonds and the amount or amounts, numbers or other identification of Bonds, and the date of owning the same shall be proved by the Bond Register. Section 12.2 Limitation of Ril!hts. With the exception of rights expressly conferred in this Indenture, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is intended or shall be construed to give to any Person other than the Issuer, the Trustee, the Bondholders, the Credit Provider, the Loan Servicer and the Borrower any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenants, conditions and provisions contained in this Indenture. This Indenture and all of the covenants, conditions and provisions in this Indenture are intended to be for the sole and exclusive benefit of Ihe parties to this Indenture, the Bondholders, the Credit Provider and the Borrower as provided in this Indenture. The Credit Provider is a third party beneficiary of this Indenture with the right to enforce its provisions. 84 DOCSOC/I120730v3/24036-0031 Section 12.3 Severabilitv. If any provision of this Indenture is held to be in conflict with any applicable constitution or statute or rule of law, or is otherwise held to be unenforceable for any reason, such circumstance shall not have the effect of rendering the provision in question inoperative or unenforceable in any other part or circumstance, or of rendering any other provision or provisions contained in this Indenture invalid, inoperative or unenforceable to any extent whatsoever. The invalidity of anyone or more phrases, sentences, clauses or Sections of this Indenture shall not affect the remaining portions of this Indenture. Section 12.4 Notices. Unless otherwise specified in this Indenture, it shall be sufficient service or giving of any notice, request, certificate, demand or other communication if the same shall be sent by (and all notices required to be given by mail shall be given by) first-class registered or certified mail, postage prepaid, return receipt requested, or by private courier service which provides evidence of delivery, or sent by telecopy or other Electronic Means which produces evidence of transmission, confirmed by first-class mail, and in each case shall be deemed to have been given on the date evidenced by the postal or courier receipt or other written evidence of delivery or electronic transmission. Unless a different address is given by any party as provided in this Section 12.4, all such communications shall be addressed as follows: To the Issuer: Housing Authority of the City of Chula Vista 430 Davidson Street, Suite B Chula Vista, CA 91910 To the Trustee: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, CA 90071 Attention: Corporate Trust Services To the Remarketing Agent; Red Capital Markets, Inc. Two Miranova Place, 12th Floor Columbus, Ohio 43215 Attention: Remarketing Desk Telephone: (614) 857-1601 Facsimile: (614) 857-1605 To the Borrower: CIC Eastlake, L.P. c/o Chelsea Investment Corporation 215 South Highway 101, Suite 200 Solano Beach, CA 92075 Attention: Wallace C. Dieckman with a copy to: SDS Eastlake, LLC clo Red Capital Markets, Inc. 150 East Gay Street, 22nd Floor Columbus, Ohio 43215 85 DOCSOCil120730v3/24036-0031 To the Rating Agencies: To the Credit Provider: with a copy to: with a copy to; DOCSOCilI20730v3124036-0031 Standard & Poor's Rating Services 55 Water Street 38th Floor New York, NY 10041 Attention: Public Finance Surveillance Group Telephone: (212) 438-2054 Facsimile: (212) 438-2157 Moody's Investor Services 99 Church Street New York, NY 10007 Attention: Fully Supported Group Telephone: (212) 553-4441 Facsimile: (212) 553-4090 Fannie Mae 3900 Wisconsin Avenue, NW Drawer AM Washington, D.C. 20016-2899 Attention: Director, Multifamily Asset Management Telephone; (202) 752-2854 Facsimile: (202) 752-3542 RE: $1,715,000 Housing Authority of the City ofChula Vista Multifamily Revenue Bonds (Rancho Vista Apartroents) Series 2005A/Red Mortgage Capital, Inc. Fannie Mae 3900 Wisconsin A venue, NW Drawer AM Washington, D.C. 20016-2899 Attention: Vice President, Multifamily Operations Telephone; (202) 752-7869 Facsimile: (202) 752-8369 RE: $1,715,000 Housing Authority of the City ofChula Vista Multifamily Revenue Bonds (Rancho Vista Apartments) Series 2005A/Red Mortgage Capital, Inc. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, California 90071-2899 Attention; Ms. Debbie J. Gezon Telephone: (213) 430-6492 Facsimile: (213) 430-6407 86 provided, however, that any notice required to be delivered to the Credit Provider pursuant to Section 2.l6( 1)( I) will also be sent to: Fannie Mae 3900 Wisconsin Avenue, N.W. Washington, DC 20016-2899 Attention: Director, Fiscal Agency Relations and Treasury Backoffice Telephone: (202) 752-7916 Facsimile: (202) 752-6087 RE; $1,715,000 Housing Authority of the City ofChula Vista Multifamily Revenue Bonds (Rancho Vista Apartments) Series 2005A/Red Mortgage Capital, Inc. To the Loan Servicer: Red Mortgage Capital, Inc. Two Miranova Place, 12th Floor Columbus, OH 43215 Attention: President Telephone; (614) 857-1610 Facsimile: (614) 857-1420 Copies of all notices given to the Credit Provider and copies of copies of all notices given to Credit Provider shall be given concurrently to the Loan Servicer. The Issuer, the Trustee, the Borrower, the Credit Provider and the Loan Servicer, by notice given under this Indenture, may designate any different addresses to which subsequent notices, certificates, requests, demands or other communications shall be sent, but no notice directed to anyone such entity (except for the Credit Provider) shall be required to be sent to more than two addresses. All approvals required under this Indenture shall be given in writing. Section 12.5 Action Required to be taken on a Non-Business Dav. In any case where any Bond Payment Date, any Remarketing Date or any date on which action is required to be taken or on which payments are required to be made in connection with a remarketing of Bonds shall be a day other than a Business Day, then any action required to be taken or any payment required to be made on such date need not be taken or made on such date, but may be taken or made on the next succeeding Business Day with the same force and effect as if made or taken on the date otherwise provided for in this Indenture and, in the case of any payment date, no interest shall accrue for the period on and after such date. Section 12.6 Bindinl! Effect. This Indenture shall from and after the Closing Date be binding upon the Issuer and the Trustee and their respective successors and assigns, subject, however, to the limitations contained in this Indenture. Section 12.7 Governinl! Law. This Indenture shall be governed by and interpreted in accordance with internal laws of the State without regard to conflicts of laws principles. 87 DOCSOCilI20730v3/24036-0031 Section 12.8 No Personal Liabilitv: No Recourse. No recourse under or upon any obligation, covenant, warranty or agreement contained in this Indenture or in any Bond, or under any judgment obtained against the Issuer, or the enforcement of any assessment, or any legal or equitable proceedings by virtue of any constitution or statute or otherwise, or under any circumstances under or independent of this Indenture, shall be had against the governing body of the Issuer or any of the members, officers, agents or employees of the Issuer, as such, past, present or future of the Issuer, either directly or through the Issuer or otherwise, for the payment for or to the Issuer or any receiver of the Issuer, or for or to the owner of any Bond, or otherwise, of any sum that may be due and unpaid by the Issuer upon any such Bond. Any and all personal liability of every nature whether at common law or in equity or by statute or by constitution or otherwise of the governing body of the Issuer or of any such member, officer, agent or employee, as such, by reason of any act of omission on his or her part or otherwise, for the payment for or to the owner of any Bond or otherwise of any sum that may remain due and unpaid upon the Bonds secured by this Indenture or any of them is, by the acceptance of such Bond, expressly waived and released as a condition of and in consideration for the execution of this Indenture and the issuance of the Bonds. Anything in this Indenture to the contrary notwithstanding, it is expressly understood by the parties to this Indenture that (a) the Issuer may rely exclusively on the truth and accuracy of any certificate, opinion, notice or other instrument furnished to the Issuer by the Trustee or any Bondholder as to the existence of any fact or state of affairs, (b) the Issuer shall not be under any obligation under this Indenture to perform any record keeping or to provide any legal services, it being understood that such services shall be performed or caused to be performed by the Trustee or by the Bondholders and (c) none of the provisions of this Indenture shall require the Issuer to expend or risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers under this Indenture, unless it shall first have been adequately indemnified to its satisfaction against any costs, expenses and liability which it may incur as a result of taking such action. No recourse for the payment of any part of the principal of, premium, if any, or interest on the Bonds or for the satisfaction of any liability arising from, founded upon or existing by reason of the issuance, purchase or ownership of the Bonds shall be had against the governing body of the Issuer or any officer, member, agent or employee of the Issuer, as such, all such liability being expressly released and waived as a condition of and as a part of the consideration for the execution of this Indenture and the issuance of the Bonds. No covenant, stipulation, obligation or agreement of the Issuer contained in this Indenture shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future member, officer, agent or employee of the Issuer or the governing body of the Issuer in other than that person's official capacity. No member, officer, agent or employee of the Issuer shall be individually or personally liable for the payment of the principal or redemption price of or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds. Section 12.9 Captions. The captions or headings in this Indenture are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this Indenture. Section 12.10 Counterparts. This Indenture may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 12.11 Qualified Proiect Costs. The Borrower has covenanted in the Financing Agreement that the proceeds of the Bonds shall be used exclusively to pay costs which (i) are (A) capital expenditures (as defined in Treasury Regulation Section 1.150-I(a)) and (B) not made for the acquisition of existing property, to the extent prohibited in Section 147(d) of the Code, and 88 DOCSOCilI20730v3/24036-0031 (ii) are made exclusively with respect to a "qualified residential rental project" within the meaning of Section 142(d) of the Code and that for the greatest number of buildings the proceeds of the Bonds shall be deemed allocated on a pro rata basis to each building in the Project and the land on which it is located so that each building and the land on which it is located will have been financed 50% or more by the proceeds of the Bonds for the purpose of complying with Section 42(h)(4)(B) of the Code. Notwithstanding anything in the foregoing to the contrary, such covenant is made for the benefit of the Borrower and its partners and neither the Trustee nor the Issuer shall have any obligation to enforce this statement nor shall they incur any liability to any person, including without limitation, the Borrower, the partners of the Borrower, any other affiliate of the Borrower or the holders of the Bonds for any failure to meet the intent expressed in the foregoing covenant. 89 DOCSOCil120730v3124036-0031 The Issuer has caused this Indenture to be executed in its name and on its behalf by its duly authorized officer, and the Trustee has caused this Indenture to be executed in its name by its duly authorized officer, all as of the date set forth above. HOUSING AUTHORITY OF THE CITY OF CHULA VISTA BY: Executive Director Attest; Secretary WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee BY: Authorized Officer DOCSOCilI20730v3124036-0031 S-I EXHIBIT A FORM OF BOND HOUSING AUTHORITY OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS (RANCHO VISTA APARTMENTS) SERIES 2005A $ No. CUSIP Dated: Maturity Date: Interest Rate: _ % per annum Payment Dates; Commencing: REGISTERED OWNER; CEDE & CO. PRINCIPAL AMOUNT: DOLLARS ($ ) Unless this Bond is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Trustee for registration, transfer, exchange or payment, and any Bond issued is registered in the name of Cede & Co. or in the name of such other entity as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE OF THIS BOND FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the Registered Owner of this Bond, Cede & Co., has an interest in this Bond. Capitalized terms used in this Bond but not defined in this Bond shall have the meanings given to those terms in the Indenture. FOR VALUE RECEIVED, the HOUSING AUTHORITY OF THE CITY OF CHULA VISTA (the "Issuer"), a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "State"), promises to pay to the registered owner identified above or registered assigns (subject to prior redemption as provided in the Indenture (as defined below)), on the Maturity Date set forth above, the Principal Amount set forth above, and to pay interest on the Principal Amount from the Interest Payment Date (being each June I and December I, commencing on [ _,2005], provided that if the date of authentication is an Interest Payment Date for which interest has been paid or is after the Record Date (being the 15th day of the month prior to an Interest Payment Date), but prior to the next Interest Payment Date, this Bond shall bear interest from such Interest Payment Date, provided further that if the date of authentication is prior to the Record Date for the first Interest Payment Date, this Bond shall bear interest from the Dated Date of this Bond. Interest shall be calculated on the basis of a 360 day year consisting of twelve 30 day months. If at the time of authentication of this Bond, interest on this A-I DOCSOC/1120730v3/24036-0031 Bond is in default, this Bond will bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment, or if no interest has theretofore been paid on this Bond, from the Dated Date of this Bond. The Bonds (as defined below) are issued as registered bonds without coupons in denominations of $5,000 or any integral multiple of $5,000. The principal of, premium, if any, and the interest on this Bond are payable in lawful money of the United States of America to the person in whose name this Bond is registered at the close of business on the Bond Register on the applicable Record Date. Payment of the: (i) interest on this Bond will be made to the Registered Owner of this Bond (as determined at the close of business on the Record Date next preceding the applicable Interest Payment Date) by check mailed by first class mail, postage prepaid, on the Interest Payment Date to the address of such Registered Owner as it appears on the Bond Register maintained by the Trustee as Bond Registrar, or to such other address as may be furnished in writing by the Registered Owner to the Trustee prior to the applicable Record Date; and (ii) principal amount of this Bond and premium, if any, together with interest payable on any Bond Payment Date other than a regularly scheduled Interest Payment Date, will be made by check only upon presentation and surrender of this Bond on or after its maturity date or date fixed for purchase or redemption at the office of the Trustee designated by the Trustee for that purpose; provided, however, that payment of principal of, premium, if any, and interest on this Bond on any Bond Payment Date will be made by wire transfer to any account within the United States of America designated by the Registered Owner if such Registered Owner owns $1,000,000 or more in aggregate principal amount of Bonds and if a written request for wire transfer is delivered to the Trustee by such Registered Owner not less than five days prior to the applicable Bond Payment Date and if such Registered Owner otherwise complies with the reasonable requirements of the Trustee (such request may specify that it is effective with respect to all succeeding payments of principal, premium, if any, and interest and will be so effective unless and until rescinded in writing by the Registered Owner at least five days prior to the Record Date for the Bond Payment Date to which such rescission is designated to apply). Notwithstanding the foregoing, so long as this Bond is subject to the Book-Entry System, payments of the principal of and interest on this Bond will be made in accordance with the rules, regulations and procedures established by the Securities Depository in connection with the Book-Entry System. If interest on this Bond is in default, the Trustee will, prior to the payment of interest, establish a special record date (the "Special Record Date") for such payment, which Special Record Date will be not more than fifteen (15) nor less than ten (10) days prior to the date of the proposed payment. Payment of such defaulted interest will then be made by check or wire transfer, as permitted above, mailed or remitted to the person in whose name this Bond is registered on the Special Record Date at the address or account of such person shown on the Bond Register. Upon final payment of the principal of and interest on this Bond, it shall be surrendered to the Trustee for cancellation. The term "Bond Payment Date" means any (a) Interest Payment Date, (b) other date on which interest is payable, including any Redemption Date, each Maturity Date and the date of acceleration of the Bonds and (c) date on which principal of the Bonds is payable. DOCSOC/1120730v3124036-0031 A-2 THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES, RECEIPTS AND OTHER MONEYS PLEDGED THEREFOR UNDER THE INDENTURE. THE BONDS ARE NOT A DEBT OF THE STATE, THE ISSUER OR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE, AND NEITHER THE STATE, THE ISSUER NOR ANY OTHER POLITICAL SUBDIVISION OF THE STATE IS LIABLE FOR THE PAYMENT OF THE BONDS. NEITHER THE FAITH AND CREDIT OF THE STATE, THE ISSUER NOR OF ANY OTHER POLITICAL SUBDIVISION OF THE STATE ARE PLEDGED TO THE PAYMENT OF THE PRINCIPAL OR OF INTEREST ON THE BONDS. This Bond is one of a duly authorized issue of bonds of the Issuer designated as its Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A (the "Bonds"). The Bonds are issued pursuant to and in compliance with the Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code and a resolution duly adopted by the Issuer. The Net Bond Proceeds will be used to fund the Mortgage Loan to CIC Eastlake, L.P. (the "Borrower"), a California limited partnership, to provide financing for the acquisition, construction and equipping of a multifamily housing facility (the "Mortgaged Property") to be located in the City of Chula Vista, California to be owned by the Borrower. The Mortgage Loan originally will be in the amount of $1,715,000 and, will be made pursuant to a Financing Agreement (the "Financing Agreement"), dated as of September 1, 2005, by and among the Issuer, the Trustee and the Borrower. The Bonds are issued under and are equally and ratably secured as to principal, premium, if any, and interest by a Trust Indenture (the "Indenture"), dated as of September 1, 2005, between the Issuer and the Trustee, to which Indenture and all indentures supplemental to such Indenture (copies of which are on file at the Principal Office of the Trustee) reference is made for a description of the Trust Estate under the Indenture, the nature and extent of the security, the terms and conditions upon which the Bonds are issued and secured, and the rights of the owners of the Bonds. Fannie Mae ("Fannie Mae" or the "Credit Provider") provides credit enhancement for the Mortgage Loan and liquidity support for the Bonds Outstanding on each Remarketing Date so long as the Credit Facility remains in effect, pursuant to, and subject to the limitations of, a Credit Enhancement Instrument (Stand-By), dated , issued by the Credit Provider to the Trustee. The Mortgage Loan is (a) being made pursuant to and in accordance with the Financing Agreement, in accordance with the requirements of the Credit Provider and subject to the terms and conditions of the Fannie Mae Commitment, (b) originated by the Issuer, (c) evidenced by the Mortgage Note, (d) secured by the Mortgage and (e) otherwise documented, evidenced and secured by the other Mortgage Loan Documents. The Bonds are secured by, among other property comprising the Trust Estate and the security for the Bonds, the following; (a) the Mortgage Loan, (b) the Credit Provider's credit enhancement of the Mortgage Loan and liquidity support for Bonds Outstanding on each Remarketing Date so long as the Credit Facility is in effect, pursuant to the Credit Facility, (c) the Net Bond Proceeds, to the extent not disbursed to the Borrower, (d) the Revenues and any other moneys received by the Trustee for the payment of the principal of and interest on the Bonds, (e) amounts otherwise on deposit in the Funds and Accounts (other than moneys on deposit from time to time, the Rebate Fund, the Costs of Issuance Deposit Account of the Costs of Issuance Fund and the Fees Account) and (f) Investroent Income (excluding Investment Income earned on amounts on deposit in the Rebate Fund and A-3 DOCSOCII120730v3/24036-0031 Investment Income eamed on amounts on deposit in the Costs of Issuance Deposit Account of the Costs of Issuance Fund). PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON, THE BONDS IS NOT GUARANTEED BY FANNIE MAE. FANNIE MAE'S SOLE OBLIGATION WITH RESPECT TO THE MORTGAGE LOAN AND THE BONDS WILL BE CONTAINED IN THE CREDIT FACILITY, SO LONG AS IT IS IN EFFECT. THE OBLIGATIONS OF FANNIE MAE ARE NOT BACKED BY THE FULL FAITH AND CREDIT OF THE UNITED STATES OF AMERICA, BUT BY THE CREDIT OF FANNIE MAE, A FEDERALLY CHARTERED, STOCKHOLDER-OWNED CORPORATION. FANNIE MAE HAS NO OBLIGATION, DIRECTLY OR INDIRECTLY, TO PURCHASE ANY OF THE BONDS. Establishment of Interest Rate in Connection with Remarketing. The interest rate on the Bonds is, on each Remarketing Date, to, but not including, the earlier of the next succeeding Remarketing Date, maturity date or redemption date, subject to adjustroent to a new interest rate, such adjusted interest rate to be the Remarketing Rate established by the Remarketing Agent in accordance with the Indenture. The establishment of the Remarketing Rate and the Remarketing Period in the manner set forth in the Indenture shall be conclusive and binding for the Trustee, the Issuer and the Bondholders. THE OWNER OF THIS BOND IS REQUIRED TO TENDER THIS BOND TO THE TRUSTEE FOR MANDATORY PURCHASE ON THE INITIAL REMARKETING DATE AND ON EACH SUCCEEDING REMARKETING DATE, IF ANY, AT A PURCHASE PRICE EQUAL TO 100% OF THE OUTSTANDING PRINCIPAL BALANCE OF THIS BOND PLUS, IF SUCH REMARKETING DATE IS OTHER THAN AN INTEREST PAYMENT DATE, ACCRUED INTEREST ON THIS BOND FROM THE PRECEDING INTEREST PAYMENT DATE TO WHICH INTEREST HAS BEEN PAID. THE INDENTURE REQUIRES THAT THE TRUSTEE GIVE NOTICE BY MAIL TO EACH REGISTERED OWNER OF AN OUTSTANDING BOND NOT LESS THAN 30 DAYS PRIOR TO THE INITIAL REMARKETING DATE AND EACH SUCCEEDING REMARKETING DATE, IF ANY, THAT THE BONDS ARE REQUIRED TO BE TENDERED FOR PURCHASE ON THE REMARKETING DATE. SUCH NOTICE WILL CONTAIN INSTRUCTIONS FOR DELIVERY OF BONDS FOR PURCHASE ON THE REMARKETING DATE. ANY BOND NOT TENDERED ON A REMARKETING DATE WILL BE DEEMED TO HAVE BEEN TENDERED FOR PURCHASE AND WILL CEASE TO BEAR INTEREST ON AND AFTER THE DATE OF PURCHASE OF SUCH BOND AS PROVIDED IN THE INDENTURE. The Bonds are subject to optional and mandatory redemption in whole or in part, on the dates, under the terms and conditions and at the redemption prices set forth in the Indenture, all of the provisions of which are, by this reference, incorporated into this Bond. Notice of redemption will be given in the manner set forth in the Indenture. Registration; Transfer and Exchange. The Trustee is the Bond Registrar for the Bonds and will keep the Bond Register for the registration of the Bonds and for the registration of transfer of Bonds. A-4 DOCSOC1l120730v3124036-0031 Subject to the express limitations contained in the Indenture, any Bondholder or its attorney duly authorized in writing may transfer title to a Bond on the Bond Register kept by the Trustee, upon surrender of the Bond at the office of the Trustee designated by the Trustee for that purpose, together with a written instrument of transfer (in substantially the form of assignment, including signature guarantee, attached to the Bond) satisfactory to the Trustee executed by the Bondholder or its attorney duly authorized in writing, and upon surrender for registration of transfer of any Bond, the Issuer will execute and the Trustee will authenticate and deliver in the name of the transferee or transferees a new Bond or Bonds of the same aggregate principal amount, rate of interest, maturity, series and tenor as the Bond surrendered and of any Authorized Denomination. Transfers of an interest in the Bonds will be in principal amounts equal to any Authorized Denomination. Subject to the express limitations contained in the Indenture, Bonds may be exchanged upon surrender of such Bonds at the office of the Trustee designated by the Trustee for that purpose together with a written instrument of transfer (in substantially the form of assignment, including signature guarantee, attached to the Bond) satisfactory to the Trustee, executed by the Bondholder or its attorney duly authorized in writing, for an equal aggregate principal amount of Bonds of the same aggregate principal amount, rate of interest, maturity, series and tenor as the Bonds being exchanged and of any Authorized Denomination. The Issuer will execute and the Trustee will authenticate and deliver Bonds which the Bondholder making the exchange is entitled to receive, bearing numbers not contemporaneously then outstanding. The Trustee is not required to register any transfer or exchange of any Bond (or portion of any Bond) called for redemption. Registrations of transfers or exchanges of Bonds will be without charge to the Bondholders, but any taxes or other governmental charges required to be paid with respect to a transfer or exchange must be paid by any Bondholder requesting the registration of transfer or exchange as a condition precedent to the exercise of such privilege. Any service charge made by the Trustee for any such registration, transfer or exchange will be paid by the Borrower. Ownership of Bond. The person in whose name this Bond is registered on the Bond Register will be deemed and regarded as the absolute owner of this Bond for all purposes, and payment of or on account of either principal or interest will be made only to or upon the order of such person or its attorney duly authorized in writing, but such registration may be changed as provided in the Indenture. Acceleration. Under certain circumstances as described in the Indenture, the principal of all of the Bonds may be declared due and payable in the manner and with the effect provided in the Indenture. Immediately following any such declaration of acceleration, the Trustee will mail notice of such declaration by registered mail, overnight delivery service or other secure means, or by Electronic Means, to each registered owner of Bonds at such registered owner's last address appearing on the Bond Register. Any defect in or failure to give such notice of such declaration will not affect the validity of such declaration. Waiver. The Indenture contains provisions permitting the Trustee to waive compliance with certain provisions of the Indenture and their consequences. Amendments. The Indenture permits, with certain exceptions provided in the Indenture, supplements to the Indenture and amendments to the Financing Agreement with the consent of the A-5 DOCSOCIl120730v3/24036-0031 registered owners of fifty-one percent (51 %) or more in aggregate principal amount of Bonds then Outstanding which are affected by such supplement or amendment. The Indenture also permits supplements to the Indenture and amendments to the Financing Agreement and other documents without requiring the consent of any Bondholders in certain specifically described instances. Limitations on Enforcement. The Registered Owner of this Bond will have no right to enforce the provisions of the Indenture or the Financing Agreement, or to institute any proceeding in equity or at law for the enforcement of the Indenture or the Financing Agreement, or to take any action with respect to an event of default under the Indenture or the Financing Agreement, or to institute, appear in or defend any suit or other proceeding with respect to the Indenture or the Financing Agreement upon an event of default, except under certain limited circumstances provided in the Indenture. Consent. The Registered Owner of this Bond, by acceptance of this Bond, consents to all of the terms and provisions of the Indenture and the Financing Agreement. Exculpation. No recourse shall be had for the payment of the principal of or the interest on this Bond, or for any claim based on this Bond, or otherwise in respect of this Bond, or based on or in respect of the Indenture or any supplemental indenture, against the general credit of the Issuer or against any member, officer, employee or agent, as such, past, present or future, of the Issuer or any successor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance of this Bond and as part of the consideration for the issue of this Bond, expressly waived and released. NO MEMBER, OFFICER, AGENT, EMPLOYEE OR ATTORNEY OF THE ISSUER, INCLUDING ANY PERSON EXECUTING THE INDENTURE OR THE BONDS, SHALL BE LIABLE PERSONALLY ON THE BONDS OR FOR ANY REASON RELATING TO THE ISSUANCE OF THE BONDS. NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS, OR FOR ANY CLAIM BASED ON THE BONDS, OR OTHERWISE IN RESPECT OF THE BONDS, OR BASED ON OR IN RESPECT OF THE INDENTURE OR ANY SUPPLEMENTAL INDENTURE, AGAINST ANY MEMBER, OFFICER, EMPLOYEE OR AGENT, AS SUCH, OF THE ISSUER OR ANY SUCCESSOR, WHETHER BY VIRTUE OF ANY CONSTITUTION, STATUTE OR RULE OF LAW, OR BY THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, ALL SUCH LIABILITY BEING, BY THE ACCEPTANCE OF THIS BOND AND AS PART OF THE CONSIDERATION FOR THE ISSUE OF THE BONDS, EXPRESSLY WAIVED AND RELEASED. It is certified, recited and declared that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law and that the issuance of this Bond, together with all other obligations of the Issuer, does not exceed or violate any constitutional or statutory limitation. This Bond shall not be entitled to any benefit under the Indenture or become valid or obligatory for any purpose until such Bond shall have been authenticated by the certificate of the Trustee endorsed on it. DOCSOC/112073Ov3/24036_0031 A-6 The Issuer has caused this bond to be duly executed in its name by the facsimile signature of its Executive Director under its official seal, or a facsimile, and attested by the facsimile signature of its Secretary all as of September I, 2005. HOUSING AUTHORITY OF THE CITY OF CHULA VISTA Executive Director Attest: Secretary DOCSOCII120730v3124036-0031 A-7 CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the issue described in the within-mentioned Indenture. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory Authentication Date: FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto the within Bond and all rights thereunder and hereby irrevocably constitutes and appoints to transfer the within mentioned Bond on the books kept for registration thereof with full power of substitution in the Premises. Please insert social security or other identifying number of assignee: Dated: NOTICE: The signature to this Assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. Signature Guaranteed: DOCSOCI1120730v3124036-0031 A-8 EXHmIT B FORM OF REQUISITION (Costs of Issuance Fund) Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, CA 90071 Re: Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments), Series 2005A Gentlemen: You are requested to disburse funds from the Costs of Issuance Fund pursuant to Section 3.04 of the Indenture in the amount(s), to the person(s) and for the purpose(s) set forth in this requisition (the "Requisition"). The terms used in this requisition shall have the meaning given to those terms in the Trust Indenture (the "Indenture"), dated as of September 1, 2005, by and between the Housing Authority of the City of Chula Vista and Wells Fargo Bank, National Association, as Trustee, securing the above-referenced Bonds. 1. REQUISITION NO.; 2. PAYMENT DUE TO: 3. AMOUNT TO BE DISBURSED: $ 4. The undersigned certifies that: (i) the expenditures for which moneys are requisitioned by this Requisition represent proper charges against the Costs of Issuance Fund, have not been included in any previous requisition, have been properly recorded on the Borrower's books- and are set forth in Schedule I attached to this Requisition, with paid invoices attached for any sums for which reimbursement is requested; - (ii) the moneys requisitioned are not greater than those necessary to meet obligations due and payable or to reimburse the Borrower for its funds actually advanced for Costs of Issuance; and (iii) the Borrower is not in default under the Financing Agreement, the Regulatory Agreement or the Mortgage Loan Documents and nothing has occurred to the knowledge of the Borrower that would prevent the performance of its obligations under the Financing Agreement, the Regulatory Agreement or the Mortgage Loan Documents. DOCSOCIl120730v3/24036_0031 B-1 5. Attached to this Requisition is Schedule I, together with copies of invoices or bills of sale covering all items for which payment is being requested. DATE OF REQUISITION: CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California non-profit public benefit corporation, its Managing General Partner By; Brian F. Biber Its: Executive Director/President By; SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager DOCSOC/1120730v3/24036_003! B-2 SCHEDULE TO REQUISITION CERTIFICATE ITEM OF COST OF ISSUANCE: AMOUNT: I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 DOCSOCIl!20730v3/24036_003! B-3 EXHIBIT C CASH FLOW PROJECTION DOCSOC/1120730v3124036-0031 C-l EXHIBIT 9 Stradling Yocca Carlson & Rauth Draft dated August 2, 2005 FINANCING AGREEMENT Among HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, as Issuer WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee and CIC EASTLAKE, L.P., as Borrower Relating to $1,715,000 HOUSING AUTHORITY OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS (RANCHO VISTA APARTMENTS) SERIES 2005A Dated as of September 1, 2005 DOCSOCIl120733v3124036_0031 FINANCING AGREEMENT This FINANCING AGREEMENT, dated as of September I, 2005, HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (together with its successors and assigns, the "Issuer"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (together with its successors and assigns, the "Trustee"), as trustee under the Trust Indenture, dated the date hereof, between the Issuer and the Trustee (the "Indenture"), and CIC EASTLAKE, L.P., a California limited partnership (together with its successors and assigns, the "Borrower"). THE MEANING OF CAPITALIZED TERMS CAN BE DETERMINED BY REFERENCE TO SECTION 1.2. RECITALS: A. As more fully set forth in the Indenture, the Issuer has determined to issue the Bonds and to lend the Net Bond Proceeds to the Borrower pursuant to and in accordance with the terms and conditions of this Financing Agreement and the Mortgage Loan Documents. B. The parties to this Financing Agreement acknowledge the matters set forth in the Recitals to the Indenture. The parties to this Financing Agreement, in consideration of the promises and the mutual covenants and comrnitroents of the parties set forth in this Financing Agreement, the receipt and sufficiency of which are acknowledged by the parties to this Financing Agreement, agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION Section 1.1 Incorporation of Recitals. The Recitals to the Indenture and this Financing Agreement are, by this reference, incorporated into and deemed a part of this Financing Agreement. Section 1.2 Definitions. All capitalized terms used in this Financing Agreement shall have the meanings given to those terms in this Section 1.2 or as elsewhere defined in this Financing Agreement unless the context or use clearly indicates a different meaning. Certain capitalized terms used and not otherwise defined in this Financing Agreement are defined in the Indenture. "Borrower Documents" means the Bond Documents to which the Borrower is a party, the Mortgage Loan Documents to which the Borrower is a party and all other documents to which the Borrower is a party and which are being executed and delivered by the Borrower in connection with the transactions provided for in the Bond Documents and the Mortgage Loan Documents. "Event of Default" means any event of default specified and defined in Section 13.1.1. "Facility Fee" has the meaning given to that term in the Mortgage Note. "Indemnified Party" has the meaning given to that term in Section 9.1. DOCSOCIl120733v3/24036-0031 "Key Principal" has the meaning given to that term in the Security Instrument. "Mortgage Loan Documents" means, collectively, the Mortgage Note, the Security Instrument and all other agreements and instruments, including any Collateral Agreements (as defined in the Security Instrument), documenting, evidencing, securing, arising under, made in connection with or otherwise relating to the Mortgage Loan, as each such agreement or document may be amended, modified, supplemented, or restated from time to time, but excluding this Financing Agreement and the Regulatory Agreement. "Mortgage Loan Term" means the period from the Closing Date to and including the maturity date of the Mortgage Loan. "Mortgage Note Rate" means the per annum rate of interest set forth in the Mortgage Note. "Pass-Through Rate" has the meaning given to that term in paragraph (i) of Section 4.2.2. "Permitted Liens" has the meaning given to that term in the Reimbursement Agreement. "Project Purposes" means use of the Mortgaged Property as a multifamily residential rental property for persons and families of low and moderate income, or any other use of the Mortgaged Property which will not (a) cause the Mortgaged Property to cease to qualify for financing under the Act or (b) cause the interest on .the Bonds to become includable for federal income tax purposes in the gross income of the Bondholders (other than a holder who is a "substantial user" of the Mortgaged Property or a "related person" as such terms are used in the Code). "Qualified Project Costs" means costs paid with respect to the Project that meet each of the following requirements: (i) the costs are properly chargeable to capital account (or would be a so chargeable with a proper election by the Borrower or but for a proper election by the Borrower to deduct such costs) in accordance with general Federal income tax principles and in accordance with United States Treasury Regulations ~ I.103-8(a)(I), provided, however, that only such portion of the interest accrued during rehabilitation or construction of the Project (in the case of rehabilitation, with respect to vacated units only) shall be eligible to be a Qualified Project Cost as bears the same ratio to all such interest as the Qualified Project Costs bear to all costs of the acquisition and construction or rehabilitation of the Project; and provided further that interest accruing after the date of completion of the Project shall not be a Qualified Project Cost; and provided still further that if any portion of the Project is being constructed or rehabilitated by an Affiliate (whether as general contractor or a subcontractor), Qualified Project Costs shall include only (A) the actual out-of-pocket costs incurred by such affiliate in constructing or rehabilitating the Project (or any portion thereof), (B) any reasonable fees for supervisory services actually rendered by such affiliate, and (C) any overhead expenses incurred by such affiliate which are directly attributable to the work performed on the Project, and shall not include, for example, intercompany profits resulting from members of an affiliated group (within the meaning of Section 1504 of the Code) participating in the rehabilitation or construction of the Project or payments received by such affiliate due to early completion of the Project (or any portion there); (ii) the costs are paid with respect to a qualified residential rental project or projects within the meaning of Section 142(D) of the Code, (iii) the costs are paid after the earlier of 60 days prior to the date of a declaration of "official intent" to reimburse costs paid with respect to the Project (within the meaning of ~1.150-2 of the United States Treasury Regulations) or the date of issue of the Bonds, and (iv) if the costs of the acquisition and construction or rehabilitation of the Project were previously paid and are to be reimbursed with proceeds of the DOCSOCIl120733v3/24036-003! 2 Bonds such costs were (A) costs of issuance of the Bonds, (B) preliminary capital expenditures (within the meaning of United States Treasury Regulations ~1.150-2 (F) (2)) with respect to the Project (such as architectural, engineering and soil testing services) incurred before commencement of acquisition and construction or rehabilitation of the Project that do not exceed twenty percent (20%) of the issue price of the Bonds (as defined in United States Treasury Regulations ~1.148-1), or (C) were capital expenditures with respect to the Project that are reimbursed no later than eighteen (18) months after the later of the date the expenditure was paid or the date the Project is placed in service (but no later than three (3) years after the expenditures is paid). "Qualified Project Period" has the meaning given to that term in the Regulatory Agreement. "Servicing Fee" means the Servicing Fee payable to the Loan Servicer for servicing the Mortgage Loan for the Credit Provider. "Set Rate Interest" has the meaning given to that term in the Mortgage Note. Section 1.3 Rules of Construction. The rules of construction set forth in Section 1.3 of the Indenture shall apply to this Financing Agreement in their entirety, except that in applying such rules, the term "Financing Agreement" shall be substituted for the term "Indenture". Section 1.4 Content of Certificates and Opinions. The provisions of Section 1.4 of the Indenture shall apply to this Financing Agreement in their entirety. Section 1.5 Interpretation. The parties to this Financing Agreement acknowledge that each party and its counsel have participated in the drafting, review and revision of this Financing Agreement. Accordingly, the parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Financing Agreement or any amendment, modification, supplement or restatement of any of the foregoing or of any exhibit to this Financing Agreement. Section 1.6 Effective Date. The provlSlons of this Financing Agreement shall be effective on and as of the Closing Date. ARTICLE 2 REPRESENTATIONS AND WARRANTIES Section 2.1 warrants that: Representations and Warranties of the Issuer. The Issuer represents and (i) the Issuer is a public subdivision and public body corporate and politic, duly organized and existing under the constitution and laws of the State; (ii) the Issuer has complied with the provisions of the Act and the constitution and laws of the State which are prerequisites to the closing of the transactions provided for in the Bond Documents; (iii) the issuance of the Bonds to obtain funds to provide additional financing for the Mortgaged Property is intended to serve the public interest and will further the purposes of the Act including, among such purposes, the provision of decent, safe and DOCSOC/1120733v3124036-0031 3 sanitary rental housing units for persons and families of low or moderate income; to accomplish the foregoing, the Issuer intends to issue the Bonds on the terms set forth in the Indenture and to use the proceeds derived from the sale of the Bonds as specified in the Indenture and this Financing Agreement; (iv) the Issuer has the full legal right, power and authority to execute and deliver the Indenture, this Financing Agreement, the Regulatory Agreement, the Assignment, the Tax Certificate and all other agreements, documents and instruments to be executed and delivered by the Issuer in connection with the issuance, sale and delivery of the Bonds and the Mortgage Loan (collectively, the "Issuer Documents"), and to carry out its obligations under, and to close the transactions provided for in, the Issuer Documents; (v) the issuance of the Bonds, and the execution, delivery and performance of the Issuer Documents, have been duly authorized by the Issuer; (vi) the Bonds have been duly executed and delivered by the Issuer, and upon authentication by the Trustee, will constitute legal, valid and binding special limited obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general principles of equity; (vii) each Issuer Document has been duly executed and delivered by the Issuer and upon execution and delivery by the other party or parties to the Issuer Document, will be the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general principles of equity; (viii) neither the execution and delivery of the Bonds or any of the Issuer Documents, the closing of the transactions provided for in the Issuer Documents nor the fulfillment of or compliance with the terms, conditions or provisions of the Bonds or the Issuer Documents violates or will violate the constitution or laws of the State or any judgment, order, writ, injunction or decree to which the Issuer is subject, or conflicts or will conflict in any material respect with, or results or will result in a material breach of any of the terms, conditions or provisions of, or constitutes or will constitute a material default under, any agreement or instrument which the Issuer is now a party or by which it is bound; (ix) the Issuer has complied and will comply with all material prOVISIons of the Act applicable to the Bonds and the transactions provided for in the Issuer Documents; (x) the Bonds have been issued under the Indenture, and are secured by the Indenture, pursuant to which the Issuer's interest in this Financing Agreement (other than the Reserved Rights), and the revenues and receipts to be derived by the Issuer pursuant to this Financing Agreement, are pledged and assigned by the Issuer to the Trustee as security for payment of the principal of, premium, if any, and interest on the Bonds; (xi) the Issuer has not made and will not make any pledge or assignment of or create any encumbrance on the Trust Estate, other than the pledge and assignment to the Trustee under the Indenture; and DOCSOCIl120733v3/24036-0031 4 (xii) no action of any nature is pending against the Issuer (a) seeking to restrain or enjoin the issuance of the Bonds or the execution or delivery of any Issuer Document, (b) questioning the proceedings or authority relating to the Bonds or any Issuer Document or (c) questioning the existence or authority of the Issuer or that of its present or former members or officers; to the best of the Issuer's knowledge no such action is threatened. Section 2.2 Representations and Warranties of the Borrower. Section 2.2.1 Specific Representations and Warranties. The Borrower represents and warrants that: (i) the Borrower is a limited partnership, duly organized and validly existing under the laws of the State of California and is duly qualified to conduct its business in the State and in every other state in which the nature of its business requires such qualification; (ii) the Borrower has the full legal right, power and authority to (a) own its properties, (b) carry on its business as now being conducted and as the Borrower contemplates it to be conducted with respect to the Mortgaged Property and (c) execute and deliver, carry out its obligations under, and close the transactions provided for in, the Borrower Documents; (iii) each of the Borrower Documents has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general principles of equity; (iv) no authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained, is required for (a) the execution and delivery or approval, as the case may be, by the Borrower of the Borrower Documents or (b) the performance by the Borrower of the terms and provisions of the Borrower Documents; (v) neither the execution and delivery of the Borrower Documents nor the closing of the transactions provided for in the Bond Documents or the Mortgage Loan Documents nor the Borrower's fulfillment of or compliance with the terms and conditions of the Borrower Documents violates or will violate any law, rule or regulation of any governmental agency or body having jurisdiction over the Borrower or its general partners or any Key Principal or any of their activities or properties, or any judgment, order, writ, injunction or decree to which the Borrower or its general partners or any Key Principal is subject, or any of the organizational or other governing documents of the Borrower or its general partners or any Key Principal, if applicable, or conflicts or will conflict with any agreement, instrument or license to which the Borrower or its general partners or any Key Principal is now a party or by which it or its general partners or any Key Principal or any of their properties or assets is bound or results or will result in a breach of, or constitutes or will constitute a default (with due notice or the passage of time or both) under, any such agreement, instrument or license, or contravenes or will contravene any such law, rule or regulation or any such judgment, order, writ, injunction or decree, or, except as provided in the Mortgage Loan Documents, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower or its general partners or DOCSOCIl120733v3124036-0031 5 any Key Principal, except for any lien, charge or encumbrance allowed under the terms of the Mortgage Loan Documents and any other Permitted Lien; (vi) the Borrower has made all filings with and has obtained all approvals, permits, authorizations and consents from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the (a) acquisition, construction and equipping of the Mortgaged Property and (b) execution and delivery by the Borrower of, and performance by the Borrower of its obligations under, the Borrower Documents; (vii) the Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would have the effect of preventing or hindering the performance of the Borrower's duties under any of the Borrower Documents; nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order; (viii) no litigation or proceeding is pending or, to the knowledge of the Borrower or the general partners of the Borrower, threatened against the Borrower or the general partners of the Borrower or any Key Principal or with respect to the Mortgaged Property which has a reasonable probability of having a material adverse effect on the financial condition or business of the Borrower, or the transactions provided for in the Bond Documents or the Mortgage Loan Documents, or which in any way seeks to prohibit, restrain or enjoin the issuance, execution, sale or delivery of the Bonds, the funding of the Mortgage Loan, the execution or delivery of the Borrower Documents, or which in any way would adversely affect or call into question the validity or enforceability of the Bonds, the Bond Documents or the Mortgage Loan Documents, or the power or authority of the Borrower to incur, or the ability of the Borrower to perform, its obligations under the Borrower Documents, or which questions the power or authority of the Borrower to carry out the transactions provided for in, or to perform its obligations under, the Borrower Documents or which would affect the power of the Borrower to own, equip or operate the Mortgaged Property, or which questions the exclusion from gross income for federal income tax purposes of the interest payable on the Bonds; (ix) the Borrower is not in default under any document, instrument or commitment to which the Borrower is a party or to which it or any of its property or assets is subject which default would or could affect the ability of the Borrower to carry out its obligations under the Borrower Documents; (x) the financial statements which have been furnished by or on behalf of the Borrower, its general partners and each Key Principal to the Issuer and/or the Loan Servicer were prepared in accordance with generally accepted accounting principles applied on a consistent basis, are complete and accurate in all material respects and present fairly and consistently the financial condition of the Borrower and such other entities or persons as of their respective dates; since the date of the most recent of such financial statements there has not been any material adverse change in the financial condition of the Borrower, its general partners or any Key Principal and there has not been any material transaction entered into by the Borrower its general partners or any Key Principal other than transactions in the ordinary course of business; neither the Borrower or its general partners nor any Key Principal has any material contingent obligations which are not otherwise disclosed in its financial statements; DOCSOCIl120733v3/24036-003! 6 (xi) there (a) is no contemplated, pending or threatened bankruptcy, reorganization, receivership, insolvency or like proceeding, whether voluntary or involuntary, affecting the Mortgaged Property, the Borrower, any general partner of the Borrower or any Key Principal and (b) has been no assertion or exercise of jurisdiction over the Mortgaged Property, the Borrower, any general partner of the Borrower or any Key Principal of the Borrower by any court empowered to exercise bankruptcy powers; (xii) no event has occurred and no condition exists with respect to the Borrower or the Mortgaged Property that would constitute an Event of Default or which, with the lapse of time, if not cured, or with the giving of notice or both, woul~ become an Event of Default; (xiii) the Borrower has not taken any action, or permitted any action that the Borrower can control to be taken, that would impair the exclusion from gross income, for federal income tax purposes, of the interest payable on the Bonds; (xiv) as of the Closing Date, the Borrower is in compliance with all requirements of the Tax Certificate, and the representations set forth in the Tax Certificate of the Borrower executed by the Borrower pertaining to the Borrower and the Mortgaged Property are true and accurate; (xv) no information, statement or report furnished in writing to the Issuer, the Credit Provider, the Loan Servicer or the Trustee by the Borrower in connection with the transactions provided for in the Bond Documents, the Mortgage Loan Documents or the Disclosure Agreement or the closing of the transactions provided for in the Bond Documents or the Mortgage Loan Documents (including, without limitation, any information furnished by the Borrower in connection with the preparation of any materials related to the issuance, delivery or offering of the Bonds) contains any material misstatement of fact or omits to state a material fact necessary to make the statements contained in such written materials or in any offering material, in the light of the circumstances under which they were made, not misleading; the representations and warranties of the Borrower and the statements, information and descriptions contained in the Borrower's closing certificates, as of the Closing Date, will be true, correct and complete, will not contain any untrue or misleading statement of a material fact, and will not omit to state a material fact required to be stated in such certificates or necessary to make the certifications, representations, warranties, statements, information and descriptions contained in such certificates or in any offering materials, in the light of the circumstances under which they were made, not misleading; the estimates and the assumptions contained in any certificate of the Borrower delivered as of the Closing Date will be reasonable and based on the best information available to the Borrower; (xvi) to the best knowledge of the Borrower, no member, officer, agent or employee of the Issuer has been or is in any manner interested, directly or indirectly, in that person's own name or in the name of any other person, in the Bonds, the Bond Documents or the Mortgage Loan Documents, the Disclosure Agreement, the Borrower or the Mortgaged Property, in any contract for property or materials to be furnished or used in connection with the Mortgaged Property, or in any aspect of the transactions contemplated by the Bond Documents, the Mortgage Loan Documents or the Disclosure Agreement; (xvii) the Borrower acknowledges that (a) it understands the nature and structure of the transactions relating to the financing of the Mortgaged Property, (b) it is familiar with the provisions of all of the documents and instruments relating to the financing, (c) it DOCSOC/l120733v3124036-0031 7 understands the risks inherent in such transactions, including without limitation the risk of loss of the Mortgaged Property, and (d) it has not relied on the Issuer, the Trustee, the Credit Provider or the Loan Servicer for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Bond Documents or the Mortgage Loan Documents or otherwise relied on the Issuer, the Trustee, the Credit Provider or the Loan Servicer in any manner; (xviii) the Borrower and the Mortgaged Property are in compliance with (a) all provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA"), the Resource Conservation and Recovery Act, as amended ("RCRA"), the Toxic Substances Control Act, the Residential Lead-Based Paint Hazard Reduction Act of 1992, as amended, the Asbestos Hazard Emergency Response Act, as amended, the Clean Water Act, and the Clean Air Act, (b) all environmental laws of the State, (c) all rules, regulations or administrative orders of any governmental agency promulgated under any of the laws in clauses (a) or (b), and (d) with any judgments, decrees or orders of any court of competent jurisdiction with respect to any of the foregoing (all of the foregoing in clauses (a), (b), (c) and (d) are, collectively the "Environmental Laws"); the Borrower has not received any notice of any action, claim or proceeding to determine any potential liability or responsibility under the Environmental Laws, any assessment or notice of potential responsibility under the Environmental Laws, nor any notice seeking to impose civil penalties under the Environmental Laws; nor has the Borrower received notification that any hazardous substances (as defined under CERCLA) that it has disposed of have been found in any site at which any governmental agency is conducting an investigation or other proceeding under any Environmental Law. (xix) the Borrower has not received any notice that it is not in full compliance with ERISA and applicable Department of Labor regulations under ERISA, with the Code and applicable Treasury Regulations under the Code or with the terms of each pension or welfare benefit plan to which the Borrower is a party or makes any employer contributions with respect to its employees, for the current or prior plan years of such plans; (xx) the Bonds are not "federally guaranteed" as defined In Section 149(b) of the Code; (xxi) in accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed 120% of the weighted average reasonably expected economic life of the facilities (comprising the Mortgaged Property) financed with the Net Bond Proceeds, determined as of the later of the date the Bonds are issued or the date the facilities are expected to be placed in service; (xxii) neither the Borrower nor any "related person" to the Borrower (within the meaning of Section 147(a)(2) of the Code) will purchase Bonds pursuant to any arrangement, formal or informal; (xxiii) the information furnished by the Borrower and used by the Issuer in preparing the certificate pursuant to Section 148 of the Code and information statement pursuant to Section 149( e) of the Code is accurate and complete as of the date of the issuance of the Bonds. (xxiv) the Borrower is the sole borrower under the Mortgage Loan and is a single asset entity, the single asset of which is the Mortgaged Property; DOCSOCII120733v3124036-003! 8 (xxv) the Borrower has and will have fee simple title to the Mortgaged Property, subject only to Permitted Liens; (xxvi) the Mortgaged Property is located entirely within the boundaries of the State of California, the County of San Diego, the City of Chula Vista; (xxvii) the Mortgaged Property, as designed, conforms in all material respects with all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Mortgaged Property, including, but not limited to, the Americans with Disabilities Act of 1990 ("ADA") (as evidenced by an architect's certificate to such effect); (xxviii) all necessary utilities are available to the Mortgaged Property in adequate supply; (xxix) the Borrower has obtained or will obtain in due course all reqUisIte zoning, planning, building and environmental and other permits which may become necessary with respect to the acquisition, construction, development, equipping, use and occupancy of the Mortgaged Property; (xxx) the Borrower has obtained all licenses, permits and approvals necessary for the ownership, operation and management of the Mortgaged Property, including compliance with the ADA (as evidenced by an architect's certificate to such effect), and further including all approvals essential to the transactions contemplated by the Bond Documents and the Mortgage Loan Documents; (xxxi) the Borrower and the Mortgaged Property satisfy all requirements of the Act and the Code applicable to sponsors of, and with respect to, multifamily rental housing; (xxxii) the Mortgaged Property is, as of the Closing Date, in compliance with all requirements of the Regulatory Agreement to the extent such requirements are applicable on the Closing Date; (xxxiii) the Borrower intends to cause the residential units in the Mortgaged Property to be rented or available for rental on a basis which satisfies the requirements of the Regulatory Agreement, including all applicable requirements of the Act and the Code, and pursuant to leases which comply with all applicable laws; (xxxiv) the Borrower intends to hold the Mortgaged Property for its own account and has no current plans, and has not entered into any agreement, to sell the,Mortgaged Property or any part of it; (xxxv) the Borrower intends to occupy the Mortgaged Property or cause the Mortgaged Property to be occupied and to operate it or cause it to be operated at all times during the term of this Financing Agreement for Project Purposes and does not know of any reason why the Mortgaged Property will not be so used by it in the absence of circumstances not now anticipated by it or totally beyond its control; DOCSOCII120733v3/24036-0031 9 (xxxvi) the factual statements and representations concerning the Borrower and the Mortgaged Properly made to the Loan Servicer are true, correct and complete; (xxxvii) the information contained in the Official Statement with respect to the Bonds, insofar as such information relates to the Borrower and the Mortgaged Property, is accurate in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact required to be stated in the Official Statement or necessary to make the statements made in the Official Statement, in light of the circumstances under which they were made, not misleading; and (xxxviii) the Borrower has filed or caused to be filed all federal, state and local tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on those returns or on any assessment received by it, to the extent that such taxes have become due. Section 2.2.2 Certificates. Any certificate signed or to be signed by the general partner of the Borrower and delivered pursuant to any Bond Document or Mortgage Loan Document when executed and delivered by the Borrower, constitutes a representation and warranty by the Borrower as to the statements contained in the certificate. Section 2.2.3 Incorporation of Other Representations, Warranties and Covenants. The representations, warranties and covenants of the Borrower set forth in the Reimbursement Agreement are incorporated into this Financing Agreement as if restated in this Financing Agreement in full, for the benefit of, and may be relied upon by, the beneficiaries of this Financing Agreement. Section 2.2.4 Representations and Warranties Deemed True As of Closinl! Date. The representations and warranties of the Borrower in this Financing Agreement are deemed to be made and be true as of the date of this Financing Agreement and as of the Closing Date. ARTICLE 3 BORROWER'S OBLIGATIONS WITH RESPECT TO THE BONDS Section 3.1 General Oblil!ation. The Borrower is unconditionally obligated, anything else to the contrary notwithstanding, to timely pay amounts sufficient to pay, when due, the principal of, premium, if any, and interest on, and the purchase price of, the Bonds. Section 3.2 Borrower's Oblil!ations With Respect to Redemption. Section 3.2.1 Optional Prepayment and Redemption. In the event of an optional redemption of Bonds pursuant to Section 3.2 of the Indenture, the Borrower shall timely pay, or cause to be paid, (a) an amount equal to the unpaid principal balance of the Mortgage Loan, (b) interest on the Mortgage Loan to the date of prepayment, (c) interest payable on the Bonds to the Redemption Date, (d) the premium, if any, payable with respect to the Bonds (the premium to be paid with Available Moneys), (e) any other amount (to be paid with Available Moneys) that is part of the End Period Payment, (f) an amount sufficient to pay any fees, costs and expenses in connection with such redemption and (g) all other amounts payable under the Bond Documents and the DOCSOCIl120733v3/24036-0031 10 Mortgage Loan Documents in connection with the prepayment of the Mortgage Loan and the corresponding redemption of the Bonds on the applicable Redemption Date. Section 3.2.2 Mandatorv Prepavment and Special Mandatorv Redemption. In the event of a mandatory prepayment of the Mortgage Loan in connection with a special mandatory redemption of Bonds: (i) in whole or in part, pursuant to Section 3.3.1 of the Indenture, the Borrower shall timely payor cause to be paid (a) in the event of the involuntary destruction or loss of the Mortgaged Property in its entirety or nearly in its entirety as a result of casualty or condemnation, the unpaid principal balance of the Mortgage Loan and an amount sufficient to effect the corresponding redemption of the Bonds on the applicable Redemption Date or (b) in the event of an involuntary destruction or loss of the Mortgaged Property in part as a result of a casualty or condemnation, a principal amount equal to the insurance or condemnation proceeds received by the Borrower and applied, in accordance with the Mortgage Loan Documents, to the prepayment, in part, of the Mortgage Loan and the corresponding redemption of Bonds on the applicable Redemption Date and, in the case of (a) or (b), (1) interest on the Mortgage Loan to the date of prepayment, (2) interest payable on the Bonds to be redeemed to the Redemption Date, (3) an amount sufficient to pay any fees, costs and expenses in connection with such redemption and (4) all other amounts payable under the Bond Documents and the Mortgage Loan Documents in connection with the prepayment of the Mortgage Loan and the corresponding redemption of the Bonds to be redeemed on the applicable Redemption Date; and (ii) in whole or in part pursuant to Section 3.3.2 of the Indenture, the Borrower shall timely pay, or cause to be paid (a) the principal amount of the Mortgage Loan if the redemption is in whole, or a principal amount of the Mortgage Loan, as specified by the Credit Provider, corresponding to the principal amount of Bonds, as specified by the Credit Provider, to be redeemed at the written direction or with the prior written consent of the Credit Provider, if the redemption is in part, (b) interest on the Mortgage Loan to the date of prepayment, (c) interest payable on the Bonds to be redeemed to the Redemption Date, (d) an amount sufficient to pay any fees, costs and expenses in connection with such redemption and (e) all other amounts payable under the Bond Documents and the Mortgage Loan Documents in connection with the prepayment of the Mortgage Loan and the corresponding redemption of the Bonds to be redeemed on the applicable Redemption Date. Section 3.2.3 Payment Procedures. All payments shall be made in accordance with the payment procedures set forth in the Mortgage Note. ARTICLE 4 THE MORTGAGE LOAN Section 4.1 Amount and Source of Mortl!al!e Loan. Upon the issuance and delivery of the Bonds, the Issuer shall apply the Net Bond Proceeds in the amount of ONE MILLION SEVEN HUNDRED FIFTEEN THOUSAND DOLLARS ($1,715,000) to fund the Mortgage Loan. The Borrower accepts the Mortgage Loan from the Issuer on the terms and conditions set forth in this Financing Agreement and in the Mortgage Loan Documents and subject to the terms and conditions of the Indenture and the Regulatory Agreement. The Borrower agrees to apply the proceeds of the DOCSOC/1120733v3/24036-0031 II Mortgage Loan to pay costs of the acquisition, construction, development and equipping the Mortgaged Property. Section 4.2 Terms of the Mortl!al!e Loan: Fundinl!. Section 4.2.1 Oblil!ation to Repav the Mortl!al!e Loan and to Pav the Debt Service on the Bonds. In repayment of the Mortgage Loan, the Borrower shall make payments on the Mortgage Note, which shall, at all times and in all events, be sufficient to repay the Mortgage Loan (including all payments of principal and interest when due) and to timely pay, when due, the principal of, premium, if any, and interest on, the Bonds, plus all (a) Third Party Fees and (b) Set Rate Interest. The Borrower's obligations set forth in the preceding sentence are without exception, and are not diminished by any provision of any Bond Document or any Mortgage Loan Document which may state or imply to the contrary, or by the amount of Investroent Income available to be applied to the payment of the foregoing obligations. Section 4.2.2 Terms. The Mortgage Loan shall (a) be evidenced by the Mortgage Note, (b) be in a principal amount approved by the Credit Provider, not to exceed $1,715,000, (c) bear interest at the Mortgage Note Rate, (d) be payable on the terms provided in the Mortgage Note, (e) be secured by, among other instruments, the Security Instrument and as otherwise provided in the other Mortgage Loan Documents and/or this Financing Agreement and (f) be subject to optional and mandatory prepayment at the times, in the manner and on the terms, and have such other terms and provisions as are, set forth in the Mortgage Loan Documents. The Mortgage Note Rate shall be comprised of: (i) a pass-through rate of interest (the "Pass-Through Rate"), which shall be a rate sufficient to pay when due the interest on the Bonds and the Third Party Fees (to the extent included in the Mortgage Note Rate); and (ii) Set Rate Interest, which shall be equivalent to the sum of (I) the Facility Fee payable to the Credit Provider and (2) the Servicing Fee. The Morfgage Note Rate shall be _ percent <- %) per annum from the Closing Date to, but not including, the first day of the month immediately preceding the Initial Remarketing Date, and thereafter, if the Bonds Outstanding shall have been remarketed in accordance with the provisions of the Indenture, at a per annum rate equal to the Remarketing Rate in effect from time to time (adjusted, if necessary, to include such additional basis points of interest as shall be necessary to ensure that the monthly payments on the Mortgage Note are sufficient to provide for the final payment of the scheduled principal and interest on the Bonds Outstanding when due), adjusted as of the first day of the month immediately preceding the Initial Remarketing Date and each succeeding Remarketing Date, plus (A) an amount sufficient to pay Set Rate Interest and (B) an amount (expressed as a percentage, including, if necessary, additional basis points of interest) sufficient to ensure, and adjusted as necessary to ensure, that the Pass-Through Rate will be sufficient to pay the Third Party Fees to the extent included, in accordance with paragraph (i) of Section 4.3, in the Mortgage Note Rate (collectively, the "Revised Mortgage Note Rate"), all as shown an a then current Cash Flow Project and Verification Report. The Mortgage Note shall be due and payable in consecutive level monthly installments of principal and interest (computed at the Mortgage Note Rate then in effect, as specified above, on the outstanding principal amount of the Mortgage Loan) beginning on the first day of the month following the month in which the Closing Date occurs (the "Amortization Commencement Date") until the entire indebtedness evidenced by DOCSOCIl120733v3/24036-0031 12 the Mortgage Note is paid in full, provided that any remaining indebtedness, if not sooner paid, shall be due and payable on , provided, further, that if the Bonds Outstanding shall have been remarketed in accordance with the provisions of the Indenture, the outstanding principal amount of the Mortgage Loan shall be reamortized as of each Remarketing Date, so as to change the amount of each subsequent installment of principal and interest to the amount necessary to amortize the remaining principal balance of the Mortgage Loan at an interest rate equal to the Revised Mortgage Note Rate over a term equivalent to the number of months of amortization remaining to the maturity date of the Mortgage Loan, with the first such revised payment being due on the first day of the month in which such Remarketing Date occurs, provided further, however, that any remaining indebtedness, if not sooner paid, shall be due and payable on , _' Section 4.2.3 Fundinl!. Upon issuance and delivery of the Bonds: (i) the Issuer shall cause (a) the Net Bond Proceeds to be delivered to the Trustee for deposit into the Funds and Accounts in accordance with Section 4.2 of the Indenture and (b) the accrued interest on the Bonds, if any, to be delivered to the Trustee for deposit into the General Account; and (ii) the Borrower shall deliver to the Trustee (a) $ representing the Initial Debt Service Deposit, which sum shall be deposited by the Trustee into the General Account, as provided in paragraph (jji) of Section 4.2 of the Indenture and in paragraph (ii) of Section 4.4.1 of the Indenture, and (b) $_, representing the Costs of Issuance Deposit, which sum shall be deposited by the Trustee into the Costs of Issuance Fund as provided in paragraph (iv) of Section 4.2 of the Indenture and in Section 4.8.1 of the Indenture. It shall be a condition precedent to the obligation of the Issuer to issue the Bonds and to fund the Mortgage Loan that, on or before the scheduled Closing Date, the Borrower shall deliver the deposits required by paragraph (ii) above to the Trustee. Section 4.2.4 Timinl!: Disbursements. The Mortgage Loan shall be deemed to have been made in full to the Borrower immediately upon the deposit of the Net Bond Proceeds into the Funds and Accounts in accordance with Section 4.2 of the Indenture. Disbursements shall be made from the Mortgage Loan Fund and the Costs of Issuance Fund as provided in the Indenture. Section 4.3 Pavment of Third Party Fees and Expenses. In addition to all fees, costs, expenses and other amounts required to be paid by the Borrower under the Mortgage Note and the Reimbursement Agreement, the Borrower shall pay, without duplication, the following fees and expenses: (i) fees included in the Mortgage Note Rate: (A) the Third Party Fees, provided that such fees may be included in the Mortgage Note Rate only to the extent that they are expressed as a percentage of the outstanding unpaid principal balance of the Mortgage Loan; (B) fees that comprise Set Rate Interest; Set Rate Interest shall be received by the Loan Servicer as part of the payments of interest on the Mortgage Note received by the Loan Servicer, deducted by the Loan Servicer from such payments of interest and retained by the Loan Servicer (as to that portion of Set Rate Interest allocable to the Servicing Fee) DOCSOC/1120733v3/24036-0031 13 and remitted by the Loan Servicer to the Credit Provider as to that portion of Set Rate Interest allocable to the Facility Fee; (ii) fees not included in the Mortgage Note Rate and expenses; (A) the fees (other than the Servicing Fee included in Set Rate Interest) and expenses due to the Loan Servicer in connection with the Mortgage Loan; (B) to the extent not previously paid by the Borrower, the fees and expenses required to be paid by the Loan Servicer to the Credit Provider, such fees and expenses to be paid at the times and in the manner required by the Credit Provider, provided that the imposition of such obligation on the Borrower shall not diminish the Loan Servicer's obligation to pay such fees to the Credit Provider; (C) all amounts required to pay to the Issuer (a) the fees of the Issuer (exclusive of that portion of the Issuer's Annual Fee included in the Mortgage Note Rate), and (b) all expenses of the Issuer incurred at any time in connection with the financing of the Mortgaged Property or the Bonds, including, without limitation, counsel fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of the Bond Documents, the Mortgage Loan Documents or any other documents relating to the Mortgaged Property or the Bonds or in connection with questions or other matters arising under such documents or in connection with any federal or state tax audit; all payments for fees and expenses other than the portion of the Issuer's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower to the Issuer or to any payee designated by the Issuer not later than thirty (30) days after receipt of invoices rendered to the Borrower by the Issuer; (D) the Trustee's acceptance fee, if any, which shall be paid to the Trustee on the Closing Date, and all amounts required from time to time to (a) pay the fees of the Trustee for its duties and services as Trustee in connection with the Bonds (exclusive of that portion of the Trustee's Annual Fee included in the Mortgage Note Rate), and (b) reimburse the Trustee for all advances, out-of-pocket expenses, fees, costs and other charges, including counsel fees and expenses, and taxes (excluding income, value added and single business taxes), reasonably and necessarily incurred by the Trustee in performing its duties as Trustee under the Indenture, this Financing Agreement, the Continuing Disclosure Agreement, the Credit Facility and the Regulatory Agreement and (c) pay and reimburse the Trustee for any fees and expenses incurred in connection with any default under the Indenture, this Financing Agreement or under the Regulatory Agreement; all payments for fees and expenses other than the portion of the Trustee's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower to the Trustee not later than thirty (30) days after receipt of invoices rendered to the Borrower by the Trustee; (E) all amounts required to pay the fees and expenses of the Rebate Analyst as required by this Financing Agreement, (exclusive of that portion of the Rebate Analyst's Annual Fee included in the Mortgage Note Rate); all payments for fees and expenses other than the portion of the Rebate Analyst's Annual Fee included in the Mortgage Note Rate shall be made by the Borrower not later than thirty (30) days after receipt of invoices rendered to the Borrower by the Rebate Analyst; (F) all Costs ofIssuance; DOCSOClI120733v3/24036-0031 14 (G) all costs of registering, printing, reprinting, preparing and delivering any replacement bonds required under the Indenture and in connection with the registration, printing, reprinting or transfer of Bonds; (H) all fees and expenses of the Credit Provider, the Loan Servicer, their respective counsel, title insurance, survey, recording and other costs related to underwriting, closing and disbursing the Mortgage Loan and of assigning the Mortgage Loan to the Trustee and the Credit Provider, as their interests may appear; (I) all fees of the Rating Agency; and (I) not later than seven Business Days prior to each Remarketing Date, all Remarketing Expenses expected to be incurred in connection with the remarketing of the Bonds under Section 2.16 of the Indenture on such Remarketing Date, which amounts shall be paid to the Trustee for deposit into the Bond Purchase Fund, and on each Remarketing Date, the amount, if any, by which actual Remarketing Expenses exceed amounts on deposit in the Bond Purchase Fund to pay Remarketing Expenses. The Borrower further agrees to timely honor any demand by the Trustee pursuant to Section 4.7.2 of the Indenture for payment on account of any insufficiency in the Fees Account. The Borrower acknowledges that all fees, costs, expenses and other amounts described in this Section 4.3, including any fees, costs and expenses involved in any remarketing or reoffering of the Bonds, are obligations solely of the Borrower and (a) as to fees described in paragraphs (i) and (ii) above, must be paid by the Borrower in all events, including the insufficiency of the amounts included in the Mortgage Note Rate to pay such fees, and (b) as to fees described in paragraph (ii) above, must be paid by the Borrower separate and apart from payments due under the Mortgage Loan and will not be included in the Mortgage Note Rate. The Borrower further acknowledges and agrees that (a) all fees, costs and expenses involved in any adjustroent of the interest rate on the Bonds and, therefore, of the Pass Through Rate under the Mortgage Note and (b) all fees, costs and expenses involved in any tender, purchase, remarketing or reoffering of Bonds are obligations solely of the Borrower and must be paid by the Borrower separate and apart from payments due under the Mortgage Loan and will not be provided for in any of the Mortgage Loan Documents or reflected in the Mortgage Note Rate. The fees, costs and expenses of any remarketing or reoffering of Bonds other than as provided for in clause (a) above must be paid by the Borrower in advance in accordance with the remarketing agreement or other agreement relating to the reoffering of the Bonds. None of the Issuer, the Trustee, the Credit Provider or the Loan Servicer shall have (a) any liability, responsibility or accountability for the payment, remittance or handling of any such fees, costs or expenses or (b) any obligation to pay any such fees, costs or expenses. The payment of all fees and expenses specified in this Financing Agreement that are not included in the Mortgage Note Rate or provided for in the Reimbursement Agreement shall not be secured by the Security Instrument or constitute a lien on the Mortgaged Property in any manner (unless the Loan Servicer or the Credit Provider shall, in its sole discretion, advance such fees and expenses), shall be unsecured obligations of the Borrower and shall be subordinate to the Borrower's obligations under the Mortgage Loan Documents. Section 4.4 Notice. The Borrower shall give written notice to the Credit Provider and the Loan Servicer of the payment of all fees and expenses specified in Section 4.3 that are not included in the Mortgage Note Rate. DOCSOCIl120733v3/24036-0031 15 Section 4.5 Mortl!al!e Loan Payments. All regularly scheduled payments due under the Mortgage Note shall be timely paid by the Borrower, when due, in immediately available funds. All payments of interest, principal and other amounts payable by the Borrower under the Mortgage Note shall be paid to the Loan Servicer (or other entity then servicing the Mortgage Loan for the Credit Provider). Payments received by the Loan Servicer are to be remitted (net of Set Rate Interest) to the Trustee. The Borrower agrees to hold the Issuer, the Trustee, the Loan Servicer and the Credit Provider harmless from any liability on account of any failure of the Borrower to make such payments. Section 4.6 Certain Notices From Trustee. The Trustee shall, in accordance with the terms and conditions of the Credit Facility, timely give all notices required by the Credit Facility, including, without limitation, a notice to the Credit Provider, with copies to the Issuer and the Loan Servicer of the Trustee's failure to receive any Required Mortgage Payment (as defined in the Credit Facility) when due, which notice shall be given by the Trustee, not later than 4:00 p.m. Eastern Time on the Business Day next succeeding any day on which the Required Mortgage Payment was due. Section 4.7 Modification of Mortl!al!e Loan Documents: Consent at Direction of the Credit Provider. Neither the Issuer, the Trustee nor the Borrower shall: (i) consent or enter into, without the prior written consent of the Credit Provider, or fail to consent or enter into, at the written direction of the Credit Provider, any amendments or modifications to, or adjustments or revisions of, the terms and conditions of any Mortgage Loan Document; (ii) take, without the prior written consent of the Credit Provider, or fail to take at the written direction of the Credit Provider, any action in the event of a default or otherwise under any Mortgage Loan Document, including, without limitation, any action which would cause there to be insufficient money available for the scheduled payment of principal and interest on the Mortgage Loan; or (iii) enter into any contracts or agreements or perform any acts which amend or affect any Mortgage Loan Document. Section 4.8 Prepavment. Section 4.8.1 Optional Prepavment. The Borrower shall have the right to prepay the Mortgage Loan in whole, but not in part, on the terms provided in, and subject to the limitations of, the Mortgage Note and, to the extent applicable, the Security Instrument and the Reimbursement Agreement, provided that the Borrower shall comply with the provisions of Section 3.2. The Borrower agrees that the payment of all amounts set forth in Section 3.2 shall be a condition precedent to the effectiveness of any prepayment of the Mortgage Loan. Section 4.8.2 Involuntarv Prepavment. The Mortgage Loan shall be subject to involuntary prepayment in whole or in part on the terms provided in the Mortgage Note. Section 4.8.3 Notices. In the event any prepayment of principal shall be made on account of the Mortgage Loan, whether optional or mandatory, and regardless of the underlying cause for the prepayment, the Borrower shall provide written notice of the prepayment to the Trustee, the Credit Provider and the Loan Servicer in writing, not less than sixty (60) days, or the longest DOCSOClI120733v3/24036-0031 16 period of time, if any, less than sixty (60) days that is possible in the case of involuntary prepayments, prior to the date on which the Borrower will make the prepayment. Each such notice shall state (a) the amount to be prepaid, (b) the date on which the prepayment will be made by the Borrower to the Trustee or the Loan Servicer, as applicable and (c) the cause for the prepayment, if any. The Loan Servicer (or other entity then servicing the Mortgage Loan), upon receipt of the Borrower's notice of prepayment, shall provide an additional notice of the voluntary prepayment to the Credit Provider and to the Trustee; such notice shall contain the information provided for in this Section 4.8.3 to the extent such information has been provided by the Borrower to the Loan Servicer. The Loan Servicer's notice to the Trustee shall also specify the manner in which any prepayment of the Mortgage Loan is to be applied, including the allocation of the prepayment among principal, interest and premium, if any. Section 4.8.4 Limitation on Credit Facilitv Oblil!ations. Optional prepayment of the Mortgage Loan shall not create any obligation on the part of the Credit Provider to make any payments under the Credit Facility. ARTICLE 5 NATURE OF BORROWER'S OBLIGATIONS Section 5.1 Oblil!ations of the Borrower Unconditional. The obligation of the Borrower to repay the Mortgage Loan, to pay in all events amounts sufficient to timely pay, when due, the principal of, premium, if any, and interest on, the Bonds, to make all payments required by this Financing Agreement, including the payment of rebate amounts pursuant to Section 7.2.9, to provide indemnification pursuant to Article IX, to pay and perform all of its obligations under the Mortgage Loan Documents and to make any and all other payments required by the Bond Documents and the Mortgage Loan Documents, shall be absolute and unconditional and shall not be subject to diminution by set off, recoupment, counterclaim, abatement or otherwise. Until the Mortgage Loan has been fully paid and the Bonds have been fully paid or provision has been made for payment of the Bonds in accordance with the Indenture or until such later time as is required by the terms of this Financing Agreement or any Mortgage Loan Document, the Borrower (a) shall continue to repay the Mortgage Loan, (b) shall perform and observe all of its other obligations contained in the Borrower Documents and (c) shall not terminate this Financing Agreement for any cause, including, without limiting the generality of the foregoing, any defect in title to the Mortgaged Property, any acts or circumstances that may constitute failure of consideration, destruction of, damage to or condemnation of the Mortgaged Property, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State or any political subdivision of either, or any failure of the Issuer to perform or observe any of its obligations arising out of or connected with this Financing Agreement. It is the intent and expectation of the Borrower that the Borrower's payments under this Financing Agreement and the Mortgage Note will be sufficient for the payment in full of the Bonds, including (a) the principal and interest, including principal due upon any redemption of Bonds, when due, (b) any premium required to be paid in connection with any redemption of Bonds and (c) the Third Party Fees. In the event of a deficiency in the funds available under the terms of the Indenture for payment of the principal of, premium, if any, or interest on the Bonds or Third Party Fees when due, regardless of the reason for the deficiency, including any deficiency resulting from any shortfall in payments made or to be made by the Borrower under the Mortgage Loan Documents or any shortfall in Investment Income from that included in any Cash Flow Projection, whether occasioned by a default under any Permitted Investment or a change in Investment Agreements or otherwise, the Borrower will, upon notice of the deficiency from the DOCSOCIl120733v3/24036-0031 17 Trustee and demand for payment, including any demand by the Trustee pursuant to Section 4.7.2 of the Indenture for payment of any insufficiency in the Fees Account, immediately pay the amount of the deficiency to the Loan Servicer for remittance to the Trustee, provided that if the Credit Provider shall have advanced funds under the Credit Facility for any of such purposes, the Borrower agrees to immediately pay the amounts owed the Credit Provider in reimbursement of the funds provided by the Credit Provider as provided in the Reimbursement Agreement. No advance made by the Credit Provider under the Credit Facility with respect to the payment of the principal and interest on the Mortgage Loan shall relieve the Borrower of any of its obligations under the Bond Documents, the Mortgage Loan Documents or any other document contemplated by this Financing Agreement or by such other documents. Section 5.2 Nature of Borrower's Financial Oblil!ations. The Issuer and the Trustee acknowledge that (a) the Mortgaged Property will be encurobered by the Mortgage Loan Documents and (b) all obligations of the Borrower under this Financing Agreement (in contrast to the Borrower's obligations under the Mortgage Loan Documents) or under the Regulatory Agreement (if any) for the payment of money, including, without limitation, fees, costs and expenses, obligations with respect to Reserved Rights, claims for damages occasioned by the breach or alleged breach by the Borrower of its obligations under this Financing Agreement or the Regulatory Agreement and claims for indemnification, are not secured by, and do not in any manner constitute a lien on, the Mortgaged Property. Section 5.3 Nonrecourse Liabilitv. Except as otherwise provided in the Mortgage Loan Documents, in any action or proceeding brought with respect to the Mortgage Loan or the Bonds, no deficiency or other money judgment shall be enforced against the Borrower or any partner of the Borrower or any successor or assign of the Borrower, and any judgment obtained shall be enforced only against the Mortgaged Property and other property of the Borrower encumbered by the Mortgage Loan Documents and not against the Borrower or any partner of the Borrower or any successor or assign of the Borrower. Notwithstanding the foregoing, anything to the contrary contained in this Financing Agreement, the obligations of the Borrower to the Issuer, the Trustee or any other party (a) under Section 4.3 and Article IX and (b) to pay any and all rebate amounts that may be or become owing with respect to the Bonds, shall be recourse to the Borrower, but except with respect to obligations owing to the Credit Provider, not to the Mortgaged Property or any other property encumbered by the Mortgage Loan Documents. Section 5.4 Subordination. This Financing Agreement is subordinate in all respects to the Mortgage Loan Documents. Accordingly, notwithstanding anything to the contrary contained in this Financing Agreement or in the Regulatory Agreement, all obligations under this Financing Agreement or the Regulatory Agreement for the payment of money, if any, and all claims for damages or reimbursement or indemnification against the Borrower occasioned by breach or alleged breach by the Borrower of its obligations under this Financing Agreement or the Regulatory Agreement shall be subordinate and junior in priority, in right of payment and in all other respects to the obligations of the Borrower under or in respect of the Bond Documents and the Mortgage Loan Documents. DOCSOC/1120733v3124036-0031 18 ARTICLE 6 SERVICING; MONITORING Section 6.1 Servicinl!. The Issuer, the Trustee and the Borrower acknowledge that the Mortgage Loan will be serviced by the Credit Provider or, in the sole discretion of the Credit Provider, the Loan Servicer, pursuant to contractual arrangements between the Credit Provider and the Loan Servicer, or by any other servicer selected by the Credit Provider pursuant to contractual arrangements between the Credit Provider and such servicer. The Issuer, the Trustee and the Borrower acknowledge and agree that (a) the selection of any servicer is in the sole and absolute discretion of the Credit Provider, (b) neither the Issuer nor the Trustee shall terminate or attempt to terminate the Loan Servicer or any successor servicer as the servicer of the Mortgage Loan or appoint or attempt to appoint a substitute servicer for the Mortgage Loan, (c) the servicing arrangements between the Credit Provider and the Loan Servicer are subject to amendment or termination without the consent of the Issuer, the Trustee or the Borrower, (d) none of the Issuer, the Trustee or the Borrower shall have any rights under, or be a third party beneficiary of, any such servicing arrangements and (e) any servicer of the Mortgage Loan shall be entitled to the payment of the Servicing Fee. The Issuer, the Trustee and the Borrower acknowledge the right of the Credit Provider to remove the Loan Servicer and to terminate the Loan Servicer's right to service the Mortgage Loan. Section 6.2 Monitorinl!:. So long as the Loan Servicer is servicing the Mortgage Loan, the Borrower shall furnish to the Loan Servicer copies of all reports with respect to the Mortgaged Property required to be filed by the Borrower pursuant to this Financing Agreement and/or the Regulatory Agreement. Notwithstanding anything contained in this Financing Agreement to the contrary, neither the Trustee nor the Loan Servicer shall have any duty or obligation to analyze or review any such reports for determining whether or not the Borrower and/or the Mortgaged Property are in compliance with the requirements of the Code for maintaining the excludability from gross income, for federal income tax purposes, of the interest payable on the Bonds. ARTICLE 7 COVENANTS Section 7.1 Covenants of the Issuer. Section 7.1.1 Pledl!e and Assil!nrnent. The Issuer has not pledged or assigned and will not pledge or assign its interest in this Financing Agreement or the revenues and receipts derived pursuant to this Financing Agreement (except for the Issuer's Reserved Rights) other than as provided in the Indenture. Section 7.1.2 Tax-Exemption. The Issuer will not knowingly take or permit to be taken any action that would adversely affect the excludability from gross income, for federal income tax purposes, of the interest payable on the Bonds, and if it should take or permit to be taken any such action, it will take all lawful actions that it can to rescind such actions promptly upon having knowledge of them. Section 7.1.3 Compliance with Federal Tax Laws. The Issuer will, at the expense of the Borrower, take such action or actions from time to time, including amendment of this DOCSOC/1120733v3/24036-0031 19 Financing Agreement, as may be necessary, as stated in an Opinion of Bond Counsel acceptable to the Issuer, to comply fully with all applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or proposed by the Department of the Treasury or the Internal Revenue Service from time to time pertaining to (a) obligations on which the interest is tax exempt under Section 103 of the Code and (b) the provisions, therefore, of Section 142(d) of the Code. The Issuer will not take, or permit to be taken on its behalf, any action that would cause the interest payable on the Bonds to cease to be excludable, for federal income purposes under Section 103 of the Code from the gross incomes of the owners of the Bonds, and it will take, at the sole cost and expense of the Borrower, such action as may be necessary in the Opinion of Bond Counsel to continue such exclusion from gross income. Section 7.1.4 Notification of Violation of Rel!Ulatorv Aereement. Upon the discovery by the Issuer or the Trustee of any noncompliance by the Borrower with the Regulatory Agreement, the Issuer (if discovered by the Issuer) will notify the Trustee, and the Trustee (if notified by the Issuer or if discovered by the Trustee) will notify the Issuer, the Loan Servicer and the Credit Provider, of such noncompliance and, subject to the provisions of Article XllI, the Issuer (if discovered by the Issuer) will direct the Trustee to, or the Trustee itself will, promptly institute action, or cause the Borrower to institute action, to correct such noncompliance. The Issuer will diligently pursue or direct the Trustee to diligently pursue such action, all strictly in accordance with the terms and conditions of this Financing Agreement and the Regulatory Agreement, as the case may be, provided that no such action shall be taken which would adversely affect the interests of the Bondholders or the Credit Provider. Section 7.2 Covenants of the Borrower. The covenants contained in this Financing Agreement are not intended to modify or limit any provisions of the Mortgage Loan Documents. Section 7.2.1 Maintenance of Mortl!al!ed Propertv: Insurance: Operation. The Borrower will (a) own and operate the Mortgaged Property (I) in accordance with the requirements of this Financing Agreement, the Regulatory Agreement, the Mortgage Loan Documents, the Act and with all other applicable federal, state and local laws, ordinances, orders, rules and regulations, including, without limitation, those relating to zoning, building, safety and environmental quality, and (2) strictly for Project Purposes, (b) keep and maintain the Mortgaged Property, including all appurtenances to it and any personal property in or on the Mortgaged Property (other than property of tenants), in good repair and good operating condition and (c) insure the Mortgaged Property as required by the Mortgage Loan Documents. Section 7.2.2 Taxes: Other Governmental Charl!es and Utilitv Charl!es. The Borrower will pay, or cause to be paid, promptly as the same become due and payable, every obligation of every kind and nature, foreseen or unforeseen, for the payment of which the Issuer, the Trustee or the Credit Provider, or any other party, is or may become liable by reason of its or their estate or interest in the Mortgaged Property, by reason of any right or interest of the Issuer, the Trustee or the Credit Provider in or under this Financing Agreement, or by reason of or in any manner connected with or arising out of the possession. operation, maintenance, alteration, repair, rebuilding, use or occupancy of the Mortgaged Property or any portion of it, including, without limitation, all taxes, assessments, whether general or special, and govemmental charges of any kind that may at any time be lawfully assessed or levied against or with respect to the Mortgaged Property or any machinery, equipment or other property installed or brought by the Borrower in or on the Mortgaged Property; provided that any amounts payable under this Financing Agreement that are also required to be paid by the terms of the Security Instrument shall be paid on the terms provided in DOCSOCllI20733v3/24036-0031 20 the Security Instrument. Upon request, the Borrower will furnish to the Issuer, the Trustee, the Loan Servicer and the Credit Provider proof of the payment of any such tax, assessment or other governmental or similar charge, or any other charge payable by the Borrower. Section 7.2.3 Remodelinl! and Improvements. Subject to the terms of the Mortgage Loan Documents, the Borrower may remodel the Mortgaged Property or make modifications or improvements on or to the Mortgaged Property from time to time as it, in its discretion, may deem to be desirable for its uses and purposes, provided that such remodeling, modifications or improvements (a) do not materially alter the scope or character or diminish the value of the Mortgaged Property, (b) are permitted under the Act and the Code and (c) are approved by the Loan Servicer and the Credit Provider. The cost of such remodeling, modifications or improvements shall be paid by the Borrower. Section 7.2.4 Compliance With Laws. The Borrower will, throughout the term of this Financing Agreement, promptly comply or cause compliance with all laws, ordinances, rules, regulations and requirements of duly constituted public authorities which may be applicable to the Mortgaged Property or to the construction, repair and alteration of the Mortgaged Property, or to the use or manner of use of the Mortgaged Property, including, but not limited to, the Act, the ADA, Environmental Laws and all federal, State and local labor, health and safety laws, rules and regulations. Subject to the provisions of the Mortgage Loan Documents, the Borrower may, at its expense and in its own name, provided it is not in default under any Mortgage Loan Document or any Bond Document, in good faith contest compliance with any such legal requirement and, in the event of any such contest, upon notice to the Issuer, the Trustee, the Loan Servicer and the Credit Provider, may permit the legal requirement so contested to remain in noncompliance during the pendency of such contest and any appeal from it, unless the Issuer, the Trustee, the Loan Servicer or the Credit Provider shall notify the Borrower that, in the opinion of counsel to the Issuer, the Trustee, the Loan Servicer or the Credit Provider, noncompliance with any such legal requirement may subject the Mortgaged Property or any part of it to foreclosure or forfeiture, in which event the legal requirement must be complied with. Nothing contained in this Section 7.2.4 is intended to modify or limit any provisions of the Regulatory Agreement or any Mortgage Loan Document. Section 7.2.5 Maintenance of Lel!al Existence. During the term of this Financing Agreement, the Borrower will maintain its existence and good standing in order to continue the accuracy of the representation set forth in paragraph (i) of Section 2.2.1, and will not terminate, dissolve, or dispose of all or substantially all of its assets, provided, however, that the Borrower may, with the prior written consent of the Credit Provider, consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it, or transfer all or substantially all of its assets to another entity, but only on the conditions that (A) the assignee entity or the entity resulting from or surviving a merger or consolidation (if other than the Borrower), or the entity to which a transfer shall be made, is duly organized and existing and in good standing under the laws of a state of the United States of America, is qualified to do business in and is in good standing under the laws of the State and will remain so continuously during the term of this Financing Agreement, and expressly assumes in writing and agrees to perform all of the Borrower's obligations under the Borrower Documents, (B) the Borrower delivers an Opinion of Bond Counsel to the Issuer, the Trustee, the Credit Provider and the Loan Servicer to the effect that the consolidation or merger will not cause the interest payable on the Bonds to be included in gross income for federal income tax purposes and (C) any transfer of the Mortgaged Property is effected in accordance with the terms of the Regulatory Agreement and the Mortgage Loan Documents. Nothing in this Section 7.2.5 shall be DOCSOC/l120733v3124036-0031 21 deemed to relieve the Borrower of its obligations to comply with the provisions of the Mortgage Loan Documents. Section 7.2.6 Access to Mortl!81!ed Propertv and Records; Reports. Section 7.2.6.1 Access to Mortl!al!ed Propertv. Subject to reasonable notice (of at least 24 hours in the absences of exigent circumstances), the Issuer, the Trustee, the Credit Provider and the Loan Servicer, and the respective duly authorized agents of each, shall have the right at all reasonable times during normal business hours to enter the Mortgaged Property and any other location containing records relating to the Borrower, the Mortgaged Property, the Bond Documents and the Mortgage Loan Documents and to inspect and audit and make copies of any and all of the Borrower's records or accounts pertaining to the Borrower, the Mortgaged Property, the Bond Documents and the Mortgage Loan Documents, and the Borrower's compliance with the terms and conditions of the Bond Documents and the Mortgage Loan Documents, and shall have the right to require the Borrower, at the Borrower's sole expense, to furnish such documents to the Issuer, the Trustee, the Loan Servicer and the Credit Provider, as the Issuer, the Trustee, the Loan Servicer or the Credit Provider from time to time deems necessary in order to determine that the Borrower is in compliance with the provisions of this Financing Agreement and the Mortgage Loan Documents and to make copies of any records that the Issuer, the Trustee, the Loan Servicer or the Credit Provider, or their respective duly authorized agents, may reasonably require. The Borrower will make available to the Issuer, the Trustee, the Loan Servicer and the Credit Provider such other information concerning the Borrower, the Mortgaged Property, the Bond Documents and the Mortgage Loan Documents as any of them may reasonably request. Section 7.2.6.2 Certificates and Reports. The Borrower will file such certificates and other reports with the Issuer, the Trustee, the Loan Servicer and the Credit Provider as are required by the Regulatory Agreement, including but not limited to the filing with the Issuer and the Trustee of true copies of each IRS Form 8703 - "Annual Certification of a Residential Rental Project" (or any successor form thereto) as completed and filed with the Internal Revenue Service for each calendar year during the Qualified Project Period. The Borrower will provide to the Issuer all information necessary to enable the Issuer to complete and file all forms and reports required by the laws of the State and the Code in connection with the Mortgaged Property and the Bonds. The Borrower will file with the Loan Servicer and, if requested in writing by the Issuer or the Trustee, to the Issuer and the Trustee, copies of all reports and notices required by the Mortgage Loan Documents. Section 7.2.7 Disposition of Mortl!al!ed Propertv. The Borrower will not sell, transfer or otherwise dispose of the Mortgaged Property except as permitted by the Regulatory Agreement and the Security Instrument. The Borrower agrees that any sale, transfer or other disposition of the Mortgaged Property in violation of this Section 7.2.7 shall be null, void and without effect and shall be ineffective to relieve the Borrower of its obligations under this Financing Agreement, provided that this Section 7.2.7 shall not be construed to prohibit (a) the granting by the Borrower of (1) the Security Instrument or (2) any other subordinate instrument or instruments approved by the Credit Provider (each, in this clause (a)(3), a "Subordinate Security Instrument"), provided that each Subordinate Security Instrument shall be subject to a subordination agreement (the "Subordination Agreement") in form and substance acceptable to the Credit Provider, or (b) the (1) foreclosure of the Security Instrument, acceptance of a deed-in-lieu of foreclosure or comparable conversion of the Mortgage Loan, or (2) the foreclosure of any Subordinate Security Instrument by DOCSOCll120733v3/24036-003! 22 the holder of the Mortgage Note or the beneficiary of the Subordinate Security Instrument subject, in all cases, to the terms and conditions of the applicable Subordination Agreement. Section 7.2.8 Tax Covenants. The Borrower covenants that: (i) it will at all times comply with the terms of the Tax Certificate and the Regulatory Agreement; (ii) it will not take, or permit to be taken on its behalf, any action which would cause the interest payable on the Bonds to be included in gross income, for federal income tax purposes, and will take such action as may be necessary in the Opinion of Bond Counsel to continue such exclusion from gross income, including, without limitation the following: (A) the preparation and filing of all statements required to be filed by it in order to maintain the exclusion (including, but not limited to, the filing of all reports and certifications required by the Regulatory Agreement); (B) the timely payment to the United States of America of any rebate amount required to be paid by the Issuer or the Borrower pursuant to Section 148(F) of the OJde and the Treasury Regulations under Section 148; and (C) the use or deemed use of not less than 95% of the net proceeds of the Bonds (within the meaning of Section 142(A) of the Code) for Qualified Project Costs; (iii) in order to satisfy the requirements set forth in subpart (4) of the definition of "program investment" that appears in Section 1.148-1 (B) of the Treasury Regulations (which requirements must be met in order for the Mortgage Loan to qualify as a program investroent within the meaning of that section, neither the Borrower nor any related person (within the meaning of "program investment") will purchase Bonds in an amount related to the amount of the Mortgage Loan; (iv) no changes will be made to the Mortgaged Property, no actions will be taken by the Borrower and the Borrower will not omit to take any actions, which will in any way adversely affect the tax-exempt status of the Bonds; (v) will comply with the requirements of Section 148 and the Treasury Regulations issued under Section 148 throughout the term of the Bonds and will not make any use of the proceeds of the Bonds, or of any other funds which may be deemed to be proceeds of the Bonds under the Treasury Regulations, which would cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 and the Treasury Regulations; (vi) if the Borrower becomes aware of any circumstance, event or condition which would result in the interest payable on the Bonds becoming includable in gross income, for federal income tax purposes, the Borrower will promptly give written notice of such circumstance, event or condition to the Issuer, the Trustee, the Loan Servicer and the Credit Provider; (vii) the full amount of each disbursement from the Mortgage Loan Fund will be applied to payor to reimburse the Borrower for the payment of Costs of the Mortgaged Property and, after taking into account any proposed disbursement, (A) at least 95% of the net DOCSOCIl120733v3124036-0031 23 proceeds of the Bonds (as defined in Section 150 of the Code) will be used or deemed used to provide a qualified residential rental project (as defined in Section 142(D) of the Code) and (B) less than 25% of the net proceeds of the Bonds will have been disbursed to payor to reimburse the Borrower for the cost of acquiring land; none of the proceeds of the Bonds (as defined for purposes of Section 147(G) of the Code) will be disbursed to provide working capital; (viii) the Borrower will cause all of the residential units in the Mortgaged Property to be rented or available for rental on a basis which satisfies the requirements of the Act, the Code and the Regulatory Agreement; (ix) all leases will comply with all applicable laws and the Regulatory Agreement; (x) in connection with any lease or grant by the Borrower of the use of the Mortgaged Property, the Borrower will require that the lessee or user of any portion of the Mortgaged Property not use that portion of the Mortgaged Property in any manner which would violate the covenants set forth in this Financing Agreement or the Regulatory Agreement; (xi) no proceeds of the Bonds will be used, for the acquisition of any tangible property or an interest therein, other than land or an interest in land, unless the first use of such property was pursuant to such acquisition; provided, however, that this limitation shall not apply with respect to any building (and the equipment therefor) if rehabilitation expenditures (as defined in the Code) with respect to such building equal or exceed fifteen percent (15%) of the portion of the cost of acquiring such building (and equipment) financed with proceeds of the Bonds; and provided, further, that this limitation shall not apply with respect to any structure other than a building if rehabilitation expenditures with respect to such structure equal or exceed 100 percent of the portion of the cost of acquiring such structure financed with the proceeds of the Bonds. The Borrower irrevocably authorizes and directs the Issuer, the Trustee and any other agent designated by the Issuer to make payment of such amounts from funds of the Borrower, if any, held by the Issuer, the Trustee, or any agent of the Issuer or the Trustee. The Borrower further covenants and agrees that, pursuant to the requirements of Treasury Regulation Section 1.148-1(b), it (or any related person contemplated by such regulations) will not purchase Bonds in an amount related to the amount of the Loan; (xii) it shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Bonds to be "federally guaranteed" within the meaning of Section 149(B) of the Code; (xiii) the Bonds upon issuance and delivery shall be considered "private activity bonds" within the meaning of the Code with respect to which the California Debt Limit Allocation Committee has transferred a portion of the State of California's private activity bond allocation (within the meaning of Section 146 of the Code) equal to the principal amount of the Bonds; (xiv) from the proceeds of the Bonds (within the meaning of the Code) and investroent earnings thereon, it will not use an amount in excess of two percent (2%) of the proceeds of the Bonds for costs of issuance of the Bonds, all within the meaning of Section 147(g)(I) of the Code. For this purpose, if the fees of the Original Purchaser are retained as DOCSOC/1120733v3124036-0031 24 a discount on the purchase of the Bonds, such retention shall be deemed to be an expenditure of proceeds of the Bonds (within the meaning of the Code) for said fees; and (xv) no proceeds of the Bonds (within the meaning of the Code) shall be used directly or indirectly to provide any airplane, skybox or other private luxury box, health club facility, facility used for gambling or store the principal business of which is the sale of alcoholic beverages for consumption off premises. Section 7.2.9 Pavment of Rebate Amounts. The Borrower will engage a Rebate Analyst to calculate the rebate amount, as required by the Indenture and will provide a copy of each rebate report to the Issuer and the Trustee. The Borrower will promptly pay, or cause to be paid, when due to the United States of America all rebate amounts that may be or become owing with respect to the Bonds (which payment may be made out of any available amounts on deposit in the various Funds and Accounts established under the Indenture or, in the absence of such available amounts, must be paid by the Borrower or a general partner of the Borrower out of its own funds). For purposes of this Section, "available amounts", when used with respect to any Fund or Account established under the Indenture, means moneys on deposit in the Fund or Account in excess of the amounts required to be on deposit in the Fund or Account from time to time for the payment of interest, principal or premium, if any, due with respect to the Bonds and Third Party Fees. In the event that the Trustee receives written notice from the Borrower, the Loan Servicer, the Issuer or the Credit Provider, that the Borrower has failed to engage a Rebate Analyst, the Trustee in consultation with, and with the approval of, the Credit Provider and the Issuer, will use its best efforts to engage a Rebate Analyst to calculate rebate, provided that a Rebate Analyst can be engaged for amounts which do not exceed on an annual basis, the moneys that are and will be then available under the Indenture to pay the Rebate Analyst's Annual Fee, or from other moneys furnished to the Trustee; in no event shall the Trustee be required to risk or expend its own moneys to employ a Rebate Analyst. Section 7.2.10 Al!reement Rel!ardinl! Documents. The Indenture and the Credit Facility have been submitted to the Borrower for its examination, and the Borrower acknowledges, by execution of this Financing Agreement, that it has participated in the preparation and review of the Indenture and the Credit Facility, that it has reviewed, approved and agreed to each of the provisions of the Indenture and the Credit Facility and that it is bound by, will adhere to the provisions of, and will have the rights set forth by the terms and conditions of, the Indenture and covenants and agrees to perform all obligations required of the Borrower pursuant to the terms of the Indenture and the Credit Facility as if, in the case of the Indenture, the Borrower were a party to the Indenture. The Borrower acknowledges that it has no rights under, and is not, and is not intended to be, a third party beneficiary of, the Credit Facility. Section 7.2.11 Compliance with other Documents. The Borrower agrees to, assumes, and acknowledges and agrees to abide by, the terms and conditions of, and will make all payments and will observe and perform all covenants, conditions and agreements required to be paid, observed or performed by the Borrower under the Borrower Documents and any Credit Facility Agreement and all other documents, instruments or agreements which are at any time, or from time to time, entered into by the Borrower with respect to the ownership, operation, occupancy, use or financing of the Mortgaged Property. The Borrower acknowledges that the Borrower's failure to comply with the terms and conditions of any Credit Facility Agreement will constitute an Event of Default under the Mortgage Loan, and, at the option of the Credit Provider (as set forth in Section 13.1.2), an Event of Default under this Financing Agreement, entitling the Trustee, but only DOCSOCI1120733v3/24036-0031 25 at the direction of the Credit Provider, to exercise all available remedies set forth in this Financing Agreement. Section 7.2.12 Disclosure Al!reement. The Borrower acknowledges and agrees that the Issuer is not an "obligated person" (as defined in the Disclosure Agreement) with respect to the Bonds and represents that the Borrower is the only obligated person with respect to the Bonds. The Issuer acknowledges the entry by the Borrower and the Trustee into the Disclosure Agreement under which the Trustee has assumed certain obligations, in addition to those assumed under the Indenture, for the benefit of the Bondholders. The Borrower agrees to perform its obligations under the Disclosure Agreement, including without limitation, the payment of compensation to the Trustee and payment or reimbursement of expenses, disbursements and advances incurred or made by the Trustee, all in accordance with the provisions of the Disclosure Agreement. Notwithstanding any other provision of this Financing Agreement, any failure by the Borrower to comply with any provision of the Disclosure Agreement shall not be a failure or a default, or an Event of Default, under this Financing Agreement or the Indenture. Section 7.2.13 Notice of Certain Events. The Borrower will advise the Issuer, the Trustee, the Loan Servicer and the Credit Provider immediately in writing of (a) any misrepresentation or breach of warranty by the Borrower in, or the occurrence of any default by the Borrower in the performance or observance of any covenant, agreement, representation, warranty or obligation of the Borrower set forth in, any Borrower Document and (b) any event which, with the passage of time or service of notice, or both,. would constitute a default under any Borrower Document, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect to such event (the Borrower's notice shall be given promptly, and in no event more than ten (10) Business Days after the Borrower receives notice or has knowledge of the occurrence of any such event). The Borrower will give prompt written notice to the Trustee and the Loan Servicer if insurance proceeds or condemnation awards are received with respect to the Mortgaged Property and are not used to repair or replace the Mortgaged Property, which notice shall state the amount of such proceeds or award. Section 7.2.14 Warrantv of Truth. No information, certificate, statement in writing or report required to be delivered by the Borrower to the Issuer or the Trustee or both will contain any untrue statement of a material fact or omit a material fact necessary to make such information, certificate, statement or report not misleading. Section 7.2.15 Operatinl! Statements. The Borrower will prepare and submit to the Issuer and the Loan Servicer, annually within ninety (90) days after the close of the Borrower's fiscal year, a Mortgaged Property operating statement and balance sheet which have been audited by an independent certified public accountant or firm of independent certified public accountants, acceptable to the Loan Servicer and the Credit Provider in their discretion. The Borrower further agrees to prepare and submit to the Issuer and the Loan Servicer quarterly, within thirty (30) days after the close of each fiscal quarter (a) a statement showing, separately, the percentage of occupied and unoccupied units in the Mortgaged Property, (b) an unaudited Mortgaged Property operating statement certified by the Borrower as being true, correct and complete and (c) a current rent roll for the most recent date available which has been certified by the Borrower as being true, correct and complete in all material respects. Section 7.2.16 Control of Borrower and Credit Provider. The Borrower represents that the Credit Provider does not control, either directly or indirectly, through one or more DOCSOCIl120733v3/24036-0031 26 intermediaries, the Borrower and that the Borrower does not control, either directly or indirectly, through one or more intermediaries, the Credit Provider. "Control" for this purpose has the meaning given to such term in Section 2(a)(9) of the Investment Company Act of 1940. The Borrower shall give notice to the Trustee and the Remarketing Agent of any transaction that would result in the Borrower controlling or being controlled by the Credit Provider at least 45 days prior to the date of consummation of such transaction. The Trustee shall give such notice to the Bondholders within ten days of receipt thereof. ARTICLE 8 SECURITY INTEREST; ASSIGNMENT OF CERTAIN RIGHTS Section 8.1 Securitv Interest. In order to secure its obligations under this Financing Agreement and the Mortgage Loan Documents, the Borrower grants to the Issuer and the Credit Provider a security interest in all of the Borrower's rights in and to all Funds and Accounts created or established under the Indenture. Section 8.2 Assienment of Certain Ril!hts. The Borrower acknowledges that the Issuer has, pursuant to the Assignment, assigned certain of its rights in the Mortgage Note and the Security Instrument to the Credit Provider and the Trustee, as their interests may appear. ARTICLE 9 INDEMNIFICATION Section 9.1 Borrower's Oblil!ations. The Borrower releases the Issuer and the Trustee, and their respective officers, directors, agents, officials, employees (and, as to the Issuer, members of its governing body) and any person who controls the Issuer or the Trustee within the meaning of the Securities Act of 1933, from, and covenants and agrees to indemnify, hold harmless and defend the Issuer and the Trustee and their respective officers, directors, employees, agents, members of its governing body, officials and any person who controls such party within the meaning of the Securities Act of 1933 and employees and each of them (each an "Indemnified Party") from and against, any and all losses, claims, damages, demands, liabilities and expenses (including attorney's fees and expenses), taxes, causes of action, suits, claims, demands and judgments of any nature, joint or several, by or on behalf of any person arising out of: (i) the transactions provided for in the Bond Documents or the Mortgage Loan Documents; (ii) the execution and delivery or amendment of any document entered into in connection with the transactions provided for in the Bond Documents or the Mortgage Loan Documents, including any certifications or representations made by any person other than the party seeking indemnification; (iii) the approval of the financing for the Mortgaged Property; (iv) the Mortgage Loan; DOCSOC1I120733v3124036-0031 27 (v) any and all claims ansmg in connection with the interpretation, performance, enforcement, breach, default or amendment of the Bond Documents, the Mortgage Loan Documents or any other documents relating to the Mortgaged Property or the Bonds or in connection with any other matters relating to the Bonds or the Mortgaged Property, including, but not limited to, any federal or state tax audit, or any questions or other matters arising under such documents; (vi) the Trustee's acceptance or administration of the trusts created by the Indenture or the exercise of its powers or duties under the Indenture, this Financing Agreement, the Regulatory Agreement or any other agreements to which it is a party or otherwise in connection with the transactions provided for in the Bond Documents or the Mortgage Loan Documents; (vii) any and all claims arising in connection with (a) the issuance, sale or remarketing of any Bonds or any certifications or representations made by any person other than the party seeking indemnification, including, but not limited to, any (I) statement or information made by the Borrower with respect to the Borrower or the Mortgaged Property in any offering document or materials regarding the Bonds, the Mortgaged Property or the Borrower or in the Tax Certificate of the Borrower or in any other certificate executed by the Borrower which, at the time made, is misleading, untrue or incorrect in any material respect, (2) untrue statement or alleged untrue statement of a material fact relating to the Borrower or the Mortgaged Property contained in any offering material relating to the sale of the Bonds, as from time to time amended or supplemented, or arising out of or based upon the omission or alleged omission to state in such offering material a material fact relating to the Borrower or the Mortgaged Property required to be stated in such offering material or necessary in order to make the statements in such offering material not misleading, (3) failure to properly register or otherwise qualify the sale of the Bonds or failure to comply with any licensing or other law or regulation which would affect the manner in which or to whom the Bonds could be sold and (b) the carrying out by the Borrower of any of the transactions provided for in the Bond Documents and the Mortgage Loan Documents; (viii) the Borrower's failure to comply with any requirement of this Financing Agreement or the Regulatory Agreement; and (ix) any act or OffitSSlOn of the Borrower or any of its agents, servants, employees or licensees in connection with the Mortgage Loan or the Mortgaged Property, including violation of any law, ordinance, court order or regulation affecting the Mortgaged Property or any part of it or the ownership, occupancy or use of it; (x) any damage or injury, actual or claimed, of whatsoever kind, cause or character, to property (including loss of use of property) or persons, occurring or allegedly occurring in, on or about the Mortgaged Property or arising out of any action or inaction of the Borrower, whether or not related to the Mortgaged Property, or resulting from or in any way connected with the acquisition, construction or management of the Mortgaged Property, the issuance of the Bonds or otherwise in connection with transactions provided for in the Bond Documents and the Mortgage Loan Documents or otherwise in connection with the Mortgaged Property, the Bonds or the execution or amendment of any document relating to the Mortgaged Property or the Bonds; (xi) any violation of any Environmental Law applicable to, or the release of any toxic substance from, the Mortgaged Property; and DOCSOClI120733v3124036-0031 28 (xii) any and all claims arising in connection with the operation of the Mortgaged Property, or the conditions, environmental or otherwise, occupancy, use, possession, conduct or supervision of work done in or about, or from the planning, design, acquisition, construction, repair or equipping of, the Mortgaged Property or any part of it, including, but not limited to, the ADA (as evidenced by an architect's certificate to such effect). This indemnification shall extend to and include, without limitation, all reasonable costs, counsel fees, expenses or liabilities incurred in connection with any such claim, or proceeding brought with respect to such claim, except (a) in the case of the foregoing indemnification of the Trustee or any of its Indemnified Parties, to the extent such damages are caused by the negligence or willful misconduct of such Person, and (b) in the case of the foregoing indemnification of the Issuer or any of its Indemnified Parties, to the extent such damages are caused by the gross negligence or willful misconduct of such Person. Section 9.2 Defense of Claims. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought under this Financing Agreement, the Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense of the action or proceeding, including the engagement of counsel selected by the Borrower, subject to the approval of the Indemnified Party in such party's sole discretion, and shall assume the payment of all expenses related to the action or proceeding, with full power to litigate, compromise or settle the same in its sole discretion, provided that the Issuer and the Trustee, as appropriate, shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to engage separate counsel in any such action or proceeding and participate in the investigation and defense of the action or proceeding and the Borrower shall be obligated to pay the reasonable fees and expenses of such separate counsel if (a) the Indemnified Party determines that a conflict of interest exists between the interests of the Indemnified Party and the interests of the Borrower or (b) such separate counsel is engaged with the approval of the Borrower, which approval shall not be unreasonably withheld, conditioned or delayed. Section 9.3 Borrower's Continuinl! Oblil!ation. Notwithstanding any transfer of the Mortgaged Property to another owner, the Borrower shall remain obligated to indemnify each Indemnified Party pursuant to this Article IX for all matters arising prior to the date of such transfer, and, as a condition to the release of the transferor on and after the transfer date, the transferee must assume the obligations of the Borrower under the Bond Documents and the Mortgage Loan Documents on and after such transfer date and indemnify each Indemnified Party pursuant to this Article IX for all matters arising on and after the date of such transfer. The Indemnified Party's rights under this Article IX shall survive the termination of this Financing Agreement, the payment of the Mortgage Loan and the payment or defeasance of the Bonds. Section 9.4 Limitation with Respect to the Credit Provider. Notwithstanding anything in this Financing Agreement to the contrary, in the event that the Credit Provider shall become the owner of the Mortgaged Property as a result of a foreclosure or a deed in lieu of foreclosure or comparable conversion of the Mortgage Loan the Credit Provider shall not be liable for any breach of or default of any prior owner of the Mortgaged Property under this Financing Agreement and shall only be responsible for defaults and obligations incurred during the period that the Credit Provider is the owner of the Mortgaged Property. Accordingly, during any period that the Credit Provider owns the Mortgaged Property and that this Article IX is applicable to the Credit Provider, the Credit DOCSOCII120733v3/24036-0031 29 Provider's obligations under this Article IX shall be limited to acts and omissions of the Credit Provider occurring during the period of the Credit Provider's ownership of the Mortgaged Property. ARTICLE 10 THE MORTGAGED PROPERTY Section 10.1 Rel!Ulatorv Aereement. The covenants of the Borrower in the Regulatory Agreement shall be deemed to constitute covenants of the Borrower running with the land and an equitable servitude for the benefit of the owners of the Bonds and shall be binding upon any owner of the Mortgaged Property until (a) such time as such restrictions expire under their own terms, or (b) the Issuer (in its sole and absolute discretion) and the Trustee consent to the release of such restrictions, or (c) the Regulatory Agreement is otherwise terminated by its terms. The Borrower covenants to file of record the Regulatory Agreement and such other documents and take such other steps as are necessary in order to assure that the restrictions contained in the Regulatory Agreement will, subject to the terms of the Regulatory Agreement, be binding upon all owners of the Mortgaged Property. The Borrower covenants to include such restrictions or a reference to such restrictions in any documents transferring any interest in the Mortgaged Property to another to the end that such transferee has notice of, and is bound by, such restrictions. Subject to the provisions of Article XIII, the Issuer and the Trustee shall have the right to seek specific performance of or injunctive relief to enforce the requirements of any covenants of the Borrower contained in the Regulatory Agreement or this Financing Agreement. Section 10.2 Ril!ht To Enforce Compliance. The Issuer, the Trustee, the Loan Servicer and the Credit Provider shall each have the right, but not the obligation, to enforce compliance by the Borrower and its successors as subsequent owners of the Mortgaged Property with the requirements of this Financing Agreement and the Regulatory Agreement. Notwithstanding the foregoing, the Trustee agrees that it will, subject to the provisions of the Indenture and Article XIII, at the direction of the Issuer, take such action as may be required to achieve compliance by the Borrower with the terms and provisions of this Financing Agreement and the Regulatory Agreement. Section 10.3 Damal!e. Destruction and Condemnation. If prior to full payment of the Bonds (or provision for payment of the Bonds in accordance with the provisions of the Indenture) the Mortgaged Property or any portion of it is destroyed (in whole or in part) or is damaged by fire or other casualty, or title to, or the temporary use of, the Mortgaged Property or any portion of it shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, or shall be transferred pursuant to an agreement or settlement in lieu of eminent domain proceedings, the Borrower shall nevertheless be obligated to continue to pay the amounts specified in this Financing Agreement and in the Mortgage Note to the extent the Mortgage Loan is not prepaid in accordance with the terms of the Mortgage Loan Documents. ARTICLE 11 TRUSTEE'S INTEREST IN AGREEMENT Section 11.1 Issuer Assil!Ument of this Financinl! Al!reement. Pursuant to the Indenture, the Issuer shall pledge, assign and transfer all of its right, title and interest in and to this Financing Agreement (other than the Reserved Rights of the Issuer), and the revenues, receipts and DOCSOC/1 120733v3/24036-0031 30 collections under this Financing Agreement, to the Trustee, for the benefit of the Bondholders and the Credit Provider, as security for the payment of the principal of, premium, if any, and interest on the Bonds, as security for the reimbursement of amounts owing to the Credit Provider under this Financing Agreement and the Reimbursement Agreement, and as security for the payment of amounts due under the Mortgage Loan Documents. The parties to this Financing Agreement acknowledge that the covenants and agreements contained in this Financing Agreement and in the Indenture are for the benefit of the Bondholders from time to time and the Credit Provider and may be enforced on their behalf by the Trustee. The Issuer shall, at the expense of the Borrower, execute and deliver from time to time, in addition to the instruments of assignment specifically provided for in this Financing Agreement, such other and further instruments and documents as may be reasonably requested by the Trustee or the Credit Provider from time to time to further evidence, effect or perfect such pledge and assignment for the purposes stated in the Indenture. The Borrower acknowledges and consents to the assignment and pledge of the Trust Estate (subject to the reservation by the Issuer of its Reserved Rights) by the Issuer to the Trustee, for the benefit of the Bondholders and the Credit Provider, as security for the payment of the Bonds and as security for the payment of amounts owing under this Financing Agreement and the Mortgage Loan Documents, including as part of the Trust Estate (a) the moneys deposited to the various Funds and Accounts under the Indenture (excluding the Rebate Fund, the Costs of Issuance Fund and the Fees Account), including Investroent Income (other than Investment Income with respect to the Rebate Fund and certain Investment Income with respect to the Costs of Issuance Fund), and (b) all of the Issuer's rights and interests under this Financing Agreement (but excluding the Issuer's Reserved Rights) and the reserves, receipts and collections under this Financing Agreement and the right and interest to enforce, either jointly or separately, the performance of the obligations of the Borrower under this Financing Agreement. The Borrower further acknowledges and consents to the right of the Trustee to enforce all rights of the Issuer and the Bondholders assigned under the Indenture. Section 11.2 Third Party Beneficiaries. The Bondholders, the Loan Servicer and the Credit Provider are intended to be, and shall be, third party beneficiaries of this Financing Agreement, and the Credit Provider shall have the right (but not the obligation) to enforce the terms of this Financing Agreement insofar as this Financing Agreement sets forth obligations of the Borrower under this Financing Agreement. ARTICLE 12 PERFORMANCE RIGHTS Section 12.1 Ril!ht To Perform Borrower's ObIil!ations. In the event the Borrower fails to perform any of its obligations under this Financing Agreement, the Issuer, the Trustee, the Credit Provider and/or the Loan Servicer, may, but shall not be obligated to, perform such obligation and pay all costs related to such performance; all such costs so advanced by the Issuer, the Trustee, the Credit Provider or the Loan Servicer shall become an additional obligation of the Borrower under this Financing Agreement, payable on demand, with interest on such obligation at the maximum rate permitted by law. In the event of an advance made due to the Borrower's default, the interest on the advance shall be at the default rate of interest payable under the Mortgage Note. Section 12.2 No Modification of Mortl!al!e Loan Documents. Nothing contained in Section 12.1 is intended to modify or limit any provisions of the Mortgage Loan Documents which provide for sums advanced by the Loan Servicer or the Credit Provider to be added to the principal balance of the Mortgage Loan and to be secured by the Security Instrument. DOCSOCIl120733v3/24036-0031 31 ARTICLE 13 EVENTS OF DEFAULT AND REMEDIES Section 13.1 Events of Default. Section 13.1.1 Events of Default. Each of the following shall constitute an Event of Default under this Financing Agreement: (i) the failure by the Borrower to pay any amounts due under this Financing Agreement at the times and in the amounts required by this Financing Agreement; or (ii) the failure by the Borrower to observe or perform any covenants, agreements or obligations in this Financing Agreement on its part to be observed or performed (other than as provided in paragraph (i) above) for a period of thirty (30) days after receipt of written notice from the Trustee specifying such failure and requesting that it be remedied, provided, however, that if the failure is such that it cannot be corrected within such period, it shall not constitute an Event of Default if the failure is correctable without material adverse effect on the validity or enforceability of the Bonds or on the exclusion from gross income, for federal income tax purposes, of the interest payable on the Bonds, and if corrective action is instituted by the Borrower within such period and diligently pursued until the failure is corrected, and provided further that any such failure shall have been cured within 90 days of receipt of notice of such failure; or (iii) any breach of any of the covenants, agreements or obligations of the Borrower under, or the occurrence of a default under, the Regulatory Agreement, including any exhibits to the Regulatory Agreement; or (iv) the determination by the Issuer, the Trustee, the Loan Servicer or the Credit Provider that any representation or warranty made by the Borrower in this Financing Agreement or in any document delivered by or on behalf of the Borrower to the Issuer, the Trustee, the Loan Servicer or the Credit Provider in connection with the Mortgaged Property, the Mortgage Loan or the Bonds was untrue or misleading in any material respect as of the date made or deemed made; or (v) the occurrence of an Event of Default under and as defined in the Indenture or under and as defined in any other Bond Document caused by the Borrower's failure to comply with the terms or conditions of any such Bond Document; or (vi) the occurrence of any of the following: the Borrower shall generally not pay its debts as they become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors or shall institute any proceeding or voluntary case seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointroent of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property; or the Borrower shall take any action to authorize any of the actions described above in this paragraph (vi), or any proceeding shall be instituted against the Borrower seeking to adjudicate it a bankrupt or insolvent or seeking liquidation, winding up, reorganization, arrangement, adjustroent, protection, relief or composition of DOCSOCII120733v3/24036-003 ] 32 it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief or protection of debtors, or seeking the entry of an order for relief or the appointroent of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and, if such proceeding is being contested by the Borrower in good faith, such proceeding shall remain undismissed or unstayed for a period of 60 days; (vii) the filing or making of any claim against the Trust Estate as a result of any action or proceeding described in paragraph (vi) of this Section 13.1 by, or with respect to, the Issuer; or (viii) an Event of Default as a result of a determination by the Credit Provider pursuant to Section 13.1.2. The provisions of this Article Xill are subject to the provisions of Section 9.1.3 of the Indenture. Section 13.1.2 Cross Default. The occurrence of a default under the Mortgage Loan Documents shall not constitute an Event of Default under this Financing Agreement unless the default is declared by the Credit Provider, in its sole and absolute discretion, to be an Event of Default under this Financing Agreement, such declaration to be made by written notice to the Trustee. The occurrence of an Event of Default under this Financing Agreement shall not constitute a default under any Mortgage Loan Document unless the Event of Default is declared by the Credit Provider, in its sole and absolute discretion, to be a default under the Mortgage Loan, such declaration to be made by written notice to the Trustee. Section 13.1.3 Mortl!al!e Loan Documents. Nothing contained in this Section 13.1 is intended to amend or modify any of the provisions of the Mortgage Loan Documents nor to bind the Loan Servicer or the Credit Provider to any notice and cure periods other than as expressly set forth in the Mortgage Loan Documents. Section 13.2 Remedies Upon an Event of Default. Section 13.2.1 General. Subject to Section 13.2.8, whenever any Event of Default shall have occurred and be continuing under this Financing Agreement, the Trustee may take anyone or more of the following remedial steps: (i) give immediate notice to the Issuer, the Loan Servicer and the Credit Provider, and if the Event of Default is the failure to receive a Required Mortgage Payment (as defined in the Credit Facility), the Trustee shall present to the Credit Provider an appropriate certificate for an Advance under the Credit Facility; or (ii) if the principal and interest accrued on the Bonds shall have been declared immediately due and payable pursuant to Section 9.2.1 of the Indenture, the Trustee shall give notice to the Issuer, the Loan Servicer and the Credit Provider and present an appropriate certificate for an Advance under the Credit Facility, provided, however, that if the Trustee shall rescind or annul a declaration of acceleration of Bonds pursuant to the Indenture, the Issuer, the Trustee, the Loan Servicer and the Credit Provider shall be restored to their former rights and positions, and all rights, duties and obligations of the parties shall continue as if no adverse proceeding had been taken, subject to the limits of any adverse determination; or DOCSOCIl120733v3/24036-0031 33 (iii) take such action as is permitted by the Mortgage Loan Documents but only with the prior written consent of the Credit Provider; (iv) to the extent of any insufficiency in the payment of the Bonds after the Trustee shall have received an Advance under the Credit Facility, the Trustee may, by any suit, action or proceeding, pursue all remedies now or hereafter existing at law or in equity to collect all amounts then due and thereafter to become due under this Financing Agreement, to enforce the performance of any covenant, obligation or agreement of the Borrower under this Financing Agreement (subject to the nonrecourse provisions of this Financing Agreement and the Regulatory Agreement) or to enjoin acts or things which may be unlawful or in violation of the rights of the Issuer or the Trustee; (v) at the written direction or with the prior written consent of the Credit Provider, apply in any court of competent jurisdiction for specific performance by the Borrower of its covenants, obligations and agreements under this Financing Agreement or for injunctive relief to prevent any violation of the covenants, obligations or agreements on the part of the Borrower to be observed or performed under this Financing Agreement (the Borrower acknowledges and agrees that money damages alone would not be an adequate remedy at law for a default by the Borrower arising from a failure to comply with this Financing Agreement, and therefore the Borrower agrees that the remedy of specific performance or injunctive relief shall be available to the Trustee in any such case); or (vi) at the written direction or with the prior written consent of the Credit Provider, take whatever other action at law or in equity may appear necessary or desirable to enforce any obligation of the Borrower under this Financing Agreement. In addition, upon the occurrence of an Event of Default, the Issuer, the Trustee, the Loan Servicer and the Credit Provider shall have access to and may inspect, examine, audit and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Borrower. Section 13.2.2 Enforcement of Reserved Ril!hts. Subject to the terms of the Regulatory Agreement and Section 13.2.8, the Issuer, without the consent of the Trustee, but only after written notice to the Trustee, the Loan Servicer, the Credit Provider and the Borrower, may take whatever action may appear necessary or desirable to specifically enforce the performance and observance of any Reserved Right of the Issuer, provided that the Issuer may not, without the prior written consent of the Trustee and the Credit Provider (a) terminate this Financing Agreement or cause the Mortgage Loan to become due and payable or (b) cause the Trustee to declare the principal of all Bonds then Outstanding and the interest accrued on the Bonds to be immediately due and payable, or cause the Trustee to accelerate, foreclose or take any other action or seek other remedies under the Bond Documents, the Mortgage Loan Documents or any other documents contemplated by this Financing Agreement or by such other documents to obtain such performance or observance. Section 13.2.3 Permitted Cures of an Event of Default. The Trustee may, with the prior written consent of the Credit Provider, or at the written direction of the Credit Provider, permit the Borrower, for a period specified by the Credit Provider, to cure any default under the Mortgage Note and the Security Instrument, but only if (a) the Borrower pays to the Trustee or the Loan Servicer, as the case may be, for proper remittance, all overdue payments of principal and interest on the Mortgage Note, (b) the Borrower cures any nonmonetary defaults under the Mortgage Note, the DOCSOCllI20733v3/24036-0031 34 Security Instrument and the other Mortgage Loan Documents to the satisfaction of the Credit Provider, and (c) the Borrower pays all fees, costs and expenses of the Trustee, the Issuer, the Loan Servicer and the Credit Provider, including, without limitation, Extraordinary Items due to the Trustee and all legal fees and expenses, incurred in connection with the default. The Borrower acknowledges that any cure of any default will not affect any subsequent default under the Mortgage Loan Documents. Section 13.2.4 Waiver and Annulment. If, after any Event of Default (a) all amounts which would then be payable under this Financing Agreement by the Borrower if such Event of Default had not occurred and was not continuing shall have been paid by or on behalf of the Borrower, and (b) the Borrower shall have also performed all other obligations in respect of which it is then in default under this Financing Agreement and shall have paid the reasonable fees and expenses of the Issuer, the Trustee, the Credit Provider and the Loan Servicer, including reasonable attorney fees and expenses paid or incurred in connection with such default, then and in every such case, such Event of Default shall be waived and annulled by the Trustee, but only if so directed by the Credit Provider, in its sole and absolute discretion; no such waiver or annulment shall extend to or affect any subsequent Event of Default or impair any right or remedy consequent on such Event of Default Section 13.2.5 Non-Exclusivitv of Remedies. No remedy conferred in this Financing Agreement upon or reserved to the Issuer or the Trustee is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy now or hereafter existing pursuant to any other agreement at law or in equity or by statute. Section 13.2.6 Delav or Omission. No delay or omission to exercise any right or power occurring upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of such Event of Default, but any such right and power may be exercised from time to time and as often as may be deemed appropriate. The Issuer and the Trustee agree to give only such notices as may be expressly required by this Financing Agreement. Section 13.2.7 Application of Proceeds. Except as required to be deposited in the Rebate Fund pursuant to the Indenture and the Tax Certificate, any amounts collected pursuant to action taken under this Section 13.2 shall, after the payment of the fees and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Issuer, the Trustee or the Credit Provider and their respective counsel, be paid into the General Account, and applied in accordance with the provisions of the Indenture, provided, however, there shall be no deduction for fees and expenses associated with the Trustee's collection of funds payable under the Credit Facility. No action taken pursuant to this Section 13.2.7 shall relieve the Borrower from the Borrower's obligations under Article IX. Section 13.2.8 Limitations on Actions. Notwithstanding any other provision of this Financing Agreement or the Regulatory Agreement to the contrary: (i) neither the Issuer, the Trustee nor any person under the control of either shall, without the prior written consent of the Credit Provider, exercise any remedies or direct any proceedings under the Bond Documents or the Mortgage Loan Documents other than to (a) enforce rights under the Credit Facility, (b) enforce the tax covenants in the Indenture, the Regulatory Agreement and this Financing Agreement, (c) enforce rights of specific performance DOCSOC/1120733v3124036-0031 35 under the Regulatory Agreement or (d) enforce the Issuer's Reserved Rights, provided, however, that any enforcement under (b), (c) or (d) above shall not include seeking any monetary recovery against the Borrower apart from a monetary recovery associated with Reserved Rights and provided further that (1) any claim of the Issuer for a monetary recovery shall be subordinate to the payment obligations of the Mortgage Loan and (2) the enforcement of any claim for a monetary recovery shall not cause the Borrower to file a petition seeking reorganization, arrangement, adjustroent or composition of or in respect of the Borrower under any applicable liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law now or hereafter in effect; and (ii) so long as the Credit Facility remains outstanding and a Wrongful Dishonor has not occurred or, if it has occurred, is not continuing, neither the Issuer, the Trustee, nor any person under their control shall; (A) initiate or take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal, interest and other amounts due under the Mortgage Loan; (B) interfere with or attempt to influence the exercise by the Credit Provider of any of its rights under the Mortgage Loan, including, without limitation, its remedial rights under the Mortgage Loan upon the occurrence of an event of default by the Borrower under the Mortgage Loan; or (C) upon the occurrence of an event of default under the Mortgage Loan, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Mortgage Loan. Section 13.3 Limitations on Waivers. In the event any covenant, agreement or condition contained in this Financing Agreement shall be breached by a party and thereafter waived by another party, such waiver shall not bind any party which has not waived the breach and shall be limited to the particular breach so waived and shall not be deemed to waive any other breach under this Financing Agreement nor be a waiver of the same breach on a future occasion. By reason of the assignment and pledge of certain of the Issuer's rights and interests in this Financing Agreement to the Trustee, the Issuer shall have no power to waive or release the Borrower from any Event of Default or the performance or observance of any obligation or condition of the Borrower under this Financing Agreement without first requesting and receiving the prior written consent of the Trustee and the Credit Provider, but shall do so if requested by the Trustee and the Credit Provider, provided that the Issuer shall not be required to grant such waiver or release unless it shall have been provided with (a) an Opinion of Counsel that such action will not result in any pecuniary liability to it and an Opinion of Bond Counsel that such waiver shall not cause interest on the Bonds to be included in the gross income, for federal income tax purposes, of the holders of the Bonds, (b) such indemnification as the Issuer shall deem necessary and (c) written notice from the Trustee and the Credit Provider of the request for such waiver or release. Section 13.4 Notice of Default: the Credit Provider's Ril!ht To Cure. The Issuer and the Trustee shall each give notice to the other and to the Loan Servicer and the Credit Provider of the occurrence of any Event of Default by the Borrower under this Financing Agreement of which it has actual knowledge. The Loan Servicer and the Credit Provider shall each have the right, but not the obligation, to cure any default by the Borrower, and upon performance by the Loan Servicer or the DOCSOCIl120733v3/24036-0031 36 Credit Provider of the covenant, agreement or obligation of the Borrower with respect to which an Event of Default has occurred, the parties to this Financing Agreement shall be restored to their former respective positions, it being agreed that the Loan Servicer and the Credit Provider shall have right to reimbursement from the Borrower of moneys so expended and any other appropriate redress for actions taken to cure any default by the Borrower. Section 13.5 Ril!hts Cumulative. All rights and remedies provided in this Financing Agreement are cumulative, nonexclusive and in addition to any and all rights and remedies that the Issuer, the Trustee and the Credit Provider may have or may be given by reason of any law, statute, ordinance or otherwise. ARTICLE 14 MISCELLANEOUS Section 14.1 Notices. All notices, certificates or other communications provided for in this Financing Agreement shall be given in writing to the Issuer, the Trustee, the Loan Servicer, the Credit Provider and the Borrower, and shall be sufficiently given and shall be deemed given if given in the manner provided in Section 12.4 of the Indenture. Copies of each notice, certificate or other communication given under this Financing Agreement by any party to this Financing Agreement shall be given to each of the other parties to this Financing Agreement. By notice given under this Financing Agreement, any party may designate further or different addresses to which subsequent notices, certificates or other communications are to be sent. A duplicate copy of each notice, certificate, request or other communication given under this Financing Agreement to the Issuer, the Trustee, the Loan Servicer or the Borrower shall be given to the Credit Provider. Section 14.2 Amendment. This Financing Agreement and all other documents contemplated by this Financing Agreement to which the Issuer is a party may be amended or terminated only as permitted by Article 11 of the Indenture, provided that no amendment to this Financing Agreement shall be binding upon any party to this Financing Agreement until such amendment is reduced to writing and executed by the parties to this Financing Agreement, provided further that no amendment, supplement or other modification to this Financing Agreement or any other Bond Document shall be effective without the prior written consent of the Credit Provider. Section 14.3 Entire Al!reement. Except as provided in the other Bond Documents and the Mortgage Loan Documents, this Financing Agreement contains all agreements among the parties to this Financing Agreement, and there are no other representations, warranties, promises, agreements or understandings, oral, written or implied, among the parties to this Financing Agreement, unless reference is made to them in this Financing Agreement or the Indenture. Section 14.4 Further Assurances and Corrective Instruments. The parties to this Financing Agreement agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such amendments and supplements to this Financing Agreement and to the other documents contemplated by this Financing Agreement, the Regulatory Agreement and the Mortgage Loan Documents as may reasonably be required to carry out the intention of, or to facilitate the performance of, this Financing Agreement, the Regulatory Agreement and the Mortgage Loan Documents (if deemed necessary by the Credit Provider), and to execute and deliver such additional instruments and to perform such additional acts as may be necessary, in the opinion of the Issuer or the Credit Provider, to carry out the intent of the Indenture, DOCSOC/1120733v3/24036-0031 37 this Financing Agreement, the Regulatory Agreement and the Mortgage Loan Documents or to perfect or give further assurances of any of the rights granted or provided for in the Indenture, this Financing Agreement, the Regulatory Agreement and the Mortgage Loan Documents. The Borrower, the Issuer and the Trustee each agree that they will not, without the consent of the Loan Servicer and the Credit Provider, enter into any contracts or agreements or perform any acts or request any other party to this Financing Agreement to enter into any contracts or agreements or perform any acts, which may adversely affect the Borrower's ability to perform under the Mortgage Loan Documents. Section 14.5 Liability of Owners. No subsequent owner of the Mortgaged Property shall be liable or obligated for the breach or default of any obligation of any prior owner under this Financing Agreement, including, but not limited to, any payment or indemnification obligation, provided that any subsequent owner shall be bound by the terms of this Financing Agreement, including, but not limited to, the obligations to cause the use and occupancy of the Mortgaged Property to satisfy the terms and requirements of this Financing Agreement. Such obligations are personal to the Person who was the owner of the Mortgaged Property at the time the default or breach was alleged to have occurred and such Person shall remain liable for any and all damages occasioned by the default or breach even after such Person ceases to be the owner. Section 14.6 Bindinl! Effect. This Financing Agreement shall be binding upon the Issuer, the Borrower, the Loan Servicer and the Trustee and their respective successors and assigns. This Financing Agreement shall inure to the benefit of the Issuer, the Credit Provider, the Borrower and the Trustee and their respective successors and assigns. Section 14.7 Severabilitv. If any provision of this Financing Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions shall not in any way be affected or impaired. In case any covenant, stipulation, obligation or agreement of the Issuer, the Trustee, the Loan Servicer or the Borrower contained in this Financing Agreement shall for any reason be held to be in violation of law, then such covenant, stipulation, obligation or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Issuer, the Trustee, the Loan Servicer or the Borrower, as the case may be, to the full extent permitted by law. Section 14.8 Execution in Counterparts. This Financing Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 14.9 Governinl! Law. This Financing Agreement shall be governed by and interpreted in accordance with the internal laws of the State without regard to conflicts of laws principles. Section 14.10 Limited Liabilitv. All obligations of the Issuer incurred under this Financing Agreement, the Regulatory Agreement and the Indenture shall be limited obligations of the Issuer. The Bonds shall be payable solely from the Revenues and other funds and property pledged under the Indenture for the payment of the Bonds, and no owner or owners of any of the Bonds shall ever have the right to compel any exercise of the taxing power of the Issuer, the State or any political subdivision or other public body of the State, nor to enforce the payment of the Bonds against any property of Issuer, the State or any such political subdivision or other public body, except as provided in the Indenture. No member, officer, agent, director, employee, attorney or member of the governing body of the Issuer, including any person executing this Financing Agreement on behalf of DOCSOCII120733v3/24036-0031 38 the Issuer, shall be liable personally under this Financing Agreement or for any reason relating to the issuance of the Bonds. No recourse shall be had for the payment of the principal of, premium, if any, or the interest on the Bonds, or for any claim based on the Bonds, or otherwise in respect of the Bonds, or based on or in respect of this Financing Agreement or any amendment to this Financing Agreement, against any member, officer, employee, director, agent, attorney or member of the governing body of the Issuer, as such, of the Issuer or any successor whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance of this Financing Agreement and as part of the consideration for the issuance of the Bonds, expressly waived and released. ARTICLE 15 TERM OF THIS FINANCING AGREEMENT This Financing Agreement shall be in full force and effect from its date to and including such date as all of the Bonds shall have been fully paid or retired (or provision for such payment shall have been made as provided in the Indenture) and all amounts, including fees, costs and expenses, owing to the Issuer, the Trustee, the Loan Servicer and the Credit Provider under this Financing Agreement or under the Reimbursement Agreement, as applicable, shall have been paid; provided, however, that the provisions of Sections 2.2, 7.2.8, 7.2.9 and Articles V and IX shall survive the termination of this Financing Agreement. [Remainder of page intentionally left blank] DOCSOCIl120733v3/24036-0031 39 IN WITNESS WHEREOF, the parties to this Financing Agreement hereto have caused this Financing Agreement to be executed by their duly authorized representatives as of the date of execution set forth below. HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, as Issuer By Executive Director Attest: Secretary [Execution of Financing Agreement dated as of September 1, 2005] S-l DOCSOC/1120733v3/24036-0031 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Authorized Officer [Execution of Financing Agreement dated as of September I, 2005] S-2 DOCSOCIl120733v3/24036-0031 CIC EASTLAKE, L.P., a California limited partnership By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation Its: Managing General Partner By: Brian F. Biber Executive Director By: SDS Eastlake, LLC, a California limited liability company Its: Co- General Partner By: James J. Schmid Manager [Execution of Financing Agreement dated as of September 1, 2005] S-3 DOCSOC/1120733v3/24036-OO31 Table of Contents Pal!e ARTICLE 1 DEFINITIONS AND INTERPRETATION..................................................................l Section 1.1 Incorporation of Recitals .......... ............................. ......................... ..................... ....1 Section 1.2 Definitions...............................................................................................................l Section 1.3 Rules of Construction..............................................................................................3 Section 1.4 Content of Certificates and Opinions ......................................................................3 Section 1.5 Interpretation .. ................................................... .... .......... ............... ............ .............3 Section 1.6 Effective Date..........................................................................................................3 ARTICLE 2 REPRESENTATIONS AND WARRANTIES .............................................................3 Section 2.1 Representations and Warranties of the Issuer .........................................................3 Section 2.2 Representations and Warranties of the Borrower. ..................................................5 Section 2.2.1 Specific Representations and Warranties..........................................................5 Section 2.2.2 Certificates .... ............... .......... ................... ................................................... ...1 0 Section 2.2.3 Incorporation of Other Representations, Warranties and Covenants..............IO Section 2.2.4 Representations and Warranties Deemed True As of Closing Date ...............10 ARTICLE 3 BORROWER'S OBLIGATIONS WITH RESPECT TO THE BONDS ....................10 Section 3.1 General Obligation ................................................................................................10 Section 3.2 Borrower's Obligations With Respect to Redemption.......................................... 10 Section 3.2.1 Optional Prepayment and Redemption ...........................................................10 Section 3.2.2 Mandatory Prepayment and Special Mandatory Redemption ........................11 Section 3.2.3 Payment Procedures........................................................................................11 ARTICLE 4 THE MORTGAGE LOAN..........................................................................................II Section 4.1 Amount and Source of Mortgage Loan.................................................................11 Section 4.2 Terms of the Mortgage Loan; Funding. ................................................................12 Section 4.2.1 Obligation to Repay the Mortgage Loan and to Pay the Debt Service on the Bonds ...................................................................................................12 Section 4.2.2 Terms ....... .... ..... ... ..... ...... ................................................ .................... ............12 Section 4.2.3 Funding .......... .............. ........... ................. ................... ................... ........ ........ .13 Section 4.2.4 Timing; Disbursements ...................................................................................13 Section 4.3 Payment of Third Party Fees and Expenses ..........................................................13 Section 4.4 Notice. ..... ........... ...... ..... ..... .................. ...... ...................... ... ................. ........... .... ..15 Section 4.5 Mortgage Loan Payments......................................................................................16 Section 4.6 Certain Notices From Trustee ...............................................................................16 Section 4.7 Modification of Mortgage Loan Documents; Consent at Direction of the Credit Provider..................................................................................................... .16 Section 4.8 Prepayment. ......... ........................ .... ................ ............ ........... ...............................16 Section 4.8.1 Optional Prepayment ......................................................................................16 Section 4.8.2 Involuntary Prepayment................................................................................. .16 Section 4.8.3 Notices... ....... ............. ........ ................... ................... ........................ .............. .16 Section 4.8.4 Limitation on Credit Facility Obligations .......................................................17 DOCSOCII120733v3/24036-0031 Table of Contents (continued) Page ARTICLE 5 NATURE OF BORROWER'S OBLIGATIONS........................................................17 Section 5.1 Obligations of the Borrower Unconditional..........................................................17 Section 5.2 Nature of Borrower's Financial Obligations.........................................................I8 Section 5.3 Nonrecourse Liability .............................. .......... ......... ........ ......................... ..........18 Section 5.4 Subordination ........................................................... ............ .............. ...................18 ARTICLE 6 SERVICING; MONITORING ....................................................................................19 Section 6.1 Servicing .............. ..... ..... .............................. ............... ......................... ....... ..........19 Section 6.2 Monitoring..................... .... ..... ........ ...... ............. .............. ... ....... ......... .......... ......... 19 ARTICLE 7 COVENANTS .............................................................................................................19 Section 7.1 Covenants of the Issuer. ........................................................................................19 Section 7.1.1 Pledge and Assignment...................................................................................19 Section 7.1.2 Tax-Exemption ...............................................................................................19 Section 7.1.3 Compliance with Federal Tax Laws ...............................................................19 Section 7.1.4 Notification of Violation of Regulatory Agreement.......................................20 Section 7.2 Covenants of the Borrower ...................................................................................20 Section 7.2.1 Maintenance of Mortgaged Property; Insurance; Operation...........................20 Section 7.2.2 Taxes; Other Governmental Charges and Utility Charges..............................20 Section 7.2.3 Remodeling and Improvements ......................................................................21 Section 7.2.4 Compliance With Laws...................................................................................21 Section 7.2.5 Maintenance of Legal Existence .....................................................................21 Section 7.2.6 Access to Mortgaged Property and Records; Reports. ...................................22 Section 7.2.7 Disposition of Mortgaged Property.................................................................22 Section 7.2.8 Tax Covenants ................................................................................................23 Section 7.2.9 Payment of Rebate Amounts ..........................................................................25 Section 7.2.10 Agreement Regarding Documents ..................................................................25 Section 7.2.11 Compliance with other Documents.................................................................25 Section 7.2.12 Disclosure Agreement.....................................................................................26 Section 7.2.13 Notice of Certain Events .................................................................................26 Section 7.2.14 Warranty of Truth ...........................................................................................26 Section 7.2.15 Operating Statements ......................................................................................26 Section 7.2.16 Control of Borrower and Credit Provider .......................................................26 ARTICLE 8 SECURITY INTEREST; ASSIGNMENT OF CERTAIN RIGHTS ..........................27 Section 8.1 Security Interest ....................................................................................................27 Section 8.2 Assignment of Certain Rights ...............................................................................27 ARTICLE 9 INDEMNIFICATION ....... ........ ..................... .................. ................. ...... ................ ....27 Section 9.1 Borrower's Obligations ............ .......................... ...... ............. ..................... ..... ......27 Section 9.2 Defense of Claims .................................................................................................29 Section 9.3 Borrower's Continuing Obligation...................... ..................................................29 Section 9.4 Limitation with Respect to the Credit Provider ....................................................29 11 DOCSOCII120733v3124036-003! Table of Contents (continued) Page ARTICLE 10 THE MORTGAGED PROPERTY .............................................................................30 Section 10.1 Regulatory Agreement ................ ............ .................... ........................ ..... .............30 Section 10.2 Right To Enforce Compliance...............................................................................30 Section 10.3 Damage, Destruction and Condemnation..............................................................30 ARTICLE 11 TRUSTEE'S INTEREST IN AGREEMENT .............................................................30 Section 11.1 Issuer Assignment of this Financing Agreement ..................................................30 Section 11.2 Third Party Beneficiaries ......................................................................................31 ARTICLE 12 PERFORMANCE RIGHTS ........................................................................................31 Section 12.1 Right To Perform Borrower's Obligations............................................................31 Section 12.2 No Modification of Mortgage Loan Documents...................................................31 . ARTICLE 13 EVENTS OF DEFAULT AND REMEDIES..............................................................32 Section 13.1 Events of Default. ....... ............. ............. .......... ........................... ............ ........ ........32 Section 13.1.1 Events of Default ............................................................................................32 Section 13.1.2 Cross Default ..................................................................................................33 Section 13.1.3 Mortgage Loan Documents.............................................................................33 Section 13.2 Remedies Upon an Event ofDefault.....................................................................33 Section 13.2.1 General............................................................................................................3 3 Section 13.2.2 Enforcement of Reserved Rights ....................................................................34 Section 13.2.3 Permitted Cures of an Event ofDefault..........................................................34 Section 13.2.4 Waiver and Annulment...................................................................................35 Section 13.2.5 Non-Exclusivity of Remedies .........................................................................35 Section 13.2.6 Delay or Omission ..........................................................................................35 Section 13.2.7 Application of Proceeds ......... ............ ............. .................. ........... ........... ........35 Section 13.2.8 Limitations on Actions....................................................................................35 Section 13.3 Limitations on Waivers .........................................................................................36 Section 13.4 Notice of Default; the Credit Provider's Right To Cure .......................................36 Section 13.5 Rights Cumulative.................................................................................................37 ARTICLE 14 MISCELLANEOUS ....................................................................................................37 Section 14.1 Notices...................................................................................................................37 Section 14.2 Amendment ................ .... ................... ............... ............................... .......... ........ ....37 Section 14.3 Entire Agreement ..................................................................................................37 Section 14.4 Further Assurances and Corrective Instruments ...................................................37 Section 14.5 Liability of Owners ...............................................................................................38 Section 14.6 Binding Effect .......................................................................................................38 Secti on 14.7 Severability ...........................................................................................................38 Section 14.8 Execution in Counterparts.....................................................................................38 Section 14.9 Governing Law.................................._...................................................................38 Section 14.10 Limited Liability ...................................................................................................38 ARTICLE 15 TERM OF THIS FINANCING AGREEMENT .........................................................39 iii DOCSOCII120733v3/24036-0031 rage 1 01 1 Neal, Brad R. From: Vanessa Lewis [vlewis@lbaop.org] Sent: Tuesday, August 16, 20053:22 PM To: rhill@halberthargrove.com; Barbara Long Cc: Neal, Brad R. Subject: Part I Here is what I could come up with as language in the restructuring documents addressing the budget. The bylaw language is also in there (the original language. not our proposed language). The last page addresses some other interesting info in other documents, one of which I though was particularly interesting. The tax certificate & agreement specifically addresses changes to bylaws and relation to the bonds: Section 3.3.6 - Amendment or Modification of Corporation's Articles ofIncorporation or Bylaws. The Corporation shall not amend its articles of incorporation or bylaws to modify the method of selecting persons to its board of directors or any other matter with respect to which the City has control or approval rights unless it has filed with the Trustee an Opinion of Bond Counsel to the effect that such amendment or modification shall have no adverse effect on the exclusion of interest on the Bonds from federal income taxes. Just thought we shouid make sure to address it if we need to. Thanks V 8/16/2005 Budget references throughout restructure and other documents: Indenture: The Indenture refers to the Lease Agreement to define the budget. The only specific reference to the Budget is in section 5, the fund and waterfall structure. Section 5.02(a): (first allocation) "into the Operating and Maintenance Fund, the amount of Operating and Maintenance Expenses budgeted by the Corporation for the current month and immediately succeeding month, as certified by the Corporation to the Trustee pursuant to the Budget, as it may be revised and as filed in accordance with section 6.4 of the Lease".... Lease Agreement (between Authority and AoP): Budget is defined as "the annual operating budget for the Facility required to be delivered by the Corporation pursuant to section 6.4 of this Lease". Section 6.4(a) - The Corporation shall provide to the Authority, the Trustee, not later than the first day of each Fiscal Year during the term of this Lease, a Budget for such fiscal year, as consented to by the City, setting forth estimated Revenues and estimated Operating and Maintenance Expenses and other costs and expenses, separately stated, to be paid for such Fiscal Year. The Corporation may from time to time amend and Budget filed pursuant to the Section by filing such amendment, together with the written consent of the City, with the Authority and the Trustee. In the absence of a Budget for any Fiscal Year, the Trustee shall assume that the Budget for such Fiscal Year is the same as the final Budget for the prior Fiscal Year, unless otherwise directed in writing by the City. 8/16/2005 Page 1 The Corporation's bylaws have the most restrictive language in regards to the budget. [Amendments are part of our proposal]. The current bylaws read: Section 13.2 (a) Budget submittal. The Corporation will provide to the City on a timely basis, as reasonably determined by the City, any proposed budgets, and all budgets (annual or otherwise) shall be in a form acceptable to the City. The Corporation will provide access to the City at any reasonable time upon prior notice to all financial and operational reports and information of the Corporation requested by the City. The Corporation must obtain the City's consent to (i) the annual budget and (ii) management or operation agreements for the Project as a whole (i.e., a management or operating agreement for the entire Project) but not contracts for discrete portions of the Project, such as food service or gift concession agreements including any material alterations (with respect to such matters) during the fiscal year. (b) Budget process. The Corporation will coordinate with the City regarding timely submittal of proposed budgets to meet the requirements of the Lease for submittal of an annual consented budget at least thirty (30) days prior to each fiscal year. The City agrees it will not withhold its consent to any budget (or budget amendment) solely on the basis of the inadequacy of the resulting EBITDA (defined below) submitted in good faith by the Corporation and which meets the following parameters: (i) such budget shall provide for Revenues of the Corporation, exclusive of fund development activities (i.e., charitable giving), but inclusive of Aquarium membership sales, at least sufficient to pay all projected Operating and Maintenance Expenses of the Corporation (exclusive of expenses of fund development activities, but inclusive of Aquarium membership sales expenses); (ii) such budget shall provide for Revenues, inclusive of moneys from fund development activities, sufficient to pay all projected Operating and Maintenance Expenses of the Corporation, plus scheduled debt service with respect to the Bonds (provided for purposes of computing estimated interest expense on variable rate Bonds (for which no Swap has been purchased) the Corporation may assume an interest rate equal to 110% of actual interest expense for the prior 6 months period for which the interest rate is known to it); provided that any budget for any fiscal year prior to 2006-2007 may fail to meet the requirements of this subparagraph (ii) so long as (x) such failure is due solely to insufficient moneys from fund development activities and (y) the Corporation has submitted to the City a multiyear fund development subbudget consented to by the City which attempts, in the City's reasonable judgment, to maximize such fund development revenues and projects consistent progress toward achievement of this goal by fiscal year 2006- 2007. (c) Nothing in this Section 13.2(b) is intended to limit the City's authority to disapprove the budget for other reasons. 8/16/2005 Page 2 Other items of note in restructuring documents: Tax Certificate and Agreement between the Authority, the City, the RDA and AoP Section 3 in general describes the required use of the Facility, AoP's tax status as both non-profit and an instrumentality, and City control over the Board and the bylaws. Of particular note is: Section 3.3.6 - Amendment or Modification of Corporation's Articles of Incorporation or Bylaws. The Corporation shall not amend its articles of incorporation or bylaws to modify the method of selecting persons to its board of directors or any other matter with respect to which the City has control or approval rights unless it has filed with the Trustee an Opinion of Bond Counsel to the effect that such amendment or modification shall have no adverse effect on the exclusion of interest on the Bonds from federal income taxes. The parking agreement is scheduled to run in accordance (all capitalized terms reference definitions in the Lease) with the Lease Agreement, and pays to the Corporation: "an annual amount (the "Parking Revenue") of up to $1,500,000, to the extent available from "net revenues" of such parking facility, which amount would constitute "revenues" and be applied to the costs and expenses of the Facility, the term "net revenues" being defined as the gross revenues derived from the parking facility less (i) debt service on any debt issued to build the parking facility and (ii) operation and maintenance costs related to the parking facility. Additionally, section 2 discusses parking revenues paid to the Corporation: (a) The City agrees to pay to the Corporation the Parking Revenues for the term of the Lease, or such earlier date as the Corporation's annual financial statements evidence that for two consecutive Fiscal Years, Revenues less Operating and Maintenance Expenses for each of such Fiscal Years was at least equal to two times Annual Debt Service for each such Fiscal Year [Approx $18M]. Parking Revenues payable to the Corporation shall be transferred by the City to the Trustee, on behalf of the Corporation, for deposit into the Revenue Fund established under the Indenture and applied as Revenues pursuant to the terms of the Indenture. [note: the City actually transfers the Parking Revenues directly into the Bond Fund - this process is not documented anywhere I could find.] 8/16/2005r Page 3 EXHIBIT 10 SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1 st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 91716, et seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has previously issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2003A" in the aggregate principal amount of $11,485,000 and has loaned the proceeds thereof to the Borrower (the "First Mortgage Loan"). The First Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit ofIssuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "First Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in P"j,ihit A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the "First Mortgage Note"), and is due in full on November 1, 2035. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the First Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defmed therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the First Mortgage. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 1) C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $1,000,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the First Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specify the default upon which such Default Notice is based. Fannie Mae Subordination Agreement- Affordable Housing (Series 200JA - Agency Loan) MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 2) "First Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the First Mortgage Loan Documents. "First Mortgage Loan Documents" means the First Mortgage Note, the First Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the First Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the first paragraph on page I of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Agreement" means the Loan Agreement and Related Restrictive CovenantslHome Program Participation Agreement dated October _, 2003, by and among Subordinate Lender, Borrower and the City of Chula Vista. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October I, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274816 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1,2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency LoanJ MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 3) 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the First Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Subordinate Note. The Subordinate Note contains the following proVIsIon: "The indebtedness evidenced by this Note shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated September I, 2005 in the original principal amount of $11,485,000 (or such lesser amount as may be determined by Fannie Mae) to be issued by Borrower and payable to the City of Chula Vista (the "Issuer"), as assigned and endorsed to the order of Fannie Mae and Wells Fargo Bank, National Association (the "Trustee"), as their interests may appear, to the extent and in the manner provided in that certain Subordination Agreement to be entered into by and among Fannie Mae, Trustee, Borrower and the Agency (the "Subordination Agreement"). The Deed of Trust securing this Note shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Deed of Trust securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Deed of Trust securing this Note are subject to the restrictions and limitation set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the holder of this Note under the Subordination Agreement." Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 4) Affordable Housing [Series 2003A - Agency Loan] MD':'DOCS_A #1212947 v4 (b) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (c) Tenn. The term of the Subordinate Note does not expire before the term of the First Mortgage Loan. (d) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (e) First Mortgage Loan Documents. The executed First Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the First Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the First Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness. evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the First Mortgage and the other First Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the First Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (I) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the First Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First Mortgage. Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 5) Affordable Housing [Series 2003A - Agency Loan J MD_DOCS_A#1212947 v4 (e) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional. interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the First Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 6) Affordable Housing (Series 200JA - Agency Loan] MD_DOCS_A#1212947 v4 (t) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice. All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the First Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other First Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such First Mortgage Loan Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 7) Affordable Housing [Series 2003A - Agency Loanl MD_DOCS_A #1212947 v4 Default. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60- day period to continue to pursue its remedies under the First Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the First Mortgage Loan Documents. In the event that such a non- monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointroent of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A#1212947 v4 Farm 4503 10/98 (Page 8) 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any First Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the First Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the First Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fIre or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 9) Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. Fannie Mae Subordination Agreement -. Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 10) 9. Modification or Refinancing of First Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refmancing all or any part of the First Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the First Mortgage Loan, the First Mortgage Note, the First Mortgage, the First Mortgage Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refinance note, the mortgage securing the refmance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Blvd., 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan) MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 11) Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: Redevelopment Agency of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Housing Manager With a copy to City Attorney Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 12) Affordable Housing [Series 2003A - Agency LoanI MD_DOCS_A #1212947 v4 order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (I) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. (j) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modifY, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement-- Affordable Housing [Series 2003A - Agency LoanJ MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 13) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fIrst written above. WITNESS/ATTEST SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement -- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A#1212947 v4 Form 4503 10/98 (Page 14) Fannie Mae Subordination Agreement-- Affordable Housing (Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 FANNIE MAE By: Name: Title Form 4503 10/98 (Page 15) Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan] MD_DOCS_A#1212947 v4 SUBORDINATE LENDER: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA By: Name: Title: Form 4503 10/98 (Page 16) BORROWER: CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive Director/President By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan) MD_DOCS_A #1212947 v4 Form 4503 10/98 (page 17) ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On I before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hisiher/their authorized capacity/ies, and that by hisiher/their signature(s) on the instrument the person( s), or the entity uponbehalf of which person( s) acted, executed the instrument Witness my hand and official seal. (Signature oCNotary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner( s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRlBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loaoj MD_DOCS_A#1212947 v4 Form 4503 10/98 (Page 18) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person( s), or the entity upon behalf of which person( s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer( s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing; (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 19) ACKNOWLEDGMENT [California] State of County of ) ) ss; ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person( s), or the entity upon behalf of which person( s) acted, executed the instrument Witness my hand and official seal. (Signature ofNatary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer( s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary; Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT; Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement-- Affordable Housing [Series 2003A - Agency Loan] MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 20) ACKNOWLEDGMENT [Califoroial State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - Agency Loan} MD_DOCS_A #1212947 v4 Form 4503 10/98 (Page 21) ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capadty/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and offidal seal. (Signature of Notary) Capadty claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attaclunent of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Post-Conversion - Agency Loan I MD_DOCS_A#1212947 v4 Form 4503 10/98 (Page 22) FXHTRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot 1 of Chula Vista Tract No. 03-04, Eastiake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16,2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement- Affordable Housing rpost~Conversion - Agency Loan] MD_DOCS_A#1212947 v4 Form 4503 10/98 (Page 1) SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 151 day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.c. 91716, e! seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has previously issued its tax -exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartroents) Series 2003A" in the aggregate principal amount of $11 ,485,000 and has loaned the proceeds thereof to the Borrower (the "First Mortgage Loan"). The First Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit of Issuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "First Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in F"hihit A attached hereto. The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the "First Mortgage Note"), and is due in full on November I, 2035. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the First Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defined therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the First Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $500,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loanl MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 1) D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the First Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specifY the default upon which such Default Notice is based. "First Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the First Mortgage Loan Documents. "First Mortgage Loan Documents" means the First Mortgage Note, the First Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the First Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 2) "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental departroent or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the first paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October I, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274817 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1, 2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the First Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the First Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 3) Affordable Housing (Series 2003A - City Loan] MD_DOCS_A #1210038 v5 The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Subordinate Note. The Subordinate Note contains the following provision: "The indebtedness evidenced by this Note shall be subordinate in right of payment to the prior payment in full of the indebtedness evidenced by a Multifamily Note dated September I, 2005 in the original principal amount of $11,485,000 (or such lesser amount as may be determined by Fannie Mae) to be issued by Borrower and payable to the City of Chula Vista (the "Issuer"), as assigned and endorsed to the order of Fannie Mae and Wells Fargo Bank, National Association (the "Trustee"), as their interests may appear, to the extent and in the manner provided in that certain Subordination Agreement to be entered into by and among the Issuer, Fannie Mae, Borrower and Trustee (the "Subordination Agreement"). The Deed of Trust securing this Note shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Multifamily Deed of Trust securing the Multifamily Note as more fully set forth in the Subordination Agreement. The rights and remedies of the payee and each subsequent holder of this Note under the Deed of Trust securing this Note are subject to the restrictions and limitation set forth in the Subordination Agreement. Each subsequent holder of this Note shall be deemed, by virtue of such holder's acquisition of the Note, to have agreed to perform and observe all of the terms, covenants and conditions to be performed or observed by the holder of this Note under the Subordination Agreement." (b) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (e) Term. The term of the Subordinate Note does not expire before the term of the First Mortgage Loan. (d) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (e) First Mortgage Loan Documents. The executed First Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the First Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the First Mortgage Loan Documents, certified to be true, correct and complete. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City LoanJ MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 4) 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the First Mortgage and the other First Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the First Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the First Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First Mortgage. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) ofa First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the First Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 5) Affordable Housing [Series 2003A - City Loan} MD_DOCS_A #1210038 v5 Lender in accordance with the provisions of this Section 4( d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (1) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the First Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Fannie Mae Subordination Agreement - Form 4503 10/98 (page 6) Affordable Housing [Series 2003A - City Loan I MD_DOCS_A #1210038 v5 Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner as in the case of any other First Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such First Mortgage Loan Default. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60- day period to continue to pursue its remedies under the First Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the First Mortgage Loan Documents. In the event that such a non- monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 7) (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointroent of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any First Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the First Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the First Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City LoanJ MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 8) (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fIre or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan DocumeI1ts or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to me any pleadings, documents, claims or notices with the appropriate court withjurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 9) Affordable Housing [Series 2003A - City Loan] MD_DOCS_A #1210038 v5 of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Ref"mancing of First Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifIes any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refInancing all or any part of the First Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefIt of any holder of any such refinanced debt; and that all references to the First Mortgage Loan, the First Mortgage Note, the First Mortgage, the First Mortgage Loan Documents and Senior Lender shall mean, respectively, the refmance loan, the refinance note, the mortgage securing the refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early moming delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certifIed mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan) MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 10) SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: The City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Executive Director With a copy to Agency Attorney and Housing Coordinator: Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venlure. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, Fannie Mae Subordination Agreement - Form 4503 10/98 (Page II) Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. G) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modifY, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing {Series 2003A - City Loan] MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 12) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fust written above. WITNESS/ATTEST: SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 13) Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City LoaD J MD_DOCS_A #121 0038 v5 FANNIE MAE By: Name: Title Form 4503 10/98 (Page 14) Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A #1210038 v5 SUBORDINATE LENDER: THE CITY OF CHULA VISTA By: Name: Title: Form 4503 (Page 15) 10/98 BORROWER: ClC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefIt corporation, its Managing General Partner By: Jack K. Janes Its: Executive DirectorlPresident By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan 1 MD_DOCS_A #121 0038 v5 Form 4503 10/98 (Page 16) [Californial ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan) MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 17) [Californial ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer( s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2003A - City Loanl MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 18) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On l before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RlGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loanl MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 19) ACKNOWLEDGMENT [Californial State of County of ) ) ss: ) On , before me, (name, title of officer, e.~., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/les, and that hy hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loan] MD_DOCS_A#1210038 v5 Form 4503 10/98 (Page 20) [Californial ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature ofNotar)') Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2003A - City Loanl MD_DOCS_A #1210038 v5 Form 4503 10/98 (Page 21) RXHTRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement Affordable Housing [Post-Conversion - City Loan] MD_DOCS_A #1210038 v5 Form 4503 10/98 (PageA.1) SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 91716, e1 seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A" in the aggregate principal amount of $1,715,000 and has loaned the proceeds thereof to the Borrower (the "Second Mortgage Loan"). The Second Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit of Issuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "Second Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, Califomia (the "Property"). The Property is more fully described in F"hihit .A attached hereto. The Borrower's obligation to repay the Second Mortgage Loan is evidenced by a Multifamily Note dated as of even date herewith (the" Second Mortgage Note"), and is due in full on May 1, 2036. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the Second Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defined therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modifIed, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the Second Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $1,000,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mae Subordination Agreement - Affordable Housing [Series 2005A - Agency Loan) MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 1) D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the Second Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Second Mortgage Loan Default has occurred under the Second Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specify the default upon which such Default Notice is based. " Second Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Second Mortgage Loan Documents. " Second Mortgage Loan Documents" means the Second Mortgage Note, the Second Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the Second Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement - Form 4503 10/98 (page 2) Affordable Housing (Series 2005A - Agency Loan]] MD_DOCS_A#1263615 v3 "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the fIrst paragraph on page I of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Agreement" means the Loan Agreement and Related Restrictive Covenants/Home Program Participation Agreement dated October _,2003, by and among Subordinate Lender, Borrower and the City ofChula Vista. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October I, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274816 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1,2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. Fannie Mae Subordination Agreement.. Affordable Housing [Series 200SA - Agency L03nlJ MD_DOCS_A#1263615 v3 Form 4503 10/98 (Page 3) 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Second Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the Second Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the Second Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (b) Term. The term of the Subordinate Note does not expire before the term of the Second Mortgage Loan. (c) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (d) Second Mortgage Loan Documents. The executed Second Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the Second Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the Second Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is Fannie Mae Subordination Agreement - Form 4503 10/98 (page 4) Affordable Housing [Series 2005A - Agency LoanJ] MD_DOCS_A #1263615 v3 and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the Second Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Second Mortgage and the other Second Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Second Mortgage and the other Second Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (l) protecting or further securing the lien of the Second Mortgage, curing defaults by the Borrower under the Second Mortgage Loan Documents or for any other purpose expressly permitted by the Second Mortgage, or (2) constructing, renovating, repairing, furnishing, fIxturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the Second Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the Second Mortgage. (c) Payments Before Second Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a Second Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) . Payments Mter Second Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Second Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the Second Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 5) Affordable Housing (Series 2005A - Agency Loan]] MD_DOCS_A #1263615 v3 subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Second Mortgage Loan Documents in accordance with the provisions of the Second Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (1) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within fIve Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice. All amounts paid by the Senior Lender in accordance with the Second Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Second Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder. Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - Agency Loan)] MD_DOCS_A#1263615 v3 Form 4503 10/98 (Page 6) (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a Second Mortgage Loan Default under the Second Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Second Mortgage Loan Documents in the same manner as in the case of any other Second Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Second Mortgage Loan Documents, any Second Mortgage Loan Default under the Second Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the Second Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefIt of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such Second Mortgage Loan Default. 6. Default Under Second Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Second Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Second Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60-day period to continue to pursue its remedies under the Second Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the Second Mortgage Loan Documents. In the event that such a non-monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Second Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Second Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the Second Mortgage Loan, or (ii) the Senior Lender has taken affrrmative action to exercise its rights under the Second Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 7) Affordable Housing [Series 2005A - Agency Loan JI MD_DOCS_A #1263615 v3 sale contained in) the Second Mortgage. At any time after a Second Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any Second Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such Second Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Second Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Second Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Second Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Second Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Second Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure Second Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 8) Affordable Housing [Series 2005A - Agency Loan]] MD_DOCS_A #1263615 v3 (collectively, a "Taking"); or the occurrence of a fIre or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the Second Mortgage remains a lien on the Property the following provisions shall apply: (l) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Second Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Second Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Second Mortgage Loan, any proceeds remaining after the satisfactio~ in full of the principal of, interest on and other amounts payable under the Second Mortgage Loan shall be paid to, and may.be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Second Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Second Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Refinancing of Second Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 9) Affordable Housing [Series 200SA - Agency Loan]] MD_DOCS_A #1263615 v3 Lender waives, postpones, extends, reduces or modifies any provisions of the Second Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refmancing all or any part of the Second Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refmancing); and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refmanced debt; and that all references to the Second Mortgage Loan, the Second Mortgage Note, the Second Mortgage, the Second Mortgage Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refmance note, the mortgage securing the refmance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refmance note. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early moming delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENlOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Subordination Agreement-. Affordable Housing (Series 200SA - Agency Loan II MD _DOCS_A #1263615 v3 Form 4503 10/98 (Page 10) Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: Redevelopment Agency of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Housing Manager With a copy to City Attorney Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall. be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Second Mortgage, or to further evidence the intent of this Agreement. Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loan II MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 11) (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Second Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Second Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition oftitle does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. (j) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and Intercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modifY, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency LoanJ) MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 12) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fIrst written above. WITNESS/ATTEST: SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - Agency Loan]] MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 13) Fannie Mae Subordination Agreement- Affordable Housing {Series 2005A - Agency LoanlI MD_DOCS_A#1263615 v3 FANNIE MAE By: Name: Title Form 4503 10/98 (Page 14) Fannie Mae Subordination Agreement.. Affordable Housing [Series 2005A - Agency Loan II MD_DOCS_A#1263615 v3 SUBORDINATE LENDER: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA By: Name: Title: Form 4503 (Page 15) 10/98 BORROWER: . CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive Director/President By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loann MD_DOCS_A#1263615 v3 Form 4503 10/98 (Page 16) ACKNOWLEDGMENT [Californial State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- C ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon bebalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CER TlFICA TE MUST BE A TT ACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - Agency Loan]] MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 17) ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature ofNotar)') Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - Agency LoanlJ MD_DOCS_A#1263615 v3 Form 4503 10/98 (Page 18) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - Agency Loan]] MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 19) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, Personally appeared (name, title of officer, e.g., "Jane Doe, Notary Public) (name(s) of signer(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee( s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - Agency Loan]] MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 20) ACKNOWLEDGMENT [Californial State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (narne(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement -_ Affordable Housing [Series 2005A - Agency Loan)] MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page 21) FXffiRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement AtTordable Housing [Series 2005A - Agency Loan MD_DOCS_A #1263615 v3 Form 4503 10/98 (Page A-I) SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of this 1st day of September, 2005, by and among (i) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Trustee"), (ii) FANNIE MAE, a corporation duly organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. 91716, et seq.., its successors, transferrees and assigns ("Fannie Mae"); (iii) THE CITY OF CHULA VISTA, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California (the "Subordinate Lender"); (iv) CIC EASTLAKE, L.P., a California limited partnership (the "Borrower"). Recitals A. The Housing Authority of the City of Chula Vista (in such capacity, the "Issuer") has issued its tax-exempt revenue bonds entitled "Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A" in the aggregate principal amount of $1,715,000 and has loaned the proceeds thereof to the Borrower (the "Second Mortgage Loan"). The Second Mortgage Loan is secured by a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of even date herewith by Borrower for the benefit ofIssuer and Fannie Mae and recorded contemporaneously herewith among the Official Records of San Diego County, California (the "Land Records") (the "Second Mortgage") on a multifamily housing project located in the City of Chula Vista, San Diego County, California (the "Property"). The Property is more fully described in Fxhihit A attached hereto. The Borrower's obligation to repay the Second Mortgage Loan is evidenced . by a Multifamily Note dated as of even date herewith (the "Second Mortgage Note"), and is due in full on May 1, 2036. Pursuant to the terms of that certain Assignment and Intercreditor Agreement, dated as of even date herewith, by and among Issuer, Fannie Mae, Borrower, and Trustee (the "Assignment"), the Issuer has transferred and assigned to Fannie Mae and Trustee, as their interests may appear, all of its right, title and interest in the Second Mortgage Loan (except for certain Reserved Rights of the Issuer, as such term is defmed therein). B. Fannie Mae is providing substitute credit enhancement and liquidity support for the Bonds by issuing that certain Credit Enhancement Instrument (Stand-By), dated as of even date herewith (such instrument, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Credit Enhancement"). The Borrower's obligation to repay Fannie Mae amounts disbursed under the Credit Enhancement (the "Reimbursement Obligations") is evidenced by that certain Reimbursement Agreement, dated as of even date herewith, between Fannie Mae and Borrower (such agreement, as the same may be amended, supplemented or otherwise modified, amended and restated, is herein the "Reimbursement Agreement") and the Reimbursement Obligations are also secured by the Second Mortgage. C. The Subordinate Lender has previously made a loan to Borrower in the original principal amount of $500,000 (the "Subordinate Loan") which is secured by a mortgage lien against the Property. Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loanj MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 1) D. Fannie Mae has agreed to issue the Credit Enhancement provided that the Subordinate Lender agree to subordinate the Subordinate Loan to the Second Mortgage Loan and the Reimbursement Obligations, and that the Subordinate Lender enter into this Agreement. NOW, THEREFORE, in order to induce Fannie Mae to issue the Credit Enhancement, and in consideration thereof, the Issuer, Fannie Mae, the Trustee, Subordinate Lender and the Borrower agree as follows: 1. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires title to the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a Second Mortgage Loan Default has occurred under the Second Mortgage Loan or Reimbursement Agreement; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan. Each Default Notice shall specifY the default upon which such Default Notice is based. "Second Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Second Mortgage Loan Documents. "Second Mortgage Loan Documents" means the Second Mortgage Note, the Second Mortgage, the Reimbursement Agreement and all other documents evidencing, securing or otherwise executed and delivered in connection with the Second Mortgage Loan, the Reimbursement Obligations and the issuance of the Bonds. Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 2) "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Senior Lender" means collectively, the Trustee and Fannie Mae, as their respective rights and interests are established pursuant to the Assignment. "Subordinate Lender" means the Person named as such in the fIrst paragraph on page 1 of this Agreement and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Note, the Subordinate Mortgage, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan. "Subordinate Mortgage" means the Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated October I, 2003 encumbering the Property as security for the Subordinate Loan, recorded as Instrument No. 03-1274817 among the Land Records. "Subordinate Note" means the Promissory Note dated October 1,2003 issued by the Borrower to the Subordinate Lender, or order, to evidence the Subordinate Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the Second Mortgage Loan Documents and subject to the provisions of this Agreement, to permit the Subordinate Lender to keep the Subordinate Mortgage and all other recordable Subordinate Loan Documents of record so long as the Subordinate Mortgage and all other recordable Subordinate Loan Documents are subordinate in all respects, pursuant to the terms hereof, to the lien of the Second Mortgage, and that the Subordinate Mortgage shall continue to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on both of those dates, the provisions of the Second Mortgage Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. Fannie Mae Subordination Agreement- Form 4503 10/98 (page 3) Affordable Housing (Series 200SA - City Loan) MD_DOCS_A #1263594 v3 The Borrower and the Subordinate Lender each makes the following representations and warranties to the Senior Lender: (a) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (b) Term. The term of the Subordinate Note does not expire before the term of the Second Mortgage Loan. (c) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those subrnitted to, and approved by, Fannie Mae prior to the date of this Agreement. Borrower has delivered to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (d) Second Mortgage Loan Documents. The executed Second Mortgage Loan Documents are substantially in the same forms as, when applicable, those submitted to, and approved by, Fannie Mae prior to the date of this Agreement. Upon execution and delivery of the Second Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the Second Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the Second Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Second Mortgage and the other Second Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Second Mortgage and the other Second Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the Second Mortgage, curing defaults by the Borrower under the Second Mortgage Loan Documents or for any other purpose expressly permitted by the Second Mortgage, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the Second Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the Second Mortgage. Fannie Mae Subordination Agreement - Form 4503 10/98 (page 4) Affordable Housing (Series 2005A - City Loan] MD_DOCS_A #1263594 v3 (c) Payments Before Second Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a Second Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments Mter Second Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a Second Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the Second Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4( d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the Second Mortgage Loan Documents in accordance with the provisions of the Second Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and rernitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (f) Agreement Not to Commence Bankruptcy Proceeding. The Subordinate Fannie Mae Subordination Agreement - Form 4503 10/98 (Page 5) Affordable Housing (Series 2005A - City Loan] MD _DOCS_A #1263594 v3 Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy reorganization, arrangement, insolvency or liquidation proceedings with respect to the Borrower, without the Senior Lender's prior written consent. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of this Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within 60 days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 60-day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents. All amounts paid by the Senior Lender in accordance with the Second Mortgage Loan Documents to cure a Subordinate Loan Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the Second Mortgage. (b) Subordinate Lender's Exercise of Remedies After Notice to Senior Lender. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not commence foreclosure proceedings with respect to the Property under the Subordinate Loan Documents or exercise any other rights or remedies it may have under the Subordinate Loan Documents, including, but not limited to accelerating the Subordinate Loan, collecting rents, appointing (or seeking the appointment of) a receiver or exercising any other rights or remedies thereunder unless and until it has given the Senior Lender at least 60 days' prior written notice; during such 60 day period, however, the Subordinate Lender shall be entitled to exercise and enforce all other rights and remedies available to the Subordinate Lender under the Subordinate Loan Documents and/or under applicable laws. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a Second Mortgage Loan Default under the Second Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the Second Mortgage Loan Documents in the same manner as in the case of any other Second Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the Second Mortgage Loan Documents, any Second Mortgage Loan Default under the Second Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the Second Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default Fannie Mae Subordination Agreement - Form 4503 10/98 (page 6) Affordable Housing [Series 200SA - City Loan) MD_DOCS_A #1263594 v3 related charges or payments received by the Senior Lender during such Second Mortgage Loan Default. 6. Default Under Second Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five Business Days in each case where the Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the Second Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Second Mortgage Loan Default within 60 days following the date of such notice; provided, however, that the Senior Lender shall be entitled during such 60-day period to continue to pursue its remedies under the Second Mortgage Loan Documents. Subordinate Lender may have up to 90 days from the date of the Default Notice to cure a non-monetary default if during such 90-day period Subordinate Lender keeps current all payments required by the Second Mortgage Loan Documents. In the event that such a non-monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 90-day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Second Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Second Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the Second Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the Second Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Second Mortgage. At any time after a Second Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any Second Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior Lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising from such Second Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Second Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Second Lender and the Subordinate Lender each agrees that, in the event Fannie Mae Subordination Agreement - Form 4503 10/98 (page 7) Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 of any conflict or inconsistency between the terms of the Second Mortgage Loan Documents, the Subordinate Loan Documents and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the Second Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any Second Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the Second Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. 8. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the Second Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure Second Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or times when the Second Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the Second Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate Fannie Mae Subordination Agreement - Form 4503 10/98 (page 8) Affordable Housing (Series 200SA - City Loan] MD_DOCS_A #1263594 v3 Lender to me any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty; and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Second Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Second Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Second Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the Second Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the Second Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever. 9. Modification or Ref"mancing of Second Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the Second Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any new mortgage debt which is for the purpose of refmancing all or any part of the Second Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing); and that all the terms and covenants of this Agreement shall inure to the benefIt of any holder of any such refmanced debt; and that all references to the Second Mortgage Loan, the Second Mortgage Note, the Second Mortgage, the Second Mortgage Loan Documents and Senior Lender shall mean,orespectively, the refinance loan, the refinance note, the mortgage securing the refmance note, all documents evidencing securing or otherwise pertaining to the refmance note and the holder of the refinance note. Fannie Mae Subordination Agreement- Affordable Housing ISeries 200SA - City Loanl MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 9) 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non-defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, California 90017 Attention: Corporate Trust Services and Fannie Mae Attention: Multifamily Operations - Asset Management Drawer AM 3900 Wisconsin Avenue, N.W. Washington, DC 20016 Attention: Director, Multifamily Asset Management SUBORDINATE LENDER: The City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Executive Director With a copy to Agency Attorney and Housing Coordinator: Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (Page 10) Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 13. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's consent to the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Second Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (1) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be .affected thereby and shall be enforced to the greatest extent permitted by law. (b) Term. The term of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the Second Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; Fannie Mae Subordination Agreement - Form 4503 10/98 (page 11) Affordable Housing (Series 200SA - City Loan] MD_DOCS_A #1263594 v3 (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Second Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. G) Rights of Fannie Mae and Trustee. Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that, as between Fannie Mae and the Trustee, the relative rights of Senior Lender under this Agreement shall be governed by the terms of the Assignment and lntercreditor Agreement dated as of the date hereof, by and among the Issuer, Fannie Mae and Trustee, a copy of which has been reviewed and acknowledged by the Borrower. The foregoing shall in no event relieve the Borrower of, or modify, the obligations of Borrower to the Senior Lender under this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 12) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year fIrst written above. WITNESS/ATTEST: SENIOR LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Fannie Mae Subordination Agreement - Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 13) Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 FANNIE MAE By: Name: Title Form 4503 10/98 (page 14) Fannie Mae Subordination Agreement- Affordable Housing (Series 200SA - City Loan] MD_DOCS_A #1263594 v3 SUBORDINATE LENDER: THE CITY OF CHULA VISTA By: Name: Title: Form 4503 (Page 15) 10/98 BORROWER: CIC EASTLAKE, L.P" a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Janes Its: Executive Director/President By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By: James J. Schmid Its: Manager Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 16) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) On Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) () ( ) Individual Corporate Officer( s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited () () () ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 17) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) On Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) () ( ) () () () () () Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent anachrnent of this certificate to an unauthorized document. TillS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 200SA - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (Page 18) ACKNOWLEDGMENT [California] State of County of ) ) ss: ) On . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 person(s) acted, executed the instrument Witness my hand and official seal.. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) () Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing (Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 19) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On , before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personaily appeared (narne(s) ofsigner(s)) ( ) personaily known to me -OR- ( ) 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 hislher/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 person(s) acted, executed the instrument Witness my hand and officiai seai. (Signature of Notary) Capacity claimed by signer: (This section is optional) ( ) ( ) ( ) Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) ( ) ( ) ( ) Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized docwnent. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Docwnent Nwnber of Pages _ Date ofDocwnent Signer(s) Other than Named Above Fannie Mae Subordination Agreement- Affordable Housing [Series 2005A - City Loan] MD_DOCS_A #1263594 v3 Form 4503 10/98 (Page 20) [California] ACKNOWLEDGMENT State of County of ) ) ss: ) On . before me, (name, title of officer, e.g., "Jane Doe, Notary Public) Personally appeared (name(s) ofsigner(s)) ( ) personally known to me -OR- ( ) 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 hislher/their authorized capacity/ies, and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument Witness my hand and official seal. (Signature of Notary) Capacity claimed by signer: (This section is optional) () () () Individual Corporate Officer(s): Partner(s): ( ) General Attorney-in-fact Trustee(s) Guardian/Conservator Other: ( ) Limited ( ) () () () Signer is representing: (Name ofperson(s) or entity(ies) Attention Notary: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to an unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title of Type of Document Number of Pages _ Date of Document Signer(s) Other than Named Above Fannie Mae Subordination Agreement - Affordable Housing [Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page 21) F.XHTRTT A DESCRIPTION OF THE LAND Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot I of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the Office of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Fannie Mae Subordination Agreement Affordable Housing (Series 2005A - City Loan) MD_DOCS_A #1263594 v3 Form 4503 10/98 (page A.1) EXHIBIT 11 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Thomas A. Hauser, Esquire Ballard Spahr Andrews & Ingersoll, LLP 300 East Lombard Street, 19 Floor Baltimore, Maryland 21202 (Space Above for Recorder's Use Only) ASSIGNMENT AND INTER CREDITOR AGREEMENT by and among HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee, and FANNIE MAE, and acknowledged, accepted and agreed to by CIC EASTLAKE, L.P. Relating to $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A Dated as of September 1, 2005 LA I: 1082494.2 SECTION I. SECTION 2. Section 2.1 Section 2.2 Section 2.3 Section 2.4 2.4.(1) 2.4.(2) 2.4.(3) 2.4.(4) Section 2.5 Section 2.6 2.6.(1) 2.6.(2) 2.6.(3) Section 2.7 Section 2.8 Section 2.9 Section 2.10 Section 2.11 2.11.(1) 2.11.(2) Section 2.12 2.12.(1) 2.12.(2) 2.12.(3) LA U 082494.2 TABLE OF CONTENTS Page DEFINITIONS ......... ..... ....... ........ ......... ... .......... .... ........ ........ ......... ...... ... ... ..... 1 ASSIGNMENT ................................................................................................6 Assignment.... ...... ... ... ..... ....... ...... ........... ........... ......... .... ........... ........ ... 6 Assignment of Mortgage Loan Rights to the Credit Provider .............7 Assignment of Mortgage Loan Payments Interest to Trustee .............. 7 Effect of the Issuer's Assignments....................................................... 8 Effect of Assignment of Mortgage Loan Rights and Mortgage Loan Payments Interest .................... ....... ................ .................... .........8 Assignment of Mortgage Loan Upon Payment or Redemption of Bonds ..................... ...... ... .... ............................................ .......... .... ... 9 Assignment of Mortgage Loan Without Payment or Redemption of Bonds... ............. .......... .... '" ............. ...................... .......9 Trustee's Assignment......... ....... .................. .............. ......................... 10 Exercise of Assigned Rights ..............................................................10 Exclusive Exercise of Rights by the Credit Provider; Exclusive Exercise of Rights by the Trustee ......................................................10 The Credit Provider ................ ............................................................10 Trustee ............ ................................... ....... .... ................... ................... II Disclaimer of Assumption of Obligations.......................................... 12 Confirmation of Assignment................ .... ........... .................... ........... 12 Further Assurances.................... ........... .... ........... ..... .................... ...... 12 No Other Encumbrances ....................................................................12 Consent Required for Amendments ...................................................12 Insurance; Condemnation.......... ............................. ............................ 13 Insurance. ......... .................................... ..... ............. ............... ............. 13 Condemnation ..... ......... ............. ......... ... .... ............. ...... ......... ......... .... 13 Possession of Mortgage Note and Security Instrument: Records and Books of Account: Examination of Records and Books of Account .... ...... ................ ....... .... ...... ...... ..... ............. .......... ........... ......14 Possession of Mortgage Note and Security Instrument .....................14 Records and Books of Account..........................................................14 Examination of Records and Books of Account ................................14 -1- TABLE OF CONTENTS (continued) Page Section 2.13 Disposition of Mortgage Loan ...........................................................14 Section 2.14 Credit Provider Assignment...............................................................l4 SECTION 3. DISPOSITION OF CREDIT FACILITY ......................................................15 SECTION 4. LIMITATIONS ON ISSUER.........................................................................15 SECTION 5. EFFECT OF DEFAULT ................................................................................15 SECTION 6. MORTGAGE LOAN SERVICING...............................................................15 SECTION 7. BORROWER'S ACKNOWLEDGMENTS ..................................................16 SECTION 8. REGULATORY AGREEMENT ...................................................................16 Section 8.1 Monitoring of Regulatory Agreement................................................ 16 Section 8.2 Termination of Regulatory Agreement .............................................16 Section 8.3 Right To Enforce Compliance............................................................16 Section 8.4 Notices of Violations of the Regulatory Agreement..........................16 Section 8.5 Cure Rights. ............... ..... ......... ....... .......... ......... ....... ............ ..... ......... 17 SECTION 9. ISSUER'S COVENANTS .............................................................................17 Section 9.1 Limitations on Issuer..........................................................................17 Section 9.2 Enforcement .......................................................................................17 Section 9.3 SpecifIc Performance .........................................................................18 SECTION 10. AMENDMENT OF AGREEMENTS ............................................................19 SECTION 11. REPRESENTATIONS; WARRANTIES AND COVENANTS ...................19 Section 11.1 Representations; Warranties and Covenants of the Issuer .................19 Section 11.2 Representations and Warranties of the Credit Provider ..................... 20 Section 11.3 Representations, Warranties and Covenants of the Borrower............20 Section 11.4 Representations and Warranties of the Trustee..................................21 SECTION 12. CONTROL ON RIGHT OF REDEMPTION ................................................22 SECTION 13. EXCULPATION ............................................................................................22 SECTION 14. DISCLAIMERS; ACKNOWLEDGMENTS ................................................. 22 SECTION 15. TERMINATION ............................................................................................23 SECTION 16. LIABILITY OF BORROWER ......................................................................23 SECTION 17. INCORPORATION OF SECURITY INSTRUMENT..................................23 SECTION 18. NOTICE .. ... .... ....... .... ......... ..... ... ... ..... ....................... .... .... ..... ........ ....... ......... 23 LA I : 1082494.2 -ll- TABLE OF CONTENTS (continued) Page SECTION 19. MlSCELLANEOUS....................................................................................... 25 Section 19 .1 Waivers.................... ..... ... .... ......... .... ... ........ .............. ....... ......... .... ..... 25 Section 19.2 Amendments. ............ ......... ........ ......... .................. .................. ... ...... ... 25 Section 19.3 Governing Law ...................................................................................25 Section 19.4 WAIVER OF JURY TRIAL..............................................................25 Section 19 .5 Severability.... ........... ......... .... ... .... ........ ....................... ............... ... .....25 Section 19.6 Additional Assignment...... .... ............ .......................... .......................26 Section 19.7 No Merger of Interests .......................................................................26 Section 19.8 Reimbursement of Assignees .............................................................26 Section 19.9 Incorporation of Rights ...................................................................... 26 Section 19.10 Counterparts............. ............. ............................................................. 26 Section 19.11 Assignment Without Recourse........................................................... 26 Section 19.12 Remarketing Agreement ....................................................................26 Section 19.13 Approval of Documents .....................................................................26 Section 19.14 Consent of the Credit Provider...........................................................27 Section 19.15 Certain Notices to the Credit Provider and Loan Servicer.................27 Section 19.16 Bailee.... ........ .................... ........... ........... ............................................27 SECTION 20. EXERCISE OF RIGHTS ...............................................................................27 SECTION 21. REMEDIES CUMULATIVE ........................................................................27 SECTION 22. OBLIGATIONS LIMITED............................................................................27 LAU082494.2 -1lI- An extra section break has been inserted above this paragraph. Do not delete this section break if you plan to add text after the Table of Contents/Authorities. Deleting this break will cause Table of Contents/Authorities headers and footers to appear on any pages following the Table of Contents/Authorities. LA1,1082494.2 ASSIGNMENT AND INTERCREDITOR AGREEMENT This ASSIGNMENT AND lNTERCREDITOR AGREEMENT (the "Assignment"), is made as of September 1, 2005, by and among the HOUSING AUTHORITY OF THE CITY OF CHULA VISTA (the "Issuer"), a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of Califomia, WELLS FARGO BANK, NATIONAL ASSOCIATION (together with any successor trustee, the "Trustee", a national banking association, not in its individual or corporate capacity, but solely as trustee, and FANNIE MAE (the "Credit Provider"), a corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. ~ 1716, et seq. and is acknowledged, accepted and agreed to by CIC EASTLAKE, L.P. (the "Borrower"), a California lirnited partnership. The meaning of capitalized terms can be determined by reference to Section 1. RECITALS A. The Issuer has issued, sold and delivered the Bonds. The Net Bond Proceeds are being used to fund the Mortgage Loan to the Borrower. B. The Trustee is trustee under the Indenture. C. The Mortgage Loan is evidenced by the Mortgage Note, secured by the Security Instrument and otherwise documented, evidenced and secured by the other Mortgage Loan Documents. D. The Issuer, the Borrower and the Loan Servicer have requested that the Credit Provider provide the Credit Facility as credit enhancement for the Mortgage Loan and liquidity support for the Bonds. E. As an inducement to the Credit Provider to provide the Credit Facility, (a) the Issuer and the Trustee have accepted and agreed to execute and deliver, and the Borrower has agreed to acknowledge, accept and agree to the terms of, this Assignment and (b) the Borrower has agreed to enter into the Reimbursement Agreement and the Pledge Agreement. In consideration of the mutual promises contained in this Assignment and for other valuable consideration, the receipt and sufficiency of which are acknowledged by the Issuer, the Credit Provider, the Trustee and the Borrower, the Issuer, the Credit Provider, the Trustee and the Borrower agree as follows: Section 1. Definitions. Capitalized terms used in this Assignment (including the Recitals) shall have the meanings given to those terms in this Section 1 or elsewhere in this Assignment unless the context clearly indicates a different meaning. Capitalized terms used in this Assignment and not defined in this Assignment are defIned in, and shall have the meanings Assignment and Intercreditor Agreement LA I , 1082494.2 I Rancho Vista Apartments given to those terms in, the Indenture or the Financing Agreement. The meanings given to all defined terms shall be applicable whether such terms are used in the singular or the plural form. Agreement. "Activity Fee" has the meaning given to that term in the Reimbursement "Advance" has the meaning given to that term in the Credit Facility. "Assigned Documents" means, collectively, the Mortgage Loan Documents and the Financing Agreement. "Assigned Rights" has the meaning gIven to that term in Section 2.1 of this Assignment. "Assignee" means, individually, the Credit Provider, as its interest may appear, or the Trustee, as its interest may appear, as the context shall permit or require, and, collectively, the Credit Provider and the Trustee, as their interests may appear. "Assignment" means this Assignment and Intercreditor Agreement, dated as of September 1, 2005, by and among the Issuer, the Trustee and the Credit Provider, and acknowledged accepted and agreed to by the Borrower, as it may be amended, modified, supplemented or restated from time to time. "As their interests mav appear" or "as its interest may appear" means, with reference to the Assigned Documents and/or the Assigned Rights, the respective interests, exclusive of the Issuer's Reserved Rights, of the Credit Provider, i.e., "the Credit Provider's Interests"(as defined in paragraph (i) below), and of the Trustee, i.e., the "Trustee's Interests" (as defined in paragraph (ii) below), from time to time, in and to the Assigned Documents and the Assigned Rights: (i) "the Credit Provider's Interests" means and includes (a) all rights and interests of the Credit Provider under or pursuant to the Credit Facility Agreement, including, but not limited to, the (1) right of the Credit Provider, pursuant to the Reimbursement Agreement, to payment by the Borrower of, or reimbursement by the Borrower for, Advances under the Credit Facility and (2) right of the Credit Provider, pursuant to the Reimbursement Agreement, to payment by the Borrower, of all fees (including, but not limited to, the Facility Fee and the Activity Fee), costs and expenses (including, but not limited to, attorneys' fees) and other amounts payable to the Credit Provider under the Reimbursement Agreement as a result of its execution and delivery of, and, if applicable, any payment under, the Credit Facility, (b) all other rights of the Credit Provider to payment, reimbursement and/or security under the Credit Facility Agreement and the Mortgage Loan Documents, or otherwise with respect to the transactions provided for in the Bond Documents, the Mortgage Loan Documents and the Credit Facility Agreement (but excluding (I) the payments to be received by the Trustee pursuant to the Credit Facility, (2) all other payments to be received by the Trustee in respect of the unpaid principal amount of and accrued and unpaid interest on the Outstanding Bonds (other than Purchased Bonds which, pursuant to the Pledge Agreement, are subject to a lien in favor of the Credit Provider, plus all accrued and unpaid interest on the Purchased Bonds) and (3) the payments to be received by the Trustee pursuant to the assignment of the Mortgage Loan Payments Interest to Assignment and Intercreditor Agreement LAL 1082494.2 2 Rancho Vista Apartments the Trustee), (c) the Mortgage Loan Rights and (d) the right of the Credit Provider to payment or reimbursement of (1) all amounts to or for which it is or may be entitled to as an Assignee under this Assignment, (2) all amounts secured by the Security Instrument and (3) all fees, costs, expenses and other sums paid, incurred or advanced by the Credit Provider under the Credit Facility Agreement or the Assigned Documents, or otherwise in connection with the Mortgaged Property, or in connection with the exercise by the Credit Provider of any duties, obligations, rights, powers, options, privileges or remedies as an Assignee under this Assignment, including, but not limited to, all amounts advanced: (A) for taxes, assessments, water, sewer and vault charges, insurance prerniums and other similar or dissimilar items in connection with the Mortgaged Property, its development, operation or management; (B) for payments to laborers, suppliers, mechanics, materialmen, subcontractors, contractors, construction managers, surveyors, architects, engineers, accountants, governmental agencies having or asserting jurisdiction over the Mortgaged Property, or any portion of it, and other similar or dissirnilar persons or entities in connection with the construction of the Improvements or the development, operation, maintenance or management of the Mortgaged Property; (C) for costs, expenses, appraisals, attomeys' fees and expenses, accountants' fees and expenses or other fees and expenses in connection with (a) the protection of any security and/or collateral for the Mortgage Loan or for the Borrower's obligations to the Credit Provider under the Credit Facility Agreement, (b) the enforcement of the rights and remedies of the Credit Provider under the Credit Facility Agreement, the Assigned Documents or this Assignment and (c) any foreclosure action or proceeding or the acceptance of a deed in lieu of foreclosure or other comparable conversion of the Mortgage Loan; (D) by reason of or in connection with the acquisition, use, operation, maintenance, management, ownership or sale of the Mortgaged Property, or any portion of it, in the event of the acquisition of the Mortgaged Property, or any portion of it, through foreclosure or by acceptance of a deed in lieu of foreclosure or other comparable conversion of the Mortgage Loan; (E) for any and all other things which the Credit Provider shall or may become entitled to payor advance or for which it is or may be entitled to payment or reimbursement under the Credit Facility Agreement or the Assigned Documents; and/or (F) for attorneys fees, costs and expenses; and (ii) the "Trustee's Interests" means and includes (a) the right to receive (1) the payments to be received by the Trustee pursuant to the assignment of the Mortgage Loan Payments Interest to the Trustee, pursuant to (A) the assignment of the Mortgage Loan Payments Interest to the Trustee, and (B) the Credit Facility and (2) all other payments to be received by the Trustee in respect of the unpaid principal amount of and accrued and unpaid interest on the Outstanding Bonds (other than Purchased Bonds which, pursuant to the Pledge Agreement, are subject to a lien in favor of the Credit Provider, plus all accrued and unpaid interest on the Assignment and Intercreditor Agreement LA 1: 1082494.2 3 Rancho Vista Apartments Purchased Bonds), (b) the right to receive all fees, costs and expenses owing to the Trustee under the Indenture, (c) the right to receive payment or reimbursement of all amounts for which it is or may be entitled to as an Assignee under this Assignment and (d) the right to receive all fees, costs, expenses and other sums paid or incurred by the Trustee (including, but not limited to, attorneys' fees and expenses), for itself or on behalf of the Issuer, in exercising any of its rights, powers, options, privileges or remedies as Assignee under this Assignment, including, but not limited to, all reasonable or necessary sums paid or advanced from time to time by the Trustee of the nature described in clauses (A), (B), (C), (D), (E) and (F) of paragraph (i) above. "Borrower" means CIC Eastlake, L.P., a California limited partnership. "Credit Provider" means Fannie Mae. Assignment. "Exhibit A" means Exhibit A attached to and by this reference made a part of this "Facilitv Fee" means the Facility Fee provided for in the Mortgage Note. "Financing Agreement" means the Financing Agreement, dated as of September 1,2005, among the Issuer, the Trustee and the Borrower, as amended, modified, supplemented or restated from time to time. "Improvements" means the improvements made or to be made upon the Land. "Indenture" means the Trust Indenture, dated as of September 1, 2005, between the Issuer and the Trustee, as amended, modified, supplemented or restated from time to time as permitted by the Indenture. "Issuer" means Housing Authority of the City of Chula Vista, a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California, and its successors and assigns. "Issuer's Annual Fee" has the meaning given to that term in the Indenture. "Issuer's Documents" has the meaning given to that term in paragraph (iv) of Section 11.1 of this Assignment. "Land" means the real property described III Exhibit A, being the same real property described in the Security Instrument. "Loan Servicer" means Red Mortgage Capital, Inc., an Ohio corporation, as servicer of the Mortgage Loan, and any successor servicer appointed by the Credit Provider. "Mortgage Loan" means the loan made by the Issuer to the Borrower pursuant to the terms and provisions of the Financing Agreement for the purpose of providing funds to the Borrower to refinance the Mortgaged Property. Assignment and Intercreditor Agreement LA U 082494.2 4 Rancho Vista Apartments "Mortgage Loan Documents" means, collectively, the Mortgage Note, the Security Instrument and all other agreements, documents and instruments evidencing, securing or otherwise relating to the Mortgage Loan, including all amendments, modifications, supplements and restatements of such agreements, documents and instruments, but excluding the Financing Agreement and the Regulatory Agreement. "Mortgage Loan Payments Interest" means, with respect to the Mortgage Loan, the right of the Trustee to receive and retain all payments due and owing under the Mortgage Note including the right to payment of the unpaid principal amount of and accrued and unpaid interest on the Outstanding Bonds (excluding Purchased Bonds which, pursuant to the Pledge Agreement, are subject to a lien in favor of Fannie Mae, and all accrued and unpaid interest on the Purchased Bonds) other than (a) Set Rate Interest, comprising the Facility Fee and the Servicing Fee, (b) late charges, (c) default interest, (d) payments for reserves (including all payments for deposit into the Replacement Reserve (as defined in the Replacement Reserve and Security Agreement dated as of the date hereof, between the Borrower and the Loan Servicer)), (e) escrows for taxes, insurance and other impositions, (f) payments pursuant to any Mortgage Loan Document, (g) any other amount due pursuant to any Mortgage Loan Document (and further including all fees due to the Credit Provider, e.g., without limitation, the Activity Fee (as defined in the Reimbursement Agreement) due to the Credit Provider) and (h) other amounts which do not constitute principal or interest at the Pass-Through Rate. "Mortgage Loan Rights" means, with respect to the Mortgage Loan, without limitation (a) all of the rights, and interests, power and authority under the Mortgage Loan Documents and the Financing Agreement to direct actions, grant consents, grant extensions, grant waivers, grant requests, give approvals, give directions, exercise and enforce remedies, exercise forbearance, give releases, make appointments, make decisions, take actions, apply partial payments, apply late charges, receive and apply default interest, receive and apply escrow payments for reserves, taxes, insurance and other impositions, receive and apply funds received pursuant to any Mortgage Loan Document, and, subject to the exclusion set forth below, do all other things that may be done under the Mortgage Loan Documents and (b) the right, power and authority to, and the right, power and authority to assign or delegate the right, power and authority to, enter into and/or receive or accept delivery of and/or be a party to all Mortgage Loan Documents (other than the Mortgage Note and the Security Instrument which are executed and delivered by the Borrower to the Issuer), to be executed and delivered in connection with the Mortgage Loan, and which are not entered into and/or received or accepted by the Issuer, or to which the Issuer is not a party, including, but not limited to, any agreements, documents and instruments ancillary to or otherwise relating to the Mortgage Loan, including agreements with respect to the servicing of the Mortgage Loan and the establishment of custodial and other accounts for the deposit of funds payable by the Borrower under the Mortgage Loan Documents and collected by the Loan Servicer, and to vest in any assignee or delegatee, including the Loan Servicer, such rights, powers and authority as may be necessary to implement any of the foregoing; "Mortgage Loan Rights" also means, and expressly includes, with respect to the Mortgage Loan, custody of, and exclusive dorninion and control over, each Mortgage Loan Document, including the Mortgage Note and the Security Instrument. "Mortgage Loan Rights" does not mean, and expressly excludes, the Mortgage Loan Payments Interest which is assigned by the Issuer to the Trustee. Assignment and Intercreditor Agreement LA 1,1082494.2 5 Rancho Vista Apartments "Mortgage Note" means the Multifamily Note, dated as of the date hereof, executed by the Borrower in favor of the Issuer, together with all addenda and schedules, as the same may be amended, modified, supplemented or restated from time to time, or any note executed in substitution therefor, as such substitute note may be amended, modified, supplemented or restated from time to time. Instrument. "Mortgaged Property" has the meaning given to that term III the Security "Pass-Through Rate" has the meaning given to that term in the Mortgage Note. "Person" means any natural person, firm, partnership, association, limited liability company, corporation, company or public body. "Pledge Agreement" means the Pledge, Security and Custody Agreement, dated as of the date hereof, by and among the Borrower, the Trustee, as collateral agent for Fannie Mae, and the Credit Provider, as such agreement may be amended supplemented or otherwise modifIed from time to time. "Regulatorv Agreement" means the [Regnlatory Agreement and Declaration of Restrictive Covenants, relating to the Mortgaged Property, dated as of September 1, 2005], by and among the Issuer, the Trustee and the Borrower, as amended, modified, supplemented or restated from time to time. "Reimbursement Agreement" means the Reimbursement Agreement, dated as of the date hereof, between the Credit Provider and the Borrower, as amended, modified, supplemented or restated from time to time or any agreement entered into in substitution therefor. "Reserved Rights" has the meaning given to that term in the Indenture. "Securitv Instrument" means the Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated as of the date hereof, together with all riders and exhibits, securing the Mortgage Note, executed by the Borrower with respect to the Mortgaged Property, as it may be amended, modified, supplemented or restated from time to time, or any security instrument executed in substitution therefor, as such substitute security instrument may be amended, modified, supplemented or restated from time to time. "State" means the State of California. "Wrongful Dishonor" means an uncured failure by the Credit Provider to make an Advance to the Trustee upon proper presentation of documents that conform to the terms and conditions of the Credit Facility. Section 2. Assil!nment. Section 2.1 Assil!nment. Subject to the specific assignments set forth in Section 2.2 and Section 2.3 of this Assignment, and further subject to the provisions of Sections Assignment and Intercreditor Agreement LAL 1082494.2 6 Rancho Vista Apartments 2.4 through 2.13 of this Assignment, consistent and in accordance with the grant provisions of the Indenture, the Issuer absolutely and irrevocably assigns, transfers, conveys and delivers to each of the Assignees, and their respective successors and assigns, for the benefit of each of the Assignees, and their respective successors and assigns, in each instance as their interests may appear (Le., to the Credit Provider, as its interest may appear, and to the Trustee, as its interest may appear), without recourse, all (a) of the Issuer's right, title and interest in and to the Mortgage Loan and in and to each of the Assigned Documents, provided that the Reserved Rights of the Issuer are excepted from this assignment, transfer, conveyance and delivery, and provided further that such reservation shall not in any way lirnit the rights of the Assignees to exercise all other rights of the Issuer under the Assigned Documents and (b) right, title and interest of every nature of the Issuer in the rights to receive payments under the Assigned Documents (including all proceeds of insurance or condemnation awards, but excluding payments on account of Reserved Rights) and in and to all Funds and Accounts (other than the Rebate Fund, the Costs of Issuance Fund and the Fees Account) held, maintained or administered by the Trustee pursuant to and in accordance with the Indenture and in all amounts on deposit in any Fund or Account (other than the Rebate Fund the Costs of Issuance Fund and the Fees Account) held, maintained or administered by the Trustee pursuant to and in accordance with the Indenture (all rights, titles, interests, liens and privileges described in paragraphs (a) and (b) of this Section 2.1 and assigned to the Assignees by this Section 2.1 are, collectively, the "Assigned Rights"). Each Assignee, for and on behalf of itself and its successors and assigns, acknowledges receipt of, and accepts, and shall hold, the Assigned Rights, together with all right, title, interest, estates, liens, privileges, claims and demands and equities now existing, and to exist in the future, in connection with the Assigned Rights, or as security for the Assigned Rights, as its interest may appear. Section 2.2 Assil!Ilment of Morteaee Loan Riehts to the Credit Provider. Notwithstanding the provisions of Section 2.1 of this Assignment, the Issuer absolutely and irrevocably assigns, transfers, conveys and delivers the Mortgage Loan Rights exclusively to the Credit Provider, and its successors and assigns, without recourse. The Trustee agrees to take such action and to execute and deliver and to facilitate the recordation of such documents provided to the Trustee as may be reasonably necessary to accede to the assignment of the Mortgage Loan Rights to the Credit Provider. If a Wrongful Dishonor occurs and continues for more than five Business Days, the Credit Provider agrees that the Mortgage Loan Rights shall automatically, without any further action on the part of the Credit Provider, transfer to the Trustee at the end of such five-day period. In furtherance of the foregoing, the Credit Provider agrees to take such action and to execute and deliver and to facilitate the recordation of such documents provided to the Credit Provider as may be reasonably necessary to evidence the transfer of the Mortgage Loan Rights to the Trustee. The transfer of the Mortgage Loan Rights to the Trustee shall automatically terminate, and the Mortgage Loan Rights shall revert to the Credit Provider automatically, upon the cure of the Wrongful Dishonor. Section 2.3 Assil!Ilment of Morteaee Loan Payments Interest to Trustee. Notwithstanding the provisions of Section 2.1 of this Assignment, but subject to the provisions of Section 2.6 of this Assignment, the Issuer absolutely and irrevocably assigns, transfers, conveys and delivers the Mortgage Loan Payments Interest to the Trustee, without recourse, such assignment to be (1) for the equal and proportionate benefit, security and protection of the owners of the Outstanding Bonds, without privilege, priority or distinction as to the lien or Assignment and Intercreditor Agreement LAl,1082494.2 7 Rancho Vista Apartments otherwise of any of the Bonds over any of the other Bonds, and (2) for the benefit of the Credit Provider, for the payment of all amounts owing to the Credit Provider under and/or secured by the Credit Facility Agreement and/or the Assigned Documents. The Trustee shall receive the Mortgage Loan Payments Interest and deposit payments received on account of the Mortgage Loan Payments Interest in the appropriate Accounts under the Indenture (a) for the equal and proportionate benefit of the Bondholders without privilege, priority or distinction as to the lien or otherwise of any of the Bondholders over any of the other Bondholders and (b) for the benefit of the Credit Provider for the payment of all amounts owing to the Credit Provider under and/or secured by the Credit Facility Agreement and/or the Assigned Documents. The Trustee acknowledges and agrees that all payments on the Mortgage Note will be made by the Borrower to the Loan Servicer. Section 2.4 Effect of the Issuer's Assil!llments. 2.4.(1) Effect of Assil!llment of Mortl!:al!:e Loan Ril!:hts and Mortl!:al!:e Loan Payments Interest. The Credit Provider and the Trustee acknowledge that the Issuer's assignment of the Mortgage Loan Rights to the Credit Provider and assignment of the Mortgage Loan Payments Interest to the Trustee are and shall be effective without any other or further action by the Issuer, the Trustee or the Credit Provider. The Trustee acknowledges and accedes to the assignment of the Mortgage Loan Rights to the Credit Provider and agrees to take such action and to execute and deliver and to facilitate the recordation of such documents provided to the Trustee as may be reasonably necessary to accede to the assignment of the Mortgage Loan Payments Rights to the Credit Provider. The Credit Provider acknowledges and accedes to the assignment of the Mortgage Loan Interest to the Trustee. The Trustee covenants that it will not assign its rights or interests in and to the Mortgage Loan Payments Interest to any party other than the Credit Provider, or other than as provided in the Indenture and this Assignment, and confirms and agrees that it will not in any event assign any of such rights or interests to any other party without the Credit Provider's prior written consent. The Trustee acknowledges that by virtue of the Issuer's assignment of the Mortgage Loan Rights to the Credit Provider, the Credit Provider will have (a) the right, power and authority to make all decisions in connection with the Mortgage Loan and under the Mortgage Loan Documents, it being understood and agreed that the Credit Provider shall be entitled to act with respect to the Mortgage Loan in the same manner and with the same rights, powers and authority to act as the Credit Provider would have if the Credit Provider were the sole owner of the Mortgage Loan and the sole owner and holder of the Mortgage Note and the Security Instrument, (b) the right to require that payments on the Mortgage Loan be made to the Loan Servicer, (c) the right, power and authority to enter into and/or receive or accept delivery of and/or be a party to all Mortgage Loan Documents (other than the Mortgage Note and the Security Instrument which are executed and delivered by the Borrower to the Issuer) to be executed and delivered in connection with the Mortgage Loan, and which are not entered into and/or received or accepted by the Issuer, or to which the Issuer is not a party, including, but not limited to, any agreements, documents and instruments ancillary to or otherwise relating to the Mortgage Loan and (d) the right to further assign or delegate (including assignments to any Loan Servicer) any of the Mortgage Loan Rights assigned to it and to delegate to the Loan Servicer the right to (1) enter into and/or receive or accept delivery of and/or be a party to any Mortgage Loan Document (other than the Mortgage Note and the Security Instrument which are executed and delivered by the Borrower to the Issuer), including, but not limited to, any agreements, documents and instruments ancillary to or otherwise relating Assignment and Intercreditor Agreement LAloI082494.2 8 Rancho V ista Apartments to the Mortgage Loan and (2) establish and maintain custodial and other accounts for the deposit of funds payable by the Borrower under any of the Mortgage Loan Documents and collected by the Loan Servicer and apply and disburse such funds in accordance with the Mortgage Loan Documents. Neither the Credit Provider nor the Loan Servicer, nor their respective officers, directors, employees, or agents, shall be liable to the Trustee or any Bondholder for any action taken or omitted to be taken in good faith by the Credit Provider in connection with the Mortgage Loan by reason of the assignment of the Mortgage Loan Rights to the Credit Provider. The actions of the Credit Provider with respect to the Mortgage Loan shall not be taken as an agent of the Issuer or the Trustee, and neither the Issuer nor the Trustee shall be liable for any actions taken or not taken by the Credit Provider, any assignee of the Credit Provider or the Loan Servicer. 2.4.(2) Asshmment of Mortl!al!e Loan Upon Payment or Redemption of Bonds. In the event that the Credit Provider makes an Advance pursuant to the Credit Facility which results in the payment or redemption of the Bonds in whole in accordance with the terms of the Bonds and the Indenture, the Trustee, unless otherwise instructed by the Credit Provider, shall (a) assign (in recordable form, if applicable) all of its rights and interests in and to the Mortgage Note, the Security Instrument, all other Mortgage Loan Documents, the Mortgage Loan Payments Interest and the Financing Agreement to the Credit Provider, and endorse the Mortgage Note to the Credit Provider, (b) assign and transfer to the Credit Provider all funds, but excluding the Rebate Fund, the Costs of Issuance Fund and the Fees Account, held by the Trustee, and, until such time as such moneys are paid to the Credit Provider, hold all moneys in all Funds and Accounts (excluding the Rebate Fund, the Costs of Issuance Fund and the Fees Account) as bailee for the Credit Provider and take such action with respect to such moneys while in the possession or control of the Trustee as the Credit Provider may direct and (c) execute and deliver all such documents presented by or on behalf of the Credit Provider as are necessary to legally and validly effectuate the assignments and other actions provided for in the preceding clauses (a) and (b). 2.4.(3) Assil!nment of Mortl!al!e Loan Without Payment or Redemption of Bonds. So long as a Wrongful Dishonor has not occurred, or if it has occurred, has not continued for more than five Business Days, the Credit Provider shall have the right, with respect to the Mortgage Loan, in its sole and absolute discretion, without making an Advance under the Credit Facility, but only upon filing with the Trustee a certification reaffirming the Credit Provider's obligations under the Credit Facility, to direct the Trustee in writing to assign (in recordable form, if applicable) all of the Trustee's rights and interests in and to the Mortgage Note, the Security Instrument, the other Mortgage Loan Documents and the Financing Agreement to the Credit Provider, in which event the Trustee shall (a) assign (in recordable form, if applicable) all of its rights and interests in and to the Mortgage Note, the Security Instrument, the other Mortgage Loan Documents and the Financing Agreement to the Credit Provider, and endorse the Mortgage Note to the Credit Provider and (b) execute all such documents presented by or on behalf of the Credit Provider as are necessary to legally and validly effectuate the assignments provided for in the preceding clause (a). The Credit Provider shall hold the Mortgage Note and the Security Instrument for the benefit of the Bondholders. If, following such assignments, a Wrongful Dishonor occurs and continues for more than five Business Days, the Credit Provider agrees that all rights and interests assigned by the Trustee to the Credit Provider pursuant to this Section 2.4(3) shall automatically, without any further action Assignment andlntercreditor Agreement LA U 082494.2 9 Rancho Vista Apartments on the part of the Credit Provider, transfer to the Trustee. Notwithstanding the foregoing, the Credit Provider agrees to take such action and to execute and deliver and to facilitate the recordation of such documents provided to the Credit Provider as the Trustee deems reasonably necessary to evidence the transfer to the Trustee of all rights and interests so assigned by the Trustee to the Credit Provider pursuant to this Section 2.4(3). Upon the cure of the Wrongful Dishonor, the transfer of such rights and interests to the Trustee shall automatically terminate, and such rights and interests shall revert to the Credit Provider automatically. No assignment pursuant to this Section 2.4(3) shall affect the Credit Provider's obligations under the Credit Facility. 2.4.(4) Trustee's Assienment. The Trustee's assignment to the Credit Provider pursuant to Section 2.4(2) or 2.4(3) and the Trustee's endorsement of the Mortgage Note to the Credit Provider pursuant to Section 2.4(2) or 2.4(3) shall be without recourse, except that the Trustee shall (a) represent and warrant in connection with such assignment and endorsement that (1) the Trustee has the power and authority to assign such documents and instruments to the Credit Provider and to endorse the Mortgage Note to the Credit Provider, (2) the assignment of such documents and instruments and the endorsement of the Mortgage Note to the Credit Provider have been duly authorized and (3) the Trustee has not previously assigned any such documents or instruments or endorsed the Mortgage Note to any other person and (b) certify the principal amount outstanding under the Mortgage Note. Section 2.5 Exercise of Asshmed Ril!hts. Subject to the Reserved Rights of the Issuer and to the provisions of Section 2.2, Section 2.3, Section 2.4 and Section 2.6 of this Assignment, the Issuer agrees that either Assignee, in its own name or in the name of the Issuer, may enforce all of the Assigned Rights and all obligations of the Borrower under the Assigned Documents, without regard to whether the Issuer is in default under the Assigned Documents or under this Assignment. In order to implement the foregoing, the Issuer appoints each Assignee, and its successors and assigns, as the Issuer's true and lawful attorney-in-fact, irrevocably, with power of substitution to do any or all of the foregoing in the name, place and stead of the Issuer. This power of attorney, being coupled with an interest, is irrevocable as long as this Assignment shall remain in effect as to such Assignee. The Assignees shall not be obligated by reason of this Assignment or otherwise to perform or be responsible for the performance of any of the covenants or agreements of the Issuer under the Assigned Documents. In no event shall (a) the exercise of any of the foregoing rights, remedies or powers or (b) any default under any of the Assigned Documents and/or the Credit Facility Agreement result in a redemption of the Bonds or an acceleration of the Bonds pursuant to the terms of the Indenture unless the Credit Provider shall have directed such redemption or acceleration in writing. The Issuer shall fully cooperate with the Assignees in their enforcement of the Assigned Rights or obligations of the Borrower under the Assigned Documents and take such steps as reasonabl y requested to effectuate the same. The Borrower shall reimburse the Issuer for all of the Issuer's out-of-pocket expenses incurred in connection with the Issuer's compliance with the preceding sentence. Section 2.6 Exclusive Exercise of Ril!hts bv the Credit Provider; Exclusive Exercise of Ril!hts bv the Trustee. 2.6.(1) The Credit Provider. Notwithstanding any other provision of this Assignment to the contrary, until this Assignment is terminated as to the Credit Provider, as Assignment and Intercreditor Agreement LA L 1082494.2 10 Rancho Vista Apartments provided in Section 15 of this Assignment, or until a Wrongful Dishonor shall have occurred and, in that event, only if the Wrongful Dishonor continues for more than five Business Days, the Credit Provider shall, subject to the assignment of the Mortgage Loan Payments Interest to the Trustee pursuant to Section 2.3 of this Assignment, have (a) exclusive dorninion and control over, and the sole right to exercise, the Mortgage Loan Rights and (b) the sole and exclusive right to exercise all of the rights, powers, options, pri vileges and remedies provided to the Assignees in this Assignment, including, but not limited to, all rights to enforce all obligations of the Borrower under the Assigned Documents and to enforce all of the Assigned Rights to the total exclusion of the Trustee, and without the consent of the Trustee, and the Trustee shall not have, and may not exercise, any of such rights, powers, options, privileges and remedies. Any one or more of the Mortgage Loan Rights afforded to the Credit Provider under the provisions of this Assignment may be exercised by the Credit Provider concurrently with or independently of the exercise of anyone or more other Mortgage Loan Rights. Consistent with the foregoing, until this Assignment is terminated as to the Credit Provider, as provided in Section 15 of this Assignment, or until a Wrongful Dishonor shall have occurred and, in that event, only if the Wrongful Dishonor continues for more than fIve Business Days, the proceeds of any foreclosure of the Mortgaged Property or other enforcement of the Assigned Documents, the proceeds of any sale of the Mortgaged Property, the rents and other amounts generated by the holding, leasing, operation or other use of the Mortgaged Property, and any condemnation and insurance proceeds, shall be applied by the Credit Provider in accordance with the terms of the Security Instrument and the other Mortgage Loan Documents, as the Credit Provider shall direct, in its discretion. The Trustee agrees that, in order to effectuate the purposes of this Assignment and the assignment of the Mortgage Loan Rights to the Credit Provider, the Trustee, for itself and for any successor or replacement Trustee, unconditionally appoints the Credit Provider as the Trustee's true and lawful attomey-in-fact, irrevocably, with power of substitution, to execute, acknowledge and deliver any notice, document, certificate, paper, instrument or pleading and to do in the Trustee's name, place and stead, all such acts, things and deeds for and on behalf of the Trustee under this Assignment and/or any of the Assigned Documents which the Trustee could or might do or which may be necessary, desirable or convenient in the Credit Provider's sole discretion to effectuate the purposes of this Assignment and/or any Assigned Document. This power of attorney and the rights, remedies, power and authority granted by the Trustee to the Credit Provider in this Assignment are declared by the Trustee to be coupled with an interest and irrevocable until the Reimbursement Agreement is no longer in full force and effect or until a Wrongful Dishonor shall have occurred and shall have continued for more than five Business Days and may be exercised by the Credit Provider in the name of the Credit Provider, in the name of the Trustee or in the names of the Credit Provider and the Trustee, as the Credit Provider may at any time or from time to time determine; the Trustee confirms and ratifies all acts and deeds taken or to be taken by the Credit Provider as attorney-in-fact. 2.6.(2) Trustee. Only at such time as this Assignment shall have terminated as to the Credit Provider as provided in Section 15 of this Assignment or during such period of time as there exists a Wrongful Dishonor which has continued for more than five Business Days may the Trustee exercise any of the rights, powers, options, privileges and remedies provided to the Assignees under this Assignment, including, but not limited to, the Mortgage Loan Rights and all rights to enforce all obligations of the Borrower under the Assigned Documents and to enforce all of the Assigned Rights to the exclusion of the Credit Provider, and without the consent of the Credit Provider, provided that, and notwithstanding any Assignment and Intercreditor Agreement LAL1082494.2 II Rancho Vista Apartments such Wrongful Dishonor, the Credit Provider shall be entitled to receive all notices pursuant to this Assignment, the Indenture and the Assigned Documents. 2.6.(3) Disclaimer of AssumDtion of Oblil!ations. Neither the Trustee nor the Credit Provider shall be deemed by reason of this Assignment to have assumed any obligations of the Issuer, under the Indenture or the Financing Agreement. Section 2.7 Confirmation of Asshmment. In order to confIrm and evidence this Assignment, the Issuer has (a) delivered to the Credit Provider and the Trustee and the Credit Provider and the Trustee acknowledge receipt of, a signed counterpart of each of the Assigned Documents and (b) executed and delivered to the Credit Provider and the Trustee Uniform Commercial Code financing statements covering the Issuer's interest in the Assigned Rights in form suffIcient for filing with the California Secretary of State and the Recorder's Office of San Diego County, naming the Credit Provider and the Trustee as secured parties. The Credit Provider and the Trustee acknowledge the Credit Provider's receipt and custody of (a) the original executed Mortgage Note, endorsed to the order of the Trustee and the Credit Provider, as their interests may appear, and (b) the original Security Instrument. The Issuer shall, at any time after the date of this Assignment, at the request of either Assignee, execute and deliver such financing statements, continuation statements and other instruments, in forms acceptable to the requesting Assignee, as either Assignee may request from time to time or as are necessary in such Assignee's opinion to further confirm and evidence this Assignment. Section 2.8 Further Assurances. The Issuer covenants that it will, at the sole expense of the Borrower, cooperate to the extent necessary with the Borrower, the Trustee and the Credit Provider in their defenses of the security for the Bonds against the claims and demands of all Persons, and will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such additional and supplemental agreements, instruments and documents, do such further acts, and make such further transfers as the Trustee or the Credit Provider may reasonably request to effectuate the purpose and intent of this Assignment. The Issuer shall execute and the Credit Provider and the Trustee shall do, execute, acknowledge and deliver, such additional and supplemental agreements, documents and instruments, do such further acts and make such further transfers as the Credit Provider or the Trustee may reasonably require for the better assuring, transferring, conveying, assigning and confirming to the Credit Provider and the Trustee the interests to be assigned pursuant to this Assignment. Section 2.9 No Other Encumbrances. The Issuer covenants that, except as otherwise provided in the Indenture and this Assignment, it will not sell, convey, mortgage, encumber or otherwise dispose of any of the Assigned Rights or any of the Assigned Documents. Section 2.10 Consent Required for Amendments. The Issuer covenants that it will not agree to any amendment, modification, supplement, waiver or consent with respect to any of the Assigned Documents, other than in relation to the Reserved Rights, without the prior written consent of the Trustee and the Credit Provider. So long as this Assignment shall not have terminated as to the Credit Provider as provided in Section 15 of this Assignment, and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Trustee shall, at the written direction of the Credit Provider, Assignment and Intercreditor Agreement LA 1 : 1082494.2 12 Rancho Vista Apartments consent to, and shall not, without the Credit Provider's prior written consent, consent to any proposed amendment, supplement, waiver, or modifIcation to, or revision of, any Assigned Document, provided, however, that no such amendment, supplement, waiver, modification or revision to the Mortgage Note shall change the (a) outstanding principal amount, the interest rate, the maturity date, the due date for the payment of interest, the terms of mandatory prepayment or governing law or jurisdiction provisions without the Trustee's prior written consent; or (b) tirning or amount of the Issuer's Annual Fee without the Issuer's consent. Section 2.11 Insurance: Condemnation. 2.11.(1) Insurance. The Borrower covenants and agrees that the Credit Provider, the Loan Servicer and the Trustee shall each be named as a mortgagee on all fire, extended coverage and other hazard insurance policies required under the Assigned Documents, provided that all insurers shall be directed to pay all proceeds of such policies directly to the Credit Provider, which proceeds shall be held and applied by the Credit Provider in accordance with the terms of the Security Instrument and the other Mortgage Loan Documents, as the Credit Provider shall direct, in its discretion, and the Borrower, as mortgagor, shall deal solely with the Credit Provider or the Loan Servicer, as the Credit Provider shall direct, under the Assigned Documents. Neither the Credit Provider, the Loan Servicer nor the Trustee shall have any liability under this Assignment for any such application of insurance proceeds. Notwithstanding the foregoing, so long as this Assignment shall continue in full force and effect as to the Credit Provider, and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Credit Provider and the Loan Servicer shall be the sole loss payees on all fire, extended coverage and other hazard insurance policies required under the Mortgage Loan Documents, and all insurers shall be directed to pay all proceeds of such policies directly to the Credit Provider. Only at such time as this Assignment shall have terminated as to the Credit Provider as provided in Section 15 of this Assignment or during such period of time as there exists a Wrongful Dishonor which shall have continued for more than fIve Business Days shall the Trustee be deemed a loss payee entitled to receive the proceeds of such policies. The Borrower further covenants and agrees that the Credit Provider, the Trustee and the Issuer shall each be a named insured on all liability insurance policies required under the Assigned Documents. 2.11.(2) Condemnation. The Borrower covenants and agrees that all proceeds of any condemnation award or award in lieu of condemnation shall be paid solely to the Credit Provider, it being agreed that so long as this Assignment shall continue in full force and effect as to the Credit Provider, and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Credit Provider shall be the sole payee with respect to all condemnation and like awards and all awards in lieu of condemnation. Only at such time as this Assignment shall have terminated as to the Credit Provider as provided in Section 15 of this Assignment or during such period of time as there exists a Wrongful Dishonor which shall have continued for more than five Business Days shall the Trustee be entitled to receive such proceeds. All proceeds of a condemnation award or other award in lieu of condemnation received by the Credit Provider shall be held and applied by the Credit Provider in accordance with the terms of the Security Instrument, as the Credit Provider shall direct, in its discretion, and the Borrower, as mortgagor, shall deal solely with the Credit Provider or the Loan Servicer, as the Credit Provider shall direct, under the Assigned Assignment and Intercreditor Agreement LA I; 1082494.2 13 Rancho Vista Apartments Documents. Neither the Credit Provider nor the Trustee shall have any liability under this Assignment for any such application of condemnation award proceeds. The Credit Provider and the Trustee shall execute, acknowledge and deliver all such documents presented by or on behalf of the Credit Provider as shall be necessary to evidence or confirm the provisions of Section 2.11(1) and this Section 2.11(2), as applicable. Section 2.12 Possession of Mortl!:al!:e Note and Security Instrument: Records and Books of Account: Examination of Records and Books of Account. 2.12.(1) Possession of Mortl!:al!:e Note and Security Instrument. The Credit Provider shall have custody of the original Mortgage Note, duly endorsed to the Trustee and the Credit Provider, as their interests may appear, and the recorded Security Instrument. The originals (or, where recorded, executed copies) of all other Mortgage Loan Documents, shall be delivered to, held by, and be under the exclusive dominion and control of, the Credit Provider. 2.12.(2) Records and Books of Account. The Trustee shall keep, or cause to be kept, proper records and books of account in which complete and accurate entries shall be made of all of its transactions relating to the Mortgage Loan and the Assigned Documents, including, but not lirnited to, payments made under the Mortgage Loan and all funds and accounts established by or held pursuant to the Indenture with respect to the Mortgage Loan. 2.12.(3) Examination of Records and Books of Account. The Trustee covenants and agrees that all records and books of account in its possession relating to the Mortgage Loan, the Assigned Documents and all records and books of account regarding the receipt and distribution of payments on the Mortgage Loan and the Borrower's compliance with the terms and conditions of the Mortgage Loan and the Assigned Documents, shall be open to inspection, examination and audit at any reasonable time by the Issuer, the Borrower, the Loan Servicer and the Credit Provider or by such accountants or other agents as the Issuer, the Borrower, the Loan Servicer or the Credit Provider may from time to time designate. In addition, the Issuer, the Borrower, the Loan Servicer and the Credit Provider shall have the right, at any time and from time to time, to require the Trustee to furnish such documents to the Issuer, the Borrower, the Loan Servicer and the Credit Provider, at the Borrower's expense, as the Issuer, the Borrower, the Loan Servicer or the Credit Provider, as the case may be, from time to time, deems reasonably necessary in order to determine that the provisions of the Mortgage Loan have been complied with. Section 2.13 Disposition of Mortl!:al!:e Loan. Unless a Wrongful Dishonor shall have occurred and be continuing, the Trustee shall not, except at the written direction or with the prior written consent of the Credit Provider, assign, transfer or dispose of (a) its rights or interests in and to the Mortgage Loan, the Mortgage Note, the Security Instrument or any other Mortgage Loan Document or (b) the Mortgage Loan Payments Interest to any party other than to (1) the Credit Provider as provided in Section 2.4(2) and Section 2.4(3) of this Assignment, (2) a successor Trustee pursuant to the terms of the Indenture or (3) to the Issuer, as provided in Section 15 of this Assignment. Assignment and Intercreditor Agreement LA U 082494.2 14 Rancho Vista Apartments Section 2.14 Credit Provider Asshmment. The Credit Provider shall, in its sole discretion, have the right to assign, sell or transfer its right, title and interest in, to and under the Assigned Documents, the Assigned Rights and this Assignment to any Person. Section 3. Disposition of Credit Facilitv. On the Closing Date, the Credit Provider shall deliver the Credit Facility to the Trustee. The Trustee shall not, without the prior written consent of the registered owners of all of the Bonds then Outstanding, transfer the Credit Facility except as provided in Section 7.2 of the Indenture. Section 4. Limitations on Issuer. From and after the date of this Assignment, the Issuer shall not, except with respect to its Reserved Rights (a) deal in any manner with any of the Assigned Documents, (b) exercise or refrain from exercising any of the Assigned Rights or any rights or remedies under the Assigned Documents, (c) purport to exercise any of the Mortgage Loan Rights or (d) take any other action with respect to the Assigned Documents, the Assigned Rights or the Mortgage Loan Rights including, but not limited to, waiving or releasing the Borrower from any Event of Default or the performance or observance of any obligation or condition under any Assigned Document. Section 5. Effect of Default. In the event that, following a default under the Mortgage Loan (a) the Mortgaged Property is acquired by either or both of the Assignees, or their nominees, as a result of a foreclosure or the acceptance of a deed in lieu of foreclosure or comparable conversion of the Mortgage Loan or other enforcement provisions of the Security Instrument, (b) the Bonds are not redeemed with funds provided under the Credit Facility and (c) this Assignment shall continue in full force and effect as to the Credit Provider and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Mortgaged Property shall be conveyed to the Credit Provider or its norninee, and all decisions thereafter with respect to the Mortgaged Property (including, but not lirnited to, all decisions with respect to the management, operation, maintenance and sale of the Mortgaged Property, and the price and terms of such sale, the payment or contesting of real estate taxes, rebuilding or restoration after damage, destruction or taking, alterations, improvements, insurance coverage, litigation and conversion to a cooperative or condominium), shall be made solely by the Credit Provider. Section 6. Mortl!al!e Loan Servicinl!. The identity of the Loan Servicer being of material importance to the Credit Provider, this Assignment is accepted by the Credit Provider on the basis, and with the understanding, that the Loan Servicer will be determined solely by the Credit Provider. Accordingly, so long as this Assignment shall continue in full force and effect as to the Credit Provider and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Issuer, the Trustee and the Borrower agree that the Credit Provider shall, in its discretion, have the sole and exclusive (a) right to appoint the Loan Servicer and arrange for the servicing of the Mortgage Loan and the Assigned Documents, provided such servicing shall be performed by a Fannie Mae approved seller-servicer in accordance with the requirements of the Credit Provider, (b) power and authority, on its own behalf and/or on behalf of the Trustee and the Issuer, to do or refrain from doing any act in connection with the Mortgage Loan and/or the Assigned Documents, including any act provided for in this Assignment and (c) right to remove the Loan Servicer (for any reason), terminate its right to service the Mortgage Loan, and appoint a new Loan Servicer. Ther Assignment and Intercreditor Agreement LAU082494.2 15 Rancho Vista Apartments Issuer, the Trustee and the Borrower further acknowledge and agree that the servlcmg arrangements between the Credit Provider and the Loan Servicer are subject to amendment or termination without the consent of the Issuer, the Trustee or the Borrower and that none of the Issuer, the Trustee or the Borrower shall have any rights under or be a third party beneficiary of such arrangements. The Trustee, the Borrower and the Issuer acknowledge and agree that any Loan Servicer designated by the Credit Provider shall be paid a fee for its services. Neither the Issuer, the Trustee nor the Credit Provider shall have the obligation to pay such fees from their own funds. The Trustee, the Borrower and the Issuer acknowledge the right ofthe Loan Servicer to deduct the Servicing Fee and the Facility Fee from monthly payments on the Mortgage Note made by the Borrower so long as the amount remitted to the Trustee includes interest at the Pass- Through Rate. As long as the Loan Servicer is servicing the Mortgage Loan, the Borrower shall deliver to the Issuer, the Loan Servicer and the Trustee copies of all reports and notices required by the Mortgage Loan Documents. The Credit Provider delegates to the Loan Servicer the right to exercise such of the Mortgage Loan Rights as shall be approved or confirmed from time to time by the Credit Provider. Section 7. Borrower's Acknowledlffilents. The Borrower acknowledges that all of the right, title and interest of the Issuer (excluding the Reserved Rights of the Issuer) in, to and under the Assigned Documents, including, but not limited to, the Issuer's right to collect and receive all amounts payable under the Assigned Documents has, pursuant to this Assignment, been assigned by the Issuer to the Assignees as provided in this Assignment. The Borrower further acknowledges and consents to all of the terms and provisions set forth in this Assignment. Section 8. Rel!Ulatorv Al!reement. Section 8.1 Monitorinl! of Rel!ulatorv Al!reement. The Issuer shall have the sole obligation to monitor compliance with the Regulatory Agreement. Section 8.2 Termination of Rel!Ulatorv Al!reement. Upon expiration or termination of the Regulatory Agreement pursuant to its terms, the Issuer, in its capacity as the Issuer, shall promptly notify Credit Provider of the termination of the Regulatory Agreement. Section 8.3 Ril!ht To Enforce Compliance. The Issuer, the Trustee, the Loan Servicer and Credit Provider shall each have the right, but not the obligation, to enforce compliance by the Borrower and its successors as subsequent owners of the Mortgaged Property with the Regulatory Agreement. Notwithstanding the foregoing, the Trustee agrees that it will, subject to the provisions of the Indenture and Article IX, at the direction of the Issuer, take such action as may be required to achieve compliance by the Borrower with the Regulatory Agreement. Section 8.4 Notices of Violations of the Rel!Ulatorv Al!reement. Promptly upon determining that a violation of the Regulatory Agreement has occurred, the Issuer shall send written notice of such violation to Credit Provider, the Loan Servicer and the Trustee. The Issuer's notice shall set out the nature of the violation and state whether the violation has been cured or has not been cured but is curable within a reasonable period of time, or is incurable and contain a copy of the Issuer's notice of violation to the Borrower. If the Borrower fails to cure the violation to the reasonable satisfaction of the Issuer within the time period set forth in the Assignment and Intercreditor Agreement LAl: 1082494.2 16 Rancho Vista Apartments Issuer's notice of the violation to the Borrower (which period shall not be shorter than any applicable period set out in the Regulatory Agreement for the cure of such violation) and if, as a consequence of such failure, the Issuer declares an Event of Default under the Regulatory Agreement, the Issuer shall provide prompt written notice to Credit Provider, the Loan Servicer and the Trustee of the Event of Default (together with a copy of any notice of the Event of Default provided to the Borrower). Section 8.5 Cure Ril!hts. Each of Credit Provider, the Loan Servicer and the Trustee shall have the right, but not the obligation, to cure any default by the Borrower under the Regulatory Agreement. Such cure may be made even after the Issuer's notice of declaration of an Event of Default under the Regulatory Agreement, provided however, such cure right shall not affect any requirements of the Code and the Act. Credit Provider shall have the additional right, but not the obligation, to cure any violation of the Regulatory Agreement by assumption of the management and operation of the Mortgaged Property, directly or through any Credit Provider approved seller-servicer or a receiver under the Security Instrument. Any operation of the Mortgaged Property by Credit Provider or its successors or assigns shall be in accordance with the Regulatory Agreement, but only so long as the Regulatory Agreement remains in effect. Section 9. Issuer's Covenants. Section 9.] Limitations on Issuer. The Issuer shall not consent to any amendment, supplement to, or restatement of any Bond Document or the Regulatory Agreement, or any other document executed or delivered in connection with the Bonds without the prior written consent of Credit Provider. Section 9.2 Enforcement. Notwithstanding any other provISIon in this Assignment to the contrary, until this Assignment shall have terminated as to the Credit Provider as provided in Section ]5 of this Assignment and so long as no transfer of the Mortgage Loan Rights to the Trustee has occurred pursuant to Section 2.2, neither the Issuer nor any person under its control shall exercise any remedy or direct any proceeding under the Indenture, the Financing Agreement or the Regulatory Agreement other than as set out in this Section. (a) Enforcement of Certain Rights and Obligations. Subject to subsection (b), the Issuer may: (1) Tax Covenants. Seek specific performance of the tax covenants of the Indenture, the Tax Certificate and the Financing Agreement, injunctive relief against acts which may be in violation of any of the tax covenants, and enforce the Borrower's obligation to pay amounts for credit to the Rebate Fund; (2) Regulatorv Agreement. Seek specific performance of the obligations of the Borrower or any other owner of the Property under the Regulatory Agreement and injunctive relief against acts which may be in violation of the Regulatory Agreement or otherwise unlawful; provided, however, that the Issuer may enforce any right it may have under the Regulatory Agreement for monetary damages only against Excess Revenues, if any, of the Borrower, unless Credit Provider otherwise specifically consents in writing to the use of other funds; and . Assignment and Intercreditor Agreement LA1oI082494.2 17 Rancho V ista Apartments (3) Reserved Rights. Take whatever action at law or in equity which appears necessary or desirable to enforce the Reserved Rights; provided, however, that the Issuer or any person under its control may only enforce any right it may have for monetary damages against Excess Revenues, if any, of the Borrower, unless Credit Provider otherwise specifically consents in writing to the enforcement against other funds of the Borrower. (b) Overriding Limitations. In no event shall the Issuer: (1) prosecute its action to a lien on the Mortgaged Property; (2) take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due under, the Loan or of causing the Borrower to file a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Borrower under any applicable liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law in effect now or in the future; or (3) interfere with the exercise by Credit Provider of any of its rights under the Loan Documents or the Credit Facility Agreement upon the occurrence of an event of default by the Borrower under the Loan Documents or the Credit Facility Agreement; or (4) take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Loan or the Bonds. (c) Notice of Action. The Issuer shall provide written notice to Credit Provider, the Trustee and the Loan Servicer immediately upon taking any action at law or in equity to exercise any remedy or direct any proceeding under the Indenture, the Financing Agreement or the Regulatory Agreement. (d) Definition of ''Excess Revenues". As used in this Section, the term "Excess Revenues" means, for any period, the net cash flow of the Borrower available for distribution to shareholders, members or partners (as the case may be) for such period, after the payment of all interest expense, the amortization of all principal of all indebtedness coming due during such period (whether by maturity, mandatory sinking fund payment, acceleration or otherwise), the payment of all fees, costs and expenses on an occasional or recurring basis in connection with the Loan or the Bonds, the payment of all operating, overhead, ownership and other expenditures of the Borrower directly or indirectly in connection with the Mortgaged Property (whether any such expenditures are current, capital or extraordinary expenditures), and the setting aside of all reserves for taxes, insurance, water and sewer charges or other similar impositions, capital expenditures, repairs and replacements and all other amounts which the Borrower is required to set aside pursuant to agreement, but excluding depreciation and amortization of intangibles. Section 9.3 Specific Performance. The Borrower acknowledges and agrees that were money damages a remedy under the Regulatory Agreement or in connection with any of the tax covenants of the Indenture, the Tax Certificate and the Financing Agreement, money damages alone would not be an adequate remedy at law for a default by the Borrower arising Assignment and Intercreditor Agreement LA 1: 1082494.2 18 Rancho Vista Apartments from a failure to comply with the Regulatory Agreement or the tax covenants and therefore the Borrower agrees that the remedy of specific performance shall be available to the Issuer and/or the Trustee in any case. Section 10. Amendment of Aereements. The Issuer agrees that it will not consent to any amendment, modification of, supplement to, or waiver or consent with respect to, the Financing Agreement, the Indenture, the Regulatory Agreement, or any other documents executed or delivered in connection with the Bonds without the prior written consent of the Credit Provider. Section II. Representations: Warranties and Covenants. Section 11.1 Representations: Warranties and Covenants of the Issuer. The Issuer represents, warrants and covenants to the Assignees that: (i) the making of the Mortgage Loan is in accordance with the Act; (ii) the Issuer is a validly existing municipal corporation, duly created, organized and existing under the laws of the State; (iii) the Issuer is the owner of all right, title and interest in and to the Assigned Documents and the Assigned Rights, and has all necessary power and authority (a) to execute, deliver and carry out the terms and provisions of this Assignment and to assign the Assigned Documents and the Assigned Rights to the Assignees pursuant to this Assignment free of any liens or restrictions other than those created under the Indenture, and (b) to execute and deliver the Indenture; (iv) the Issuer has duly (a) authorized the execution, delivery and performance of this Assignment, the Indenture and any and all other agreements to which it is a party, including, but not limited to, the Assigned Documents to which it is a party (collectively, with this Assignment, the "Issuer's Documents") and (b) executed and delivered each of the Issuer's Documents; (v) the Issuer's Documents are the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their respecti ve terms, except as such enforceability may be limited by bankruptcy, reorganization, insolvency or other similar laws affecting the enforcement of creditors' rights generally or by general principles of equity; (vi) the execution, delivery and performance of the Issuer's Documents by the Issuer will not (a) violate any provision of law, or any rules or regulations promulgated under any law, (b) violate, be in conflict with or constitute a default (after notice or lapse of time, or both) under the Act or under the by-laws of the Issuer, as amended from time to time, or any term or provision of any agreement, indenture, resolution or other instrument by which the Issuer is bound or to which any of its assets is subject, or ( c) violate any judgment, decree, governmental order, writ, injunction, statute, rule or regulation of any court or governmental body, agency or other instrumentality applicable to the Issuer; Assignment and Intercreditor Agreement LA U 082494.2 19 Rancho Vista Apartments (vii) the Issuer is not a party to, or otherwise subject to any provision contained in, any agreement or other instrument (including the Act) which restricts or otherwise lirnits the assignability of the Assigned Documents or the Assigned Rights pursuant to this Assignment; (viii) except as specifically provided for in the Indenture, the Issuer has not granted and will not grant any lien or security interest in the Assigned Documents or the Assigned Rights and has not sold, transferred or otherwise disposed of any interest in the Assigned Documents or the Assigned Rights; (ix) the principal place of business and chief executive office of the Issuer and the offIce where the Issuer keeps all records concerning the Assigned Rights are located at the address set forth in this Assignment for notices to be given to the Issuer; (x) no further action, consent, approval, registration or filing by or with any governmental agency, bureau, commission or court is required in connection with the execution, delivery, adoption and/or performance, as the case may be, by the Issuer of the Issuer's Documents other than as have been (or will be, when required) made or obtained; (xi) the Issuer shall comply with the covenants, requirements and provisions of the Indenture applicable to it and perform all of its obligations under the Indenture; (xii) the Issuer has complied and will comply with all material provisions of the Act applicable to the Bonds and the transactions contemplated by the provisions of the Indenture; and (xiii) . no litigation or administrative action of any nature has been served on it and is now pending (i) seeking to restrain or enjoin the execution and delivery of this Assignment or the Assigned Documents, or the adoption of the Indenture or in any manner questioning the proceedings or authority relating to any of the foregoing or otherwise affecting the validity of the Bonds or (ii) as to the existence or authority of the Issuer or that of its present or former members or offIcers and, to the best knowledge of the Issuer, none of the foregoing are threatened. Section 11.2 Representations and Warranties of the Credit Provider. The Credit Provider represents and warrants to the Issuer and the Trustee that this Assignment has been duly authorized, executed and delivered by the Credit Provider; assuming due authorization, execution and delivery of this Assignment by the Issuer and the Trustee, this Assignment constitutes a legal, valid and binding obligation of the Credit Provider enforceable against the Credit Provider in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights from time to time in effect, and to the exercise of judicial discretion in accordance with general principles of equity, whether applied by a court of law or of equity. Section 11.3 Representations, Warranties and Covenants of the Borrower. The Borrower represents, warrants and covenants that: Assignment and Intercreditor Agreement LA 1 ,1082494.2 20 Rancho Vista Apartments (i) all representations, warranties, covenants, indemnities and other agreements of the Borrower set forth in the Assigned Documents, and all rights, powers and remedies of the Issuer under the Assigned Documents, are acknowledged to be assigned to and for the benefit of the Assignees, and all of such rights, powers and remedies may, as provided in this Assignment, be enforced by the Assignees (in the priorities established by this Assignment) in the name, place and stead of the Issuer; (ii) the Assignees (in the priorities established by this Assignment), as the holders of all of the rights, remedies, authority, privileges, powers and options and authority of the Issuer, have, to the Borrower's knowledge, the exclusive authority to exercise all of the rights, powers and authority of the Issuer, and to take any action or do anything, with respect to, under or in connection with or in the enforcement of, the Assigned Documents and the Assigned Rights; (iii) it will perform and observe, for the benefit of the Assignees (in the priorities established by this Assignment), all of the covenants and agreements of the Borrower under the Assigned Documents as if the Assignees were named in the Assigned Documents rather than the Issuer; (iv) it will not cancel, amend, surrender, abridge or otherwise modify the Assigned Documents without the prior written consent of the Assignees pursuant to the terms of this Assignment; (v) it will not seek to recover from an Assignee any monies owed to the Borrower by the other Assignee, pursuant to the Assigned Documents, whether by reason of defense, set-off, counterclaim or deduction for any reason whatsoever; (vi) whenever the consent or approval of the Issuer is required or permitted under the Assigned Documents, the written consent or approval of the Assignee having the right to give such consent pursuant to this Assignment shall, in lieu of such consent or permission of the Issuer, be obtained before taking any action or omitting to take any action for which such consent or permission is needed; and (vii) it will simultaneously give to the Assignees copies of all notices and communications required to be given by the Borrower under the Assigned Documents. Nothing contained in this Assignment shall be deemed to change, modify or waive any of the representations, warranties, covenants or agreements of the Borrower contained in the Assigned Documents. Section 11.4 Representations and Warranties of the Trustee. The Trustee represents and warrants to Credit Provider that: (i) it is a national banking association duly organized and existing under the laws of the United States of America; (ii) it has the power and authority to accept and execute trusts and has duly accepted its appointment as Trustee under the Indenture; Assignment and Intercreditor Agreement LA 1,1082494.2 21 Rancho Vista Apartments (iii) it has the power and authority to execute and deliver, accept the rights and duties granted in, and perform its obligations under, this Assignment; (iv) all corporate action required to authorize the acceptance of its appointment as Trustee under the Indenture and the execution, delivery and performance of this Assignment and the effectuation of the transactions provided for in this Assignment has been duly taken; (v) the execution and delivery of this Assignment by the Trustee, as trustee, and the performance of its duties and obligations under this Assignment as provided in this Assignment are not in violation of any provisions of its organizational documents or by- laws, any law or regulation, any court or administrative order or any agreement or other instrument to which it is a party or by which it may be bound; and (vi) this Assignment has been duly authorized, executed, delivered and has been duly accepted by its duly authorized officers and, assuming due authorization, execution and delivery of this Assignment by the Issuer, Credit Provider and the Borrower, constitutes a valid, binding and enforceable obligation of the Trustee, subject to applicable bankruptcy, insolvency, reorganization, and other laws of general applicability relating to or affecting creditors' rights from time to time in effect, and to general equity principles. Section 12. Control on Ri~ht of Redemption. Notwithstanding any inconsistent provision of the Indenture or any of the Assigned Documents, the Issuer agrees that, so long as the Credit Facility is in full force and effect and no Wrongful Dishonor shall have occurred, or if it shall have occurred, shall not have continued for more than five Business Days, the Issuer shall not exercise any option under the Indenture to redeem any or all of the Bonds without the prior written consent of the Credit Provider. Section 13. Exculpation. Notwithstanding any term or provision of this Assignment, the Assigned Documents and/or the Issuer's Documents to the contrary, the Credit Provider shall not be liable under this Assignment or under any of the Assigned Documents or the Issuer's Documents to any other party to this Assignment for any action taken or omitted by the Credit Provider in connection with the Mortgage Loan, this Assignment, the Assigned Documents or the Issuer's Documents, except for such action or omission which is directly attributable to its own gross negligence or willful misconduct. The Credit Provider shall be protected and shall incur no liability in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness, of any notice, demand, certifIcate, signature, instrument or other document believed by the Credit Provider to be genuine and to have been duly executed by the appropriate signatory. In addition, the Credit Provider shall be protected and shall incur no liability in relying upon an Opinion of Counsel with respect to any action taken or not taken in good faith by the Credit Provider under this Assignment, the Assigned Documents or the Issuer's Documents. The Credit Provider shall, at all times, be free to establish independently to its satisfaction and in its absolute discretion the existence or non-existence, as the case may be, of any fact the existence or non-existence of which shall be a condition to any term or provision of this Assignment or of any of the Assigned Documents. The immunities and exemptions from liability of each Assignee shall extend to its directors, officers, employees and agents. Assignment and Intercreditor Agreement LA I '1082494.2 22 Rancho Vista Apartments Section 14. Disclaimers: Acknowledl!D1ents. Approval by the Credit Provider of the Borrower, the Mortgage Loan, the Bonds or otherwise shall not constitute a warranty or representation by the Credit Provider as to any matter. Nothing set forth in this Assignment or in the subsequent conduct of the parties shall be deemed to constitute the Credit Provider as the partner of any person for any purpose whatsoever. Section 15. Termination. This Assignment (a) shall terminate and be of no further force or effect as to the Credit Provider at such time as the Reimbursement Agreement is no longer in full force and effect and (b) shall terminate and be of no further force and effect as to the Trustee at the earlier of (1) such time as the Bonds shall have been paid in full or deemed paid in full as provided in the Indenture or (2) by mutual written agreement of the Issuer and the Trustee after this Assignment shall have so terminated as to the Credit Provider, in which event the Assigned Documents shall automatically revert to the Issuer without any further action on the part of the Trustee. The Credit Provider agrees that upon termination of this Assignment solely as to the Credit Provider, as provided in clause (a) of the preceding sentence, it will execute a release, in recordable form, of its rights and interests under this Assignment. Section 16. Liabilitv of Borrower. The liability of the Borrower under this Assignment is limited to the same extent as set forth in the Mortgage Note, the provisions of which are, by this reference, incorporated in this Assignment and shall have the same force and effect as if fully set forth in this Assignment. Section 17. Incorporation of Security Instrument. The provisions of the Security Instrument are, by this reference, incorporated into this Assignment and shall have the same force and effect as if fully set forth in this Assignment. Section 18. Notice. All notices, certificates, demands and other communications provided for in this Assignment shall be in writing and mailed (registered or certified mail, return receipt requested, and postage prepaid), hand-delivered, with signed receipt, or sent by nationally-recognized overnight courier: If to the Issuer: Housing Authority of the City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attention: Leilani Hines Telephone: (619) 691-5263 Facsimile: (619) 585-5698 To the Credit Provider: Fannie Mae 3900 Wisconsin Avenue, N.W. Drawer AM Washington, D.C. 20016-2899 Attention: Director, Multifamily Asset Management Telephone: (301) 204-8008 Facsimile: (301) 280-2065 Assignment and Intercreditor Agreement LA L 1082494.2 23 Rancho Vista Apartments Re: $1,715,000 Housing Authority ofthe City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A; Red Mortgage Capital, Inc. with a copy to: Fannie Mae 3900 Wisconsin Avenue, N.W. Drawer AM Washington, D.C. 20016-2899 Attention: Vice President, Multifamily Operations Telephone: (301) 204-8422 Facsirnile: (202) 752-8369 Re: $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A; Red Mortgage Capital, Inc. To the Trustee: Wells Fargo Bank, National Association 707 Wilshire Boulevard, 17th Floor Los Angeles, CA 90071 Attention: Corporate Trust Services Telephone: (213) 614-3353 Facsimile: (213) 614-3355 To the Borrower: CIC Eastlake, L.P. c/o Chelsea Investment Corporation 725 South Coast Highway 101, Suite 200 Encinitas, Califomia 92024 Attention: Wally Dieckmann Telephone: (858) 259-2624, Ex!. 103 Facsirnile: (858) 259-2644 with a copy to: Pillsbury Winthrop Shaw Pittman LLP 50 Fremont Street San Francisco, California 94105 Attention: Gary P. Downs Telephone: (415) 983-1835 Facsirnile: (415) 983-1200 with a copy to: SCDC, LLC c/o Red Capital Markets, Inc. Two Miranova Place, Ith Floor Columbus,OH 43215 Assignment and Intercreditor Agreement LA 1: 1082494.2 24 Rancho Vista Apartments To the Loan Servicer: Red Mortgage Capital, Inc. Two Miranova Place, 12'h Floor Columbus,OH 43215 Attention: Loan Servicing Telephone: (614) 857-1610 Facsirnile: (614) 857-1620 The Issuer, the Trustee, the Borrower, the Credit Provider and the Loan Servicer, by notice given under this Assignment, may designate any different addresses to which subsequent notices, certificates, requests, demands or other communications shall be sent, but no notice directed to anyone such entity (except for the Credit Provider) shall be required to be sent to more than two addresses. All such notices, certifIcates, demands and other communications shall be effective when received at the address specified as aforesaid. Section 19. Miscellaneous. Section 19.1 Waivers. The Assignees shall not by any act, delay, omission or otherwise be deemed to have waived any of their rights or remedies under this Assignment and no waiver whatever shall be valid, unless in writing signed by the Assignees, and then only to the extent set forth in the waiver. A waiver by the Assignees of any default, right or remedy under this Assignment on anyone occasion shall not be construed as a waiver of any other default or be a bar to any right or remedy the Assignees would otherwise have on any future occasion. Section 19.2 Amendments. This Assignment may not be changed, modified or discharged in whole or in part, unless set forth in a writing signed on behalf of both of the Assignees and by the Issuer and acknowledged by the Borrower, each by their duly authorized officers. Section 19.3 Governine Law. This Assignment shall be govemed by and construed in accordance with the laws of the State, without regard to conflicts of laws principles, except to the extent that the laws of the United States of America prevail. Section 19.4 WAIVER OF JURY TRIAL. THE PARTIES (A) COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING UNDER THIS ASSIGNMENT TRIABLE BY A JURY AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY TO THE EXTENT THAT ANY SUCH RIGHT SHALL EXIST NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL BY THE PARTIES, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A JURY TRIAL WOULD OTHERWISE ACCRUE. Section 19.5 Severabilitv. Should any provision of this Assignment be held by a court of competent jurisdiction to be enforceable only if modified, such holding shall not affect the validity of the remainder of this Assignment, the balance of which shall continue to be binding upon the parties to this Assignment with any such modification to become a part of this Assignment and treated as though originally set forth in this Assignment. The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of Assignment and Intercreditor Agreement LA U 082494.2 25 Rancho Vista Apartments this Assignment in lieu of severing such unenforceable provision from this Assignment in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Assignment, or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied in this Agreement to the maximum extent permitted by law. The parties expressly agree that this Assignment as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Assignment be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Assignment shall be construed as if such invalid, illegal or unenforceable provisions had never been set forth herein. Section 19.6 Additional Assilmment. In the event that the Borrower is no longer the owner of the Mortgaged Property and a new mortgagor is substituted in its place, or if the Security Instrument is replaced by a new mortgage on the Mortgaged Property, the Issuer shall execute and deliver to the Assignees, and shall record, a new assignment, substantially the same as this Assignment, which shall refer to this Assignment. Section 19.7 No Merl!er of Interests. There shall be no merger of the interests of any of the Bondholders with the interests of any holder of the Assigned Rights by reason of the fact that the same person, firm or entity may acquire, own or hold, directly or indirectly, such interests, unless and until such person, firm or entity and all others having an interest in the Bonds and the Assigned Rights shall effect such merger in a written, duly recorded instrument. Section 19.8 Reimbursement of Assil!Ilees. The Borrower shall reimburse each Assignee, from time to time, for all the Assignee's reasonable expenses, charges, costs, fees and disbursements, and those of the Assignee's attorneys, agents and employees, incurred in connection with the performance of the Assignee's powers and duties under this Assignment. The Borrower shall indemnify and save each Assignee harmless against any liability which it may incur in the exercise and performance of its powers and duties under this Assignment and which are not due to its gross negligence or willful misconduct. Section 19.9 Incorporation of Ril!hts. All provisions of the Indenture, the Financing Agreement, the Reimbursement Agreement and the Credit Facility applicable to the rights of the Credit Provider are incorporated into this Assignment as if expressly set forth at length in this Assignment, except as such rights are expanded or modified by the express provisions of this Assignment. All provisions of the Indenture related to the duties, obligations, standard of care, protections and immunities from liability afforded the Trustee under the Indenture shall apply to the Trustee under this Assignment. Section 19.10 Counterparts. This Assignment may be executed simultaneously in two or more counterparts, each of which shall be deemed an original. Section 19.11 Assil!nment Without Recourse. This Assignment is made by the Issuer without recourse in respect of the Mortgage Note or liabilities secured by the Assigned Documents. Assignment and Intercreditor Agreement LA U 082494.2 26 Rancho Vista Apartments Section 19.12 Remarketinl! Al!l"eement. The Issuer and the Borrower agree that they will not enter into any amendment, modification, supplement or other document effecting a change in any Remarketing Agreement applicable to the Bonds or enter into any new or replacement Remarketing Agreement with respect to the Bonds without the prior written consent of the Credit Provider. Section 19.13 Approval of Documents. All documents relating to the transactions described in this Assignment shall be subject to the approval of the Credit Provider, in its discretion. Section 19.14 Consent of the Credit Provider. If any provIsIOn of this Assignment provides for the prior approval or consent of the Credit Provider or any waiver by the Credit Provider and if a basis for the Credit Provider granting such approval, consent or waiver is not otherwise stated, then it is understood and agreed that such approval or consent will be given by the Credit Provider in its discretion. Section 19.15 Certain Notices to the Credit Provider and Loan Servicer. The Trustee agrees to advise the Credit Provider and the Loan Servicer promptly in writing of (a) the occurrence of any event of default known to it under the Indenture, the Financing Agreement, the Credit Facility or any Mortgage Loan Document, or any event known to it which, with the passage of time or service of notice, or both, would constitute an event of default under the Indenture or under the Financing Agreement, the Credit Facility or any Mortgage Loan Document, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect to such event, (b) each proposed redemption of Bonds (other than mandatory sinking fund redemption), (c) any failure by the Borrower to pay any fees, costs or expenses due to the Issuer or the Trustee and (d) any failure by the Trustee to receive any scheduled payment when due under the Mortgage Note or otherwise with respect to the Mortgage Loan. The Trustee also agrees to give prompt written notice to the Loan Servicer (and upon written request to the Credit Provider) of all payments received by the Trustee under the Mortgage Note or otherwise with respect to the Mortgage Loan. Section 19.16 Bailee. The Trustee agrees to act as bailee and agent on behalf of the Credit Provider in relation to the Borrower's pledge and grant of a security interest pursuant to the Reimbursement Agreement to the extent, if any, the Borrower retains an interest in all Funds and Accounts held by the Trustee under the Indenture. Section 20. Exercise of Ril!hts. Subject to the provisions of this Assignment, anyone or more of the rights and remedies afforded to the Assignees under the provisions of this Assignment may be exercised by the particular Assignee concurrently with or independently of the exercise of any or all other rights or remedies. Section 21. Remedies Cumulative. The rights, powers and remedies of the Assignees under this Assignment are in addition to all rights, powers and remedies given by statute or rule of law and are cumulative. The exercise of anyone or more of the rights, powers or remedies provided in this Assignment shall not be construed as a waiver of any other rights, powers and remedies of any of the Assignees. Assignment and Intercreditor Agreement LA1:1082494.2 27 Rancho Vista Apartments Section 22. Oblit!ations Limited. Neither Assignee, as such, shall be obligated to take any steps which are or may be necessary to preserve any rights of the Assignee in and to the Assigned Documents or the Assigned Rights against any other parties who may be liable in connection therewith. Neither Assignee, as such, shall have a duty to comply with any recording, re-recording, filing, re-filing, or other legal requirements necessary to establish or maintain the validity, priority or enforceability of, or the Assignee's rights in and to, the Assigned Documents or the Assigned Rights. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Assignment and Intercreditor Agreement LA L 1082494.2 28 Rancho Vista Apartments written. The parties have duly executed this Assignment as of the day and year fIrst above HOUSING AUTHORITY OF THE CITY OF CHULA VISTA By: Executive Director Attest: Secretary Assignment and Intercreditor Agreement LA U 082494.2 $-1 Rancho Vista Apartments WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: Assignment and Intercreditor Agreement LA1,1082494.2 5-2 Rancho Vista Apartments FANNIE MAE By: Name: Title: Assignment and Intercreditor Agreement LA1 :1082494.2 5-3 Rancho Vista Apartments Acknowledged, Accepted and Agreed to: Assignment and Intercreditor Agreement LA 1,1082494.2 BORROWER: CIC EASTLAKE, L.P., a California limited partnership By: Pacific Southwest Community Development Corporation, a Califomia nonprofit public benefit corporation Its: Managing General Partner By: Brian F. Biber, Executive Director By: SDS Eastlake, LLC, a California limited liability company Its: Co-General Partner By: James J. Schmid, Manager S-4 Rancho Vista Apartments EXHIBIT A Property Description Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: Lot 1 of Chula Vista Tract No. 03-04, Eastlake Landswap, in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 14591, filed in the OffIce of the County Recorder of San Diego County, May 16, 2003. APN: 642-020-45 and 643-020-56-00. Assignment and Intercreditor Agreement LA U 082494.2 A-I Rancho Vista Apartments [ISSUER'S ACKNOWLEDGEMENT] STATE OF ) ) ) COUNTY OF On , 2005 before me, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by hislher signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Assignment and Intercreditor Agreement LA I: 1082494.2 N-I Rancho Vista Apartments [TRUSTEE'S ACKNOWLEDGEMENT] STATE OF COUNTY OF ) ) ) On , 2005 before me, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in hislher authorized capacity, and that by hislher signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Assignment and Intercreditor Agreement LAI:1082494.2 N-2 Rancho Vista Apartments [FANNIE MAE'S ACKNOWLEDGEMENT] STATE OF COUNTY OF ) ) ) On , 2005 before me, a Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in hislher authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Assignment and Intercreditor Agreement LAI,1082494.2 N-3 . Rancho Vista Apartments [BORROWER'S ACKNOWLEDGEMENT] STATE OF ) ) ) COUNTY OF On , 2005 before me, a Notary Public in and for said State, personally appeared Brian F. Biber and James J. Schmid personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Assignment and Intercreditor Agreement LA I: 1082494.2 N-4 Rancho Vista Apartments EXHIBIT 12 E&N DRAFT 08.16.05 BOND PURCHASE AGREEMENT September 6, 2005 Housing Authority of the City of Chula Vista 430 Davidson Street, Suite B Chula Vista, CA 91910 Attention: Executive Director CIC Eastlake, L.P. c/o Chelsea Investment Corporation 725 South Coast Highway 10 I, Suite 200 Encinitas, CA 92024 $1,715,000 Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (Rancho Vista Apartments) Series 2005A Ladies and Gentlemen: Red Capital Markets, Inc. (the "Underwriter") hereby offers to enter into this Bond Purchase Agreement (this "Bond Purchase Agreement") with the Housing Authority of the City of Chula Vista (the "Issuer") and CIC Eastlake, L.P., a Califomia limited partnership (the "Borrower"), solely with respect to the Bonds (as defined below), subject to acceptance at or prior to 5:00 p.m., Pacific time, on the date hereof, and if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the Issuer and Borrower and the other parties hereto at any time prior to the acceptance hereof by the Issuer and the Borrower. The Issuer is authorized to issue the above-captioned bonds (the "Bonds"), in accordance with the provisions of Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code, as amended (the "Act"), and pursuant to a resolution of the Issuer authorizing issuance and sale of the Bonds and execution and delivery of all related documents required to be executed and delivered by the Issuer (the "Bond Resolution"). The Bonds will be issued pursuant to a Trust Indentllre, dated as of September 1, 2005 (the "Indenture"), between the Issuer and Wells Fargo Bank, National Association, as trustee (the "Trustee"). The terms not otherwise defined herein will have the meaning ascribed to them in the appropriate Indenture. The Bonds are being issued to provide funding for a Mortgage Loan (the "Mortgage Loan") to be made by the Issuer to the Borrower. The proceeds of the Mortgage Loan will be applied to provide additional financing for the costs of acquiring, constructing and equipping a multifamily rental housing development known as the Rancho Vista Apartments located in Chula Vista, Califomia (the "Project"). The Mortgage Loan will be made pursuant to a Financing Agreement, dated as of the date of the Indenture (the "Financing Agreement"), by and among the Issuer, the Trustee and the Borrower. Fannie Mae ("Fannie Mae" or the "Credit Provider") will provide credit enhancement for the Mortgage Loan, pursuant to, and subject to the limitations of, a Credit Enhancement Instrument (Stand- By), dated the Closing Date (the "Credit Facility") provided by the Credit Provider to the Trustee. The Credit Facility will also provide liquidity support for the Bonds Outstanding on the Initial Remarketing Date. The obligation of the Borrower to reimburse the Credit Provider for any funds provided by the Credit Provider under the Credit Facility will be set forth in a Reimbursement Agreement, dated as of the date of the Indenture (the "Reimbursement Agreement"), between the Borrower and the Credit Provider. The Mortgage Loan will be evidenced by a Multifamily Note (the "Mortgage Note"). The Mortgage Note will be payable to the Issuer and will be secured by, among other things, a Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the "Security Instrument") from the Borrower to the Issuer and the Credit Provider. The Mortgage Note and the Security Instrument will be assigned by the Issuer to the Trustee and Fannie Mae, as their interests may appear, and will continue to be part of the Trust Estate securing the Bonds. Pursuant to an Assignment and Intercreditor Agreement, dated as of the date of the Indenture (the "Assignment"), by and among the Issuer, the Credit Provider and the Trustee and acknowledged by the Borrower, the right, power and authority to make all decisions in connection with the Mortgage Loan and under the Mortgage Loan Documents will be vested exclusively in the Credit Provider. In order to assure compliance with the applicable provisions of the Code and applicable laws, the Borrower, the Trustee and the Issuer have entered into a Regulatory Agreement and Declaration of Restrictive Covenants, dated as of the date of the Indenture (the "Regulatory Agreement"), which requires that certain of the residential rental units in the Project be occupied by persons and families of low income. Section 1. Purchase, Sale and Delivery of Bonds. On the basis of the representations, warranties and agreements contained herein, but subject to the terms and conditions herein set forth, the Underwriter hereby agrees to purchase from the Issuer for reoffering to the public, and the Issuer hereby agrees to sell to the Underwriter for such purpose on September 13, 2005 (the "Closing Date"), the Bonds at a purchase price equal to 100% of the principal amount thereof. Upon the delivery of the Bonds, the Borrower agrees to pay to the Underwriter, as compensation for services hereunder, a fee (the "Gross Underwriter's Fee") in an amount equal to $ , which amount includes the amount listed under the heading "EXPENSES TO BE PAID BY UNDERWRITER" in Schedule II hereto, from which amount the Underwriter will pay certain expenses listed under the heading "EXPENSES TO BE PAID BY UNDERWRITER" in Schedule II hereto. The Gross Underwriter's Fee shall be due and payable in immediately available funds upon the delivery of the Bonds, solely and exclusively from the proceeds of the Bonds or funds provided by the Borrower. The Bonds shall be dated as of the date, and shall bear interest payable on the dates and at the rates per annum, and shall mature on the dates and in the amounts, set forth in Schedule I attached hereto. At 10:00 a.m., Pacific time, on the Closing Date, or at such earlier or later time or date as shall be agreed upon by the Underwrite and the Issuer, the Issuer shall deliver the Bonds to the Underwriter at a location or locations to be designated by the Underwriter, duly executed by the Issuer and authenticated by the Trustee, and shall deliver the other documents mentioned herein to the Underwriter at a location or locations designated by the Underwriter, and the Underwriter will accept such delivery and pay the purchase price of the Bonds as set forth in this Section by wire transfer in Federal funds (such delivery and payment being herein referred to as the "Closing"). The Bonds shall be made available to the Underwriter, or its designee, not later than one business day before the Closing Date. The Bonds shall be in registered form, in such denominations and registered in such name as the Underwriter shall request by written notice not later than four business days prior to the Closing Date. 2 The Borrower will deliver to the Trustee, not later than 10:00 a.m., Pacific time, on the Closing Date, a sum certain, which sum is the amount required to pay all costs required to be paid in order to close the sale of the Bonds on the Closing Date, less the proceeds of the Bonds to be applied to such costs. Section 2. Bond Documents. On or prior to the Closing Date, the Underwriter shall have received originals or copies of the following: (a) the final Official Statement relating to the Bonds (the "Official Statement"); (b) the Indenture, duly executed by the Issuer and the Trustee; (c) Borrower; the Financing Agreement, duly executed by the Issuer, the Trustee and the (d) Trustee; the Regulatory Agreement, duly executed by the Issuer, the Borrower, and the (e) the Mortgage Note, duly executed by the Borrower; (f) the Security Instrument, duly executed by the Borrower in favor of the Issuer and the Credit Provider; and (g) the Assignment, duly executed by the Issuer, the Trustee and the Credit Provider and acknowledged, accepted and agreed to by the Borrower; (h) the Credit Facility, duly executed by the Credit Provider; (i) Provider; the Reimbursement Agreement, duly executed the Borrower and the Credit Ul the Subordination Agreement, dated as of the date of the Indenture (the "Subordination Agreement"), duly executed by the Credit Provider, the Trustee and the Borrower (k) the Continuing Disclosure Agreement, dated as of the date of the Indenture (the "Disclosure Agreement"), duly executed by the Borrower and the Trustee; (I) a certified copy or copies of the Bond Resolution, as supplemented and amended, authorizing the issuance of the Bonds and the execution of the Indenture, the Financing Agreement, the Regulatory Agreement, the Assignment and the sale of the Bonds to the Underwriter. The above-described documents, together with this Bond Purchase Agreement and the Bonds, shall hereafter be known collectively as the "Bond Documents." Section 3. Offering and Authorization. The Borrower has caused to be delivered to the Underwriter copies of the Official Statement, approved for distribution by the Bond Resolution, signed on behalf of the Issuer and the Borrower by duly authorized officers of the Issuer and the Borrower, respectively. 3 The Issuer and the Borrower hereby ratify, approve and authorize the use by the Underwriter, prior to the date hereof, in connection with the offer and sale of the Bonds, of the Official Statement, the Bond Documents and all other documents, certificates or statements furnished by the Issuer and the Borrower to the Underwriter in connection with the transactions contemplated by the Official Statement and the Bond Documents. The Underwriter agrees that it will not confirm the sale of any Bonds unless the settlement of such sale is accompanied by or preceded by the delivery of a copy of the final Official Statement The Issuer and the Borrower acknowledge that the Underwriter is required to comply with the requirements of Rule 15c2-l2 of the Securities and Exchange Commission (the "Rule") in connection with the offer and sale of the Bonds and each agrees to cooperate (at the cost and expense of the Borrower) with the Underwriter so as to enable the Underwriter to comply with the Rule. To this end: (a) The Issuer has delivered to the Underwriter the preliminary official statement relating to the Bonds (the "Preliminary Official Statement") that the Issuer and the Borrower, collectively, hereby deem final as of its date, except for the omission of no more than the following information: the offering price(s), interest raters), selling compensation, aggregate principal amount, principal amount per maturity, delivery dates, ratings, other terms of the Bonds depending on such matters and the identity of the Underwriter (collectively, the "Permitted Omissions"). (b) If, during the period from the date hereof to and including the earlier of (i) the date 90 days from the end of the underwriting period (such date of the end of the underwriting period to be specified in writing by the Underwriter to the Issuer and the Borrower) and (ii) the date as of which the Official Statement is available to any person from a nationally recognized municipal securities information repository, but in no case less than 25 days following the end of the underwriting period (such date to be specified in writing by the Underwriter to the Issuer and the Borrower), any event occurs as a result of which the Official Statement for the Bonds as then amended or supplemented might include an untrue statement of material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Issuer, if such event relates to the information included in the Official Statement under the captions "THE ISSUER" and "NO LITIGATION-The Issuer" or the Borrower, if such event relates to other information in the Official Statement, shall promptly notify the Underwriter thereof and shall (in either case, at the expense of the Borrower), upon the request of the Underwriter, prepare and deliver to the Underwriter as many copies of an amendment or supplement which will correct such statement or omission as the Underwriter may reasonably request. (c) On or before the date which is seven business days after the date hereof (or such earlier date as is necessary to accompany any confirmation that requests payment for a Bond), the Issuer agrees to deliver or cause to be delivered to the Underwriter, at the expense of the Borrower, as many copies of the Official Statement as the Underwriter may reasonably request. After the Closing Date, (a) the Issuer shall not adopt any amendment of or supplement to the Official Statement to which, after having been furnished with a copy, the Underwriter shall reasonably object in writing and (b) if any event relating to or affecting the Issuer, the Credit Provider or the Borrower shall occur as a result of which it is necessary, in the opinion of the Underwriter, to amend or supplement the Official Statement in order to make the Official Statement not misleading in the light of the circumstances existing at the time it is delivered to the Underwriter or the Issuer shall cause to be forthwith prepared and furnished to the Underwriter (at the expense of the Borrower, but in no event at 4 the expense of the Issuer) a reasonable number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriter) that will amend or supplement the Official Statement so that it will not contain an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to the Underwriter, not misleading. Section 4. Representations and Warranties of the Issuer. The Issuer represents and warrants as of the date hereof to the Underwriter as follows: (a) The Issuer is a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California, duly organized and validly existing with full legal right, power and authority (i) to enter into the Bond Documents to which it is a party (the "Issuer Documents"), (ii) to issue, sell and deliver the Bonds as provided herein, (iii) to finance the acquisition and construction of the Project and certain costs associated with the issuance of the Bonds, and (iv) to carry out the transactions on the part of the Issuer described in the Issuer Documents, as they may be amended or supplemented from time to time by the Issuer. (b) The Bond Resolution has been duly adopted by the Issuer, has not been amended, modified or repealed and is in full force and effect on the date hereof. The Issuer has the full legal right, power and authority to execute and deliver the Issuer Documents and to carry out its obligations thereunder. The execution, delivery and performance of the Issuer Documents have been duly authorized by the Issuer and, as of the date of the Closing Date (assuming the due authorization, execution and delivery of such documents by the other respective parties thereto where necessary), each of the Issuer Documents will be the duly authorized legal. valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general equitable principles. (c) The Bonds have been issued in order to provide financing for the acquisition and construction of the Project and certain costs associated with the issuance of the Bonds. (d) When duly authenticated by the Trustee and delivered to and paid for by the Underwriter on the date of the Closing Date in accordance with the provisions of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed, issued and delivered and will constitute legal, valid and binding limited obligations of the Issuer in conformity with the laws of the State, including the Act, will be entitled to the benefit and security of the Indenture, and will be enforceable against the Issuer in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general equitable principles. (e) To the knowledge of the Issuer, neither the Issuer's execution and delivery of the Issuer Documents, the consummation of the transactions on its part contemplated thereby, nor the fulfillment of or compliance with the terms, conditions or provisions of the Issuer Documents conflicts in any material respect with or results in a material breach of any of the terms, conditions or provisions of any agreement, instrument, judgment, order or decree to which the Issuer is now a party or by which it is bound or constitutes a material default under any of the foregoing. 5 (f) Except as otherwise provided in the Indenture, the Issuer has not created and will not create any debt, lien or charge upon the Revenues, and has not made and will not make any pledge or assignment of or create any encumbrance thereon, other than the pledge and assignment thereof under the Indenture. (g) To the knowledge of the Issuer, the Issuer has complied and will comply with all material provisions of the Act applicable to the Bonds and the transactions contemplated by the Issuer Documents. (h) To the knowledge of the Issuer, no litigation or administrative action of any nature has been served on the Issuer and is now pending (i) seeking to restrain or enjoin the execution and delivery of the Issuer Documents or in any manner questioning the proceedings or authority relating thereto or otherwise affecting the validity of the Bonds or (ii) as to the existence or authority of the Issuer or that of its present or former council members or officers. (i) The Issuer, at the expense of the Borrower, will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request in writing in order for the Underwriter (i) to qualify the Bonds for offer and sale under the Blue Sky or other securities laws and regulations of such states and other jurisdictions of the United States as the Underwriter may designate and (ii) to determine the eligibility of the Bonds for investment under the laws of such states and other jurisdictions; provided, however, that in no event shall the Issuer be required to take any action which would subject it to general or unlimited service of process in any jurisdiction in which it is not now so subject. (j) The information contained in the Official Statement under the captions "THE ISSUER" and "NO LITIGATION-The Issuer," at the time of the Issuer's acceptance hereof, and (unless the Official Statement is amended or supplemented pursuant to Section 3 hereof) at all times subsequent thereto, up to and including the date of the Closing Date, is true and correct in all material respects and such information does not contain any untrue or misleading statement of material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The execution and delivery of this Bond Purchase Agreement by the Issuer shall constitute a representation to the Underwriter that the representations and warranties contained in this Section are true as of the date hereof. Section 5. Representations, Warranties and Covenants of the Borrower. The Borrower represents and warrants to, and covenants with, the Issuer, the Underwriter as follows: (a) The statements and information under the headings "THE BORROWER AND THE PROJECT" and "NO LITIGATION-The Borrower" in the Official Statement, on the date thereof, and are, on the date hereof, true and correct and did not, on the date thereof, and does not, on the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements under such headings, in light of the circumstances under which they were made, not misleading. The Borrower hereby ratifies and authorizes the use by the Underwriter of the Official Statement in connection with the offering, sale and distribution of the Bonds. 6 (b) The Borrower is a limited partnership duly formed and validly existing under the laws of the State of California and has now the capacity to transact business in the State of California. The Borrower has the requisite legal right, power and authority to acquire and own its property (incIllding, without limitation, the Project) to carry on its business as contemplated to be conducted by the Bond Documents to which it is a party (the "Borrower Documents") and to execute, deliver and perform its obligations under the Borrower Documents. (c) The Borrower Documents, when duly executed and delivered by the Borrower and the other parties thereto, and all other documents to be delivered by the Borrower in connection with the consummation of the transactions contemplated by the Borrower Documents, will constitute valid, legal and binding obligations of the Borrower, and to the Borrower's knowledge are enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally. (d) The execution, delivery and performance of the Borrower Documents and all other documents to be delivered and actions to be taken by the Borrower in connection with the consummation of the transactions contemplated by the Borrower Documents, including, without limitation, the authorization of the use of the Official Statement by the Underwriter in connection with the offering, sale and distribution of the Bonds, have all been duly authorized by all necessary action on the part of the Borrower. (e) The execution, delivery and performance of the Borrower Documents and all other documents to be delivered by the Borrower in connection with the consummation of the transactions contemplated by the Borrower Documents will not conflict with, or constitute a material breach of or default under, the Borrower's organizational documents or any indenture, mortgage, deed of trust, lease, note, commitment, agreement or other instrument or obligation to which the Borrower is a party or by which the Borrower or any of its property is bound or under any law, rule, regulation, judgment, order or decree to which the Borrower is subject or by which the Borrower or any of its property is bound. (f) There is no action, suit, proceeding, inquiry or investigation by or before any governmental agency, public board or body pending or, to the best of the knowledge of the Borrower, threatened against the Borrower (nor to the best of its knowledge is there any basis therefor), which (i) affects or seeks to enjoin, prohibit or restrain the issuance, sale or delivery of the Bonds or the use of the Official Statement or the execution and delivery of the Borrower Documents, (ii) affects or questions the validity or enforceability of the Borrower Documents, (iii) questions the tax-exempt status of the Bonds or the completeness or accuracy of the Official Statement or (iv) questions the power or authority of the Borrower to own or operate the Project or to execute, deliver or perform its obligations under the Borrower Documents. (g) Any certificate signed by an authorized representative of the Borrower and delivered to the Underwriter or the Issuer shall be deemed to be a representation and warranty by the Borrower to the Underwriter or the Issuer, as applicable, as to the statements made therein. (h) All permits, licenses and other authorizations necessary for the acquisition, ownership and operation of the Project in the manner contemplated by the Borrower Documents have been or to the best knowledge of the Borrower, will be obtained, and said ownership and operation are not in conflict with any zoning or similar ordinance applicable to the Project. 7 (i) The Borrower (i) will not knowingly take any action or permit any person it controls to take action that would violate the provisions hereof or which would adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes, and, if it should take or permit any such action, it will take all lawful actions to rescind such action promptly upon having knowledge thereof, (ii) will not fail to take any action that is required in order to preserve the exclusion from gross income of the interest on the Bonds for federal income tax purposes under Section 103 of the Code and (iii) will take such action or actions as it can take including amending the Borrower Documents, as may be necessary, in the opinion of bond counsel acceptable to the Issuer and the Trustee, to comply fully with all applicable rules, rulings, policies, procedures, regulations or other official statements promulgated by the Department of the Treasury or the Internal Revenue Service pertaining to the Bonds. U) The Borrower will not take or omit to take, as may be applicable, any action which would in any way cause the proceeds of the Bonds to be applied in a manner contrary to the requirements of the Borrower Documents. (k) Whether or not the sale of the Bonds by the Issuer to the Underwriter is consummated, the Issuer shall not have any obligation to pay any costs or expenses incident to the performance of the obligations of the Issuer or the Underwriter under this Bond Purchase Agreement. All costs and expenses to effect the authorization, preparation, issuance, sale and delivery of the Bonds, including, without limitation, the preparation, printing, execution and delivery of the Preliminary Official Statement and the Official Statement (together with any amendments thereof and supplements thereto) and the Bond Documents, any rating agency fees, the fees and expenses of Bond Counsel, the Credit Provider's Counsel, Loan Servicer's Counsel, Trustee's Counsel and Underwriter's Counsel and the expenses incurred in qualifying the Bonds for sale under the securities laws of various jurisdictions and of preparing the "blue sky" memorandum, shall be paid out of the sources provided therefor in the Bond Documents. (I) The Borrower has executed and delivered, or will prior to the Closing Date execute and deliver, the Borrower Documents which are required to be executed by the Closing Date and shall perform all its obligations under each of the Borrower Documents. (m) The Borrower has performed and shall continue to perform any and all obligations incurred pursuant to the Borrower Documents. The execution and delivery of this Bond Purchase Agreement by the Borrower shall constitute a representation to the Underwriter that the representations and warranties contained in this Section are true as of the date hereof. Section 6. Conditions to Obligations of the Underwriter. The obligation of the Underwriter to purchase and pay for the Bonds and the obligation of the Issuer to sell the Bonds shall be subject to the following conditions precedent: (a) The representations and warranties of the Borrower and the Issuer herein and the representations and warranties made in each of the Bond Documents by the respective parties thereto shall be true, correct and complete on the date hereof and on the Closing Date, as if made on the Closing Date, and each such party to the Bond Documents shall deliver a certificate to such effect. The Issuer shall have performed all of its obligations hereunder and the statements made on behalf of the Issuer hereunder shall be true and correct on the date hereof and on the Closing Date, as if made on the Closing Date, and the Issuer shall deliver a certificate to such 8 effect. The Official Statement (as the same may be amended or supplemented with the written approval of the Underwriter) on the dates thereof and on the Closing Date shall be true, correct and complete in all material respects and shall not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. (b) Except as may have been agreed to by the Underwriter, as of the Closing Date, each of the Bond Documents, the Bond Resolution and all other official action of the Issuer relating thereto shall be in full force and effect and shall not have been amended, modified or supplemented, and except as may have been agreed to by the Underwriter the Official Statement shall not have been amended or supplemented. (c) The Issuer shall have received the approving opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation, Bond Counsel, in the form attached as Appendix F to the Official Statement, and the Underwriter shall have also received said opinion or received a letter from said firm, dated the Closing Date and addressed to the Underwriter, to the effect that the Underwriter may rely upon such firm's opinion as if it were addressed to the Underwriter, and the Underwriter shall have received the supplemental opinion of Bond Counsel, dated the Closing Date and addressed to the Underwriter substantially in the form set forth in Exhibit A hereto. (d) No default or event of default (as defined in any of the Bond Documents) shall have occurred and be continuing, and no event shall have occurred and be continuing which, with the lapse of time or the giving of notice or both, would constitute such a default or event of default. (el No material adverse change shall have occurred, nor shall any development involving a prospective material and adverse change in, or affecting the affairs, business, financial condition, results of operations, prospects or properties (including the Project) of, either the Issuer or the Borrower have occurred. (f) On or prior to the Closing Date, all actions required to be taken as of the Closing Date in connection with the Bonds, the Bond Resolution and the Bond Documents by the Issuer and the Borrower shall have been taken, and the Issuer and the Borrower shall each have performed and complied with all agreements, covenants and conditions required to be performed or complied with by the Bond Resolution and the Bond Documents, and each party shall deliver a certificate to such effect insofar as the foregoing actions, agreements, covenants and conditions apply to each such party, and each of such agreements shall be in full force and effect and shall not have been amended, modified or supplemented, except as has been agreed to in writing by the Underwriter. (g) Each of the Bond Documents required to be executed and delivered by the Closing Date shall have been executed and delivered by each of the respective parties thereto, all such documents in forms exhibited to the Underwriter on the date hereof with only such changes as the Underwriter may approve as evidenced by their payments for the Bonds, and each of the Bond Documents shall be in full force and effect. (h) None of the events referred to in Section 7 of this Bond Purchase Agreement shall have occurred, unless waived in writing by the Underwriter. 9 (i) The Underwriter shall have received a certificate, dated the Closing Date and signed on behalf of the Issuer, to the effect that: (1) to the knowledge of the person signing the certificate, no litigation before any court is pending with respect to which the Issuer has been served with process or is known to be threatened in any way affecting the existence or powers of the Issuer, or seeking to restrain or enjoin the issuance, sale or delivery of the Bonds or collection or pledge of Revenues pledged under the Indenture to pay the principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Issuer Documents, or the proceedings of the Issuer or its authority with respect to, the Issuer Documents; (2) the information in the Official Statement under the headings "THE ISSUER" and "NO LITIGATION-The Issuer" does not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements under such headings, in the light of the circumstances under which they were made, not misleading; and (3) all approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which constitutes a condition precedent to the performance by the Issuer of its obligations under the Issuer Documents have been obtained and are in full force and effect. (j) The Underwriter shall have received an opinion of Counsel to the Borrower substantially in the form set forth in Exhibit B hereto. (k) The Underwriter shall have received written evidence that Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc. (the "Rating Agency") has issued a rating of "AAA" with respect to the Bonds, and as of the Closing Date, the rating shall not have been withdrawn or lowered. (I) The Underwriter shall have received a certificate of the Borrower to the effect that: (i) Except as disclosed in the Official Statement, the Borrower has not received notice of any pending, nor to the Borrower's actual knowledge is there any threatened, action, suit, proceeding, inquiry or investigation against the Borrower, at law or in equity, by or before any court, public board or body, nor to the Borrower's actual knowledge is there any basis therefor, affecting the existence of the Borrower or the titles of its officials to their respective offices, or seeking to prohibit, restrain or enjoin the execution and delivery of the Borrower Documents, or in any way materially adversely affecting or questioning (a) the use of the Official Statement, (c) the validity or enforceability of the Bonds, any proceedings of the Borrower taken with respect to the Borrower Documents, (d) the tax-exempt status of the interest on the Bonds, (e) the accuracy or completeness of the Official Statement, (f) the execution and delivery by the Borrower of the Borrower Documents, or (g) the power of the Borrower to carry out the transactions on its part contemplated by the Borrower Documents; 10 (ii) the statements and information under the headings "THE BORROWER AND THE PROJECT" and "NO LITIGATION-The Borrower" in the Official Statement, on the date thereof, and are, on the date hereof, true and correct and did not, on the date thereof, and does not, on the date hereof, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements under such headings, in light of the circumstances under which they were made, not misleading; and (iii) the Borrower has complied with all the covenants and satisfied all the conditions to be performed or satisfied by the Borrower on or prior to the Closing Date, and the representations and warranties of the Borrower contained in the Borrower Documents are true, correct and complete as of the Closing Date, and the Borrower has the requisite legal right, power and authority to enter into and carry out the transactions contemplated by the Borrower Documents. (m) The Underwriter shall have received an opinion of counsel to the Trustee substantially in the form set forth in Exhibit C hereto. (n) The Underwriter shall have received a certificate, dated the Closing Date and signed by an authorized officer of the Trustee, to the effect that (i) he or she is an authorized officer of the Trustee; (ii) the Bond Documents to which the Trustee is a party (the "Trustee Documents") have been duly executed and delivered by the Trustee; (iii) the Trustee has all necessary corporate and trust powers required to carry out the trust created by the Indenture; (iv) to the best of his or her knowledge, the acceptance by the Trustee of the duties and obligations of the Trustee under the Trustee Documents and compliance with the provisions thereof will not conflict with or constitute a breach of or default under any law, administrative regulation, consent, decree or any agreement or other instrument to which the Trustee is subject or by which the Trustee is bound; (v) the Trustee has duly authenticated the Bonds, and the person signing the certificate of authentication on each Bond has been duly authorized to do so; (vi) all approvals, consents and orders of any governmental authority or agency having jurisdiction in the matter which would constitute a condition precedent to the performance by the Trustee of its duties and obligations under the Trustee Documents have been obtained and are in full force and effect (except that no opinion is expressed with respect to federal or state securities laws); and (vii) to the best of his or her knowledge, no litigation is pending or threatened in any way arising from its fiduciary duties contesting or affecting the existence of powers (including trust powers) or the Trustee's ability to fulfill its duties and obligations under the Trustee Documents. (0) The Underwriter shall have received a certificate of the Issuer and the Borrower, dated the Closing Date, with respect to the facts, estimates and circumstances and reasonable expectations pertaining to Section 148 of the Code to support the conclusion that none of the Bonds will be an "arbitrage bond." (p) The Underwriter shall have received a certificate from Fannie Mae, dated the Closing Date, to the effect that the information set forth in the Official Statement under the heading "THE CREDIT PROVIDER" is accurate. (q) The Trustee shall have received the opinion of the Legal Department of Fannie Mae substantially in the form set forth in Exhibit D hereto. II (r) The Underwriter shall have received a letter from Fannie Mae's special counsel substantially in the form attached hereto as Exhibit E. (s) The Underwriter shall have received an opinion of its counsel substantially in the form attached hereto as Exhibit F. (t) There shall have been delivered the Final Cash Flows from the Underwriter and the Verification Report from the Verification Agent (as such terms are defined in the Official Statement). (u) The Underwriter shall have received the Borrower's Rule l5c2-l2 Certificate signed by the Borrower in the form attached hereto as Exhibit G. (v) The Underwriter and the Trustee shall have received the opinion of counsel to the Issuer substantially in the form set forth in Exhibit H hereto. (w) The Underwriter shall have received such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter or Bond Counsel may reasonably request. If any condition in this Section is not satisfied on or prior to the Closing Date, this Bond Purchase Agreement may be terminated by the Underwriter by notice in writing or by facsimile to the Borrower and the Issuer, as applicable. If the obligations of the Underwriter shall be terminated for any reason permitted by this Bond Purchase Agreement, neither the Underwriter nor the Issuer shall be under further obligation hereunder except for any continuing obligations of the Borrower to pay certain expenses as hereunder provided. The Underwriter may waive in writing compliance with anyone or more of the foregoing conditions or extend the time for its or their performance. All of the legal opinions, certificates, proceedings, instruments and other documents mentioned above or elsewhere in this Bond Purchase Agreement shall be deemed to be in compliance with the provisions hereof if, but only if, they are in form and substance satisfactory to the Underwriter and the Issuer. Section 7. Termination. The Underwriter may terminate its obligations to purchase the Bonds by written notice to the Issuer if at any time subsequent to the date hereof and on or prior to the Closing Date: (a) (i) Legislation shall have been enacted by the Congress, or recommended to the Congress for passage by the President of the United States or the Department of the Treasury of the United States or the Internal Revenue Service or any member of the United States Congress, or favorably reported for passage to either House of the Congress by any Committee of such House to which such legislation has been referred for consideration, or (ii) a decision shall have been rendered by a court established under Article ill of the Constitution of the United States, or the United States Tax Court, or (iii) an order, ruling, regulation or communication (including a press release) shall have been issued by the Department of the Treasury of the United States or the Internal Revenue Service, in each case referred to in clauses (i), (ii) and (iii), with the purpose or effect, and reasonable likelihood, directly or indirectly, of causing interest on the Bonds to be included in gross income for purposes of federal income taxation. 12 (b) Legislation shall have been enacted or a decision by a court of the United States shall be rendered or any action taken by the Securities and Exchange Commission which, in the opinion of counsel to the Underwriter, has the effect of requiring the offer or sale of the Bonds to be registered under the Securities Act of 1933, as amended, or the Indenture to be qualified under the Trust Indenture Act of 1939, as amended, or any event shall have occurred that, in the judgment of the Underwriter, makes untrue or incorrect in any material respect any statement or information contained in the Official Statement or that, in the judgment of the Underwriter should be reflected therein in order to make the statements contained therein not misleading in any material respect. (c) In the judgment of the Underwriter, the market price of the Bonds is adversely affected because (A) additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority; (B) a general banking moratorium shall have been established by federal, New York or California authorities; or (C) a war involving the United States of America shall have been declared, or any other national or international calamity shall have occurred, or any conflict involving the armed forces of the United States of America shall have escalated to such a magnitude as to materially affect the ability of the Underwriter to market the Bonds; (ii) any litigation shall be instituted, pending or threatened to restrain or enjoin the issuance or sale of the Bonds or in any way contesting or affecting any authority or security for or the validity of the Bonds, or the existence or powers of the Issuer; or (iii) legislation shall have been introduced in or enacted by the Legislature of the State of California that would, in the reasonable judgment of the Underwriter materially adversely affect the security for the Bonds. (d) There shall have occurred any change that, in the reasonable judgment of the Underwriter, makes unreasonable or unreliable any of the assumptions upon which (i) yield on the Bonds for purposes of compliance with the Code, (ii) payment of debt service on the Bonds, or (iii) the basis for the exclusion from gross income for federal income tax purposes of interest on the Bonds, is predicated. (e) There shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis, the effect of which on the financial markets of the United States is such as to make it, in the reasonable opinion of the Underwriter, impractical to market the Bonds or to enforce commitments for the purchase of the Bonds. (f) The occurrence, in the judgment of the Underwriter, of a material adverse change in the capital markets which makes the sale of the Bonds or financing contemplated by the Indenture and the Bonds impractical or which makes it inadvisable to proceed with such sale or financing on the terms, in the manner and on the basis contemplated hereby. Section 8. Indemnification. (a) The Borrower agrees to pay, defend, protect, indemnify, save and hold harmless the Issuer, the Underwriter and each affiliate, member, officer, director, official, employee and agent of the Issuer and the Underwriter, and each person, if any, who controls any of the foregoing within the meaning of Section IS of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (each an "Indemnified Party" and all collectively referred to herein as the "Indemnified Parties"), against any and all liabilities, losses, damages, costs, expenses (including attorneys' fees), causes of action (whether in contract, tort or otherwise), suits, claims, demands and judgments of any kind, character and nature (collectively referred to herein as the "Liabilities") caused by or directly or indirectly arising from or in any way relating to (i) the Bonds, the Project, the Mortgage Loan, the Financing Agreement, the Security Instrument, the Indenture, the 13 Continuing Disclosure Agreement, this Bond Purchase Agreement or any document related to the Bonds, the Project, the Mortgage Loan (the "Transaction Documents") or any transaction or agreement, written or oral, pertaining to the foregoing except where the Liability is caused by a grossly negligent act, or the willful misconduct, of the party seeking indemnification, or (ii) any untrue or misleading statement or alleged untrue or alleged misleading statement contained or alleged omission from the Preliminary Official Statement or the Official Statement pertaining to the Borrower, the Manager or the Project necessary to be stated therein in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (b) The Borrower also agrees to pay, defend, protect, indemnify, save and hold harmless the Underwriter and each affiliate, member, officer, director, official, employee and agent of the Underwriter from and against the Liabilities directly or indirectly arising from or relating to (i) any errors or omissions of any nature whatsoever contained in any legal proceedings or other official representation or inducement made by the Issuer pertaining to the Bonds and (ii) any fraud or misrepresentations or omissions contained in the proceedings of the Issuer relating to the issuance of the Bonds or pertaining to the financial condition of the Borrower. (c) Any Indemnified Party shall notify the Borrower of the existence of any Liability to which this indemnification obligation would apply and shall give to the Borrower an opportunity to defend the same at the Borrower's expense and with counsel satisfactory to the Indemnified Party, provided that the Indemnified Party shall at all times also have the right to fully participate in the defense. If there may be legal defenses available to the Indemnified Party which are different from or in addition to those available to the Borrower or if the Borrower shall, after this notice and within a period of time necessary to preserve any and all defenses to any claim asserted, fail to assume the defense or to employ counsel for that purpose satisfactory to the Indemnified Party, the Indemnified Party shall have the right, but not the obligation, to undertake the defense of, and, with the approval of the Borrower, to compromise or settle the claim or other matter on behalf of, for the account of, and at' the risk of, the Borrower. (d) In order to provide for just and equitable contribution in circumstances in which the indemnity provided for in paragraph (a) or (b) of this Section is for any reason held to be unavailable, the Borrower and the Indemnified Party shall contribute proportionately to the aggregate Liabilities to which the Borrower and the Indemnified Party may be subject, so that the Indemnified Party is responsible for that portion represented by the percentage that the fees paid by the Borrower to the Indemnified Party in connection with the issuance and administration of the Bonds bears to the aggregate offering price of the Bonds, with the Borrower responsible for the balance; provided, however, that in no case shall the Indemnified Party be responsible for any amount in excess of the fees paid by the Borrower to the Indemnified Party in connection with the issuance and administration of the Bonds. (e) The Indemnified Parties, other than the Issuer and the Underwriter, shall be considered to be third party beneficiaries of this Bond Purchase Agreement for purposes of this Section. The provisions of this Section will be in addition to all liability which the Borrower may otherwise have and shall survive any termination of this Bond Purchase Agreement, the offering and sale of the Bonds and the payment or provisions for payment of the Bonds. Section 9. Expenses. The Underwriter shall pay its own expenses relating to the offering, sale and purchase of the Bonds. All other expenses relating to the issuance of the Bonds, including, but not limited to, the fees and expenses listed in Section 5(k) hereof shall be paid by the Borrower. 14 NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL THE ISSUER BE OBLIGATED TO PAY ANY OF THE EXPENSES OF THE TRANSACTION HEREIN CONTEMPLATED, EXCEPT FROM FUNDS PROVIDED TO THE ISSUER BY THE BORROWER OR ANOTHER PARTY TO THE TRANSACTION. Section 10. Transfer of Project. The Underwriter hereby agrees and understand that, in connection with any sale or transfer of the Project in accordance with the Bond Documents and Borrower Documents which shall have been approved in writing by the necessary parties shall constitute a release in whole or in part (as the case may be) of the Borrower of obligations arising under this Bond Purchase Agreement, including but not limited to the obligations under Section 8 hereof, provided that such release shall be conditioned upon and limited to the extent that a successor in interest of the Borrower expressly assumes in a writing, in the form satisfactory to the Underwriter, the Borrower's obligations hereunder. Section 11. Notices. Any notice or other communication to be given to the Issuer or the Borrower under this Bond Purchase Agreement may be given by delivering the same in writing to the Issuer or the Borrower at their respective addresses on the first page hereof, any notice or other communication to be given to the Underwriter under this Bond Purchase Agreement may be given by delivering the same in writing to Red Capital Markets, Inc., Suite 930, 500 Newport Center Drive, Newport Beach, California 92660, Attention: Mr. Anthony D. Cinquini. Section 12. Successors. This Bond Purchase Agreement is made solely for the benefit of the Issuer, the Underwriter and the Borrower (including their successors or assigns, provided the words "successors" and "assigns" shall not include the purchaser of any of the Bonds from or through the Underwriter by reason of such purchasers) and no other person shall acquire or have any right hereunder or by virtue hereof (other than pursuant to Section 10 hereof). The representations, warranties and agreements contained herein shall remain operative and in full force and effect and shall survive delivery of and payment for the Bonds hereunder, regardless of any investigation made by or on behalf of the Underwriter. Section 13. Survival of Certain Representations and Warranties. All agreements, covenants, representations and warranties and all other statements of the Issuer and its officials and officers and the Borrower set forth in or made pursuant to this Bond Purchase Agreement shall remain in full force and effect, regardless of any investigation, or statement as to the results thereof made by or on behalf of the Underwriter, and shall survive the Closing Date and the delivery of and payment for the Bonds. Section 14. Governing Law. This Bond Purchase Agreement shall be governed by the laws of the State of California. Section 15. Counterparts. This Bond Purchase Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. [Remainder of Page Intentionally Left Blank] 15 [Underwriter's Signature Page to Bond Purchase Agreement] RED CAPITAL MARKETS, INe. By Its Senior Managing Director 16 [Issuer's Signature Page to Bond Purchase Agreement] HOUSING AUTHORITY OF THE CITY OF CHULA VISTA By Its Executive Director 17 [Borrower's Signature Page to Bond Purchase Agreement] CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California non-profit public benefit corporation, its Managing General Partner By Brian F. Biber, Executive Director By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By James J. Schmid, Manager 18 SCHEDULE I MATURITIES, PRINCIPAL AND INTEREST RATES $ % Term Bonds due ,Price: _%, CUSIP: 17132A $ % Term Bonds due ,Price: _ %, CUSIP: 17132A_ (Price includes accrued interest from the dated date of the Bonds set forth on the cover of the Official Statement.) (The Bonds maturing on are subject to mandatory tender for purchase on June 1,2024) SCHEDULE II GROSS UNDERWRITER'S FEE Gross Underwriter's Fee to Underwriter* *From such amount, the Underwriter will be reimbursed the amount set forth below for its payment of the following additional nonaccountable costs and expenses of issuing and selling the Bonds (to the extent that such additional costs vary from the estimates thereof, the Underwriter will be responsible to cover such variance from its Gross Underwriter's Fee): EXPENSES TO BE PAID BY UNDERWRITER Bond Clearance charges, MSRB, BMA and CUSIP Printing Underwriters Counsel's Fee TOTAL EXHIBIT A FORM OF SUPPLEMENTAL OPINION OF BOND COUNSEL [CLOSING DATE] [ISSUER] [UNDERWRITER] [BOND CAPTION] [After appropriate introductory language, the opinion shall state substantially as follows:] Based on the foregoing, we are of the opinion, as of the date hereof, as follows: 1. The Issuer Documents have been duly authorized, executed and delivered by the Issuer, and, assuming due authorization, execution and delivery by the other respective parties thereto, constitute legal, valid and binding agreements of the Issuer enforceable against the Issuer in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability affecting the enforcement of creditors' rights and to general principles of equity, regardless of whether such enforceability is considered in equity or in law; 2. The Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and 3. Insofar as the statements contained in the Official Statement under the captions "THE BONDS" (other than under the heading "Book-Entry Only System"), "SECURITY FOR THE BONDS" (other than under the headings "Credit Facility-General"), "TAX MATTERS," and in Appendices A, B, C, D and F thereto, expressly summarize the provisions of the Bonds, the Indenture, the Financing Agreement, the Regulatory Agreement and our bond opinion concerning certain tax matters relating to the Bonds, such statements are fair and accurate in all material respects. This opinion letter is furnished by us solely for your benefit in satisfaction of the requirements of the Bond Purchase Agreement. No one other than you may rely upon this opinion letter without or express prior written consent. Respectfully submitted, EXHIBIT B FORM OF OPINION OF BORROWER'S COUNSEL [CLOSING DATE] [ISSUER] [UNDERWRITER] [BOND CAPTION] [After appropriate introductory language, the opinion shall state substantially as follows:] We are of the opinion, as of the date hereof, as follows: 1. The Borrower is a validly organized and existing limited partnership under the laws of the State of California and qualified to do business and in good standing in the State of California. 2. The Borrower has full legal right, power and authority (i) to enter into and to carry out and consummate the transactions contemplated by the Borrower Documents. 3. By all necessary action, the Borrower has duly authorized and adopted the Borrower Documents, and approved the execution and delivery of the Borrower Documents, the performance by the Borrower of its obligations under the Borrower Documents and otherwise in connection with the issuance of the Bonds and the consummation by the Borrower of all other transactions contemplated by the Indenture and the Borrower Documents in connection with the issuance of the Bonds. 4. The Borrower Documents have been duly executed and delivered by the Borrower and, assuming the due authorization, execution and delivery of the Borrower Documents by the respective other parties thereto where necessary, constitute legal, valid and binding obligations of the Borrower enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability affecting the enforcement of creditors' rights and to general principles of equity, regardless of whether such enforceability is considered in equity or in law. 5. To the best of our knowledge after due and diligent inquiry, as of the Closing Date, the Borrower is not in any material respect in violation of, breach of or default under any applicable constitutional provision or law of any state or of the United States, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its activities, properties or assets, or any indenture, mortgage, deed of trust, resolution, note agreement (including, without limitation, the Borrower Documents) or other agreement or instrument to which the Borrower is a party or by which the Borrower or any of its property or assets is bound, and no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute such a default or event of default under any such instruments; and the execution and delivery of the Bonds and the Borrower Documents, and compliance with the provisions on the Borrower's part contained therein, do not and will not conflict with, or constitute on the part of the Borrower a violation of, breach of or default under, any applicable constitutional provision or law of any state or of the United States, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its activities, properties or assets, or any indenture, mortgage, deed of trust, resolution, note agreement or other agreement or instrument to which the Borrower is a party or by which the Borrower or any of its property or assets is bound, nor will any such execution, delivery or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower or under the terms of any such law, regulation or instrument, except as provided by the Bonds or the Borrower Documents. 6. To the best of our knowledge after due and diligent inquiry, as of the Closing Date, all consents, approvals, authorizations, and orders of or filings or registrations with any governmental authority, board, agency or commission of any state or of the United States having jurisdiction required in connection with, or the absence of which would materially adversely affect, the execution and delivery by the Borrower of the Borrower Documents or the performance by the Borrower of its obligations thereunder have been obtained or made and are in full force and effect. 7. To the best of our knowledge after due and diligent inquiry, as of the Closing Date, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any judicial or administrative court or governmental agency or body, state, federal or other, pending or, to the best of our knowledge, threatened against the Borrower, affecting the existence of the Borrower or the titles of its officers to their respective offices, or contesting or affecting as to the Borrower the validity or enforceability of the Act, the Bonds, any Borrower Document or the execution and delivery or adoption by the Borrower of any Borrower Document, or in any way contesting or challenging the completeness or accuracy of the Official Statement or the powers of the Borrower or its authority with respect to the Borrower Documents or the consummation of the transactions contemplated thereby; nor, to the best of our knowledge, is there any basis for any such action, suit, proceeding, inquiry or investigation, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial condition or operations of the Borrower or the validity of the authorization, execution, delivery or performance by the Borrower of any Borrower Document. Very truly yours, B-2 EXHIBIT C FORM OF OPINION OF TRUSTEE'S COUNSEL [CLOSING DATE] [ISSUER] [UNDERWRITER] [BOND CAPTION] [After appropriate introductory language, the opinion shall state substantially as follows:] Based upon and subject to the foregoing, we are of the opinion that: 1. The Trustee standing under the laws of State of California. is a validly existing , organized and in good , and is duly qualified to exercise trust powers in the 2. The Trustee has taken all corporate action necessary to assume the duties and obligations of Trustee under the Indenture and to authorize in such capacity the execution and delivery of the Trustee Documents. 3. The Trustee is eligible to act as trustee under the Indenture. 4. Assuming the due, valid, binding authorization, execution and delivery of the other parties thereto, the Trustee Documents, when executed, will be the valid, legal and binding obligations of Trustee in its capacity as Trustee under the Indenture enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, reorganization, receivership, insolvency, moratorium or other laws affecting the rights and remedies of creditors generally and by the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, whether applied by a court of law or equity. This opinion letter is delivered as of its date and without any undertaking to advise you of any changes of law or fact that occur after the date of this opinion letter even though the changes may affect the legal analysis or conclusion in this opinion letter. This opinion may be relied upon by you only in connection with the transaction described in the initial paragraph of this opinion letter and may not be used or relied upon by you for any other purpose or by any other person for any purpose whatsoever without, in each instance, our prior written consent. Very truly yours, EXHIBIT D FORM OF OPINION OF GENERAL COUNSEL TO FANNIE MAE [CLOSING DATE] [TRUSTEE] [BOND CAPTION] [After appropriate introductory language, the opinion shall state substantially as follows:] This opinion is fumished to you in connection with the execution and delivery by Fannie Mae ("Fannie Mae") of the Credit Enhancement Instrument (the "Credit Facility") in connection with the above-referenced Bonds. As Associate General Counsel of Fannie Mae, I am of the opinion that: (i) Fannie Mae has been duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 US.C. ~1716 et seq. (the "Act"), and is a corporation duly organized and existing under the laws of the United States; (ii) Fannie Mae has full right, power, and authority to execute and deliver the Credit Facility; and (iii) the Credit Facility has been duly authorized, executed, and delivered by Fannie Mae pursuant to the Act and constitutes a valid and binding obligation of Fannie Mae, enforceable in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general applicability relating to or affecting creditors' rights from time to time in effect as such laws would be applied in the event of a bankruptcy, insolvency, reorganization, moratorium or similar occurrence affecting Fannie Mae and to the exercise of judicial discretion in accordance with general principles of equity, whether applied by a court of law or of equity. My opinion is rendered only to, and may be relied upon only by, the addressees. My opinion herein is limited to the laws of the District of Columbia and of the United States of America, to the extent they are applicable, and I express no opinion as to the applicability of the laws of any other jurisdiction. Sincerely, EXHIBIT E FORM OF LETTER FROM SPECIAL COUNSEL TO FANNIE MAE [CLOSING DATE] [UNDERWRITER] [BOND CAPTION] The copy of the Credit Enhancement Instrument provided to Eichner & Norris PLLC pursuant to the attached email is a true and correct copy of the Credit Enhancement Instrument to be executed by Fannie Mae in connection with the issuance and sale of the above-captioned bonds. No material changes will be made to the document prior to Fannie Mae's execution and delivery of the Credit Enhancement Instrument to the Trustee. Very truly yours, EXHIBIT F FORM OF OPINION OF UNDERWRITER'S COUNSEL [CLOSING DATE] Red Capital Markets, Inc. 500 Newport Center Drive, Suite 930 Newport Beach, California 92660 [BOND CAPTION] Ladies and Gentlemen: We have acted as your counsel in connection with the issuance of the above-captioned bonds (the "Bonds") by the Housing Authority of the City of Chula Vista (the "Issuer"). The Bonds will be issued by the Issuer pursuant to the provisions of Chapter I of Part 2 of Division 24 of the California Health and Safety Code, as now in effect (the "Act") and pursuant to a Trust Indenture, dated as of September 1, 2005 (the "Indenture"), between the Issuer and Wells Fargo Bank, National Association, as trustee (the "Trustee"). We have examined originals, or copies certified or otherwise identified to our satisfaction, of (i) the Indenture; (ii) the Financing Agreement, dated as of the date of the Indenture, among the Issuer, the Trustee and CIC Eastlake, L.P., a California limited partnership (the "Borrower"); (iii) the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of the date of the Indenture, by and among the Issuer, the Trustee and the Borrower; (iv) the Remarketing Agreement, dated as of the date of the Indenture, between the Borrower and you; (v) the Official Statement of the Issuer relating to the Bonds, dated September _, 2005 (the "Official Statement"); and (vi) such other documents, certificates, instruments and records as we have considered necessary or appropriate for purposes of this opinion. Based on the foregoing, we are of the opinion that it is not necessary, in connection with the issuance and sale of the Bonds, to register the Bonds under the Securities Act of 1933, as amended, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended. We have not undertaken to check the accuracy of completeness of, or verified the information contained in, the Official Statement. Nevertheless, we have had discussions with the Issuer and Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, Bond Counsel, the Borrower and its counsel, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, Fannie Mae and its special counsel, O'Melveny & Myers LLP, Los Angeles, California, and certain other parties and counsel with respect to the preparation of the Official Statement. Our participation in such discussions and our review of the Official Statement did not disclose to us any information which gives us reason to believe that the Official Statement (except for any financial or statistical data or forecasts, numbers, charts, estimates, projections, assumptions or expressions of opinion, and any information regarding book-entry or DTC included therein, as to which we express no opinion or view), as of its date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. In rendering this opmlOn, as to matters of California law, we reviewed and assumed the correctness of the authorizing opinion of Bond Counsel, and of the opinion of counsel to the Borrower, each dated the date hereof, and we have relied upon the other opinions and certificates delivered in connection with the purchase of the Bonds. No opinion is expressed herein with respect to the status of the offer or sale of the Bonds under the Blue Sky laws of any jurisdiction. This letter, and the legal opinions and other statements herein, are intended for the information solely of the addressees hereof and solely for the purposes of the transactions contemplated by the Indenture and are not to be relied upon by any other person or entity, or for any other purpose, or quoted in whole or in part, or otherwise referred to, in any document, or to be filed with any governmental or other administrative agency or other person or entity for any purpose without our prior written consent. We bring to your attention the fact that our legal opinions and conclusions are an expression of professional judgment and are not a guarantee of a result. We do not undertake to advise you of matters which may come to our attention subsequent to the date hereof which may affect our legal opinions and conclusions expressed herein. Very truly yours, EICHNER & NORRIS PLLC By F-2 EXHIBIT G BORROWER'S RULE I5c2-12 CERTIFICATE [BOND CAPTION] The undersigned hereby certifies and represents to Red Capital Markets, Inc. (the "Underwriter") that he/she is authorized to execute and deliver this certificate on behalf of CIC Eastlake, L.P., a California limited partnership (the "Borrower"), and hereby further certify to the Underwriter as follows: (a) This Certificate is delivered to enable the Underwriter to comply with Securities and Exchange Commission Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") in connection with the issuance and sale of the above-captioned bonds (the "Bonds"). (b) In connection with the issuance and sale of the Bonds, there has been prepared a Preliminary Official Statement dated August 30, 2005, setting forth information concerning the Bonds and the Borrower (the "Preliminary Official Statement"). (c) As used herein, "Permitted Omissions" shall mean the offering price(s), interest raters), accreted values, yield to maturity, selling compensation, aggregate principal amount, principal amount per maturity, delivery dates, ratings and other terms of the Bonds depending on such matters and the identity of the underwriter(s), all with respect to the issuance and sale of the Bonds. (d) the Preliminary Official Statement is, as of the date thereof, deemed final within the meaning of the Rule, except for Permitted Omissions. (e) The sections of the Preliminary Official Statement entitled "CONTINUING DISCLOSURE" and "APPENDIX G-FORM OF CONTINUING DISCLOSURE AGREEMENT" describes the agreement the Borrower expects to make for the benefit of the Bondholders in the Continuing Disclosure Agreement dated as of September I, 2005 by and between the Borrower and Wells Fargo Bank, National Association, in its capacity as trustee and dissemination agent by which the Borrower will undertake to provide continuing disclosure in accordance with the Rule. Dated: August 30, 2005 [Remainder of Page Left Blank Intentionally] [Signature Page to Borrower's Rule 15c2-12 Certificate] IN WITNESS WHEREOF, I have hereunto set my hand as of the date set forth above. CIC EASTLAKE, L.P., a California Limited Partnership By: PACIFIC SOUTHWEST COMMUNITY DEVELOPMENT CORPORATION, a California non-profit public benefit corporation, its Managing General Partner By Brian F. Biber, Executive Director By: SDS EASTLAKE, LLC, a California limited liability company, its Co-General Partner By JamesJ. Schmid,11anager G-2 EXHIBIT H FORM OF OPINION OF ISSUER'S COUNSEL [CLOSING DATE] [TRUSTEE] [UNDERWRITER] [BOND CAPTION] [After appropriate introductory language, the opinion shall state substantially as follows:] I. The Issuer is a political subdivision and public body corporate and politic duly organized and existing under the laws of the State of California. 2. The Bond Resolution approving and authorizing the execution and delivery of the Issuer Documents and the Bonds was duly adopted at a meeting of the governing body of the Issuer which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout. 3. The Issuer Documents have been duly executed and delivered by the Issuer and (assuming due authorization, execution and delivery by and validity against the other parties thereto) are valid and binding agreements of the Issuer. 4. To the best of my knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body has been served upon the Issuer and is pending or is otherwise known to be threatened in any way affecting the existence of the Issuer, or the titles of the Issuer's officials to their respective offices, or seeking to restrain or to enjoin the issuance, sale or delivery of the Bonds or the application of the proceeds thereof in accordance with the Indenture, or the collection or application of the Revenues (as defmed in the Indenture) to pay the principal of and interest on the Bonds, or in any way contesting or affecting the validity or enforceability of the Issuer Documents or any action of the Issuer contemplated by any of said documents, or in any way contesting the completeness or accuracy of the Official Statement or the powers of the Issuer or its authority with respect to the Issuer Documents or any action on the part of the Issuer contemplated by any of said documents, nor to my knowledge is there any basis therefor. Very truly yours,